The Fresh Market Deferred Compensation Plan Amended and Restated March 1, 2010



 Exhibit 10.8 

THE FRESH MARKET 

DEFERRED COMPENSATION PLAN 

AMENDED AND RESTATED 

EFFECTIVE MARCH 1, 2010 







 The Fresh Market Deferred Compensation Plan 

 

			
	 ARTICLE I
	  	
	 Establishment and Purpose
	  	1
		
	 ARTICLE II
	  	
	 Definitions
	  	1
		
	 ARTICLE III
	  	
	 Eligibility and Participation
	  	8
		
	 ARTICLE IV
	  	
	 Deferrals
	  	9
		
	 ARTICLE V
	  	
	 Company Contributions
	  	13
		
	 ARTICLE VI
	  	
	 Benefits
	  	13
		
	 ARTICLE VII
	  	
	 Modifications to Payment Schedules
	  	17
		
	 ARTICLE VIII
	  	
	 Valuation of Account Balances; Investments
	  	17
		
	 ARTICLE IX
	  	
	 Administration
	  	18
		
	 ARTICLE X
	  	
	 Amendment and Termination
	  	19
		
	 ARTICLE XI
	  	
	 Informal Funding
	  	20
		
	 ARTICLE XII
	  	
	 Claims
	  	21
		
	 ARTICLE XIII
	  	
	 General Provisions
	  	23









 The Fresh Market Deferred Compensation Plan 

 

 ARTICLE I 

Establishment and Purpose 
 The Fresh
Market (the “Company”) hereby amends and restates The Fresh Market Deferred Compensation Plan (the “Plan”), originally effective January 1, 2010. The effective date of this amendment and restatement is March 1, 2010.

 The purpose of the amendment and restatement is to add the ability to defer Shadow Equity Plan Awards. The original purpose of the Plan
remains to attract and retain key employees by providing Participants with an opportunity to defer receipt of a portion of their salary, bonus, and other specified compensation. The Plan is not intended to meet the qualification requirements of Code
Section 401(a), but is intended to meet the requirements of Code Section 409A, and shall be operated and interpreted consistent with that intent. 

The Plan constitutes an unsecured promise by a Participating Employer to pay benefits in the future. Participants in the Plan shall have the status of
general unsecured creditors of the Company or the Adopting Employer, as applicable. Each Participating Employer shall be solely responsible for payment of the benefits of its Employees and their Beneficiaries. The Plan is unfunded for federal tax
purposes and is intended to be an unfunded arrangement for Eligible Employees who are part of a select group of management or highly compensated Employees of the Employer within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA. Any
amounts set aside to defray the liabilities assumed by the Company or an Adopting Employer will remain the general assets of the Company or the Adopting Employer and shall remain subject to the claims of the Company’s or the Adopting
Employer’s creditors until such amounts are distributed to the Participants. 
 ARTICLE II 

Definitions 
  

	2.1	Account. Account means a bookkeeping account maintained by the Committee to record the payment obligation of a Participating Employer to a Participant as
determined under the terms of the Plan. The Committee may maintain an Account to record the total obligation to a Participant and component Accounts to reflect amounts payable at different times and in different forms. Reference to an Account means
any such Account established by the Committee, as the context requires. Accounts are intended to constitute unfunded obligations within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. 


 

	2.2	Account Balance. Account Balance means, with respect to any Account, the total payment obligation owed to a Participant from such Account as of the most recent
Valuation Date. 

  

	2.3	Adopting Employer. Adopting Employer means an Affiliate who, with the consent of the Company, has adopted the Plan for the benefit of its eligible employees.


  

 - 1 - 









 The Fresh Market Deferred Compensation Plan 

 


	2.4	Affiliate. Affiliate means a corporation, trade or business that, together with the Company, is treated as a single employer under Code Section 414(b) or
(c). 

  

	2.5	Beneficiary. Beneficiary means a natural person, estate, or trust designated by a Participant to receive payments to which a Beneficiary is entitled in
accordance with provisions of the Plan. The Participant’s spouse, if living, otherwise the Participant’s estate, shall be the Beneficiary if: (i) the Participant has failed to properly designate a Beneficiary, or (ii) all
designated Beneficiaries have predeceased the Participant. 

 A former spouse shall have no interest under the
Plan, as Beneficiary or otherwise, unless the Participant designates such person as a Beneficiary after dissolution of the marriage, except to the extent provided under the terms of a domestic relations order as described in Code
Section 414(p)(1)(B). 
  

	2.6	Business Day. Business Day means each day on which the New York Stock Exchange is open for business. 


 

	2.7	Change in Control. Change in Control means, with respect to a Participating Employer that is organized as a corporation, any of the following events: (i) a
change in the ownership of the Participating Employer, (ii) a change in the effective control of the Participating Employer, or (iii) a change in the ownership of a substantial portion of the assets of the Participating Employer.


 For purposes of this Section, a change in the ownership of the Participating Employer occurs on the date on
which any one person, or more than one person acting as a group, acquires ownership of stock of the Participating Employer that, together with stock held by such person or group constitutes more than 50% of the total fair market value or total
voting power of the stock of the Participating Employer. A change in the effective control of the Participating Employer occurs on the date on which either: (i) a person, or more than one person acting as a group, acquires ownership of stock of
the Participating Employer possessing 30% or more of the total voting power of the stock of the Participating Employer, taking into account all such stock acquired during the 12-month period ending on the date of the most recent acquisition, or
(ii) a majority of the members of the Participating Employer’s Board of Directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of such Board of Directors
prior to the date of the appointment or election, but only if no other corporation is a majority shareholder of the Participating Employer. A change in the ownership of a substantial portion of assets occurs on the date on which any one person, or
more than one person acting as a group, other than a person or group of persons that is related to the Participating Employer, acquires assets from the Participating Employer that have a total gross fair market value equal to or more than 40% of the
total gross fair market value of all of the assets of the Participating Employer immediately prior to such acquisition or acquisitions, taking into account all such assets acquired during the 12-month period ending on the date of the most recent
acquisition. 
  

 - 2 - 









 The Fresh Market Deferred Compensation Plan 

 

 An event constitutes a Change in Control with respect to a Participant only if the
Participant performs services for the Participating Employer that has experienced the Change in Control, or the Participant’s relationship to the affected Participating Employer otherwise satisfies the requirements of Treasury Regulation
Section 1.409A-3(i)(5)(ii). 
 Notwithstanding anything to the contrary herein, with respect to a Participating Employer
that is a partnership, Change in Control means only a change in the ownership of the partnership or a change in the ownership of a substantial portion of the assets of the partnership, and the provisions set forth above respecting such changes
relative to a corporation shall be applied by analogy. 
 The determination as to the occurrence of a Change in Control shall be
based on objective facts and in accordance with the requirements of Code Section 409A. 
 All transfers between and among
Ray D. Berry, his children and grandchildren, and existing and future trusts for the benefit in whole or in part of any one or more of the foregoing persons, or any of the foregoing, shall be disregarded in making the determination as to the
occurrence of a Change in Control. 
  

	2.8	Claimant. Claimant means a Participant or Beneficiary filing a claim under Article XII of this Plan. 


 

	2.9	Code. Code means the Internal Revenue Code of 1986, as amended from time to time. 


 

	2.10	Code Section 409A. Code Section 409A means section 409A of the Code, and regulations and other guidance issued by the Treasury Department and Internal
Revenue Service thereunder. 

  

	2.11	Committee. Committee means the committee appointed by the Board of Directors of the Company (or the appropriate committee of such board) to administer the Plan.
If no designation is made, the Chief Financial Officer of the Company or his delegate shall have and exercise the powers of the Committee. 

  

	2.12	Company. Company means The Fresh Market. 

  

	2.13	Company Contribution. Company Contribution means a credit by a Participating Employer to a Participant’s Account(s) in accordance with the provisions of
Article V of the Plan. Company Contributions are credited at the sole discretion of the Participating Employer and the fact that a Company Contribution is credited in one year shall not obligate the Participating Employer to continue to make such
Company Contribution in subsequent years. Unless the context clearly indicates otherwise, a reference to Company Contribution shall include Earnings attributable to such contribution. 


 

	2.14	 Compensation. Compensation means a Participant’s base salary, bonus, commission, Shadow Equity Awards, and such other cash or equity-based
compensation (if any) that is subject to taxation under U.S. tax laws and is approved by the Committee as 


  


 - 3 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
Compensation that may be deferred under this Plan. Compensation shall not include any compensation that has been previously deferred under this Plan or any other arrangement subject to Code
Section 409A. 

  

	2.15	Compensation Deferral Agreement. Compensation Deferral Agreement means an agreement between a Participant and a Participating Employer that specifies:
(i) the amount of each component of Compensation that the Participant has elected to defer to the Plan in accordance with the provisions of Article IV, and (ii) the Payment Schedule applicable to one or more Accounts. The Committee may
permit different deferral amounts for each component of Compensation and may establish a minimum or maximum deferral amount for each such component. Unless otherwise specified by the Committee in the Compensation Deferral Agreement, Participants may
defer up to 80% of their base salary and up to 100% of other types of Compensation for a Plan Year. A Compensation Deferral Agreement may also specify the investment allocation described in Section 8.4. 


 

	2.16	Death Benefit. Death Benefit means the benefit payable under the Plan to a Participant’s Beneficiary(ies) upon the Participant’s death as provided in
Section 6.1 of the Plan. 

  

	2.17	Deferral. Deferral means a credit to a Participant’s Account(s) that records that portion of the Participant’s Compensation that the Participant has
elected to defer to the Plan in accordance with the provisions of Article IV. Unless the context of the Plan clearly indicates otherwise, a reference to Deferrals includes Earnings attributable to such Deferrals. 


A Deferral shall be calculated with respect to the gross cash Compensation payable to the Participant prior to any deductions or
withholdings, but shall be reduced by the Committee as necessary so that it does not exceed 100% of the cash Compensation of the Participant remaining after deduction of all required income and employment taxes, employee benefit deductions, and
other deductions required by law. Changes to payroll withholdings that affect the amount of Compensation being deferred to the Plan shall be allowed only to the extent permissible under Code Section 409A. 

 

	2.18	Earnings. Earnings means a positive or negative adjustment to the value of an Account, based upon the allocation of the Account by the Participant among deemed
investment options in accordance with Article VIII. 

  

	2.19	Effective Date. Effective Date of this amendment and restatement means March 1, 2010. The original Effective Date for the Plan remains January 1, 2010.


  

	2.20	Eligible Employee. Eligible Employee means a member of a “select group of management or highly compensated employees” of a Participating Employer
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA, as determined by the Committee from time to time in its sole discretion, who has received notification of his or her eligibility to defer Compensation under the Plan under
Section 3.1. For purposes of Section 4.2(a) of the Plan, the date upon which the Committee first notifies an Employee in writing of his or her eligibility to participate in the Plan shall be the date of initial eligibility.


  

 - 4 - 









 The Fresh Market Deferred Compensation Plan 

 


	2.21	Employee. Employee means a common-law employee of an Employer. 

  

	2.22	Employer. Employer means, with respect to Employees it employs, the Company and each Affiliate. 


 

	2.23	ERISA. ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time. 


 

	2.24	Participant. Participant means an Eligible Employee who has made a valid Deferral election that has been accepted by the Committee, and any other person with an
Account Balance greater than zero, regardless of whether such individual continues to be an Eligible Employee. A Participant’s continued participation in the Plan shall be governed by Section 3.2 of the Plan. 


 

	2.25	Participating Employer. Participating Employer means the Company and each Adopting Employer. 


 

	2.26	Payment Schedule. Payment Schedule means the date as of which payment of an Account under the Plan will commence and the form in which payment of such Account
will be made. 

  

	2.27	Performance-Based Compensation. Performance-Based Compensation means Compensation where the amount of, or entitlement to, the Compensation is contingent on the
satisfaction of pre-established organizational or individual performance criteria relating to a performance period of at least 12 consecutive months. Organizational or individual performance criteria are considered pre-established if established in
writing by not later than 90 days after the commencement of the period of service to which the criteria relate, provided that the outcome is substantially uncertain at the time the criteria are established. The determination of whether Compensation
qualifies as “Performance-Based Compensation” will be made in accordance with Treas. Reg. Section 1.409A-l(e) and subsequent guidance. 

  

	2.28	Plan. Generally, the term Plan means “The Fresh Market Deferred Compensation Plan” as documented herein and as may be amended from time to time
hereafter. However, to the extent permitted or required under Code Section 409A, the term Plan may in the appropriate context also mean a portion of the Plan that is treated as a single plan under Treas. Reg. Section 1.409A-l(c), or the
Plan or portion of the Plan and any other nonqualified deferred compensation plan or portion thereof that is treated as a single plan under such section. 

  

	2.29	Plan Year. Plan Year means January 1 through December 31. 

  


 - 5 - 









 The Fresh Market Deferred Compensation Plan 

 


	2.30	Retirement. Retirement means a Separation from Service after attaining age 55 with at least five (5) Years of Service. 


 

	2.31	Retirement/Termination Account. Retirement/Termination Account means an Account established by the Committee to record the amounts payable to a Participant upon
Separation from Service. Unless the Participant has established a Specified Date Account, all Deferrals and Company Contributions shall be allocated to a Retirement/Termination Account on behalf of the Participant. 


 

	2.32	Retirement Benefit. Retirement Benefit means the benefit payable to a Participant under the Plan following the Participant’s Retirement.


  

	2.33	Separation from Service. Separation from Service means an Employee’s termination of employment with the Employer. Whether a Separation from Service has
occurred shall be determined by the Committee in accordance with Code Section 409A. 

 Except in the case of
an Employee on a bona fide leave of absence as provided below, an Employee is deemed to have incurred a Separation from Service if the Employer and the Employee reasonably anticipate that the level of services to be performed by the Employee after a
date certain would be reduced to 20% or less of the average services rendered by the Employee during the immediately preceding 36-month period (or the total period of employment, if less than 36 months), disregarding periods during which the
Employee was on a bona fide leave of absence. 
 An Employee who is absent from work due to military leave, sick leave, or other
bona fide leave of absence shall incur a Separation from Service on the first date immediately following the later of: (i) the six month anniversary of the commencement of the leave, or (ii) the expiration of the Employee’s right, if
any, to reemployment under statute or contract. Notwithstanding the preceding, however, an Employee who is absent from work due to a physical or mental impairment that is expected to result in death or last for a continuous period of at least six
months and that prevents the Employee from performing the duties of his or her position of employment or a similar position shall incur a Separation from Service on the first date immediately following the 29-month anniversary of the commencement of
the leave. 
 For purposes of determining whether a Separation from Service has occurred, the Employer means the Employer as
defined in Section 2.22 of the Plan, except that in applying Code sections 1563(a)(1), (2) and (3) for purposes of determining whether another organization is an Affiliate of the Company under Code Section 414(b), and in applying
Treasury Regulation Section 1.414(c)-2 for purposes of determining whether another organization is an Affiliate of the Company under Code Section 414(c), “at least 50 percent” shall be used instead of “at least 80
percent” each place it appears in those sections. The Committee specifically reserves the right to determine whether a sale or other disposition of substantial assets to an unrelated party constitutes a Separation from Service with respect to a
Participant providing services to the seller immediately prior to the transaction and providing services to the buyer after the transaction. Such determination shall be made in accordance with the requirements of Code Section 409A. 

 

 - 6 - 









 The Fresh Market Deferred Compensation Plan 

 


	2.34	Shadow Equity Award. Shadow Equity Award means Compensation paid by the Company to a Participant in accordance with the Shadow Equity Bonus Agreement between
such Participant and the Company. 

  

	2.35	Specified Date Account. Specified Date Account means an Account established by the Committee to record the amounts payable at a future date as specified in the
Participant’s Compensation Deferral Agreement. Unless otherwise determined by the Committee, and except as provided in Section 4.2(d)(v), a Participant may maintain no more than five Specified Date Accounts. A Specified Date Account may be
identified in enrollment materials as an “In-Service Account” or such other name as established by the Committee without affecting the meaning thereof. 


 

	2.36	Specified Date Benefit. Specified Date Benefit means the benefit payable to a Participant under the Plan in accordance with Section 6.1(c).


  

	2.37	Specified Employee. Specified Employee means an Employee who, as of the date of his or her Separation from Service, is a “key employee” of the Company
or any Affiliate, any stock of which is actively traded on an established securities market or otherwise. An Employee is a key employee if he or she meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in
accordance with applicable regulations thereunder and without regard to Code Section 416(i)(5)) at any time during the 12-month period ending on the Specified Employee Identification Date. Such Employee shall be treated as a key employee for
the entire 12-month period beginning on the Specified Employee Effective Date. 

 For purposes of determining
whether an Employee is a Specified Employee, the compensation of the Employee shall be determined in accordance with the definition of compensation provided under Treas. Reg. Section 1.415(c)-2(d)(3) (wages within the meaning of Code section
3401(a) for purposes of income tax withholding at the source, plus amounts excludible from gross income under section 125(a), 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k) or 457(b), without regard to rules that limit the remuneration included in wages
based on the nature or location of the employment or the services performed); provided, however, that, with respect to a nonresident alien who is not a Participant in the Plan, compensation shall not include compensation that is not includible in
the gross income of the Employee under Code Sections 872, 893, 894, 911, 931 and 933, provided such compensation is not effectively connected with the conduct of a trade or business within the United States. 

Notwithstanding anything in this paragraph to the contrary: (i) if a different definition of compensation has been designated by the
Company with respect to another nonqualified deferred compensation plan in which a key employee participates, the definition of compensation shall be the definition provided in Treas. Reg. Section 1.409A-1(i)(2), and (ii) the Company may
through action that is legally binding with respect to all nonqualified deferred compensation plans maintained by the Company, elect to use a different definition of compensation. 

 

 - 7 - 









 The Fresh Market Deferred Compensation Plan 

 

 In the event of corporate transactions described in Treas. Reg.
Section 1.409A-1(i)6), the identification of Specified Employees shall be determined in accordance with the default rules described therein, unless the Employer elects to utilize the available alternative methodology through designations made
within the timeframes specified therein. 
  

	2.38	Specified Employee Identification Date. Specified Employee Identification Date means December 31, unless the Employer has elected a different date through
action that is legally binding with respect to all nonqualified deferred compensation plans maintained by the Employer. 

  

	2.39	Specified Employee Effective Date. Specified Employee Effective Date means the first day of the fourth month following the Specified Employee Identification
Date, or such earlier date as is selected by the Committee. 

  

	2.40	Substantial Risk of Forfeiture. Substantial Risk of Forfeiture means the description specified in Treas. Reg. Section 1.409A-1(d). 


 

	2.41	Termination Benefit. Termination Benefit means the benefit payable to a Participant under the Plan following the Participant’s Separation from Service other
than a Retirement or a death. 

  

	2.42	Unforeseeable Emergency. Unforeseeable Emergency means a severe financial hardship to the Participant resulting from an illness or accident of the Participant,
the Participant’s spouse, the Participant’s dependent (as defined in Code section 152, without regard to section 152(b)(1), (b)(2), and (d)(1)(B)), or a Beneficiary; loss of the Participant’s property due to casualty (including the
need to rebuild a home following damage to a home not otherwise covered by insurance, for example, as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of
the Participant. The types of events which may qualify as an Unforeseeable Emergency may be limited by the Committee. 

  

	2.43	Valuation Date. Valuation Date means each Business Day. 

  

	2.44	Year of Service. Year of Service means each 12-month period of continuous service with the Employer. 


ARTICLE III 

Eligibility and Participation 
  

	3.1	 Eligibility and Participation. An Employee becomes an Eligible Employee upon meeting the criteria for eligibility for the Plan, established by
the Committee, and upon receiving written notification of eligibility from the Committee. An Eligible Employee becomes a 



 

 - 8 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
Participant upon the earlier to occur of: (i) a credit of Company Contributions under Article V, or (ii) the acceptance by the Committee of a Deferral election made by the Eligible
Employee on a timely basis in accordance with Article IV of the Plan. 

  

	3.2	Duration. A Participant shall be eligible to defer Compensation and receive allocations of Company Contributions, subject to the terms of the Plan, for as long
as such Participant remains an Eligible Employee. A Participant who loses his or her status as an Eligible Employee but has not Separated from Service may not defer Compensation under the Plan beyond the Plan Year in which he or she became
ineligible but may otherwise exercise all of the rights of a Participant under the Plan with respect to his or her Account(s). On and after a Separation from Service, a Participant shall remain a Participant as long as his or her Account Balance is
greater than zero (0), and during such time may continue to make allocation elections as provided in Section 8.4. An individual shall cease being a Participant in the Plan when all benefits under the Plan to which he or she is entitled have
been paid. 

 ARTICLE IV 

Deferrals 
  

	4.1	Deferral Elections, Generally. 

  

	 	(a)	A Participant may elect to defer Compensation by submitting a Compensation Deferral Agreement during the enrollment periods established by the Committee and in the
manner specified by the Committee, but in any event, in accordance with Section 4.2. A Compensation Deferral Agreement that is not timely filed with respect to a service period or component of Compensation shall be considered void and shall
have no effect with respect to such service period or Compensation. The Committee shall approve each Compensation Deferral Agreement (and is deemed to have done so if it has not rejected the Compensation Deferral Agreement on or before the date the
election becomes irrevocable under the rules of Section 4.2). The Committee may reduce any Deferral as necessary in accordance with Section 2.17 of the Plan so long as the reduction occurs prior to the date the election becomes irrevocable
under the rules of Section 4.2. 

  

	 	(b)	The Participant shall specify on his or her Compensation Deferral Agreement the amount of his or her Deferral and, except as provided in Section 4.2(d), whether to
allocate the Deferral to a Retirement/Termination Account or to a Specified Date Account (or both). If no designation is made, Deferrals shall be allocated solely to the Retirement/Termination Account. A Participant may also specify in his or her
Compensation Deferral Agreement that first allocates Deferrals to an Account the Payment Schedule applicable to that Account. If the Payment Schedule is not specified in the initial Compensation Deferral Agreement pursuant to which the Account is
created, the Payment Schedule shall be the default Payment Schedule specified in Section 6.2. 

  

 - 9 - 









 The Fresh Market Deferred Compensation Plan 

 


	4.2	Timing Requirements for Compensation Deferral Agreements. 

  

	 	(a)	First Year of Eligibility. In the case of the first year in which an Employee becomes eligible to participate in the Plan, he or she has up to 30 days following
the date of initial eligibility to submit a Compensation Deferral Agreement with respect to Compensation to be earned during the remaining portion of such Plan Year. The Compensation Deferral Agreement described in this paragraph becomes irrevocable
upon the end of such 30-day period. The determination of whether an Eligible Employee may file a Compensation Deferral Agreement under this paragraph and the amount of Compensation that may be subject to Deferral under this paragraph shall be
determined in accordance with the rules of Code Section 409A, including the provisions of Treas. Reg. Section 1.409A- 2(a)(7). 

  

	 	(b)	Prior Year Election (General Deferral Election Timing Rule). Except as otherwise provided in this Section 4.2, Participants must comply with the
requirements of Section 4.1 of the Plan to make a Deferral of Compensation no later than December 31 of the year prior to the Plan Year in which the Compensation to be deferred is earned. A Compensation Deferral Agreement described in this
paragraph shall become irrevocable with respect to such Compensation as of January 1 of the Plan Year in which such Compensation is earned. 

  

	 	(c)	Performance-Based Compensation. When permitted by the Committee, Participants may file a Compensation Deferral Agreement with respect to Performance-Based
Compensation no later than the date that is six months before the end of the performance period, provided that: 

  

	 	(i)	the Participant performs services continuously from the later of the beginning of the performance period or the date the criteria are established through the date the
Compensation Deferral Agreement is submitted; and 

  

	 	(ii)	the Compensation is not readily ascertainable as of the date the Compensation Deferral Agreement is filed. 


A Compensation Deferral Agreement becomes irrevocable with respect to Performance-Based Compensation as of the day immediately following
the latest date for filing such election. Any election to defer Performance-Based Compensation that is made in accordance with this paragraph and that becomes payable as a result of the Participant’s death or disability (as defined in Treas.
Reg. Section 1.409A-l (e)) or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)) prior to the satisfaction of the performance criteria, will be void. 

 

 - 10 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	(d)	Short-Term Deferrals (Including Shadow Equity Award Deferrals). 

  

	 	(i)	Compensation that meets the definition of a “short-term deferral” described in Treas. Reg. Section 1.409A-l(b)(4) may be deferred in accordance with the
rules of Treas. Reg. Section 1.409A-2(a)(4). 

  

	 	(ii)	Deferrals of Shadow Equity Awards shall only be made in accordance with the Deferral election timing rule provided in this Section 4.2(d) and are irrevocable
except as otherwise provided in this Plan. 

  

	 	(iii)	Participants electing to make a Deferral of a Shadow Equity Award must make the Deferral election at least 12 months prior to the vesting date of the Shadow Equity
Award. 

  

	 	(iv)	 Participants electing a Deferral of a Shadow Equity Award must allocate the entire amount of the Shadow Equity Award Deferral to a single Specified
Date Account with a Payment Date that occurs at least five years after the vesting date for the Shadow Equity Award being deferred. In the event that a Participant clearly makes a Deferral election regarding a Shadow Equity Award but either fails to
properly allocate the Deferral to a Specified Date Account or elects a Specified Date that is not at least five (5) years after the vesting date for the Award, such Participant’s Shadow Equity Award Deferral will be allocated to a
Specified Date Account with a Specified Date that is the beginning of the month following the fifth
(5th) anniversary of the date the Shadow Equity Award
became fully vested. 


  

	 	(v)	Specified Date Accounts created pursuant to Deferrals of Shadow Equity Awards in accordance with this paragraph shall not be counted for purposes of the maximum number
of Specified Date Accounts permitted under the Plan. 

  

	 	(vi)	If a Shadow Equity Bonus Award vests within twelve (12) months following the date of the Participant’s Deferral election with respect thereto, such Deferral
Election shall become null and void. 

  

	 	(e)	 Certain Forfeitable Rights. With respect to a legally binding right to a payment in a subsequent year that is subject to a forfeiture condition
requiring the Participant’s continued services for a period of at least 12 months from the date the Participant obtains the legally binding right, an election to defer such Compensation may be made on or before the
30th day after the Participant obtains the legally binding
right to the Compensation, provided that the election is made at least 12 months in advance of the earliest date at which the forfeiture condition could lapse. The Compensation Deferral Agreement described in this paragraph becomes irrevocable after
such 30th day. If the forfeiture condition applicable to
the payment lapses before the end of the required service period as a result of the Participant’s death or disability (as defined in Treas. Reg. Section 1.409A-3(i)(4)) or upon a Change in Control (as defined in Treas. Reg.
Section 1.409A-3(i)(5)), the Compensation Deferral Agreement will be void unless it would be considered timely under another rule described in this Section. 



 

	 	(f)	Company Awards. Participating Employers may unilaterally provide for deferrals of Company awards prior to the date of such awards. Deferrals of Company awards
(such as sign-on, retention, or severance pay) may be negotiated with a Participant prior to the date the Participant has a legally binding right to such Compensation. 


 

 - 11 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	(g)	“Evergreen” Deferral Elections. The Committee, in its discretion, may provide in the Compensation Deferral Agreement that such Compensation Deferral
Agreement will continue in effect for each subsequent year or performance period. Such “evergreen” Compensation Deferral Agreements will become effective with respect to an item of Compensation on the date such election becomes irrevocable
under this Section 4.2. An evergreen Compensation Deferral Agreement may be terminated or modified prospectively with respect to Compensation for which such election remains revocable under this Section 4.2. A Participant whose
Compensation Deferral Agreement is cancelled in accordance with Section 4.6 will be required to file a new Compensation Deferral Agreement under this Article IV in order to recommence Deferrals under the Plan. 


 

	4.3	Allocation of Deferrals. A Compensation Deferral Agreement may allocate Deferrals to one or more Specified Date Accounts and/or to the Retirement/Termination
Account. The Committee may, in its discretion, establish a minimum deferral period for the establishment of a Specified Date Account (for example, the third Plan Year following the year Compensation is first allocated to such accounts).


  

	4.4	Deductions from Pay. The Committee has the authority to determine the payroll practices under which any component of Compensation subject to a Compensation
Deferral Agreement will be deducted from a Participant’s Compensation. 

  

	4.5	Vesting. Participant Deferrals shall be 100% vested at all times. For purposes of this Plan, Shadow Equity Awards subject to a Deferral election shall not be
considered a Deferral until the Award is vested and credited to the Plan as a Deferral. No election by a Participant or other activity under this Plan shall affect the vesting of a Shadow Equity Award pursuant to the vesting schedule established in
the Shadow Equity Bonus Agreement. 

  

	4.6	 Cancellation of Deferrals. The Committee may cancel a Participant’s Deferrals: (i) for the balance of the Plan Year in which an
Unforeseeable Emergency occurs, (ii) if the Participant receives a hardship distribution under the Employer’s qualified 401(k) plan, through the end of the Plan Year in which the six month anniversary of the hardship distribution falls,
and (iii) during periods in which the Participant is unable to perform the duties of his or her position or any substantially similar position due to a mental or physical impairment that can be expected to result in death or last for a
continuous period of at least six months, provided cancellation occurs by the later of the end of the taxable year of the Participant or the
15th day of the third month following the date the
Participant incurs the disability (as defined in this paragraph). 


  

 - 12 - 









 The Fresh Market Deferred Compensation Plan 

 

 ARTICLE V 

Company Contributions 
  

	5.1	Company Make-Up Contribution. The Company will credit a Participant’s Retirement/Termination Account, at such intervals as the Committee shall determine, in
an amount (if any) equal to (i) minus (ii) where: (i) equals: the amount of the Company matching contribution to the Participant’s account in the Company-sponsored Code Section 401(k) plan (“401(k) plan”) that
would have been made by the Company during such interval if such Participant’s “Compensation” (for 401(k) plan purposes) had not been reduced because of deferrals into this Plan and if the Participant had deferred the amount of
Compensation deferred into this Plan, up to the maximum amount permitted under applicable law, to the 401(k) plan; and (ii) equals the actual amount of the Company matching contribution to the 401(k) plan (including Company matching
contributions that are distributed to a Participant as “corrective distributions”) for such Participant during such interval. The amount of the Company Make-Up Contribution will be determined by the Committee in its sole and absolute
discretion. 

  

	5.2	Discretionary Company Contributions. The Participating Employer may, from time to time in its sole and absolute discretion, credit Company Contributions to any
Participant in any amount determined by the Participating Employer. Such contributions will be credited to a Participant’s Retirement/Termination Account. 


 

	5.3	Vesting. Company Contributions described in Section 5.1 above, and the Earnings thereon, shall vest in accordance with the vesting schedule(s) applicable to
Company matching contributions made to participant accounts in the Company’s 401(k) plan. Company Contributions described in Section 5.2, above, (if any) and the Earnings thereon, shall vest in accordance with the vesting schedule(s)
established by the Committee at the time that the Discretionary Company Contribution is made. The Participating Employer may, at any time, in its sole discretion, increase a Participant’s vested interest in a Company Contribution. The portion
of a Participant’s Accounts that remains unvested upon his or her Separation from Service after the application of the terms of this Section 5.3 shall be forfeited. 


ARTICLE VI 
 Benefits

  

	6.1	Benefits, Generally. A Participant shall be entitled to the following benefits under the Plan: 


 

	 	(a)	 Retirement Benefit. Upon the Participant’s Retirement, pursuant to the definition provided in this Plan, he or she shall be entitled to a
Retirement Benefit. The Retirement Benefit shall be equal to the vested portion of the Retirement/Termination Account and: (i) if the Retirement/Termination Account is payable in a lump sum, the unpaid balances of any Specified Date Accounts
that were not created by the Deferral of a Shadow Equity Award, or (ii) if the Retirement/Termination Account is payable in installments, the vested portion of 



 

 - 13 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
any Specified Date Accounts that were not created by the Deferral of a Shadow Equity Award with respect to which payments have not yet commenced. The Retirement Benefit shall be based on the
value of that Account(s) as of the end of the month in which Retirement occurs or such later date as the Committee, in its sole discretion, shall determine. Payment of the Retirement Benefit will be made or begin in the month following the month in
which Retirement occurs, provided, however, that with respect to a Participant who is a Specified Employee as of the date such Participant incurs a Retirement, payment will be made or begin in the seventh month following the month in which such
Participant’s Retirement occurs. If the Retirement Benefit is to be paid in the form of installments, any subsequent installment payments to a Specified Employee will be paid on the anniversary of the date the first payment would have been made
had the Participant not been classified as a Specified Employee. 

  

	 	(b)	Termination Benefit. Upon the Participant’s Separation from Service other than due to Retirement, pursuant to the definition provided in this Plan, or death
he or she shall be entitled to a Termination Benefit. The Termination Benefit shall be equal to the vested portion of the Retirement/Termination Account and the unpaid balances of any Specified Date Accounts that were not created by the Deferral of
a Shadow Equity Award. The Termination Benefit shall be based on the value of that Account(s) as of the end of the month in which Separation from Service occurs or such later date as the Committee, in its sole discretion, shall determine. Payment of
the Termination Benefit will be made in the month following the month in which Separation from Service occurs, provided, however, that with respect to a Participant who is a Specified Employee as of the date such Participant incurs a Separation from
Service, payment will be made in the seventh month following the month in which such Participant’s Separation from Service occurs. 

  

	 	(c)	Specified Date Benefit. If the Participant has established one or more Specified Date Accounts, he or she shall be entitled to a Specified Date Benefit with
respect to each such Specified Date Account. The Specified Date Benefit shall be equal to the vested portion of the Specified Date Account, based on the value of that Account as of the end of the month designated by the Participant at the time the
Account was established. Payment of the Specified Date Benefit will be made or begin in the month following the designated month. 

  

	 	(d)	Death Benefit. In the event of the Participant’s death, his or her designated Beneficiary(ies) shall be entitled to a Death Benefit. The Death Benefit shall
be equal to the vested portion of the Retirement/Termination Account and (i) if the Retirement/Termination Account is payable in a lump sum, the unpaid balances of any Specified Date Accounts (regardless of whether they were created by Deferral
of a Shadow Equity Award), or (ii) if the Retirement/Termination Account is payable in installments, the vested portion of any Specified Date Accounts (regardless of whether they were created by Deferral of a Shadow Equity Award) with respect
to which payments have not yet commenced. The Death Benefit shall be based on the value of the Accounts as of the end of the month in which death occurred, with payment made in the following month. 


 

 - 14 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	(e)	Unforeseeable Emergency Payments. A Participant who experiences an Unforeseeable Emergency may submit a written request to the Committee to receive payment of
all or any portion of his or her vested Accounts. Whether a Participant or Beneficiary is faced with an Unforeseeable Emergency permitting an emergency payment shall be determined by the Committee based on the relevant facts and circumstances of
each case, but, in any case, a distribution on account of Unforeseeable Emergency may not be made to the extent that such emergency is or may be reimbursed through insurance or otherwise, by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not cause severe financial hardship, or by cessation of Deferrals under this Plan. If an emergency payment is approved by the Committee, the amount of the payment shall not exceed the amount reasonably
necessary to satisfy the need, taking into account the additional compensation that is available to the Participant as the result of cancellation of deferrals to the Plan, including amounts necessary to pay any taxes or penalties that the
Participant reasonably anticipates will result from the payment. The amount of the emergency payment shall be subtracted first from the vested portion of the Participant’s Retirement/Termination Account until depleted and then from the vested
Specified Date Accounts, beginning with the Specified Date Account with the latest payment commencement date. Emergency payments shall be paid in a single lump sum within the 90-day period following the date the payment is approved by the Committee.


  

	6.2	Form of Payment. 

  

	 	(a)	Retirement Benefit. A Participant who is entitled to receive a Retirement Benefit shall receive payment of such benefit in a single lump sum (the
“default”) unless the Participant elects on his or her initial Compensation Deferral Agreement pursuant to which the Retirement/Termination Account was first credited, or on a subsequent Compensation Deferral Agreement in accordance with
Article VII of the Plan, to have such benefit paid in one of the following alternative forms of payment (i) substantially equal annual installments over a period of two to fifteen years, as elected by the Participant, or (ii) a lump sum
payment of a percentage of the balance in the Retirement/Termination Account, with the balance paid in substantially equal annual installments over a period of two to fifteen years, as elected by the Participant. 


 

	 	(b)	Termination Benefit. A Participant who is entitled to receive a Termination Benefit shall receive payment of such benefit in a single lump sum.


  

 - 15 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	(c)	Specified Date Benefit. The Specified Date Benefit shall be paid in a single lump sum (the “default”), unless the Participant elects on the
Compensation Deferral Agreement pursuant to which the Specified Date Account was first credited to have the Specified Date Account paid in substantially equal annual installments over a period of two to five years, as elected by the Participant.


  

	 	(i)	Specified Date Accounts created by Deferrals of Shadow Equity Awards shall be paid in accordance with the Payment Schedule election made by the Participant for such
Specified Date Account and shall not be accelerated upon an earlier Separation from Service, except for the death of a Participant. 

  

	 	(ii)	For all other Specified Date Accounts created by a Participant, upon a Separation from Service of such Participant other than by death the unpaid balance of a Specified
Date Account with respect to which payments have not commenced shall be paid in accordance with the form of payment applicable to the Retirement Benefit or the Termination Benefit, whichever applies. If such benefit is payable in a single lump sum,
the unpaid balance of all Specified Date Accounts not created by the Deferral of a Shadow Equity Award (including those in pay status) will be paid in a lump sum. 


 

	 	(d)	Death Benefit. A designated Beneficiary who is entitled to receive a Death Benefit shall receive payment of such benefit in a single lump sum.


  

	 	(e)	Change in Control. A Participant will receive his or her Termination Benefit in a single lump sum payment equal to the unpaid balance of all of his or her
Accounts if Separation from Service occurs within 24 months following a Change in Control. 

 A Participant or
Beneficiary receiving installment payments when a Change in Control occurs will receive the remaining account balance in a single lump sum within 90 days following the Change in Control. 

 

	 	(f)	Small Account Balances. The Committee shall pay the value of the Participant’s Accounts upon a Separation from Service in a single lump sum if the balance
of such Accounts is not greater than the applicable dollar amount under Code Section 402(g)(1)(B), provided the payment represents the complete liquidation of the Participant’s interest in the Plan. 


 

	 	(g)	Rules Applicable to Installment Payments. If a Payment Schedule specifies installment payments, annual payments will be made beginning as of the payment
commencement date for such installments and shall continue on each anniversary thereof until the number of installment payments specified in the Payment Schedule has been paid. The amount of each installment payment shall be determined by dividing
(a) by (b), where (a) equals the Account Balance as of the Valuation Date and (b) equals the remaining number of installment payments. 


For purposes of Article VII, installment payments will be treated as a single form of payment. If a lump sum equal to less than 100% of
the Retirement/Termination Account is paid, the payment commencement date for the installment form of payment will be the first anniversary of the payment of the lump sum. 
  


 - 16 - 









 The Fresh Market Deferred Compensation Plan 

 


	6.3	Acceleration of or Delay in Payments. The Committee, in its sole and absolute discretion, may elect to accelerate the time or form of payment of a benefit owed
to the Participant hereunder, provided such acceleration is permitted under Treas. Reg. Section 1.409A-3(j)(4). The Committee may also, in its sole and absolute discretion, delay the time for payment of a benefit owed to the Participant
hereunder, to the extent permitted under Treas. Reg. Section 1.409A-2(b)(7). If the Plan receives a domestic relations order (within the meaning of Code Section 414(p)(1)(B)) directing that all or a portion of a Participant’s Accounts
be paid to an “alternate payee,” any amounts to be paid to the alternate payee(s) shall be paid in a single lump sum. 


ARTICLE VII 

Modifications to Payment Schedules 
  

	7.1	Participant’s Right to Modify. A Participant may modify any or all of the alternative Payment Schedules or, if applicable, the “default” Payment
Schedule, with respect to an Account, consistent with the permissible Payment Schedules available under the Plan, provided such modification complies with the requirements of this Article VII. 


 

	7.2	Time of Election. The date on which a modification election is submitted to the Committee must be at least 12 months prior to the date on which payment is
scheduled to commence under the Payment Schedule in effect prior to the modification. 

  

	7.3	Date of Payment under Modified Payment Schedule. The date payments are to commence under the modified Payment Schedule must be no earlier than five years after
the date payment would have commenced under the original Payment Schedule. Under no circumstances may a modification election result in an acceleration of payments in violation of Code Section 409A. 


 

	7.4	Effective Date. A modification election submitted in accordance with this Article VII is irrevocable upon receipt by the Committee and becomes effective 12
months after such date. 

  

	7.5	Effect on Accounts. An election to modify a Payment Schedule is specific to the Account or payment event to which it applies, and shall not be construed to
affect the Payment Schedules of any other Accounts. 

 ARTICLE VIII 

Valuation of Account Balances; Investments 
  

	8.1	 Valuation. Deferrals shall be credited to appropriate Accounts on the date such Compensation would have been paid to the Participant absent the
Compensation Deferral 


  

 - 17 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
Agreement. Company Contributions shall be credited to the Retirement/Termination Account at the times determined by the Committee. Valuation of Accounts shall be performed under procedures
approved by the Committee. 

  

	8.2	Adjustment for Earnings. Each Account will be adjusted to reflect Earnings on each Business Day. Adjustments shall reflect the net earnings, gains, losses,
expenses, appreciation and depreciation associated with an investment option for each portion of the Account allocated to such option (“investment allocation”). 


 

	8.3	Investment Options. Investment options will be determined by the Committee. The Committee, in its sole discretion, shall be permitted to add or remove investment
options from the Plan menu from time to time, provided that any such additions or removals of investment options shall not be effective with respect to any period prior to the effective date of such change. 


 

	8.4	Investment Allocations. A Participant’s investment allocation constitutes a deemed, not actual, investment among the investment options comprising the
investment menu. At no time shall a Participant have any real or beneficial ownership in any investment option included in the investment menu, nor shall the Participating Employer or any trustee acting on its behalf have any obligation to purchase
actual securities as a result of a Participant’s investment allocation. A Participant’s investment allocation shall be used solely for purposes of adjusting the value of a Participant’s Account Balances. 


A Participant shall specify an investment allocation for each of his or her Accounts in accordance with procedures established by the
Committee. Allocation among the investment options must be designated in increments of 1%. The Participant’s investment allocation will become effective on the same Business Day or, in the case of investment allocations received after a time
specified by the Committee, the next Business Day. 
 A Participant may change an investment allocation on any Business Day, both
with respect to future credits to the Plan and with respect to existing Account Balances, in accordance with procedures adopted by the Committee. Changes shall become effective on the same Business Day or, in the case of investment allocations
received after a time specified by the Committee, the next Business Day, and shall be applied prospectively. 
  

	8.5	Unallocated Deferrals and Accounts. If the Participant fails to make an investment allocation with respect to an Account, such Account shall be invested in an
investment option, the primary objective of which is the preservation of capital, as determined by the Committee. 


ARTICLE IX 

Administration 
  

	9.1	 Plan Administration. This Plan shall be administered by the Committee which shall have discretionary authority to make, amend, interpret and
enforce all appropriate rules and 


  

 - 18 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
regulations for the administration of this Plan and to utilize its discretion to decide or resolve any and all questions, including but not limited to eligibility for benefits and interpretations
of this Plan and its terms, as may arise in connection with the Plan. Claims for benefits shall be filed with the Committee and resolved in accordance with the claims procedures in Article XII. 


 

	9.2	Withholding. The Participating Employer shall have the right to withhold from any payment due under the Plan (or with respect to any amounts credited to the
Plan) any taxes required by law to be withheld in respect of such payment (or credit). Withholdings with respect to amounts credited to the Plan shall be deducted from Compensation that has not been deferred to the Plan. 


 

	9.3	Indemnification. The Participating Employers shall indemnify and hold harmless each employee, officer, or director to whom is delegated duties, responsibilities,
and authority under the Plan or otherwise with respect to administration of the Plan, including, without limitation, the Committee and its agents, against all claims, liabilities, fines and penalties, and all expenses reasonably incurred by or
imposed upon him or her or it (including but not limited to reasonable attorneys’ fees) which arise as a result of his or her or its actions or failure to act in connection with the operation and administration of the Plan to the extent
lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased or paid for by the Participating Employer. Notwithstanding the foregoing, the Participating Employer shall
not indemnify any person or organization if his or her or its actions or failure to act are due to gross negligence or willful misconduct or for any such amount incurred through any settlement or compromise of any action unless the Participating
Employer consents in writing to such settlement or compromise. 

  

	9.4	Delegation of Authority. In the administration of this Plan, the Committee may, from time to time, employ agents and delegate to them such administrative duties
as it sees fit, and may from time to time consult with legal counsel who shall be legal counsel to the Company. 

  

	9.5	Binding Decisions or Actions. The decision or action of the Committee in respect of any question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations thereunder shall be final and conclusive and binding upon all persons having any interest in the Plan. 


ARTICLE X 
 Amendment
and Termination 
  

	10.1	Amendment and Termination. The Company may at any time and from time to time amend the Plan or may terminate the Plan as provided in this Article X. Each
Participating Employer may also terminate its participation in the Plan. 

  

 - 19 - 









 The Fresh Market Deferred Compensation Plan 

 


	10.2	Amendments. The Company, by action taken by its Board of Directors, may amend the Plan at any time and for any reason, provided that any such amendment shall not
reduce the vested Account Balances of any Participant accrued as of the date of any such amendment or restatement (as if the Participant had incurred a voluntary Separation from Service on such date) or reduce any rights of a Participant under the
Plan or other Plan features with respect to Deferrals made prior to the date of any such amendment or restatement without the consent of the Participant. The Board of Directors of the Company may delegate to the Committee the authority to amend the
Plan without the consent of the Board of Directors. 

  

	10.3	Termination and Freezing the Plan. The Company, by action taken by its Board of Directors, may terminate the Plan and pay Participants and Beneficiaries their
Account Balances in a single lump sum at any time, to the extent and in accordance with Treas. Reg. Section 1.409A-3(j)(4)(ix). If a Participating Employer terminates its participation in the Plan, the benefits of affected Employees shall be
paid at the time provided in Article VI. The Company may also “freeze” the Plan by permitting no new Deferrals for one or more Plan Years but in all other respects the Plan operates according to its terms. 


 

	10.4	Accounts Taxable Under Code Section 409A. The Plan is intended to constitute a plan of deferred compensation that meets the requirements for deferral of
income taxation under Code Section 409A. The Committee, pursuant to its authority to interpret the Plan, may sever from the Plan or any Compensation Deferral Agreement any provision or exercise of a right that otherwise would result in a
violation of Code Section 409A. 

 ARTICLE XI 

Informal Funding 
  

	11.1	General Assets. Obligations established under the terms of the Plan may be satisfied from the general funds of the Participating Employers, or a trust described
in this Article XI. No Participant, spouse or Beneficiary shall have any right, title or interest whatever in assets of the Participating Employers. Nothing contained in this Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship, between the Participating Employers and any Employee, spouse, or Beneficiary. To the extent that any person acquires a right to receive payments hereunder, such rights are no
greater than the right of an unsecured general creditor of the Participating Employer. 

  

	11.2	Rabbi Trust. A Participating Employer may, in its sole discretion, establish a grantor trust, commonly known as a rabbi trust, as a vehicle for accumulating
assets to pay benefits under the Plan. Payments under the Plan may be paid from the general assets of the Participating Employer or from the assets of any such rabbi trust. Payment from any such source shall reduce the obligation owed to the
Participant or Beneficiary under the Plan. 

  

 - 20 - 









 The Fresh Market Deferred Compensation Plan 

 

 ARTICLE XII 

Claims 
  

	12.1	Filing a Claim. Any controversy or claim arising out of or relating to the Plan shall be filed in writing with the Committee which shall make all determinations
concerning such claim. Any claim filed with the Committee and any decision by the Committee denying such claim shall be in writing and shall be delivered to the Participant or Beneficiary filing the claim (the “Claimant”).


  

	 	(a)	In General. Notice of a denial of benefits (other than Disability benefits) will be provided within 90 days of the Committee’s receipt of the
Claimant’s claim for benefits. If the Committee determines that it needs additional time to review the claim, the Committee will provide the Claimant with a notice of the extension before the end of the initial 90-day period. The extension will
not be more than 90 days from the end of the initial 90-day period and the notice of extension will explain the special circumstances that require the extension and the date by which the Committee expects to make a decision.


  

	 	(b)	Contents of Notice. If a claim for benefits is completely or partially denied, notice of such denial shall be in writing and shall set forth the reasons for
denial in plain language. The notice shall: (i) cite the pertinent provisions of the Plan document, and (ii) explain, where appropriate, how the Claimant can perfect the claim, including a description of any additional material or
information necessary to complete the claim and why such material or information is necessary. The claim denial also shall include an explanation of the claims review procedures and the time limits applicable to such procedures, including a
statement of the Claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse decision on review. In the case of a complete or partial denial of a Disability benefit claim, the notice shall provide a
statement that the Committee will provide to the Claimant, upon request and free of charge, a copy of any internal rule, guideline, protocol, or other similar criterion that was relied upon in making the decision. 


 

	12.2	 Appeal of Denied Claims. A Claimant whose claim has been completely or partially denied shall be entitled to appeal the claim denial by filing a
written appeal with a committee designated to hear such appeals (the “Appeals Committee”). A Claimant who timely requests a review of the denied claim (or his or her authorized representative) may review, upon request and free of charge,
copies of all non-privileged documents, records and other information relevant to the denial and may submit written comments, documents, records and other information relevant to the claim to the Appeals Committee. All written comments, documents,
records, and other information shall be considered “relevant” if the information: (i) was relied upon in making a benefits determination, (ii) was submitted, considered or generated in the course of making a benefits decision
regardless of whether it was relied upon to make the decision, or (iii) demonstrates compliance with administrative processes and safeguards established for 



 

 - 21 - 









 The Fresh Market Deferred Compensation Plan 

 


	 	
making benefit decisions. The Appeals Committee may, in its sole discretion and if it deems appropriate or necessary, decide to hold a hearing with respect to the claim appeal.


  

	 	(a)	In General. Appeal of a denied benefits claim (other than a Disability benefits claim) must be filed in writing with the Appeals Committee no later than 60 days
after receipt of the written notification of such claim denial. The Appeals Committee shall make its decision regarding the merits of the denied claim within 60 days following receipt of the appeal (or within 120 days after such receipt, in a case
where there are special circumstances requiring extension of time for reviewing the appealed claim). If an extension of time for reviewing the appeal is required because of special circumstances, written notice of the extension shall be furnished to
the Claimant prior to the commencement of the extension. The notice will indicate the special circumstances requiring the extension of time and the date by which the Appeals Committee expects to render the determination on review. The review will
take into account 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.


  

	 	(b)	Contents of Notice. If a benefits claim is completely or partially denied on review, notice of such denial shall be in writing and shall set forth the reasons
for denial in plain language. 

 The decision on review shall set forth: (i) the specific reason or reasons
for the denial, (ii) specific references to the pertinent Plan provisions on which the denial is based, (iii) a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all
documents, records, or other information relevant (as defined above) to the Claimant’s claim, and (iv) a statement describing any voluntary appeal procedures offered by the plan and a statement of the Claimant’s right to bring an
action under Section 502(a) of ERISA. 
  

	12.3	Legal Action. A Claimant may not bring any legal action relating to a claim for benefits under the Plan unless and until the Claimant has followed the claims
procedures under the Plan and exhausted his or her administrative remedies under such claims procedures. Any such legal action must be commenced within one year of a final determination hereunder with respect to such claim. 


If a Participant or Beneficiary prevails in a legal proceeding brought under the Plan to enforce the rights of such Participant or any
other similarly situated Participant or Beneficiary, in whole or in part, the Participating Employer shall reimburse such Participant or Beneficiary for all legal costs, expenses, attorneys’ fees and such other liabilities incurred as a result
of such proceedings. 
  

 - 22 - 









 The Fresh Market Deferred Compensation Plan 

 


	12.4	Discretion of Appeals Committee. All interpretations, determinations and decisions of the Appeals Committee with respect to any claim shall be made in its sole
discretion, and shall be final and conclusive. 

 ARTICLE XIII 

General Provisions 
  

	13.1	Assignment. No interest of any Participant, spouse or Beneficiary under this Plan and no benefit payable hereunder shall be assigned as security for a loan, and
any such purported assignment shall be null, void and of no effect, nor shall any such interest or any such benefit be subject in any manner, either voluntarily or involuntarily, to anticipation, sale, transfer, assignment or encumbrance by or
through any Participant, spouse or Beneficiary. Notwithstanding anything to the contrary herein, however, the Committee has the discretion to make payments to an alternate payee in accordance with the terms of a domestic relations order (as defined
in Code Section 414(p)(1)(B)). 

 The Company may assign any or all of its liabilities under this Plan in
connection with any restructuring, recapitalization, sale of assets or other similar transactions affecting a Participating Employer without the consent of the Participant. 

 

	13.2	No Legal or Equitable Rights or Interest. No Participant or other person shall have any legal or equitable rights or interest in this Plan that are not expressly
granted in this Plan. Participation in this Plan does not give any person any right to be retained in the service of the Participating Employer. The right and power of a Participating Employer to dismiss or discharge an Employee is expressly
reserved. The Participating Employers make no representations or warranties as to the tax consequences to a Participant or a Participant’s beneficiaries resulting from a deferral of income pursuant to the Plan. 


 

	13.3	No Employment Contract. Nothing contained herein shall be construed to constitute a contract of employment between an Employee and a Participating Employer.


  

	13.4	Notice. Any notice or filing required or permitted to be delivered to the Committee under this Plan shall be delivered in writing, in person, or through such
electronic means as is established by the Committee. Notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Written transmission
shall be sent by certified mail to: 

 THE FRESH MARKET 

ATTN: VICE PRESIDENT, HUMAN RESOURCES 

628 GREEN VALLEY ROAD 

SUITE 500 

GREENSBORO, NC 27408-7041 
  

 - 23 - 









 The Fresh Market Deferred Compensation Plan 

 

 Any notice or filing required or permitted to be given to a Participant under this Plan
shall be sufficient if in writing or hand-delivered, or sent by mail to the last known address of the Participant. 
  

	13.5	Headings. The headings of Sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this
Plan, the text shall control. 

  

	13.6	Invalid or Unenforceable Provisions. If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof and the Committee may elect in its sole discretion to construe such invalid or unenforceable provisions in a manner that conforms to applicable law or as if such provisions, to the extent invalid or unenforceable, had not
been included. 

  

	13.7	Lost Participants or Beneficiaries. Any Participant or Beneficiary who is entitled to a benefit from the Plan has the duty to keep the Committee advised of his
or her current mailing address. If benefit payments are returned to the Plan or are not presented for payment after a reasonable amount of time, the Committee shall presume that the payee is missing. The Committee, after making such efforts as in
its discretion it deems reasonable and appropriate to locate the payee, shall stop payment on any uncashed checks and may discontinue making future payments until contact with the payee is restored. 


 

	13.8	Facility of Payment to a Minor. If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Committee may, in its
discretion, make such distribution: (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his or her residence, or (ii) to the conservator or committee or, if none, to the person having custody
of an incompetent payee. Any such distribution shall fully discharge the Committee, the Company, and the Plan from further liability on account thereof. 

  

	13.9	Governing Law. To the extent not preempted by ERISA, the laws of the State of North Carolina shall govern the construction and administration of the Plan.


 IN WITNESS WHEREOF, the undersigned executed this Plan as of the Effective Date. 

The Fresh Market, Inc. 
 By: Lisa K.
Klinger                          (Print Name) 

Its:
EVP/CFO                                     (Title)

 /s/ Lisa K. Klinger
                         (Signature) 
  


 - 24 -