Exhibit 10.19


 


AMERICOLD


SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN


 


 


Effective January 1, 2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1

  	
  DEFINITIONS

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Usage

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 2

  	
  ELIGIBILITY AND PARTICIPATION

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Eligibility

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Participation

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Notification
  of Eligibility

  	
  11

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Duration
  of Participation

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 3

  	
  COMPENSATION DEFERRAL

  	
  12

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Credits
  to Account

  	
  12

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Adjustment
  of Accounts

  	
  19

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Transitional
  Election Matters

  	
  21

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Vesting
  of Account

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 4

  	
  DISTRIBUTIONS

  	
  23

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Plan
  Distributions

  	
  23

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Time
  of Payments

  	
  25

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Withholding
  Tax

  	
  25

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Savings
  Plan and Retirement Plan

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 5

  	
  FORFEITURE FOR CAUSE

  	
  27

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Forfeiture
  of Vested Amounts

  	
  27

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Definition
  of Cause

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 6

  	
  CHANGE OF CONTROL

  	
  28

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Acceleration
  of Vesting

  	
  28

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Contributions
  to Grantor Trust

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 7

  	
  ADMINISTRATION

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Powers
  of the Committee

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Committee
  Discretion

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Reimbursement
  of Expenses

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Indemnification

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Claims
  Procedure

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 8

  	
  AMENDMENT & TERMINATION

  	
  33

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Amendment
  and Termination

  	
  33

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Effect
  of Termination

  	
  33

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9

  	
  FUNDING

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Payments
  Under This Agreement are the Obligation of the Company

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Agreement
  May be Funded Through Rabbi Trust

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Participants
  Must Rely Only on General Credit of the Company

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 10

  	
  MISCELLANEOUS

  	
  36

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Limitation
  of Rights

  	
  36

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Distributions
  to Incompetents or Minors

  	
  36

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Nonalienation
  of Benefits

  	
  36

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Compliance
  with Court Orders

  	
  37

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Reliance
  Upon Information

  	
  37

  
	
   

  	
   

  	
   

  
	
  10.6

  	
  Severability

  	
  37

  
	
   

  	
   

  	
   

  
	
  10.7

  	
  Notice

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.8

  	
  No
  Enlargement of Employee Rights

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.9

  	
  No
  Requirement to Fund

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.10

  	
  Governing
  Law

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.11

  	
  Adoption
  by Affiliates

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.12

  	
  Effective
  Date

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.13

  	
  Compliance
  with Section 409A

  	
  39

  
	
   

  	
   

  	
   

  
	
  10.14

  	
  Controlled Group Status

  	
  39

  



 


ii

















 


AMERICOLD


SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN


 


WHEREAS, AmeriCold
Logistics, LLC (“AmeriCold”) established and maintains the AmeriCold
Supplemental Executive Savings Plan  (the
“Executive Savings Plan”) to provide for certain management or highly
compensated employees of AmeriCold the opportunity to defer the receipt of some
or all of their compensation;


 


WHEREAS, AmeriCold
established and maintains the AmeriCold Executive Retirement Income Plan (the
“Retirement Income Plan”; the Executive Savings Plan and the Retirement Income
Plan are referred to collectively herein as the “Pre-2005 Plans”) to provide to
certain management or highly compensated employees of AmeriCold a supplement to
their retirement pay;


 


WHEREAS, the Board of
Trustees of Americold Realty Trust (the “Board”) may, to the extent permitted
by Section 8.1 of each of the Pre-2005 Plans, amend such Pre-2005 Plans at
any time;


 


WHEREAS, the American
Jobs Creation Act of 2004 added Section 409A to the Internal Revenue Code
of 1986, as amended (the “Code”), and Section 409A of the Code imposes
certain restrictions on compensation deferred on or after January 1, 2005;
and


 


WHEREAS, the Board has
determined that it is in the best interests of AmeriCold and the participants
in the Pre-2005 Plans to amend and restate the Pre-2005 Plans, effective as of January 1,
2005, to (i) comply with Section 409A of the Code with respect to all
benefits provided under the Pre-2005 Plans, to the extent permitted by existing
guidance, without regard to when such benefits became earned and vested, (ii) make
certain design changes and clarifications to the Pre-2005 Plans, (iii) merge
the Pre-2005 Plans and cause the vested account balances under the Pre-2005
Plans to be subjected to, and henceforth governed under, the provisions of the
AmeriCold Supplemental Executive Retirement Plan (the “SERP”), as restated
herein; and (iv) continue to be treated as an unfunded arrangement
providing deferred compensation to eligible employees who are part of a select
group of management or highly compensated employees within


 


1

















 


the meaning of Sections 201, 301 and 401 of ERISA
(and therefore exempt from the requirements of Parts 2, 3 and 4 of Title I
of ERISA as a “top hat” plan and eligible for the alternative method of
compliance for reporting and disclosure which is available for
such plans).


 


NOW, THEREFORE, AmeriCold
hereby sets forth the provisions of the SERP as follows:


 


2














 


SECTION 1




DEFINITIONS


 


1.1           Definitions. 
Wherever used herein:


 


“Account” means a bookkeeping account
maintained by the Company to record Deferrals, Company Credits, any deemed
earnings with respect to such amounts, and such other transactions, if any, that
may be required to administer the SERP. 
An Account shall be utilized solely as a device to determine the amounts
payable to a Participant under the SERP; an Account shall not constitute or be
treated as an escrow, trust fund, or any other type of funded account for
federal income tax purposes, or for purposes of ERISA, and amounts credited
thereto shall not be considered “plan assets” for federal income tax purposes,
or for purposes of ERISA.


 


“Affiliate” means any entity with respect to
which AmeriCold Logistics, LLC beneficially owns, directly or indirectly, at
least 50% of the total voting power of the interests of such entity and at
least 50% of the total value of the interests of such entity.


 


“Allocation Election” means
a choice by a Participant of one or more Investment Options in which Deferrals,
Company Credits, and/or existing Account balances are Deemed Invested for
purposes of determining the value of a particular Account.


 


“AmeriCold” means AmeriCold
Logistics, LLC, a Delaware limited liability company and the sponsor of the
SERP.


 


“Beneficiary” means the
beneficiary of a Participant designated pursuant to such procedures as may be
established by the Committee, and if no Beneficiary designated in such manner
survives the Participant, the Beneficiary shall be the Participant’s spouse, if
the spouse survives the Participant, otherwise the Beneficiary shall be the
Participant’s estate.


 


3

















 


“Board” means the Board of
Trustees of Americold Realty Trust or such persons or entities as the Board may
designate.


 


“Bonus Compensation” means
“performance-based compensation” (as such term is defined in Section 409A(a)(4)(B)(ii) of
the Code and the regulations and other guidance issued thereunder).


 


“Bonus Deferral” shall have
the meaning set forth in Section 3.1(b) hereof.


 


“Bonus Deferral Election”
shall have the meaning set forth in Section 3.1(b) hereof.


 


“Cause” shall have the
meaning set forth in Section 5.2 hereof.


 


“Change of Control” means
the occurrence of one or more of the following events:


 


(A)          Acquisition by any individual, entity, or group (within the
meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934), other than: (i) for periods prior to March 31, 2008,
Vornado ART Holding Manager L.L.C., a Delaware limited liability company
(“Vornado”); Crescent ART Holdings, LLC, 
a Delaware limited liability company (“Crescent”); Yucaipa Corporate
Initiatives Fund I, LP, a Delaware limited partnership (“Yucaipa CI”); Yucaipa
American Alliance Fund I, LP, a Delaware limited partnership (“Yucaipa AF”); or
(ii) for periods on and after March 31, 2008, (“Yucaipa CI”);
(“Yucaipa AF”); Yucaipa American Alliance (Parallel) Fund I, LP (“Yucaipa AF
Parallel”); Yucaipa American Alliance Fund II, L.P. (“Yucaipa AFII”); Yucaipa
American Alliance (Parallel) Fund II, L.P. (“Yucaipa AFII Parallel”) (the
entities referred to in (i) and (ii) referred to herein collectively
as the “Owners”); or (iii) any entity with respect to which an Owner
beneficially owns, directly or indirectly, at least 50% of the total voting
power of the outstanding voting interests of such entity and at least 50% of
the total value of the outstanding ownership interests of such entity, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934) of (A) 50% or more of (I) the
total value of the then-outstanding ownership interests in the Company (the
“Ownership Interests”) or (II) the total voting power of the
then-outstanding voting ownership interests in the Company (the “Voting
Interests”), (B) 80% or more of the fair market value of the assets of (I) the
Company or (II) Americold Realty Trust, a Maryland real estate 


 


4

















 


investment trust (“ART”), or
(C) 20% or more of (I) the total value of the then-outstanding
securities issued by ART or (II) the total voting power of the
then-outstanding voting securities issued by ART that are entitled to vote
generally in the election of members of the Board of Trustees of ART;


 


(B)           Consummation of a reorganization, merger, or similar
transaction involving the Company, unless following such transaction, (i) all or
substantially all of the individuals and entities that were the beneficial owners
of the Ownership Interests and the Voting Interests immediately prior to such
transaction beneficially own, directly or indirectly, more than 50% of (x) the
total value of the then-outstanding ownership interests of the entity resulting
from such transaction and (y) the total voting power of the
then-outstanding ownership interests entitled to vote generally in the election
of directors of the entity resulting from such transaction, in substantially
the same proportions as their ownership immediately prior to such transaction
of the Ownership Interests and the Voting Interests, (ii) no person
(excluding any entity resulting from such transaction or any employee benefit
plan (or related trust) of the Company or of such entity resulting from such
transaction) beneficially owns, directly or indirectly, 20% or more of (x) the
total resulting ownership interests of such entity or (y) the total
resulting voting interests of such entity, except to the extent that such
ownership existed prior to the transaction, and (iii) at least a majority
of the members of the board of directors of the entity resulting from such
transaction were members of the incumbent Board of Trustees of ART at the time
of the execution of the initial agreement or of the action of the Board of
Trustees of ART providing for such transaction; or


 


(C)         Replacement of a majority of the
members of the then-incumbent Board of Trustees of ART with persons not
nominated by (i) one or more of the Owners pursuant to the provisions of
the then-effective Shareholders Agreement by and among the Owners or (ii) the
then-incumbent Board of Trustees of ART;


 


(D)          Consummation of the first underwritten public offering of
the common shares of ART by a nationally recognized underwriter pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(or any successor statute thereto), including any rules and regulations 


 


5

















 


promulgated by the U.S.
Securities and Exchange Commission (or any successor agency thereto)
thereunder; and


 


(E)           Approval of a complete liquidation or dissolution of ART
or the Company.


 


“Claimant” shall have the
meaning set forth in Section 7.5 hereof.


 


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


 


“Committee” means (A) the
persons who are from time to time serving as members of the AmeriCold
Compensation Committee, the committee designated by the Board as being
responsible for administering the SERP, or (B) if applicable, such person
or persons as the persons described in (A) may designate.


 


“Company” means AmeriCold
Logistics, LLC, a Delaware limited liability company, and any Affiliate that
adopts the SERP pursuant to the provisions of Section 10.11 hereof.


 


“Company Credits” means Company
Matching Credits and Company Discretionary Credits.


 


“Company Discretionary
Credits” shall have the meaning set forth in Section 3.1(e) hereof.


 


“Company Matching Credits”
shall have the meaning set forth in Section 3.1(d) hereof.


 


“Deemed Investment” (or
“Deemed Invested”) means the conversion of a dollar amount of deferred Salary
Compensation, Bonus Compensation, Company Matching Credits, and Company
Discretionary Credits (as applicable) credited to a Participant’s Account into
notional shares or units of ownership (or a fraction of such measures of
ownership, if applicable) of a security (e.g., mutual fund or other investment)
in accordance with the Investment Options selected by the Participant.  The conversion shall occur as if shares (or
units) of the designated investment were being purchased (or sold, as the case
may be), at the quoted price as of the close of business on the day on which
the Deemed Investment occurs. 
Notwithstanding the foregoing, at no time shall a Participant have or be
deemed to have any real or beneficial ownership in the actual security to which
the Investment Option refers, irrespective of whether such a Deemed Investment
is 


 


6

















 


mirrored by an actual
identical investment by the Company or a trustee acting on behalf of the
Company.


 


“Deferrals” means Salary
Deferrals and Bonus Deferrals.


 


“Disability” or “Disabled”
means that a Participant is (A) unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; (B) is, by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
Participant’s employer; or (C) determined by the Social Security
Administration to be totally disabled.


 


“Disability Distribution”
means payment by the Company of the Participant’s Account balance, including
any unpaid In-Service Account balances, to the Participant as a Termination
Distribution (unless the Participant is eligible for Retirement as of the date
of the onset of the Disability, in which case, his Disability Distribution
shall be distributed as a Retirement Distribution).


 


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


 


“Effective Date” means the
effective date of this SERP, January 1, 2005.


 


“Eligible Employee” shall
have the meaning set forth in Section 2 hereof.


 


“HRVP” shall have the
meaning set forth in Section 7.5 hereof.


 


“In-Service Account” means a
separate recordkeeping account under a Participant’s Account that is created
when a Participant elects a new In-Service Distribution Date with respect to
amounts deferred hereunder.


 


“In-Service Distribution”
means a payment by the Company to the Participant following an In-Service
Distribution Date of the amount represented by the balance in the In-Service
Account for such In-Service


 


7

















 


Distribution Date.  In-Service Distributions shall be made in
accordance with a Participant’s elections made pursuant to Sections 3.1(c)(iii) and/or
3.1(f) hereof.


 


“In-Service Distribution
Date” means the date selected by the Participant following which the
Participant’s applicable In-Service Account shall be paid in accordance with
the distribution method elected by the Participant pursuant to Sections 3.1(c)(iii) and/or
3.1(f) hereof.


 


“Investment Option” means a
notional share or unit of ownership (or a fraction of any of such measure of
ownership, as applicable) of a security representing an investment in a
third-party investment vehicle, including (without limitation) a mutual fund,
stock, or other investment approved by the Committee to be used to determine
Deemed Investment earnings (positive or negative) on amounts credited to
Participants’ Accounts.  No Participant
shall have a real or beneficial ownership in the security or other investment
represented by the Investment Option.  Notwithstanding the foregoing, in
no event may an Investment Option be an ownership interest in AmeriCold or any
of its Affiliates.


 


“Participant” means an
Eligible Employee who becomes a participant in the SERP pursuant to Section 2
hereof.


 


“Plan Year” means the
calendar year.


 


“Pre-Effective Date
Deferrals” shall have the meaning set forth in Section 3.3 hereof.


 


“Retirement” means a
Participant’s Separation from Service with the Company for any reason other
than an authorized leave of absence or death on or after (A) the date the
Participant has attained age 65, or (B) the date that the Participant has
attained age 55 and has been credited with at least 5 Years of Service.


 


“Retirement Distribution”
means payment(s) by the Company of a Participant’s remaining Account
balance, including any undistributed In-Service Account balances, to the
Participant in accordance with the Participant’s election pursuant to Sections
3.1(c)(iii) and/or 3.1(f) hereof upon the Participant’s Retirement.


 


“Retirement Plan” means the
AmeriCold Retirement Income Plan, as in effect April 1, 2005.


 


8

















 


“SERP” means the
nonqualified deferred compensation plan set forth herein, which shall be known
as the AmeriCold Supplemental Executive Retirement Plan, as it may be amended
from time to time.


 


“Salary Compensation” means
any base salary plus any commission compensation that is otherwise payable to a
Participant in cash by the Company in any calendar year.  Specifically, “Salary Compensation” shall
include contributions made by the Company on behalf of a Participant under any
salary reduction or similar arrangement to a cafeteria plan described in Section 125
of the Code, elective contributions pursuant to an arrangement qualified under Section 401(k) of
the Code, amounts contributed as Salary Deferrals under this Plan, and any
additional amounts determined in the sole discretion of the Committee.  “Salary Compensation” shall exclude moving
expenses, any gross up of moving expenses to account for increased income
taxes, Company contributions under any qualified retirement plan (including the
SERP), Company contributions on behalf of the Participant under any
nonqualified retirement plan, a Participant’s Bonus Compensation, any amounts
relating to the granting of a stock option or similar equity or phantom equity
instrument, the exercise of a stock option or similar equity or phantom equity
instrument, or the sale or deemed sale of any shares, equity interests, or
phantom equity interests thereby acquired, bonus paid as an inducement to enter
the employment of the Company, any severance payments or other compensation
which is paid to a Participant as a result of the Participant’s separation from
service with the Company, and any additional amounts determined in the sole
discretion of the Committee. “Salary Deferral” shall have the meaning set forth
in Section 3.1(a) hereof.


 


“Salary Deferral Election”
shall have the meaning set forth in Section 3.1(a) hereof.


 


“Savings Plan” means the
AmeriCold Employee Savings Plan, as it may be amended from time to time.


 


“Section 409A” means Section 409A
of the Code and the regulations and other guidance issued thereunder.


 


“Separation from Service”
means separation from service within the meaning of Section 409A.


 


9

















 


“Specified
Employee” means a “specified employee” as defined in Section 409A(a)(2)(B)(i) of
the Code.


 


“Termination” means
Separation from Service with the Company, voluntarily or involuntarily, for any
reason other than Retirement, death, Disability, or an authorized leave of
absence.


 


“Termination
Distribution” means a payment by the Company of the Participant’s remaining
vested Account balance, including any undistributed In-Service Account
balances, to the Participant in a lump sum upon the Participant’s Termination.


 


“Termination/Retirement
Account” means that portion of a Participant’s Account that has not been
allocated to In-Service Accounts.


 


“Trust”
shall have the meaning set forth in Section 9.2  hereof.


 


“Unforeseeable Emergency” means
a severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, or a dependent (as
defined in Section 152(a) of the Code) of the Participant, loss of
the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant.  The term “Unforeseeable
Emergency” shall be interpreted by the Committee, in its sole discretion, in a
manner that is consistent with Section 409A(a)(2)(B)(ii) of the Code
and the regulations and other guidance issued thereunder.


 


“Valuation Date” means the
last day of the applicable calendar month, as of which date the value of all or
a portion of a Participant’s Account is determined.


 


“Years of Service” means, at
any time, the number of years of service with which a Participant has been
credited under the Savings Plan.


 


1.2           Usage. 
Unless the context clearly indicates a distinction, singular words used
herein shall include the plural, and masculine words used herein shall include
the feminine.


 


10

















 


SECTION 2




ELIGIBILITY
AND PARTICIPATION


 


2.1           Eligibility.  The Committee shall determine, in its sole
discretion, those employees of the Company who will be eligible to participate
in the SERP (each such employee, an “Eligible Employee”).  In any event, such Eligible Employees are
intended to constitute a select group of management or highly compensated
employees within the meaning of Sections 201, 301 and 401 of ERISA.  Notwithstanding anything herein to the
contrary, the Committee retains the discretion to establish such additional
eligibility requirements for participation in the SERP as it may determine
appropriate or necessary from time to time.


 


2.2           Participation.  An Eligible Employee may elect to participate
in the SERP by submitting to the Committee the appropriate elections (as
described in Section 3 hereof) and complying with such other requirements
as the Committee shall impose all within such times as may be established by
the Committee.  Such Eligible Employee’s
participation in the SERP shall, to the extent permitted by applicable law and
under Section 3 hereof, commence as soon as practicable following his
satisfaction of all participation requirements.


 


2.3           Notification of Eligibility.  Each individual who becomes an Eligible
Employee shall be notified by the Committee of his eligibility to participate
in the SERP and be given an opportunity to participate hereunder.


 


2.4           Duration of Participation.  Once an Eligible Employee becomes a
Participant, such Eligible Employee shall continue to be a Participant so long
as he or she is entitled to receive benefits hereunder, notwithstanding any
subsequent Separation from Service with the Company; provided,
however, that a Participant who has experienced a Separation from
Service with the Company shall not be allowed to make future Deferrals or to
have additional Company Credits credited to his Account, but Deferrals from Salary
and/or Bonus Compensation paid with respect to the Plan Year in which the
Separation from Service occurs shall be deferred to the SERP pursuant to such
Deferral elections as may be in effect for such Plan Year.


 


11














 


SECTION 3




COMPENSATION
DEFERRAL


 


3.1           Credits to Account.


 


(a)           Salary Deferral Elections.  Any Eligible Employee may elect to defer
under the SERP between 3% and 80% of the Salary Compensation otherwise payable
as of a given pay date to such Eligible Employee by the Company (a “Salary
Deferral Election”), which amount shall be designated by the Eligible
Employee by completing such Salary Deferral Election procedures (including any
on-line enrollment and deferral election procedures) as the Committee may establish
for such purpose within the applicable deadlines set forth herein (any such
amount so deferred, a “Salary Deferral”).  A Salary Deferral Election shall apply only
with respect to the Plan Year, or portion thereof, specified in the
Participant’s Salary Deferral Election, and shall be irrevocable as to the
Salary Deferral percentage elected for such Plan Year.


 


(i)            Salary Deferral
Election Timing — General.  To be effective, a properly completed Salary
Deferral Election must be submitted to the Committee prior to the deadline
established by the Committee for such purpose, which deadline shall be prior to
the beginning of the Plan Year for which the Salary Deferral Election is to be
effective.  If an Eligible Employee does
not submit a properly completed Salary Deferral Election to the Committee prior
to the deadline established by the Committee for such purpose, the Eligible
Employee shall be deemed to have elected not to make a Salary Deferral Election
for such Plan Year.


 


(ii)           Salary Deferral
Election Timing — For First Year as an Eligible Employee.  Notwithstanding the foregoing provisions of
this Section 3.1(a), during the Plan Year in which an individual first
becomes an Eligible Employee, such Eligible Employee may elect to defer between
3% and 80% of his Salary Compensation beginning with the payroll period next
following the Eligible Employee’s submission of a properly completed Salary
Deferral Election, provided that such Salary Deferral Election is submitted to
the 


 


12

















 


Committee within 30 days
after the date such Eligible Employee  is
notified of his eligibility to participate in the SERP.  If the Eligible Employee does not submit a
properly completed Salary Deferral Election to the Committee within 30 days
after the date he is notified of his eligibility to participate in the SERP,
such Eligible Employee will be deemed to have elected not to make a Salary
Deferral Election for such Plan Year. 
Elections by such an Eligible Employee for succeeding Plan Years shall
be made in accordance with the foregoing provisions of this Section 3.1(a).


 


(b)           Bonus Deferral Elections.


 


(i)            General.  Any Eligible Employee may elect to defer
under the SERP between 3% and 80% of the Bonus Compensation otherwise payable
as of a given pay date to the Eligible Employee by the Company (a “Bonus Deferral
Election”), which amount shall be designated by the
Eligible Employee by completing such Bonus Deferral Election procedures
(including any on-line enrollment and deferral election procedures) as the
Committee may establish for such purpose prior to the applicable deadlines set
forth herein (any such amount so deferred, a “Bonus Deferral”).  A Bonus Deferral Election shall apply only
with respect to the Plan Year, or portion thereof, specified in the
Participant’s Bonus Deferral Election, and shall be irrevocable as to the Bonus
Deferral percentage elected for such Plan Year.


 


(ii)           Bonus Deferral
Election Timing. 
To be effective, a properly completed Bonus Deferral Election must be
submitted to the Committee prior to the deadline established by the Committee
for such purpose, which deadline shall be at least 6 months prior to the end of
the performance period for which such Bonus Compensation is earned.  If an Eligible Employee does not submit a
properly completed Bonus Deferral Election prior to the deadline established by
the Committee for such purpose, the Eligible Employee shall be deemed to have
elected not to make a Bonus Deferral Election with respect to the Bonus Compensation
earned during such performance period.


 


(c)           Salary and Bonus Deferral
Elections - Additional Rules and Procedures.


 


(i)            General.  The Committee shall have the discretion to
change existing rules and procedures and/or adopt such additional rules and
procedures applicable to Salary Deferral Elections and 


 


13

















 


Bonus Deferral Elections as
the Committee may determine necessary. 
By way of amplification and not limitation, the Committee shall have the
authority to limit the amount of Salary Compensation and/or Bonus Compensation
deferred by a Participant under the SERP in any Plan Year, require a
Participant to pay or provide for payment of cash to the Company, and/or take
such other actions as it may determine to be necessary in the event that, as a
result of a Participant’s Salary Deferral Election and/or Bonus Deferral
Election, the compensation payable to a Participant currently is less than such
Participant’s tax withholding obligations to the Company.


 


(ii)           Suspension of
Deferral Elections. 
Salary Deferral Elections and Bonus Deferral Elections under this Section 3.1
shall generally be irrevocable, except as follows:


 


(A)          Hardship
Distributions.  The remainder of a
Participant’s Salary Deferral Election and Bonus Deferral Election for a given
Plan Year shall be disregarded upon the Committee’s approval of a distribution
of some or all of the Participant’s SERP Account as a result of an
Unforeseeable Emergency, as contemplated under Section 4.1(f) hereof.  In such case, the Participant shall not be
allowed to make new Salary or Bonus Deferral Elections for the remainder of the
Plan Year during which such Unforeseeable Emergency distribution is approved,
as well as the immediately succeeding Plan Year.  Any resumption of the Participant’s Salary
Deferrals and/or Bonus Deferrals after such suspension period may be made only
at the election of the Participant in accordance with this Section 3.


 


(B)           Leaves
of Absence.  If a Participant is authorized by the Company
to take a paid leave of absence from the Company, the Participant shall
continue to be considered employed by the Company, and his Deferral Elections
shall continue in effect during such paid leave of absence in accordance with
the provisions of this Section 3.1. 
If a Participant is authorized by the Company to take an unpaid leave of
absence from the Company, the Participant shall continue to be considered
employed by the Company for a period of six months, or longer, if the right to
reemployment is guaranteed by statute or contract, but such Participant shall
not be considered to be employed by the Company after the expiration of such
period of time.


 


14

















 


(iii)          Distribution
Elections for Deferrals.  In connection with each Salary Deferral
Election and/or Bonus Deferral Election made for a given Plan Year, a
Participant shall also elect whether to receive such Salary Deferrals and/or
Bonus Deferrals, as adjusted pursuant to Section 3.2 hereof, (A) in a
lump sum or in annual installments of 5, 10, or 15 years, upon Retirement, or (B) in
a lump sum at an In-Service Distribution Date that is at least 3 Plan Years
after the end of the Plan Year with respect to which such Salary Compensation
and/or Bonus Compensation is deferred. 
Except as otherwise required by the Committee, such Retirement
Distribution or In-Service Distribution elections may be made separately with
respect to each Plan Year’s Salary Deferrals and/or Bonus Deferrals, and
Termination/Retirement Accounts and/or In-Service Accounts will be established
accordingly.  If a Participant does not
make a distribution election with respect to a given Plan Year’s Salary
Deferrals and/or Bonus Deferrals (or if the Participant Retires without having
made a valid Retirement Distribution election with respect to a given Plan
Year’s Salary Deferrals and/or Bonus Deferrals), he shall be deemed to have
elected to receive distribution of such Deferrals in a lump sum as a Retirement
Distribution.  Any portion of a Deferral
that is not credited to an In-Service Distribution Account shall be credited to
the Participant’s Termination/Retirement Account, which credited amounts, as
adjusted pursuant to Section 3.2 hereof, shall remain credited to the
Participant’s Termination/Retirement Account until such amounts have been
distributed to the Participant or the Participant’s Beneficiary and may not be
credited or reallocated to an In-Service Account.


 


(d)           Company Matching Credits.


 


(i)            Prior to August 1, 2005.  The provisions of this Section 3.1(d)(i) shall
be effective with respect to Deferrals made with respect to pay periods
beginning prior to August 1, 2005. 
In addition to any Salary Deferral and/or Bonus Deferral credited to a
Participant’s Account pursuant to Sections 3.1(a) and 3.1(b) hereof
with respect to a given pay date, a Participant’s Account shall be credited, as
of each date matching contributions are made to the Participant’s account under
the Savings Plan (or would be so made but for the limitations on contributions
and benefits imposed by any or all of Sections 415, 401(a)(17), and 


 


15

















 


401(a)(30) of the Code),
with a Company Matching Credit equal to the difference, if any, between (A) and
(B) below:


 


(A)          the amount of
matching contributions that would have been made for the Participant as of such
date under the Savings Plan if (I) amounts of Deferrals credited to the
Participant’s Account had instead been contributed to the Savings Plan, and (II) such
contributions were not limited by the limitations on contributions and benefits
imposed by any or all of Sections 415, 401(a)(17), and 401(a)(30) of the Code;
less


 


(B)           the amount of
matching contributions that were actually made for him as of such date under the
Savings Plan.


 


(ii)           On and After August 1, 2005.  The provisions of this Section 3.1(d)(ii) shall
be effective with respect to Deferrals made with respect to pay periods
beginning on or after August 1, 2005. 
In addition to any Salary Deferral and/or Bonus Deferral credited to a
Participant’s Account pursuant to Sections 3.1(a) and 3.1(b) hereof
with respect to a given pay date, a Participant’s Account shall be credited
with an amount equal to the lesser of: (i) 3%
of the aggregate amount of a Participant’s Salary Compensation and Bonus
Compensation paid on such pay date or (ii) 100% of the aggregate amount of
a Participant’s Salary Deferral and Bonus Deferral with respect to such pay
date.


 


(iii)          Timing of Matching Credits.  The matching credits described in (i) and
(ii) above shall be referred to herein as “Company Matching Credits”.  Unless otherwise specified by the Committee,
Company Matching Credits, if any, shall be credited to a Participant’s Account
as soon as practicable following the date on which the corresponding Deferrals
were credited to the Participant’s Account.


 


(e)           Company
Discretionary Credits.


 


(i)            General.  The Company reserves the right to make
discretionary credits to Participants’ accounts in such amounts and at such
times as may be determined by the Company in its sole discretion (with such
credited amounts being “Company Discretionary Credits”).  Such Company Discretionary Credits shall not
depend on the amount of elective deferrals made by a Participant pursuant to 


 


16

















 


Section 3.1(a) hereof.  Unless otherwise specified by the Committee,
Company Discretionary Credits, if any, shall be credited to a Participant’s
Account as soon as practicable following the end of the Plan Year with respect
to which they are to be credited.


 


(ii)           Credits Prior to April 1,
2005.  With respect to periods ending
prior to April 1, 2005, as of each date that a cash balance credit is
added to a Participant’s account under the Retirement Plan (or would be so added
but for the limitations on contributions and benefits imposed by any or all of
Sections 415, 401(a)(17), and 401(a)(30) of the Code), the Participant’s
Account shall be credited with a Company Discretionary Credit  equal to the difference, if any, between (A) and
(B), below:


 


(A)          the amount of the
cash balance credit that would have been added for him as of such date under
the Retirement Plan if such credit had been computed without giving any effect
to (I) the limitations on contributions and benefits imposed by any or all
of Sections 415, 401(a)(17), and 401(a)(30) of the Code, or (II) the
deferral of Salary Compensation and/or Bonus Compensation under the SERP; less


 


(B)           the amount of the
cash balance credit actually added for him as of such date under the Retirement
Plan.


 


(f)            Company Matching Credits and
Company Discretionary Credits - Additional Rules and Procedures.


 


(i)            Distribution Elections for
Company Matching Credits and Company Discretionary Credits.  In connection with any Company Credits that
may be credited to a Participant’s Account for a given Plan Year, such
Participant shall elect, by completing such election procedures (including any
on-line enrollment and distribution election procedures) prior to the deadlines
established by the Committee for such purpose, which deadline shall be prior to
the beginning of the Plan Year for which the Company Credits may be credited,
whether to receive the vested portion of such Company Credits, as adjusted
pursuant to Section 3.2 hereof, (i) in a lump sum or in annual
installments of 5, 10, or 15 years, upon Retirement, or (ii) in a lump sum
at an In-Service Distribution Date that is at least 3 Plan Years after the end
of the Plan Year with respect to which such Company Credits are deferred.  Except as otherwise required by the
Committee, such 


 


17

















 


Retirement Distribution or
In-Service Distribution elections may be made separately with respect to each
Plan Year’s Company Matching Credits and Company Discretionary Credits, and
Termination/Retirement Accounts and/or In-Service Accounts will be established
accordingly.  If a Participant does not
make a distribution election with respect to a given Plan Year’s Company Matching
Credits and/or Company Discretionary Credits (or if the Participant Retires
without having made a valid Retirement Distribution election with respect to
given Plan Year’s Company Matching Credits and/or Company Discretionary
Credits), he shall be deemed to have elected to receive distribution of such
Company Credits in a lump sum as a Retirement Distribution.  Any portion of a Participant’s Company
Credits that is not credited to an In-Service Distribution Account will be
credited to the Participant’s Termination/Retirement Account, which credited
amounts, as adjusted pursuant to Section 3.2 hereof, shall remain credited
to the Participant’s Termination/Retirement Account until such amounts have
been distributed to the Participant or the Participant’s Beneficiary and may
not be credited or reallocated to an In-Service Account.


 


(ii)           Special Rule Regarding
In-Service Distribution Elections for Company Matching Credits and Company
Discretionary Credits.  If a
Participant elects to receive an In-Service Distribution of Company Matching
Credits and/or Company Discretionary Credits pursuant to Section 3.1(f)(i) prior
to being fully vested in such Credits, the Participant will be deemed to have
made the following two In-Service Distribution Elections:


 


(A)          An election to
receive, at the In-Service Distribution Date specifically elected, an
In-Service Distribution of the portion of such Credits that will be vested as
of the In-Service Distribution Date specifically elected; and


 


(B)           An election to
receive, at the fifth anniversary of the In-Service Distribution Date
specifically elected, an In-Service Distribution of the portion of such Credits
that will not be vested as of the In-Service Distribution Date specifically
elected.


 


(g)           Changes in Distribution Elections.  A Participant may change his distribution
elections with respect to Salary Deferrals and/or Company Credits in accordance
with such procedures as the Committee 


 


18

















 


may establish, if (i) such
subsequent election is received and accepted by the Committee at least 12
months prior to the date of the Participant’s Retirement or the In-Service
Distribution Date intended to be changed, as applicable; (ii) such
subsequent election is not effective for at least 12 months after the date of
the Participant’s subsequent election; (iii) such subsequent election does
not accelerate previously elected distributions (i.e., does not reduce the
number of annual installment periods or change installment payments to a
lump-sum distribution); and (iv) the payments with respect to which such
subsequent election is made will not commence within 5 years from the date such
payments would otherwise have commenced under the distribution election being
changed.  Any purported distribution
election change that does not comply with such requirements shall be null and
void, and the most recent effective distribution election shall remain in
effect.


 


(h)           Transitional Relief under Section 409A.
Notwithstanding paragraph (g) above, a Participant may make a change to an
existing distribution election no later than December 31, 2008, provided
that: (i) such subsequent election does not accelerate the timing of a
distribution from a future calendar year into the 2008 calendar year; (ii) such
subsequent election does not apply to a distribution that is otherwise
scheduled to become payable during the six-month period following such
election.


 


3.2           Adjustment of Accounts.  A Participant shall be allowed to select one
or more Investment Options from a list provided by the Committee.  The initial election shall be made on the
Allocation Election form approved by the Committee (or Allocation Election
screen on the Participant website approved by the Committee) and shall specify
the allocations among the Investment Options selected.  A Participant may make different Allocation
Elections for each Account.  A
Participant’s Accounts shall be valued as the sum of the value of all Deemed
Investments minus any withdrawals or distributions from the relevant
Account.  Investment Options shall be utilized
to determine the value of an Account. 
Elections of Investment Options do not represent actual ownership of,
nor ownership rights in or to, the securities or other investments to which the
Investment Options refer, nor is the Company in any way bound or directed to
make actual investments corresponding to Deemed Investments.


 


19

















 


(a)           The Committee, in its sole
discretion, shall be permitted to add or remove Investment Options 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.  Any unallocated portion of an
Account or any unallocated portion of new Deferrals shall be Deemed Invested in
an Investment Option referring to a money-market based fund.


 


(b)           A Participant may make a new
Allocation Election with respect to future Deferrals or current Account
balances (or both), provided that such new allocations shall be in increments
of 1% and apply to the entire Account balance. 
Subject to restrictions on the timing and number of permitted changes to
Allocation Elections within certain time periods established by the Committee,
new Allocation Elections may be made on any business day, and will become effective
on the first business day following the date the new Allocation Election is
requested by the Participant.


 


(c)           Notwithstanding anything herein to
the contrary, the Company shall have the sole and exclusive authority to invest
any or all amounts set aside to pay benefits hereunder, regardless of any
Allocation Elections by any Participant. 
A Participant’s Allocation Election shall be used solely for purposes of
determining the value of his or her Accounts and the Company’s obligation to
the Participant pursuant to this Plan.


 


(d)           Notwithstanding anything herein to
the contrary, prior to August 1, 2005, as of each Valuation Date, each
Participant’s Account balance shall be deemed to have been invested in the same
investments and in the same percentages as the Participant’s account balance
under the Savings Plan since the preceding Valuation Date, and his Account
balance shall be adjusted accordingly.


 


20














 


3.3           Transitional Election
Matters.  Notwithstanding anything
herein or otherwise to the contrary, with respect to Deferrals and Company
Credits credited to Participants’ Accounts with respect to periods prior to the
Effective Date, and Deemed Investment earnings thereon (collectively, “Pre-Effective
Date Deferrals”):


 


(a)           Such Pre-Effective Date
Deferrals will be credited to Participants’ Termination/Retirement Account, and
no In-Service Distribution elections may be made with respect to Pre-Effective
Date Deferrals; and


 


(b)           No changes may be made to the
distribution election for any Pre-Effective Date Deferrals, except as set forth
in Section 3.1(g) or, during the 2005 Plan Year, except as permitted
by Section 409A.


 


3.4           Vesting of Account.


 


(a)           Salary and Bonus Deferrals.  The Deferrals credited to a Participant’s
Account under Sections 3.1(a) and 3.1(b) hereof, as adjusted pursuant
to Section 3.2 hereof, shall be 100% vested at all times.


 


(b)           Matching and Company
Discretionary Credits Prior to August 1, 2005.  Company Matching Credits credited to a
Participant’s Account under Sections 3.1(d) hereof with respect to pay
periods beginning prior to August 1, 2005, as adjusted pursuant to Section 3.2
hereof, shall be vested at the same time and to the same extent as Company
matching contributions made to the Savings Plan on the Participant’s
behalf.  Company Discretionary Credits
credited to a Participant’s Account under Section 3.1(e) hereof with
respect to pay periods beginning prior to August 1, 2005, as adjusted
pursuant to Section 3.2 hereof, shall be vested at the same time and to
the same extent as cash balance credits made to the Retirement Plan on the
Participant’s behalf.


 


(c)           Matching and Company
Discretionary Credits on or After August 1, 2005.  Company Credits credited to a Participant’s
Account under Sections 3.1(d) and 3.1(e) hereof with respect to pay
periods beginning on or after August 1, 2005, as adjusted pursuant to Section 3.2
hereof, shall be vested at the same time and to the same extent as Company
matching contributions made to the Savings Plan on the Participant’s
behalf.  As of the Effective Date, the
Savings Plan’s vesting schedule is as follows:


 


21

















 


	
  Years of Service

  	
   

  	
  Vested Percentage

  	
   

  
	
  Less than 1

  	
   

  	
  0%

  	
   

  
	
  1

  	
   

  	
  20%

  	
   

  
	
  2

  	
   

  	
  40%

  	
   

  
	
  3

  	
   

  	
  60%

  	
   

  
	
  4

  	
   

  	
  80%

  	
   

  
	
  5+

  	
   

  	
  100%

  	
   

  



 


Notwithstanding the
foregoing provisions of this Section 3.4(c), (i) pursuant to Section 6.1
hereof, a Participant shall be 100% vested in Company Credits credited to his
Account under Sections 3.1(d) and 3.1(e) hereof, as adjusted pursuant
to Section 3.2 hereof, upon a Change of Control, (ii) a Participant
shall be 100% vested in Company Credits credited to his Account under Sections
3.1(d) and 3.1(e) hereof in the event of the Participant’s
Retirement, death, or Disability, and (iii) the Company may change the
SERP’s vesting schedule at any time by amending the Savings Plan’s vesting
schedule; provided, however, that such change
shall not reduce a Participant’s vested percentage with respect to Company
Credits previously credited to his Account below his vested percentage
immediately prior to such change.


 


(d)           Forfeiture for Cause.  Notwithstanding anything in this Section 3.4
to the contrary, vesting of Company Credits credited to a Participant’s account
under Sections 3.1(d) and 3.1(e) hereof, as adjusted pursuant to Section 3.2
hereof, shall be subject to forfeiture for Cause pursuant to Section 5
hereof.


 


22

















 


SECTION 4


 


DISTRIBUTIONS


 


4.1           Plan Distributions.  Subject to the requirements of Section 409A:


 


(a)           In-service Distributions.  Each In-Service Distribution shall be paid in
a lump sum in accordance with the In-Service Distribution election made with
respect thereto, beginning as soon as administratively feasible following the
Valuation Date coincident with or next following the applicable In-Service
Payment Date.  Notwithstanding a
Participant’s election to receive an In-Service Distribution of some or all of
his Account, if the Participant’s Termination, Retirement, Disability, or
death, as applicable, occurs prior to the completion of payments elected in
connection with any In-Service Distribution Date(s), the vested portion of his
remaining In-Service Distribution Account balances shall be distributed
pursuant to the Plan’s provisions regarding distributions upon Termination,
Retirement, Disability, or death, as applicable.


 


(b)           Retirement Distributions.  Upon a Participant’s Retirement, his
Termination/Retirement Account and any undistributed balances in his In-Service
Distribution Accounts shall be paid to the Participant in a lump sum and/or
installments in accordance with his Retirement Distribution elections.


 


(c)           Distributions upon
Termination.  In the
event that a Participant experiences a Termination prior to his Retirement,
Disability, or death, the vested portion of his Termination/Retirement Account
and the vested portion of any undistributed balances in his In-Service
Distribution Account shall be paid to the Participant in a lump sum as a
Termination Distribution.


 


(d)           Distributions upon Death.  In the event of a Participant’s death before
complete distribution of the balance of his Account, such Participant’s
Beneficiary shall be paid a lump-sum death benefit equal to the amount of the
Participant’s remaining Account balance.


 


(e)           Distribution
upon Disability.  If a
Participant suffers a Disability, he may request a Disability
Distribution.  The Committee, in its sole
discretion, shall determine whether a Participant has experienced a


 


23

















 


Disability and whether a Disability Distribution
shall be granted.  If such Disability
Distribution is granted, the Participant’s Termination/Retirement Account
balance and any undistributed balances in his In-Service Distribution Accounts
shall be paid to the Participant in a lump sum; provided,
however that if the Participant is eligible for Retirement on or
before the date of the onset of such Disability, such payment shall be made in
a lump sum and/or installments in accordance with his Retirement Distribution
elections.


 


(f)            Unforeseeable Emergency.  A Participant may request, in writing to the
Committee, a distribution from his Account if the Participant experiences an
Unforeseeable Emergency.  The Committee,
in its sole discretion, shall determine whether a Participant has experienced
an Unforeseeable Emergency and whether any distribution based on such
Unforeseeable Emergency shall be granted. 
Distributions of amounts because of an Unforeseeable Emergency shall be
limited to the extent reasonably needed to satisfy the emergency need, which
cannot be met with other resources of the Participant.  The amount of such Unforeseeable Emergency
distribution shall be subtracted first from the vested portion of the
Participant’s Termination/Retirement Account until depleted and then from the
vested portion of his In-Service Distribution Accounts (if any) beginning with
the most distant distribution commencement date.  For purposes of administering this Section,
values shall be determined on the date the Committee approves the amount of the
Unforeseeable Emergency distribution, or such other date determined by the
Committee.


 


(g)           Small Account Balance
Lump-Sum Payment.  Anything to
the contrary in the SERP notwithstanding, in the event that a Participant’s
vested Termination/Retirement Account balance, including any undistributed
vested balance in his In-Service Distribution Account (in the case of a
Retirement Distribution) or In-Service Account balance (in the case of an
In-Service Distribution), is less than $10,000 on his Retirement Distribution
Date or In-Service Distribution Date, as applicable, the In-Service
Distribution or Retirement Distribution, as applicable, shall be paid in a
single lump sum, and any form of payment election to the contrary shall be null
and void.


 


(h)           Installment Payments.  If the Participant has elected installment
payments for his Retirement Distribution, annual cash payments will be made
beginning as soon as administratively practicable following


 


24

















 


the applicable Valuation
Date.  Such payments shall continue
annually on the anniversary of the previous installment payment until the
number of installment payments elected has been paid.  The installment payment amount shall be
determined annually as the result of a calculation, performed on or about the
anniversary of the initial Valuation Date, where (i) is divided by (ii):


 


(i)            equals the remaining value
of the Participant’s Termination/Retirement Account as of the anniversary of
the Valuation Date; and


 


(ii)           equals the remaining number
of annual installment payments.


 


4.2           Time of Payments.  Except as specifically provided herein,
payment of any lump-sum or installment distribution to which the Participant or
Beneficiary shall be entitled under the SERP shall be made or commence as soon
as practicable after the Valuation Date coincident with or next following the
date of the Participant’s Termination, Retirement, onset of Disability, death,
or the applicable In-Service Distribution Date, as applicable; provided, however, that if (a) the Company is
considered to be “publicly traded,” for purposes of Section 409A(a)(2)(B)(i) of
the Code, at the time a benefit under the SERP would otherwise be distributed
to a Participant, (b) such Participant is a Specified Employee, and (c) the
distribution results from the Participant’s Separation from Service, such
benefit shall not be paid earlier than the date which is 6 months after the date
of the Participant’s Separation from Service with the Company, to the extent
that making such a distribution would otherwise violate Section 409A.


 


4.3           Withholding Tax.


 


The
Company shall have the right to deduct from all credits and payments made under
the SERP, or from the Participant’s cash compensation, any taxes required by
law to be withheld with respect to such amounts.


 


4.4           Savings Plan and Retirement
Plan.


 


Any
benefit payable under the Savings Plan or Retirement Plan shall be paid solely
in accordance with the terms and provisions of the Savings Plan or Retirement
Plan, as applicable, and nothing in the SERP


 


25

















 


shall operate or be
construed in any way to modify, amend, or otherwise affect the terms and
provisions of the Savings Plan or Retirement Plan.


 


26

















 


SECTION 5


 


FORFEITURE
FOR CAUSE


 


5.1           Forfeiture of Vested Amounts.  Notwithstanding the provisions of Section 3.4
hereof, all amounts credited to a Participant’s Account pursuant to Section 3.1(d) or
(e) hereof, as adjusted pursuant to Section 3.2, shall be forfeited
if one or both of the following conditions occurs:


 


(a)           the Participant’s employment
is terminated by the Company for Cause, or


 


(b)           the Participant engages in
competition with the Company as an employee, officer, partner, proprietor, or
independent contractor prior to receiving his benefit under the SERP.


 


5.2           Definition of Cause.  For purposes of the SERP, “Cause” shall
include, but shall not be limited to:


 


(a)           continued neglect, willful
misconduct, or gross negligence in connection with the performance of duties
for the Company;


 


(b)           willful failure to follow
the reasonable directions of the Company’s Chief Executive Officer or the Board,
as the case may be;


 


(c)           conviction of a crime (other
than a minor traffic offense);


 


(d)           misappropriation or
embezzlement of funds or property;


 


(e)           an attempt to secure
personally any profit in connection with any transaction entered into on behalf
of the Company; and


 


(f)            deliberate or pre-meditated
acts against the interests of the Company.


 


27

















 


SECTION 6


 


CHANGE
OF CONTROL


 


6.1           Acceleration of Vesting.  Upon a Change of Control, all amounts credited
to the Accounts of Participants who are in the employ of the Company as of the
effective date of such Change of Control shall be 100% vested, subject to the
provisions of Section 5 hereof.


 


6.2           Contributions to Grantor
Trust.  On or before the date of a Change
of Control, the Company shall contribute to a Trust (as contemplated in Section 9.2
hereof) cash that, together with the value of such Trust’s assets at that time,
equals the aggregate vested Account balances of all Participants.  Notwithstanding the foregoing provisions of
this Section 6.2, in no event shall a Participant’s rights to any amounts
held in the Trust exceed those provided for in Section 9.2 hereof.


 


28

















 


SECTION 7


 


ADMINISTRATION


 


7.1           Powers of the Committee.  The Committee shall have the exclusive
responsibility for the administration of the SERP according to the terms and
provisions of the SERP and shall have all powers necessary to accomplish those
purposes, including, but not by way of limitation, the right, power, and
authority:


 


(a)           to make rules and
regulations for the administration of the SERP;


 


(b)           to construe all terms,
provisions, conditions, and limitations of the SERP;


 


(c)           to correct any defect,
supply any omission, or reconcile any inconsistency that may appear in the SERP
in the manner and to the extent it deems expedient to carry the SERP into
effect for the greatest benefit of all parties at interest;


 


(d)           to designate the persons
eligible to become Participants and to establish the maximum and minimum
amounts that may be elected to be deferred;


 


(e)           to determine all
controversies relating to the administration of the SERP, including but not
limited to:


 


(i)            differences of opinion
arising between the Company and a Participant in accordance with Section 7.2;
and


 


(ii)           any question it deems
advisable to determine in order to promote the uniform administration of the
SERP for the benefits of all parties at interest;  and


 


(f)            to delegate any plan
administration duties of the Committee to such individual employees of the
Company or groups of employees of the Company as the Committee determines to be
necessary or advisable to properly administer the SERP.


 


7.2           Committee Discretion.  The Committee, in exercising any power or
authority granted under the SERP or in making any determination under the SERP,
shall perform or refrain from performing those acts


 


29

















 


using
its sole discretion and judgment.  By way
of amplification and without limiting the foregoing, the Company specifically
intends that the Committee have the greatest possible discretion to construe
the terms of the SERP and to determine all questions concerning eligibility,
participation, and benefits.  Any
interpretation, determination, or decision made by the Committee or any
refraining to act or any act taken by the Committee in good faith shall be
final, conclusive, and binding on all parties (other than any parties from
which the Committee’s authority to act are derived).  The Committee’s decision shall never be
subject to de novo review.


 


7.3           Reimbursement of Expenses.  The Committee shall serve without
compensation for its services but shall be reimbursed by the Company for all
expenses properly and actually incurred in the performance of its duties under
the SERP.


 


7.4           Indemnification.  To the extent permitted by law, the Board,
the Committee, employees of the Company, and all agents and representatives of
the Company shall be indemnified by the Company, and saved harmless against any
claims resulting from any action or conduct relating to the administration of
the SERP, except claims arising from gross negligence, willful neglect, or
willful misconduct.


 


7.5           Claims Procedure.  Any controversy or claim by a Participant or
Beneficiary (a “Claimant”) arising out of or relating to the SERP shall be
filed in writing and addressed to the Company’s Senior Vice President of Human
Resources (the “HRVP”) at the Company’s principal office.  The HRVP shall make all initial determinations
concerning such claim.


 


(a)           Initial Claims Decision.  The HRVP  shall
generally provide written notice to the Claimant of his decision within 90 days
(or 45 days for a Disability-based claim) after the claim is filed with the
HRVP; provided, however, that the HRVP may
have up to an additional 90 days (or up to two 30-day periods for a
Disability-based claim) to decide the claim, if he determines that special
circumstances require an extension of time to decide the claim and he  advises the Claimant in writing of the need for an
extension (including an explanation of the special circumstances requiring the
extension) and the date on which he expects to decide the claim.


 


30














 


(b)           Appeals.  A Claimant may appeal the HRVP’s decision by
submitting a written request for review to the Committee within 60 days (180
days for a Disability-based claim) after the earlier of receiving the denial
notice or after expiration of the initial review period.  Such written request must be addressed to the
Committee at the
Company’s principal office.  In
connection with such request, the Claimant (and his authorized representative,
if any) may review any pertinent documents upon which the denial was based and
may submit issues and comments in writing for consideration by the
Committee.  If the Claimant’s request for
review is not received by the Committee within the earlier of 60 days (or 180
days for a Disability-based claim) after receipt of the denial or after
expiration of the initial review period, the denial shall be final, and the
Claimant shall be barred and estopped from challenging the HRVP’s
determination.


 


(c)           Decision Following Appeal.  The Committee  shall
generally make its decision on the Claimant’s appeal in writing within 60 days
(or 45 days for a Disability-based claim) following its receipt of the
Claimant’s request for appeal; provided, however,
that the Committee may have up to an additional 60 days (or 45 days for a
Disability-based claim) to decide the claim, if the Committee determines that
special circumstances require an extension of time to decide the claim and the
Committee advises the Claimant in writing of the need for an extension
(including an explanation of the special circumstances requiring the extension)
and the date on which it expects to decide the claim.  The Committee  shall
notify the Claimant of its decision on the Claimant’s appeal in writing,
regardless of whether the decision is adverse.


 


(d)           Decisions Final; Procedures
Mandatory.  A decision on appeal by
the Committee shall be binding and conclusive upon all persons, and completion
of the claims procedures described in this Section 7.5 shall be a
mandatory precondition to commencement of a legal or equitable action in
connection with the SERP by a person claiming rights under the SERP or by
another person claiming rights through such a person.  The Committee may, in its sole discretion,
waive the procedures described in this Section 7.5 as a mandatory precondition
to such an action.


 


31

















 


(e)           Time for Filing Legal or Equitable
Action.  Any legal or equitable
action filed in connection with the SERP by a person claiming rights under the
SERP or by another person claiming rights through such a person must commence
not later than two years following the date such claim arose.


 


32

















 


SECTION 8


 


AMENDMENT &
TERMINATION


 


8.1           Amendment and Termination.  AmeriCold shall have the right at any time
and from time to time to amend or terminate the SERP by action of the
Board.  No such amendment or termination
shall operate retroactively so as to reduce the value of a Participant’s vested
Account balance in existence at the time of the amendment or termination,
calculated as if the Participant had experienced a Separation from Service with
the Company as of the effective date of the amendment or termination.


 


8.2           Effect of Termination.  Upon termination of the SERP, the following provisions
of this Section 8.2 shall apply (to the extent that such provisions comply
with Section 409A):


 


(a)           No additional amounts shall be
credited to any Participant’s account under the SERP, to the extent such
amounts relate to Salary Compensation or Bonus Compensation earned on or after
the effective date of the SERP’s termination;


 


(b)           Except as otherwise provided in Section 8.2(a) hereof,
on and after the effective date of the SERP’s termination, the SERP shall
continue to be administered as it was prior to the SERP’s termination until all
Participant account balances have been distributed pursuant to the terms of the
SERP;


 


(c)           No participant shall be entitled to a
distribution of his Account solely as a result of the SERP’s termination in
accordance with the provisions of this Section 8; on and after the
effective date of the SERP’s termination, a Participant shall continue to be
entitled to a distribution of his Account only if he meets the distribution
requirements set forth in Section 4 hereof; and


 


(d)           The forfeiture provisions of Sections
3.4 and 5 shall continue to apply with respect to a Participant until his
entire Account balance has been distributed.


 


33

















 


SECTION 9


 


FUNDING


 


9.1           Payments Under This Agreement are
the Obligation of the Company.  The
Company shall pay the benefits due the Participants under the SERP; provided, however, that should the Company fail to make a
payment when a benefit is due, the benefit shall be paid by the trustee of that
certain Trust established pursuant to Section 9.2 hereof (to the extent of
the assets available under the Trust). 
In any event, if the Trust fails to make such payment for any reason,
the Company shall remain liable for the payment of all benefits provided under
the SERP.


 


9.2           Agreement May be Funded
Through Rabbi Trust.  It is
specifically recognized by both the Company and the Participants that the
Company may, but is not required to, purchase life insurance on the lives of
one or more Participants so as to accumulate assets to fund the obligations of
the Company under the SERP, and that the Company may, but is not required to,
contribute any policy or policies it may purchase and any amount it finds
desirable to a trust  (the “Trust”)
established to accumulate assets to fund the obligations of the Company under
the SERP.  The Company or the trustee of
the Trust, as applicable, shall be the owner of such life insurance policies,
and under no circumstances shall the Participants have any rights to any of
such policies.  Participants shall submit
to such medical examinations and supply such information and execute such
documents as may be required by any insurance carriers to whom the Company has
applied for life insurance. Under no circumstances shall the rights of the
Participants to the assets held in the Trust be greater than the rights
expressed in the SERP.  Except as
provided in Section 6 hereof, nothing contained in the Trust agreement
that creates the Trust shall constitute a guarantee by any Company that assets
of the Company transferred to the Trust will be sufficient to pay any benefits
under the SERP or would place the Participant in a secured position ahead of
general creditors should the Company become insolvent or bankrupt.  Any Trust agreement prepared to fund the
Company’s obligations under the SERP must 


 


34

















 


specifically
set out these principles so it is clear that the Participants in the SERP are
only unsecured, general creditors of the Company in relation to their benefits
under the SERP.


 


9.3           Participants Must Rely Only on
General Credit of the Company.  It is
also specifically recognized by both the Company and the Participants that the
SERP is only a general corporate commitment, and that each Participant must
rely upon the general credit of the Company for the fulfillment of its
obligations hereunder.  Under all
circumstances the rights of Participants to any asset held by the Company will
be no greater than the rights expressed in the SERP.  Nothing contained in the SERP will constitute
a guarantee by the Company that the assets of the Company will be sufficient to
pay any benefits under the SERP or would place the Participant in a secured
position ahead of general creditors of the Company.  Though the Company may establish or become a
signatory to a Trust, as specified in Section 9.2, to accumulate assets to
fulfill its obligations under the SERP, the SERP and any such Trust will not
create any lien, claim, encumbrance, right, title, or other interest of any
kind whatsoever in any Participant in any asset held by the Company,
contributed to any such Trust or otherwise designated to be used for payment of
any of its obligations under the SERP. 
No specific assets of the Company have been or will be set aside, or
will in any way be transferred to the Trust or will be pledged in any way for
the performance of the Company’s obligations under the SERP which would remove
such assets from being subject to the general creditors of the Company.


 


35

















 


SECTION 10


 


MISCELLANEOUS


 


10.1         Limitation of Rights.  Nothing in the SERP shall be construed:


 


(a)           to give any employee of any Company
any right to be designated an Eligible Employee or a Participant in the SERP;


 


(b)           to give a Participant any right with
respect to the Salary Compensation and Bonus Compensation deferred pursuant to
Sections 3.1(a) and 3.1(b), respectively, the Company Matching and
Discretionary Credits credited pursuant to Sections 3.1(d) and 3.1(e),
respectively, or the deemed investment earnings and losses adjustments pursuant
to Section 3.2 hereof, except in accordance with the terms of the SERP;


 


(c)           to limit in any way the right of the
Company to terminate a Participant’s employment with the Company at any time;


 


(d)           to evidence any agreement or
understanding, expressed or implied, that the Company will employ a Participant
in any particular position or for any particular remuneration; or


 


(e)           to give a Participant or any other
person claiming through him any interest or right under the SERP other than
that of any unsecured general creditor of the Company.


 


10.2         Distributions to Incompetents or
Minors.  Should a Participant become
incompetent or should a Participant designate a Beneficiary who is a minor or
incompetent, the Committee is authorized to pay the funds due to the parent of
the minor or to the guardian of the minor or incompetent or directly to the
minor or to apply those funds for the benefit of the minor or incompetent in any
manner the Committee, in its sole discretion, determines appropriate.


 


10.3         Nonalienation of Benefits.  No right or benefit provided in the SERP
shall be transferable by the Participant except, upon his death, to a named
Beneficiary as provided in the SERP.  No
right or benefit 


 


36

















 


under
the SERP shall be subject to anticipation, alienation, sale, assignment,
pledge, encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber, or charge the same will be void.  No right or benefit under the SERP shall in
any manner be liable for or subject to any debts, contracts, liabilities or
torts of the person entitled to such benefits. 
If any Participant or any Beneficiary becomes bankrupt or attempts to
anticipate, alienate, sell, assign, pledge, encumber or charge any right or
benefit under the SERP, that right or benefit shall, in the discretion of the
Committee, cease.  In that event, the Committee
may have the Company hold or apply the right or benefit or any part of it to
the benefit of the Participant or Beneficiary, his spouse, children or other
dependents or any of them in any manner and in any proportion the Committee
believes to be proper in its sole and absolute discretion, but is not required
to do so.


 


10.4         Compliance with Court Orders.  The Committee may make any payments directed
by court order in any action in which the Plan or the Committee has been named
as a party.  In addition, if a court
determines that a spouse or former spouse of a Participant has an interest in
the Participant’s benefits under the Plan under applicable community property
or similar laws, the Committee, in its sole discretion, shall have the right,
notwithstanding any election made by the Participant, to immediately distribute
the spouse’s or former spouse’s interest in the Participant’s Account under the
Plan to such spouse or former spouse so long as such distribution is not
prohibited by Section 409A.


 


10.5         Reliance Upon Information.  The Committee shall not be liable for any
decision or action taken in good faith in connection with the administration of
the SERP.  Without limiting the
generality of the foregoing, any decision or action taken by the Committee when
it relies upon information supplied it by any officer of the Company, the
Company’s legal counsel, the Company’s independent accountants or other
advisors in connection with the administration of the SERP shall be deemed to
have been taken in good faith.


 


10.6         Severability.  If any term, provision, covenant or condition
of the SERP is held to be invalid, void or otherwise unenforceable, the rest of
the SERP shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.


 


37

















 


10.7         Notice.  Any notice or filing required or permitted to
be given to the Committee or a Participant shall be sufficient if submitted in
writing and hand-delivered or sent by U.S. mail to the principal office of the
Company or to the residential mailing address of the Participant.  Notice shall be deemed to be given as of the
date of hand-delivery or if delivery is by mail, as of the date shown on the
postmark.


 


10.8         No Enlargement of Employee Rights.  The Participant shall be subject to dismissal
from the service of the Company to the same extent as if the SERP had never
existed.


 


10.9         No Requirement to Fund.  The Company shall not be required to reserve,
or otherwise set aside, funds for the payment of its obligations hereunder,
except as provided in Section 6.2 hereof.


 


10.10       Governing Law.  To the extent not preempted by ERISA, the
SERP shall be construed, administered and governed in all respects by the laws
of the State of Georgia.


 


10.11       Adoption by Affiliates.


 


(a)           Procedure for and Status After
Adoption.  Any Affiliate may, with
the approval of the Committee, adopt the SERP by appropriate action of its
board of directors.  The terms of the
SERP will apply separately to each Affiliate adopting the SERP and its
Participants in the same manner as is expressly provided for AmeriCold and its
Participants except that the powers of the Board and the Committee under the
SERP will be exercised by the members of the Board and the Committee,
respectively.  AmeriCold and each
Affiliate adopting the SERP will bear the cost of providing SERP benefits for
its own Participants.  It is intended
that the obligation of AmeriCold and each Affiliate with respect to its
Participants will be the sole obligation of the entity that is employing the
Participant and will not bind any other entity.


 


(b)           Termination of Participation by
Adopting Affiliate.  Any Affiliate
adopting the SERP may, by appropriate action of its board of directors,
terminate its participation in the SERP. 
The Committee may, in its discretion, also terminate an Affiliate’s
participation in the SERP at any time. 
The termination of the participation in the SERP by an Affiliate will
not, however, affect the rights of any Participant who is working or has worked
for the Affiliate as to amounts previously standing to his credit in his
Account.


 


10.12       Effective Date.  The SERP will be operative and effective on January 1,
2005.


 


38

















 


10.13       Compliance with Section 409A
.  The SERP (i) is intended
to comply with, (ii) shall be interpreted and its provisions shall be
applied in a manner that is consistent with, and (iii) shall have any
ambiguities therein interpreted, to the extent possible, in a manner that
complies with Section 409A.


 


10.14       Controlled Group Status. To the
extent required under Section 409A, if the Company is a member of a
controlled group of corporations or a group of trades or businesses under
common control (as described in Sections 414(b) or 414(c)), all members of
the group shall be considered a single Company for purposes of determining
whether a Separation from Service has occurred and for such other purposes as Section 409A
shall require.


 


39

















 


IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its officer hereunto duly authorized this 22 day of December, 2008,
effective as of January 1, 2005.


 


 


	
   

  	
  AMERICOLD LOGISTICS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald
  B. Hutchison

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Executive
  Vice President and Chief Financial Officer

  



 


40