Exhibit 10.8


 


NPC INTERNATIONAL, INC.


 


POWR PLAN


for


Key Employees


 


 


As Amended and Restated Effective January 1, 2005


 

















 


Table of Contents


 


	
  Section 1. Establishment
  and Amendment

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2. Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 3. Eligibility for
  Participation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 4. Company
  Contributions Under the Plan

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 5. Vesting of
  Company Contributions

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 6. Timing and Form
  of Plan Payments

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 7. Designation of
  Beneficiaries

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 8. Merger,
  Consolidation and Sale of Assets

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 9. Rights of
  Participants

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 10. Administration

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 11. Claims and
  Appeals

  	
   

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 12. Amendments and
  Termination

  	
   

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 13. Applicable
  Laws

  	
   

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 14. 409A Compliance

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 15. Incompetency

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 16. Expenses

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 17. Notices

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 18. Withholding
  and Deductions

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 19. Invalidity of
  Provisions

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 20. Tax Advantages
  Not Guaranteed

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 21. Return of
  Company Contributions

  	
   

  	
  15

  



 


i

















 


NPC International, Inc.


POWR Plan for Key Employees


 


Section 1. Establishment and Amendment


 


NPC
INTERNATIONAL, INC. hereby amends and restates in its entirety, effective
January 1, 2005, its deferred compensation and retirement plan for key
employees as described herein, which is known as the “NPC INTERNATIONAL INC.
POWR PLAN FOR KEY EMPLOYEES (hereinafter called the “Plan”). The Plan is
intended to constitute an unfunded plan maintained primarily to provide
deferred compensation to a select group of management or highly compensated
employees.


 


Section 2. Definitions


 


2.1.         Definitions. Whenever used herein, the following terms
shall have the meanings set forth below:


 


(a)                                  “Active Participant” means a Participant with respect to a
calendar year if, for the entire calendar year, the Participant is an Eligible
Employee.


 


(b)                                 “Board” means the Board of Directors of the Company.


 


(c)                                  “Beneficiary” means the persons or entities designated
pursuant to Section 7 who are to receive, upon a Participant’s death, payment
of the Nonforfeitable amounts credited to the Participant’s Account as of the
date of his death.


 


(d)                                 “Committee” means the Compensation Committee of and appointed
by the Board.


 


(e)                                  “Company” means NPC International, Inc., and any
successor thereto, with respect to its employees; NPC Management, Inc., and any
successor thereto, with respect to its employees; and NPC Restaurants, L.P.,
and any successor thereto, with respect to it employees; provided, however,
that for purposes of Sections 2.1(b) (the definition of “Board”), 12.1
(amendments to the Plan) and 12.2 (termination of the Plan), the term “Company”
means NPC International, Inc. For purposes of Section 2.1(r) (definition of “Years
of Service,”), Company means NPC International, Inc. and any corporation, trade
or business under common ownership and control as described in Code Sections
414(b) or (c).


 


(f)                                    “Compensation” (for a calendar year) with respect to an
Active Participant means the Active Participant’s annual base pay, as
determined by the Company in its sole discretion and according to its books and
records, in effect as of the last day of such calendar year; provided, however,
that where the Active Participant’s rate of annual base pay changes during the
calendar year, “Compensation” means total base pay actually paid for the year,
as determined by the Company in its sole discretion and according to its books
and records.


 


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(g)                                 “Disability” means a Participant (a) is 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, or (b)
is, 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, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan covering
employees of Company. For purposes of this Plan, it is not necessary that a
determination of disability be made by the Social Security Administration, but
a Participant who is determined to be totally disabled by the Social Security
Administration shall be deemed to have suffered a Disability for purposes of
this Plan.


 


(h)           “Eligible
Employee” means an employee of the Company who is:


 


(1)           in a select group of management or
highly paid employees;


 


(2)                                  exempt from the minimum wage and maximum hour
requirements of the Fair Labor Standards Act, as described in 29 U.S.C. e213(a)
and regulations promulgated thereunder; and


 


(3)                                  selected to participate in this Plan by the
Committee.


 


Employees
serving indefinitely (as opposed to a temporary appointment) in one of the
following positions are automatically Eligible Employees unless the Committee,
in its sole discretion, affirmatively designates them as ineligible:


 


•                                          Area General Manager


•                                          Region Manager


•                                          Division Vice President


•                                          Corporate Support Manager


•                                          Field Support Manager


•                                          Corporate Director


•                                          Field Director


•                                          Member of the Executive Team (as designated
by the Committee).


 


An
Eligible Employee who leaves a position described above, and who remains an
employee but in a position other than a position described above, shall
automatically be considered ineligible as of the effective date of the
transfer, unless the Committee affirmatively designates the person as eligible.


 


An
Eligible Employee who transfers from one position described above to another,
with no intervening break in employment or intervening service in an position
not described above, shall not be deemed to have incurred a break in continuous
service as an Eligible Employee (see Section 4 for a


 


2

















 


discussion
about how a change in the employment classification of an Eligible Employee who
is an Active Participant affects calculation of his benefits under the Plan for
the year of such change).


 


The
Committee may at any time, in its sole discretion, designate an otherwise
Eligible Employee as prospectively ineligible to participate in this Plan.


 


(i)            “Inactive
Participant” means a Participant who is not an Active Participant.


 


(j)                                     “Nonforfeitable,” as applied to Profit Sharing and POWR Plan
Plus contributions (and earnings thereon) deposited by the Company and credited
by the Trustee at the direction of the Company to a Participant’s Account,
means the portion of such deposits and credits to which the Participant or his
Beneficiary are “vested” in accordance with the vesting rules described in
Section 5 and the other terms and conditions of the Plan, subject only to the
claims of the Company’s general creditors as described in the agreement and
declaration establishing the Trust. The term “forfeitable” means not
Nonforfeitable.


 


(k)                                  “Participant” means a person who is either (i) an Eligible
Employee who is presumptively considered eligible to participate in this Plan
or who has been selected by the Committee to participate in this Plan, and who
has not been de-selected or otherwise rendered ineligible to participate by
virtue of a termination of employment or a transfer to a classification of
employment under which he is not presumptively eligible to participate in the
Plan; or (ii) a person who has amounts currently deposited and credited to his
Participant’s Account maintained by the Trust on his behalf pursuant to the
terms of the Plan.


 


(l)                                     “Participant’s Account” (or “Account”) means the bookkeeping account
maintained by the Trustee under the Trust, on behalf of a Participant, to which
the Company deposits and the Trustee credits at the direction of the Company
the Profit Sharing and/or POWR Plan Plus Contributions made under this Plan,
and to which is credited the Participant’s share of the Trusts earnings and
losses. Although this Plan may refer to such an account as “the Participant’s
Account” or as “his Account,” the amounts credited to such Account shall at all
times be subject to the terms and conditions of the agreement and declaration
establishing the Trust, and thus subject to the claims of the Company’s general
creditors.


 


(m)                               “POWR Plan Plus
Contribution” means the
Company contribution (if any) made to the Plan in accordance with the
provisions of Section 4.2 hereof.


 


(n)                                 “POWR Plan Profit Sharing
Contribution” means the
Company contribution (if any) made to the Plan in accordance with the
provisions of Section 4.1 hereof.


 


(o)                                 “Profitability Target” for a calendar year means NPC International,
Inc.’s profitability target for such year as established by the Board in its
sole discretion.


 


3

















 


(p)                                 “Trust” means, with regard to Profit Sharing and POWR
Plan Plus Contributions deposited by the Company and credited by the Trustee on
behalf of a Participant, the NPC International, Inc. POWR Plan for Key
Employees Group Trust.


 


(q)                                 “Trustee” means the bank or trust company designated as
the trustee or successor trustee under the agreement and declaration
establishing the Trust.


 


(r)                                    “Year of Service” with respect to a Participant means a
calendar year (including the calendar year in which his employment terminates)
for which the Participant is credited with at least 1000 hours of service for
the Company. For this purpose, an “hour of service” means an hour with respect
to which the Participant is entitled to payment by the Company for the
performance of services for the Company, or entitled to payment even though no
services are performed for the Company (e.g., for periods of paid leave of
absence, illness, holiday, layoff, jury duty, etc.). The Committee may
designate, from time to time and in its sole discretion, such other service
(either for the Company or otherwise) that shall be considered Vesting Service
with respect to any particular Participant.


 


A
person who terminates employment with the Company and is later reemployed shall
be credited, upon his reemployment, with the Years of Service to which he was
credited upon his termination. (But see Sections 5.1 and 5.2 regarding
forfeiture of nonvested benefits upon a termination of employment; such
forfeited benefits are not restored notwithstanding restoration of the person’s
Years of Service.)


 


2.2.         Gender and Number. Except when otherwise indicated by the
context, any masculine terminology used herein shall also include the feminine
gender, and the definition of any term herein in the singular shall also
include the plural.


 


Section 3. Eligibility for Participation


 


3.1.         Eligibility.
An employee of the
Company shall be eligible to participate in the Plan with respect to a calendar
year if he qualifies as an Eligible Employee with respect to such year. The
Committee may add additional Participants or remove existing Participants from
time to time by written action.


 


3.2.         Inactive
Participants. If at a
future date an Active Participant no longer meets the requirements for active
participation in this Plan for reasons other than termination of employment,
the Participant shall become an inactive Participant, retaining all of the
rights accorded Active Participants by this Plan except the right to accrue
additional benefits under this Plan. Such an individual shall remain an
Inactive Participant unless and until he again becomes an Active Participant. An
Inactive Participant who remains an employee of the Company shall be eligible
to continue to accrue Years of Service for purposes of vesting, and for
purposes of qualifying for POWR Plan Plus Contributions in the event the
Participant later again becomes an Active Participant.


 


4

















 


See
Section 5 for a discussion of rules concerning forfeiture of benefits accrued
under the Plan, upon a termination of employment.


 


Section 4. Company Contributions Under the Plan


 


4.1.         POWR Plan Profit
Sharing Contributions.


 


(a)                                  Nature of POWR Plan Profit
Sharing Contributions; Eligibility. The Board may, in its sole discretion, designate prior to a calendar
year a Profitability Target for such calendar year. In the event NPC
International, Inc. achieves the Profitability Target, persons who were Active
Participants with respect to such calendar year shall be entitled to a POWR
Plan Profit Sharing Contribution from the Company, which contribution shall be
allocated to the Participant’s Account.


 


(b)                                 Amount of POWR Plan Profit
Sharing Contributions. The
amount of the POWR Plan Profit Sharing Contribution to which an eligible Active
Participant is entitled shall be a percentage of the Active Participant’s
Compensation for the calendar year to which the Contribution relates. The Board
shall determine the percentage applicable to various employment classifications
or positions of Active Participants, which percentage may vary between
employment classifications or positions. The Board may establish different
percentages applicable to the same employment classifications or positions,
depending on the extent to which NPC International, Inc. exceeds its
Profitability Target.


 


Where
different percentages apply to different employment classifications or
positions, and an Active Participant changes employment classification or
position during the calendar year, the percentage that applies to him is the
percentage that applies to the classification or position that the Active
Participant held for the longer period of time during the calendar year.


 


The
Board shall notify Eligible Employees regarding whether the Board will declare
a Profitability Target (for purposes of this Plan) for a given calendar year,
and the various POWR Plan Profit Sharing Contribution percentages that apply to
the Eligible Employees in the event the Profitability Targets are attained or
exceeded.


 


(c)                                  Timing of POWR Plan Profit
Sharing Contributions. The
Company shall contribute the POWR Plan Profit Sharing Contributions (with
respect to a calendar year) to the Trust as soon as practicable after the Board
determines, after the close of such calendar year, whether and the extent to
which NPC International, Inc. achieved its Profitability Target for such
calendar year.


 


(d)                                 Crediting of POWR Plan
Profit Sharing Contributions. As
soon as practicable after the Company makes its POWR Plan Profit Sharing
Contribution with respect to a calendar year, the Trustee shall credit to the
Participant’s Account of each Active Participant with respect to such calendar
year, such Active Participant’s share of the POWR Plan Profit Sharing
Contribution.


 


5

















 


4.2.         POWR Plan Plus (Tenured Service) Contributions.


 


(a)                                  Nature of POWR Plan Plus
Contributions; Eligibility. Prior
to or at any time during a calendar year with respect to which the Board has
determined and announced, for purposes of Section 4.1, a Profitability Target,
the Board may in its sole discretion determine whether it will offer a POWR
Plan Plus Contribution with respect to such calendar year. In the event the
Board determines to offer such a Power Plan Plus Contribution for a calendar
year, and NPC International, Inc. achieves the Profitability Target for such
year, persons who (i) were Active Participants with respect to such calendar
year and (ii) were credited with at least ten (10) Years of Service as of the
last day of such calendar year shall be entitled to a POWR Plan Profit Sharing
Contribution from the Company, which contribution shall be allocated to the
Participant’s Account.


 


(b)                                 Amount of POWR Plan Plus
Contributions. The amount of
the POWR Plan Plus Contribution to which an eligible Active Participant is
entitled shall be a percentage of the Active Participant’s Compensation for the
calendar year to which the Contribution relates. The Board shall determine the
percentage applicable to various employment classifications or positions of
Active Participants, which percentage may vary between employment
classifications or positions. The Board may establish different percentages
applicable to the same employment classification or position, depending on the
extent to which NPC International, Inc. exceeds its Profitability Target.


 


Where
different percentages apply to different employment classifications or
positions, and an Active Participant changes employment classification or
position during the calendar year, the percentage that applies to him is the
percentage that applies to the classification or position that the Active
Participant held for the longer period of time during the calendar year.


 


The
Board shall notify Eligible Employees, as soon as practicable after the Board
determines to offer a POWR Plan Plus Contribution for a calendar year,
regarding the fact of that determination and the various POWR Plan Plus
Contribution percentages that will apply to the Eligible Employees in the event
the Profitability Targets are attained or exceeded.


 


(c)                                  Timing of POWR Plan Plus
Contributions. The Company
shall contribute the POWR Plan Profit Sharing Contributions (with respect to a
calendar year) to the Trust as soon as practicable after the Board determines,
after the close of such calendar year, whether and the extent to which NPC
International, Inc. achieved its Profitability Target for such calendar year.


 


(d)                                 Crediting of POWR Plan Plus
Contributions. As soon as
practicable after the Company makes its POWR Plan Plus Contribution with
respect to a calendar year, the Trustee shall credit, to the Participant’s
Account of each qualifying Active Participant with respect to such calendar
year, such qualifying Active Participant’s share of the POWR Plan Profit
Sharing Contribution.


 


6

















 


4.3.         Investments and
Allocation of Earnings.
As of the last day of each calendar year, (or as soon as practicable
thereafter) each Participant’s Account maintained by the Trustee on behalf of a
Participant shall be credited with earnings (and losses) for such year
resulting from investment by the Trustee. The investment gain or loss shall be
allocated to a Participant’s Account in the ratio that the Participant’s
Account balance as of the preceding valuation date, adjusted for all
distributions and forfeitures occurring during the calendar year, bears to the
total of all Account balances as of the preceding valuation date, as adjusted
for all distributions and forfeitures occurring during the calendar year. For
purposes of this Section, a Participant’s Account balance as of such preceding
valuation date shall include contributions credited as of such date (even if
such contributions are actually made after such date).


 


For
example, for purposes of allocating investment gains or losses for the 2004
calendar year, such earnings and losses will be allocated based on Account
balances as of December 31, 2003. Such Account balances shall be calculated by
taking into account contributions allocated to such Accounts for the 2003
calendar year, even though the contributions are actually made after December
31, 2003. Further, such Account balances will be adjusted for any distributions
or forfeitures that occurred during the 2004 calendar year.


 


Section 5. Vesting of Company Contributions.


 


5.1.         POWR Plan Profit
Sharing Contributions.
A Participant’s POWR Plan Profit Sharing Contribution becomes Nonforfeitable,
or “vested,” ratably in accordance with the following schedule:


 


	
  Years of Service

  	
   

  	
  Nonforfeitable Percentage

  	
   

  
	
  1

  	
   

  	
  25

  	
  %

  
	
  2

  	
   

  	
  50

  	
  %

  
	
  3

  	
   

  	
  75

  	
  %

  
	
  4

  	
   

  	
  100

  	
  %

  



 


Except
as otherwise provided in this Section 5.1, the Years of Service taken into
account to determine the Nonforfeitability of any POWR Plan Profit Sharing
Contribution include only years of Service earned for the year to which the
Contribution relates, and subsequent years. Consequently, each separate POWR
Plan Profit Sharing Contribution made on behalf of an Active Participant vests
separately and independently of each other POWR Plan Profit Sharing
Contribution made on behalf of the Participant.


 


Notwithstanding
the rule in the preceding paragraph, the portion of an Active or Inactive
Participant’s Account attributable to POWR Plan Profit Sharing Contributions,
and earnings thereon, shall be considered 100% Nonforfeitable as of the date
the Active or Inactive Participant meets both of two requirements. First, the
Participant must have at least 15 Years of Service. Second, the Participant
must be at least age 60. For purposes of this rule, all Years of Services shall
be taken into account.


 


In
addition, in the event the employment of an Active or inactive Participant
terminates due to death or Disability, the portion of the Participant’s Account
attributable to POWR Plan


 


7

















 


Profit Sharing
Contributions, and earnings thereon, shall be considered 100% Nonforfeitable as
of the date of death or Disability.


 


Upon
the termination of employment of an Active Participant or Inactive Participant
for reasons other than death or Disability, the portion of the Participant’s
Account attributable to POWR Plan Profit Sharing Contributions, and earnings
thereon, that is forfeitable as of the date the employment terminates shall be
forfeited as of the last date of the calendar year in which employment
terminates, unless the Participant is rehired as an employee by the Company not
later than the last day of such calendar year.


 


5.2.         POWR Plan Plus
Contributions. The
portion of a Participant’s Account attributable to POWR Plan Plus
Contributions, and earnings thereon, becomes Nonforfeitable, or “vested,” in
accordance with the following schedule:


 


	
  Years of Service

  	
   

  	
  Nonforfeitable Percentage

  	
   

  
	
  Fewer than 20

  	
   

  	
  0

  	
  %

  
	
  20 or more

  	
   

  	
  100

  	
  %

  



 


For
purposes of this Section 5.2, all of a Participant’s Years of Service are taken
into account.


 


Upon
the termination of employment of an Active Participant or Inactive Participant
for any reason, the portion of the Participant’s Account attributable to POWR
Plan Plus Contributions, and earnings thereon, that is forfeitable as of the
date the employment terminates shall be forfeited as of the last date of the
calendar year in which employment terminates, unless the Participant is rehired
as an employee by the Company not later than the last day of such calendar
year.


 


5.3.         Forfeiture of
Benefits Due to Gross Misconduct. Notwithstanding any other provision of this Plan to the contrary, a
Participant’s Account balance, whether or not considered Nonforfeitable in
whole or in part pursuant to Sections 5.1 and/or 5.2, will be forfeited by a
Participant if the Participant’s employment is terminated (involuntarily by the
Company or voluntarily in lieu of involuntary termination) due to gross
misconduct. If after payments are made by this Plan to a Participant or his
Beneficiary the Committee determines that the Participant engaged in gross
misconduct that would have, in the judgment of the Committee in its sole
discretion, resulted in the Participant’s involuntary termination due to gross
misconduct had the Company then known the facts of the misconduct, any
remaining payments due to the Participant or Beneficiary shall be forfeited and
the Company may, in its sole discretion, seek repayment (with interest) of
amounts previously paid by the Plan to the Participant and/or Beneficiary.


 


For
purposes of this Section, “gross misconduct” means conduct justifying
termination of employment due to factors that would render the Participant
ineligible for unemployment compensation benefits under the laws of the State
in which the Participant last performed services for the Company. The Committee
shall determine, in its sore discretion, whether the Participant’s actions
amounted to gross misconduct.


 


8

















 


5.4          Application of
Forfeitures. Forfeitures
under the Plan will not be reallocated among Participants as additional
benefits but will be used to offset the Company’s contribution(s) for the year
in which the forfeiture arose or in future years.


 


Section 6. Timing and Form of Plan Payments


 


6.1.         Time of Payment. The Nonforfeitable portion of a Participant’s
Account shall be paid to the Participant (or his Beneficiary, as appropriate)
no later than the 15th day of the third calendar month after the
close of the calendar year in which occurs the earliest of the Participant’s
termination of employment by retirement, death, Disability, or other cause. Notwithstanding
the foregoing rule, however, where a Participant’s employment is terminated due
to death or Disability, the Committee may in its sole discretion direct the
Trustee to commence payment, immediately after termination of employment, of
75% of the Participant’s Account balance. In that event the remainder of the
Participant’s Account balance will be distributed as soon as practicable after
the end of the calendar year in which the termination of employment occurs.


 


6.2.         Form of Payment. When a benefit becomes payable from this
Plan, the benefit shall be paid in a single lump sum unless the Participant
elects payment in an optional form either: (i) within 30 days of the date an
individual first becomes a Participant in this Plan (“Initial Election”), or
(ii) prior to December 31, 2006. The optional forms are:


 


(a)                                  Five (5) substantially equal annual
installments (payable not later than the 15th day of the third
calendar month after the close of each calendar year), adjusted annually for
earnings (and losses) on the unpaid balance.


 


(b)                                 Ten (10) substantially equal annual
installments (payable not later than the 15th day of the third
calendar month after the close of each calendar year), adjusted annually for
earnings (and losses) on the unpaid balance.


 


Notwithstanding the
foregoing an election that is not an initial election but is made between
January 1, 2006 and December 31, 2006 shall not be effective for benefits
payable in 2006. Installment payments shall be treated as a series of payments
for purposes of the subsequent payment election rules of Code Section 409A.


 


Any
election made after December 31, 2006, that is not a Participant’s Initial
Election, with regard to an optional form of payment, must comply with the
following conditions:


 


(a)                                  such election may not take effect until at
least 12 months after the date on which the election is made;


 


(b)                                 the payments that are subject to such
election (excluding payments upon death or disability) must be delayed at least
5 years from the date the payments would have otherwise been made; and


 


Where
a series of payments are or may be due in accordance with Section 6.1 (where,
for example, payment of 75% of the Account balance of a Disabled Participant commences
upon termination of employment, and payment of the remainder of the Account
balance commences


 


9

















 


later), the form of any second
or subsequent payment shall be in the same form as the initial payment; where
the initial form is an installment payment the subsequent installment payments
shall be amortized over the remaining period that applies to the initial
payment.


 


Notwithstanding
the foregoing, a Participant may elect, prior to December 31, 2006 (but such
election shall not be effective for payments made in calendar year 2006), the
form in which payments on account of his death should be made to his
Beneficiary. In making such election, a Participant may elect that, where at
the time of a Participant’s death the Plan is making installment payments to
the Participant, the Participant’s Beneficiary receive either: (i) the
remaining scheduled installment payments, or (ii) an immediate lump sum payment
equal to the value of the remaining installment payments.


 


Section 7. Designation of Beneficiaries


 


7.1.         General Rule. A Participant may designate a Beneficiary or
Beneficiaries who are to receive upon his death the payments that otherwise
would have been paid to him. Subject to the requirements of Section 6.2, such
Beneficiary designation may include an election concerning the form in which
death benefits are to be paid by the Plan to the Beneficiary or Beneficiaries. All
designations shall be in writing and shall be effective only if and when delivered
to the Committee or its designee during the lifetime of the Participant.


 


7.2.         Special Rule for
Married Participants.
Notwithstanding Section 7.1, the spouse of a married Participant shall be
deemed to be the Participant’s sole primary Beneficiary, unless the Participant
designates a primary Beneficiary other than his spouse, the spouse consents in
writing to such designation, on a form the Committee or its designee shall
provide, and the spouse’s signature is notarized.


 


7.3.         Changing Beneficiary
Designations. Subject
to Section 7.2, a Participant
may from time to time during his lifetime, change his Beneficiary or
Beneficiaries by a written instrument delivered to the Committee or its
designee. The term “Beneficiary” may include a trust, so long as the trust survives
the Participants death.


 


7.4.         Failure to Designate
a Beneficiary. In the
event that a Participant is not survived by a Beneficiary, or if for any reason
a Beneficiary designation shall be ineffective in whole or in part, the
distribution that otherwise would have been paid to such Participant shall be paid
to his estate, and in such event the term “Beneficiary” shall include his
estate.


 


Section 8. Merger, Consolidation and Sale of Assets


 


8.1.         Merger. In the event the Company desires to
consolidate with, merge into, or transfer all or substantially all of its
assets to another entity (hereinafter referred to as a “Successor Employer”),
the Company and such Successor Employer may agree that the Successor Employer
shall assume the Company’s obligations under this Plan in whole or in part. In
no event shall such merger, consolidation or transfer extinguish the Company’s
or the Successor Employer’s obligations to Participants and their Beneficiaries
under this Plan.


 


8.2.         Acquisition by
Another Employer. In
the event the Company is sold to another corporation or other party(ies) (“New
Company”), the Company may agree with such New


 


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Company that the New Company
shall assume the obligations under this Plan in whole or in part. In no event
shall such sale extinguish the Company’s or New Company’s obligations to
Participants and their Beneficiaries under this Plan.


 


Section 9. Rights of Participants


 


Notwithstanding
the depositing and crediting of amounts to a Participants Account on behalf of
a Participant, the right of the Participant, or his Beneficiary, to receive a
distribution of benefits under this Plan shall be an unsecured claim against
the general assets of the Company. Participants and Beneficiaries shall have
the status of general unsecured creditors of the Company. This Plan constitutes
a mere promise by the Company to make benefit payments in the future.


 


The
Participant’s Account maintained by the Trustee on behalf of a Participant may
not in any way be encumbered or assigned by a Participant or his Beneficiary.


 


Nothing
in this Plan shall give any Participant the right to be retained as an Eligible
Employee or an employee of the Company, affect the right of the Company to
remove any Eligible Employee or employee, or give any Eligible Employee or
employee (or his Beneficiary) the right to receive a particular amount of
Compensation.


 


Section 10. Administration


 


10.1.       Administrative
Committee. The
Committee shall administer the Plan. The Committee may appoint an
administrative committee (the “Administrative Committee”) to assist it in the
administration of the Plan. The Administrative Committee may act on behalf of
the Committee with respect to all matters concerning the Plan, except for those
matters the Committee specifically reserves, in this Plan or otherwise, for its
own action. The initial members of the Administrative Committee shall be Troy
Cook and Jim Schwartz. The Board or the Committee may remove, replace, or
appoint members of the Administrative Committee at any time.


 


10.2.       Powers of
Committee. The
Committee shall have the power to interpret the Plan and to determine all
questions that arise under it. Such power includes, for example, the
discretionary authority necessary to determine eligibility for benefits, to
construe the terms of the Plan and to determine the extent to which a
Participant’s Account is Nonforfeitable (including determinations regarding
Years of Service).


 


The
Committee shall also have the power to direct the investment of the assets of
the Trust, and to delegate investment authority with respect to the Trust to
one or more investment managers or to the Trustee, or to both the Trustee and
one or more investment managers. The Committee may adopt an investment policy
to guide the Trustee and/or investment managers with respect to investment of
the Trust assets. Where the Committee adopts such a policy it may amend such
policy at any time in its discretion, and the Trustee and/or investment manager(s)
to whom the Committee delegates investment authority shall abide by the terms
of the policy, provided the Committee furnishes the Trustee and/or investment
manager(s) with a copy of such policy or amended policy.


 


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All
payments of benefits under the Plan shall be made by the Company or by the
Trustee in accordance with the terms of this Plan and the agreement and
declaration establishing the Trust. The decision of the Committee upon all
matters within the scope of its authority shall be final and binding on all
parties, shall be subject to the most deferential standard on review, and shall
not be affected by any actual or alleged conflict of interest. No member of the
Committee or the Administrative Committee may act, in his capacity as a member
of the Committee or Administrative Committee, with respect to a matter
concerning his eligibility or benefits under the Plan.


 


Section 11. Claims and Appeals


 


11.1.       Claims for
Benefits; Initial Processing. Claims for benefits under the Plan normally will be approved or denied
by the Committee within 90 calendar days (45 days in the case of a claim for
benefits due to Disability) after they are received by the Committee or its designee.
(But see Section 6 regarding the timing of actual payments from the Plan.) If
an extension of time is required to process the claim, the extension will not
exceed 90 calendar days (45 days in the case of a claim for benefits due to
Disability; provided that two such 45-day extensions are available), and the
claimant shall be provided notice of any extension prior to the commencement of
the extension period. The notice shall explain the reason for the extension and
when a decision will be made. Claims not resolved prior to the end of the
extension may be deemed denied.


 


11.2.       Claim Denial.
If a claim for
benefits is denied (or deemed denied), the Committee or its designee shall
provide the claimant with written notice reflecting the reasons for the denial,
with a specific reference to the Plan provisions upon which the decision was based.
The notice shall also reflect any additional information that may be necessary
for the claimant’s claim to be approved.


 


11.3.       Appealing a Denied Claim. A claimant may appeal the denial of a claim by writing the Committee and
stating that he wishes to appeal. In order to be considered, the appeal must be
received by the Committee or its designee no more than 60 calendar days (180
days in the case of a claim for benefits due to Disability) after notice of the
denial is provided (or, if no notice is provided, then after the earliest date
on which the claimant is entitled to deem the claim denied).


 


11.4.        Processing
Appeals. If a
claimant appeals a denial of a claim, the Board shall review the claim and any
additional information furnished by the claimant. The Board shall decide the
appeal within 60 calendar days (45 calendar days in the case of a claim for
benefits due to Total and Permanent Disability) after it is received, but in
unusual circumstances may delay resolution of the appeal for an additional 60
calendar days (45 calendar days in the case of a claim for benefits due to
Disability). The claimant shall be notified of any delay prior to the beginning
of the extension. After the appeal is decided, the Board shall notify the claimant
in writing of its decision, and explain how the appeal was decided and what
Plan provisions were relied upon.


 


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The
provisions of this Section 11 shall be administered in accordance with
applicable claim processing requirements imposed by regulations issued by the
U. S. Department of Labor under the Employee Retirement income Security Act of
1974, as amended.


 


Section 12. Amendments and Termination


 


12.1.       Amendment. The Company in its absolute discretion,
without notice, may at any time and from time to time, modify or amend, in
whole or in part, any or all of the provisions of the Plan. No such
modification or amendment may, without the consent of a Participant (or his Beneficiary
in the case of his death) reduce the right of the Participant (or his
Beneficiary, as the case may be) to the payment of any amount deposited and
credited to his Participant’s Account under the Plan as of the date of such
modification or amendment. Any modification or amendment of the vesting
schedules described in Section 5 shall not apply to any forfeitable amounts
deposited and credited to a Participant’s Account as of the date of such
modification or amendment unless the Participant otherwise consents in writing.


 


12.2.       Suspension and
Termination. The
Company in its absolute discretion, without notice, at any time may suspend or
terminate the Plan. In addition, the committee may suspend or terminate an
Active Participant’s further participation in the Plan at any time. Other than earnings
on a
Participant’s Account, no additional Contributions shall be deposited or
credited to Participants’ Accounts following suspension or termination of the
Plan. Upon termination of a Participant’s participation in the Plan,
distribution of a Participant’s Plan benefit shall be made in the manner and at
the time described under the Plan’s normal provisions.


 


Upon
suspension of the Plan, distribution of a Participant’s Plan benefit shall be
made in the manner and at the time described under the Plan’s provisions, and
the Trust shall not terminate until all monies on deposit thereunder are either
paid to Participants and their Beneficiaries, or retuned to the Employer, as
provided for under the agreement and declaration establishing the Trust. Upon
suspension of the Plan, an employee whose Participant’s Account balance
includes amounts that are forfeitable under Section 5 hereof, shall
continue to be credited with Years of Service for vesting, for purposes of
Section 5, for and on account of his service with the Company after suspension
of the Plan.


 


In
the event the Company elects to terminate the Plan, all forfeitable amounts
then on deposit with and credited to Participants’ Accounts shall be deemed
Nonforfeitable, and, notwithstanding anything herein to the contrary, all Plan
benefits shall be paid not later than the 15th day of the third
calendar month after the close of each calendar year in which termination of
the Plan occurred in a lump sum. The Company represents and warrants that in
the event the Company elects to terminate the Plan, the Company shall comply
with applicable requirements under Code Section 409A and regulations issued
thereunder with respect to termination of the Plan.


 


Section 13. Applicable Laws


 


The
Plan shall be construed, administered, end governed in all respects under and
by the laws of the State of Kansas, to the extent federal law does not apply.


 


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Section 14. 409A Compliance


 


In
the event that any provision of this Plan shall be determined to contravene
Code Section 409A, the regulations promulgated thereunder, regulatory
interpretations or announcements with respect to Section 409A any such
provision shall be void and have no effect and may be amended by the Company
without consent of the Participant for purposes of Section 409A compliance.
Moreover, this Plan shall be interpreted at all times in such a manner that the
terms and provisions of the Plan comply with Code Section 409A, the regulations
promulgated thereunder, and regulatory interpretations or announcements with
respect to Section 409A. The Company shall have the authority to void any
Participant election hereunder if necessary to maintain the Plan in compliance
with Code Section 409A.


 


Section 15. Incompetency


 


Every
person receiving or claiming payments under this Plan shall be conclusively
presumed to be mentally competent until the date on which the Committee or its
designee receives written notice, in a form and manner acceptable to the
Committee, that such person is incompetent and that a guardian, conservator, or
other person legally vested with the care of his estate has been appointed. In
the event a guardian or conservator of the estate of any person receiving or
claiming payments under this Plan shall be appointed by a court of competent
jurisdiction, benefit payments may be made to such guardian or conservator,
provided that proper proof of appointment and continuing qualification are
furnished in a form and manner acceptable to the Committee or its designee. Any
such payment so made shall be a complete discharge of any liability therefor.


 


Section 16. Expenses


 


Costs
of administration of the Plan and all taxes imposed on the Plan or Trust shall
be paid by the Company. Participants’ Accounts shall not be reduced for these
amounts. Notwithstanding the foregoing, Participants’ Accounts shall bear the
expense of any and all transaction costs and fees associated with the
investment of their Accounts and any per capita Trustee’s fee. The aggregate
total of any Trustee’s fees based on the aggregate value of assets in the Trust
may be apportioned among the Accounts of Participants on a pro rata (in the
proportion that a Participant’s Account balances bear to the sum of Account
balances of all Participants) or per capita basis, in the discretion of the
Committee.


 


Section 17. Notices


 


Any
notice or election required or permitted to be given hereunder shall be in
writing. Participant elections shall be in the form prescribed by the
Committee, and shall be deemed to be filed with the Committee:


 


(a)                                  On the date it is personally delivered to the
Committee (or its designee), or


 


(b)                                 Five business days after it is sent by
registered or certified mail, addressed to the Committee (or its designee) at
the address of NPC International, Inc.


 


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Section 18. Withholding and Deductions


 


All
payments made under the Plan by the Company or the Trustee to any Participant
or Beneficiary, shall be subject to applicable withholding and to such other
deductions that are required by applicable law, and to the delivery to the
Committee (or its designee) or the Trustee of any documents, applications or
other information deemed necessary by the Committee or the Trustee, in their
sole discretion, as a condition precedent to payment


 


Section 19. Invalidity of Provisions


 


If
any provision of the Plan is held or found to be invalid or unenforceable, such
invalidity or unforceability shall not affect any other provisions hereof, and
the Plan shall be construed and enforced as if such provision had not been
included. Similarly, in the event any provision of the Plan is held or found to
be ineffective or unenforceable with respect to allowing for the deferral of
income taxation as intended by the Plan, such provision shall be severed from
the provisions of the Plan that are so effective or enforceable, and such
latter provisions shall be considered to constitute a separate arrangement.


 


Section 20. Tax Advantages Not Guaranteed


 


Neither
the Company, the Committee, the Administrative Committee, nor any other person
guarantees that any particular Participant or Beneficiary will achieve the tax
advantages contemplated by this Plan, and neither the Company, the Committee,
the Administrative Committee or any other person indemnifies or holds harmless
a Participant or Beneficiary with respect to liability, whether or not
unintended or unforeseen, for income taxes, excise taxes, interest and/or
penalties, or any other liability, arising from or incurred in connection with
this Plan.


 


In
the event any benefits payable hereunder to a Participant or Beneficiary are
subjected to taxation prior to the date such benefits are payable under the
terms of the Plan, the payment of such benefits shall be accelerated so that,
to the extent practicable, the Participant or Beneficiary receives such
benefits in the taxable year in which such amounts are subjected to taxation.


 


Section 21. Return of Company Contributions


 


Nothing
in this Plan nor the agreement and declaration establishing the Trust shall be
construed to prevent the return to the company of amounts contributed to the
Trust by the Company due to a mistake of fact or law, including (but not
limited to) erroneous calculations or erroneous determinations of eligibility.


 


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IN
WITNESS WHEREOF, the Company hereby adopts this Amendment and Restatement of
the NPC International, Inc. POWR Plan for Key Employees this 27th
day of April, 2006.


 


	
   

  	
   

  	
  NPC INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  SR VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
						



 


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