Executive Retirement Savings Plan - California Pizza Kitchen Inc.
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Amended and Restated
Effective May 1, 2000
Copyright (C) 2000
By Compensation Resource Group, Inc.
All Rights Reserved
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Purpose .................................................................. 1
ARTICLE 1 Definitions .................................................. 1
ARTICLE 2 Selection, Enrollment, Eligibility ........................... 6
2.1 Selection by Committee ....................................... 6
2.2 Enrollment Requirements ...................................... 6
2.3 Eligibility; Commencement of Participation ................... 6
2.4 Termination of Participation and/or Deferrals ................ 6
ARTICLE 3 Deferral Commitments/Company Matching/Crediting Taxes ........ 6
3.1 Minimum Deferrals ............................................ 6
3.2 Maximum Deferral ............................................. 7
3.3 Election to Defer; Effect of Election Form ................... 7
3.4 Withholding of Annual Deferral Amounts ....................... 7
3.5 Annual Company Contribution Amount ........................... 7
3.6 Annual Company Matching Amount ............................... 8
3.7 Investment of Trust Assets ................................... 8
3.8 Vesting ...................................................... 8
3.9 Crediting/Debiting of Account Balances ....................... 9
3.10 FICA and Other Taxes ......................................... 11
ARTICLE 4 Short-Term Payout; Unforeseeable Financial Emergencies;
Withdrawal Election; 401(k) Roll-Over ........................ 12
4.1 Short-Term Payout ............................................ 12
4.2 Other Benefits Take Precedence Over Short-Term ............... 12
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial
Emergencies .................................................. 12
4.4 Withdrawal Election .......................................... 13
4.5 401(k) Roll-Over ............................................. 13
4.6 401(k) Roll-Over Takes Precedence Over Other Benefits ........ 13
ARTICLE 5 Retirement Benefit ........................................... 14
5.1 Retirement Benefit ........................................... 14
5.2 Payment of Retirement Benefit ................................ 14
5.3 Death Prior to Completion of Retirement Benefit .............. 14
</TABLE>
i
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 6 Pre-Retirement Survivor Benefit .............................. 14
6.1 Pre-Retirement Survivor Benefit .............................. 14
6.2 Payment of Pre-Retirement Survivor Benefit ................... 14
ARTICLE 7 Termination Benefit .......................................... 14
7.1 Termination Benefit .......................................... 14
7.2 Payment of Termination Benefit ............................... 15
ARTICLE 8 Disability Waiver and Benefit ................................ 15
8.1 Disability Waiver ............................................ 15
8.2 Continued Eligibility; Disability Benefit .................... 15
ARTICLE 9 Beneficiary Designation ...................................... 16
9.1 Beneficiary .................................................. 16
9.2 Beneficiary Designation; Change; Spousal Consent ............. 16
9.3 Acknowledgement .............................................. 16
9.4 No Beneficiary Designation ................................... 16
9.5 Doubt as to Beneficiary ...................................... 16
9.6 Discharge of Obligations ..................................... 16
ARTICLE 10 Leave of Absence ............................................. 16
10.1 Paid Leave of Absence ........................................ 17
10.2 Unpaid Leave of Absence ...................................... 17
ARTICLE 11 Termination, Amendment or Modification ....................... 17
11.1 Termination .................................................. 17
11.2 Amendment .................................................... 17
11.3 Plan Agreement ............................................... 18
11.4 Effect of Payment ............................................ 18
ARTICLE 12 Administration ............................................... 18
12.1 Committee Duties ............................................. 18
12.2 Administration Upon Change In Control ........................ 18
12.3 Agents ....................................................... 19
12.4 Binding Effect of Decisions .................................. 19
12.5 Indemnity of Committee ....................................... 19
12.6 Employer Information ......................................... 19
</TABLE>
-ii-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 13 Other Benefits and Agreements ................................ 19
13.1 Coordination with Other Benefits ............................. 19
ARTICLE 14 Claims Procedures ............................................ 19
14.1 Presentation of Claim ........................................ 20
14.2 Notification of Decision ..................................... 20
14.3 Review of a Denied Claim ..................................... 20
14.4 Decision on Review ........................................... 20
14.5 Legal Action ................................................. 21
ARTICLE 15 Trust ........................................................ 21
15.1 Establishment of the Trust ................................... 21
15.2 Interrelationship of the Plan and the Trust .................. 21
15.3 Distributions From the Trust ................................. 21
ARTICLE 16 Miscellaneous ................................................ 21
16.1 Status of Plan ............................................... 21
16.2 Unsecured General Creditor ................................... 21
16.3 Employer's Liability ......................................... 21
16.4 Nonassignability ............................................. 22
16.5 Not a Contract of Employment ................................. 22
16.6 Furnishing Information ....................................... 22
16.7 Terms ........................................................ 22
16.8 Captions ..................................................... 22
16.9 Governing Law ................................................ 22
16.10 Notice ....................................................... 22
16.11 Successors ................................................... 23
16.12 Spouse's Interest ............................................ 23
16.13 Validity ..................................................... 23
16.14 Incompetent .................................................. 23
16.15 Court Order .................................................. 23
16.16 Distribution in the Event of Taxation ........................ 23
16.17 Insurance .................................................... 24
16.18 Legal Fees To Enforce Rights After Change in Control ......... 24
</TABLE>
-iii-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
CALIFORNIA PIZZA KITCHEN
EXECUTIVE RETIREMENT SAVINGS PLAN
Amended and Restated
Effective May 1, 2000
Purpose
The purpose of this Plan is to provide specified benefits to a select group
of management and highly compensated Employees who contribute materially to the
continued growth, development and future business success of California Pizza
Kitchen, Inc., a California corporation, and its subsidiaries, if any, that
sponsor this Plan. This Plan shall be unfunded for tax purposes and for purposes
of Title I of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the sum of (i) the Deferral Account
balance, (ii) the vested Company Contribution Account balance and (iii) the
vested Company Matching Account balance. The Account Balance, and each
other specified account balance, shall be a bookkeeping entry only and
shall be utilized solely as a device for the measurement and determination
of the amounts to be paid to a Participant, or his or her designated
Beneficiary, pursuant to this Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to Base Annual
Salary relating to services performed during any calendar year, whether or
not paid in such calendar year or included on the Federal Income Tax Form
W-2 for such calendar year, payable to a Participant as an Employee under
any Employer's annual bonus and cash incentive plans, excluding stock
options.
1.3 "Annual Company Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.5.
1.4 "Annual Company Matching Amount" for any one Plan Year shall be the amount
determined in accordance with Section 3.6.
1.5 "Annual Deferral Amount" shall mean that portion of a Participant's Base
Annual Salary and/or Annual Bonus that a Participant elects to have, and is
deferred, in accordance with Article 3, for any one Plan Year. In the event
of a Participant's Retirement, Disability (if deferrals cease in accordance
with Section 8.1), death or a Termination of Employment prior to the end of
a Plan Year, such year's Annual Deferral Amount shall be the actual amount
withheld prior to such event.
1.6 "Annual Installment Method" shall be an annual installment payment over the
number of years selected by the Participant in accordance with this Plan,
calculated as follows: The Account Balance of the Participant shall be
calculated as of the close of business on the last business day of the
year. The annual installment shall be calculated by multiplying this
balance by a fraction, the numerator of which is one, and the denominator
of which is the remaining number of annual
-1-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
payments due the Participant. By way of example, if the Participant elects
a 10 year Annual Installment Method, the first payment shall be 1/10 of the
Account Balance, calculated as described in this definition. The following
year, the payment shall be 1/9 of the Account Balance, calculated as
described in this definition. Each annual installment shall be paid on or
as soon as practicable after the last business day of the applicable year.
1.7 "Base Annual Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, whether or not paid in such
calendar year or included on the Federal Income Tax Form W-2 for such
calendar year, excluding bonuses, commissions, overtime, fringe benefits,
stock options, relocation expenses, incentive payments, non-monetary
awards, directors fees and other fees, automobile and other allowances paid
to a Participant for employment services rendered (whether or not such
allowances are included in the Employee's gross income). Base Annual Salary
shall be calculated before reduction for compensation voluntarily deferred
or contributed by the Participant pursuant to all qualified or
non-qualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant's gross income under Code
Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by
any Employer; provided, however, that all such amounts will be included in
compensation only to the extent that, had there been no such plan, the
amount would have been payable in cash to the Employee.
1.8 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.9 "Beneficiary Designation Form" shall mean the form established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to designate one or more Beneficiaries.
1.10 "Board" shall mean the board of directors of the Company.
1.11 "Change in Control" shall mean the first to occur of any of the following
events:
(a) Any "person" (as that term is used in Section 13 and 14(d)(2) of the
Securities Exchange Act of 1934 ("Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the
Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the Company's capital stock entitled to vote in the election of
directors;
(b) During any period of not more than two consecutive years, not
including any period prior to the adoption of this Plan, individuals
who, at the beginning of such period constitute the board of directors
of the Company, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to
effect a transaction described in clause (a), (c), (d) or (e) of this
Section 1.10) whose election by the board of directors or nomination
for election by the Company's stockholders was approved by a vote of
at least three-fourths (3/4ths) of the directors then still in office,
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease
for any reason to constitute at least a majority thereof;
-2-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
(c) The shareholders of the Company approve any consolidation or merger of
the Company, other than a consolidation or merger of the Company in
which the holders of the common stock of the Company immediately prior
to the consolidation or merger hold more than fifty percent (50%) of
the common stock of the surviving corporation immediately after the
consolidation or merger;
(d) The shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or
(e) The shareholders of the Company approve the sale or transfer of all or
substantially all of the assets of the Company to parties that are not
within a "controlled group of corporations" (as defined in Code
Section 1563) in which the Company is a member.
1.12 "Claimant" shall have the meaning set forth in Section 14.1.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.14 "Committee" shall mean the committee described in Article 12.
1.15 "Company" shall mean California Pizza Kitchen, Inc., a California
corporation, and any successor to all or substantially all of the Company's
assets or business.
1.16 "Company Contribution Account" shall mean (i) the sum of the Participant's
Annual Company Contribution Amounts, plus (ii) amounts credited in
accordance with all the applicable crediting provisions of this Plan that
relate to the Participant's Company Contribution Account, less (iii) all
distributions made to the Participant or his or her Beneficiary pursuant to
this Plan that relate to the Participant's Company Contribution Account.
1.17 "Company Matching Account" shall mean (i) the sum of all of a Participant's
Annual Company Matching Amounts, plus (ii) amounts credited in accordance
with all the applicable crediting provisions of this Plan that relate to
the Participant's Company Matching Account, less (iii) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan
that relate to the Participant's Company Matching Account.
1.18 "Deduction Limitation" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan. Except as otherwise provided, this limitation shall be applied
to all distributions that are "subject to the Deduction Limitation" under
this Plan. If an Employer determines in good faith prior to a Change in
Control that there is a reasonable likelihood that any compensation paid to
a Participant for a taxable year of the Employer would not be deductible by
the Employer solely by reason of the limitation under Code Section 162(m),
then to the extent deemed necessary by the Employer to ensure that the
entire amount of any distribution to the Participant pursuant to this Plan
prior to the Change in Control is deductible, the Employer may defer all or
any portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited/debited with
additional amounts in accordance with Section 3.9 below, even if such
amount is being paid out in installments. The amounts so deferred and
amounts credited thereon shall be distributed to the Participant or his or
her Beneficiary (in the event of the Participant's death) at the earliest
possible date, as determined by the Employer in good faith, on which the
deductibility of compensation paid or payable to the Participant for the
taxable year of the Employer during which the distribution is made will not
be limited by Section 162(m), or if earlier, the effective
-3-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
date of a Change in Control. Notwithstanding anything to the contrary in
this Plan, the Deduction Limitation shall not apply to any distributions
made after a Change in Control.
1.19 "Deferral Account" shall mean (i) the sum of all of a Participant's Annual
Deferral Amounts, plus (ii) amounts credited in accordance with all the
applicable crediting provisions of this Plan that relate to the
Participant's Deferral Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to
his or her Deferral Account.
1.20 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the Participant's
Employer does not sponsor such a plan, or discontinues to sponsor such a
plan, Disability shall be determined by the Committee in its sole
discretion.
1.21 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.22 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
1.23 "Employee" shall mean a person who is an employee of any Employer.
1.24 "Employer(s)" shall mean the Company and/or any of its subsidiaries (now in
existence or hereafter formed or acquired) that have been selected by the
Board to participate in the Plan and have adopted the Plan as a sponsor.
1.25 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.26 "First Plan Year" shall mean the period beginning May 1, 2000 and ending
December 31, 2000.
1.27 "401(k) Plan" shall be that certain California Pizza Kitchen, Inc. and
Subsidiaries Retirement Savings Plan adopted by the Company.
1.28 "Maximum 401(k) Amount" with respect to a Participant, shall be the maximum
amount of elective contributions that can be made by such Participant,
consistent with Code Section 402(g) and the limitations of Code Section
401(k)(3), for a given plan year under the 401(k) Plan.
1.29 "Participant" shall mean any Employee (i) who is selected to participate in
the Plan, (ii) who elects to participate in the Plan, (iii) who signs a
Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv)
whose signed Plan Agreement, Election Form and Beneficiary Designation Form
are accepted by the Committee, (v) who commences participation in the Plan,
and (vi) whose Plan Agreement has not terminated. A spouse or former spouse
of a Participant shall not be treated as a Participant in the Plan or have
an account balance under the Plan, even if he or she has an interest in the
Participant's benefits under the Plan as a result of applicable law or
property settlements resulting from legal separation or divorce.
1.30 "Plan" shall mean the Company's Executive Retirement Savings Plan, which
shall be evidenced by this instrument and by each Plan Agreement, as they
may be amended from time to time.
-4-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
1.31 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may provide
additional benefits not set forth in the Plan or limit the benefits
otherwise provided under the Plan; provided, however, that any such
additional benefits or benefit limitations must be agreed to by both the
Employer and the Participant.
1.32 "Plan Year" shall, except for the First Plan Year, mean a period beginning
on January 1 of each calendar year and continuing through December 31 of
such calendar year.
1.33 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.34 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason other
than a leave of absence, death or Disability at such time as the sum of the
Employee's age and Years of Service equals fifty (50) or more.
1.35 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.36 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
1.37 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.38 "Termination of Employment" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than
Retirement, Disability, death or an authorized leave of absence.
1.39 "Trust" shall mean one or more trusts established pursuant to that certain
Master Trust Agreement, dated as of June 28, 2001 between the Company and
the trustee named therein, as amended from time to time.
1.40 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that would
result in severe financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant or a dependent
of the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, all as
determined in the sole discretion of the Committee.
1.41 "Years of Service" shall mean the total number of full or partial years in
which a Participant has been employed by one or more Employers. For
purposes of this definition, a year of employment shall be a 365 day period
(or 366 day period in the case of a leap year) that, for the first year of
employment, commences on the Employee's date of hiring and that, for any
subsequent year, commences on an anniversary of that hiring date. Any
partial year of employment shall be prorated on an actual/365 day basis and
counted as prorated.
-5-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees of the
Employers, as determined by the Committee in its sole discretion. From that
group, the Committee shall select, in its sole discretion, Employees to
participate in the Plan.
2.2 Enrollment Requirements. As a condition of participation, each selected
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form within 30
days after he or she is selected to participate in the Plan. In addition,
the Committee shall establish from time to time such other enrollment
requirements as it determines in its sole discretion are necessary.
2.3 Eligibility; Commencement of Participation. Provided an Employee selected
to participate in the Plan has met all enrollment requirements set forth in
this Plan and required by the Committee, including returning all required
documents to the Committee within the specified time period, that Employee
shall commence participation in the Plan on the first day of the month
following the month in which the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements within the
period required, in accordance with Section 2.2, that Employee shall not be
eligible to participate in the Plan until the first day of the Plan Year
following the delivery to and acceptance by the Committee of the required
documents.
2.4 Termination of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a
select group of management or highly compensated employees, as membership
in such group is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, the Committee shall have the right, in its sole
discretion, to (i) terminate any deferral election the Participant has made
for the remainder of the Plan Year in which the Participant's membership
status changes, (ii) prevent the Participant from making future deferral
elections and/or (iii) immediately distribute the Participant's then
Account Balance as a Termination Benefit and terminate the Participant's
participation in the Plan.
ARTICLE 3
Deferral Commitments/Company Matching/Crediting/Taxes
3.1 Minimum Deferrals.
(a) Base Annual Salary and/or Annual Bonus. For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral Amount,
Base Annual Salary and/or Annual Bonus in the following minimum
amounts for each deferral elected:
----------------------------------------------------
Deferral Minimum Amount
----------------------------------------------------
Base Annual Salary $2,000
----------------------------------------------------
Annual Bonus $2,000
----------------------------------------------------
If an election is made for less than stated minimum amounts, or if no
election is made, the amount deferred shall be zero.
-6-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
(b) Short Plan Year. Notwithstanding the foregoing, if a Participant first
becomes a Participant after the first day of a Plan Year, or in the
case of the First Plan Year, the minimum Base Annual Salary deferral
shall be an amount equal to the minimum set forth above, multiplied by
a fraction, the numerator of which is the number of complete months
remaining in the Plan Year and the denominator of which is 12.
3.2 Maximum Deferral.
(a) Base Annual Salary and Annual Bonus. For each Plan Year, a Participant
may elect to defer, as his or her Annual Deferral Amount, Base Annual
Salary and/or Annual Bonus up to the following maximum percentages for
each deferral elected:
----------------------------------------------------
Deferral Maximum Amount
----------------------------------------------------
Base Annual Salary 100%
----------------------------------------------------
Annual Bonus 100%
----------------------------------------------------
Notwithstanding the foregoing, if a Participant first becomes a
Participant after the first day of a Plan Year, or in the case of the
First Plan Year, the maximum Annual Deferral Amount, with respect to
Base Annual Salary and Annual Bonus shall be limited to the amount of
compensation not yet earned by the Participant as of the date the
Participant submits a Plan Agreement and Election Form to the
Committee for acceptance.
3.3 Election to Defer; Effect of Election Form.
(a) First Plan Year. In connection with a Participant's commencement of
participation in the Plan, the Participant shall make an irrevocable
deferral election for the Plan Year in which the Participant commences
participation in the Plan, along with such other elections as the
Committee deems necessary or desirable under the Plan. For these
elections to be valid, the Election Form must be completed and signed
by the Participant, timely delivered to the Committee (in accordance
with Section 2.2 above) and accepted by the Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an irrevocable
deferral election for that Plan Year, and such other elections as the
Committee deems necessary or desirable under the Plan, shall be made
by timely delivering to the Committee, in accordance with its rules
and procedures, before the end of the Plan Year preceding the Plan
Year for which the election is made, a new Election Form. If no such
Election Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year.
3.4 Withholding of Annual Deferral Amounts. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld from each
regularly scheduled Base Annual Salary payroll in equal amounts, as
adjusted from time to time for increases and decreases in Base Annual
Salary. The Annual Bonus portion of the Annual Deferral Amount shall be
withheld at the time the Annual Bonus is or otherwise would be paid to the
Participant, whether or not this occurs during the Plan Year itself.
3.5 Annual Company Contribution Amount. For each Plan Year, an Employer, in its
sole discretion, may, but is not required to, credit any amount it desires
to any Participant's Company
-7-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Contribution Account under this Plan, which amount shall be for that
Participant the Annual Company Contribution Amount for that Plan Year. The
amount so credited to a Participant may be smaller or larger than the
amount credited to any other Participant, and the amount credited to any
Participant for a Plan Year may be zero, even though one or more other
Participants receive an Annual Company Contribution Amount for that Plan
Year. The Annual Company Contribution Amount, if any, shall be credited as
of the last day of the Plan Year. If a Participant is not employed by an
Employer as of the last day of a Plan Year other than by reason of his or
her Retirement or death while employed, the Annual Company Contribution
Amount for that Plan Year shall be zero.
3.6 Annual Company Matching Amount. A Participant's Annual Company Matching
Amount for any Plan Year shall be equal to a percentage of the
Participant's Annual Deferral Amount for such Plan Year, which percentage
(i) shall be based upon the profitability of the Company, (ii) shall be
determined and announced for each Plan Year by the Committee in its sole
and absolute discretion and (iii) may be zero for any Plan Year. If a
Participant is not employed by an Employer as of the last day of a Plan
Year other than by reason of his or her Retirement or death, the Annual
Company Matching Amount for such Plan Year shall be zero. In the event of
Retirement or death, a Participant shall be credited with the Annual
Company Matching Amount for the Plan Year in which he or she Retires or
dies.
3.7 Investment of Trust Assets. The Trustee of the Trust shall be authorized,
upon written instructions received from the Committee or investment manager
appointed by the Committee, to invest and reinvest the assets of the Trust
in accordance with the applicable Trust Agreement, including the
disposition of stock and reinvestment of the proceeds in one or more
investment vehicles designated by the Committee.
3.8 Vesting.
(a) A Participant shall at all times be 100% vested in his or her Deferral
Account.
(b) A Participant shall be vested in his or her Company Contribution
Account and Company Matching Account as follows: (i) with respect to
all benefits under this Plan other than the Termination Benefit, a
Participant's vested Company Contribution Account and Company Matching
Account shall equal 100% of such Participant's Company Contribution
Account and Company Matching Account; and (ii) except as otherwise
provided below, with respect to the Termination Benefit, a
Participant's Company Contribution Account and Company Matching
Account shall vest on the basis of the Participant's Years of Service
at the time the Participant experiences a Termination of Employment,
in accordance with the following schedule:
-8-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------
Years of Service at Date of Vested Percentage of
Termination of Employment Company Contribution Account
and Company Matching Account
-------------------------------------------------------------------------------------
<S> <C>
Less than 1 year 0%
-------------------------------------------------------------------------------------
1 year or more, but less than 2 33 1/3%
-------------------------------------------------------------------------------------
2 years or more, but less than 3 66 2/3%
-------------------------------------------------------------------------------------
3 years or more 100%
-------------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing schedule and/or any provision of this
Plan that may be construed to the contrary, if a Participant
experiences a Termination of Employment with a partial Year of
Service, the vested percentage of the Participant's Company
Contribution Account and Company Matching Account shall be pro-rated
on a daily basis to take account of such partial Year of Service. For
example, if the Participant experiences a Termination of Employment of
Employment at such time as he or she has 2 1/2 Years of Service, the
vested percentage of his or her Company Contribution Account and
Company Matching Account shall be 83 1/3%.
(c) Notwithstanding anything to the contrary contained in this Section
3.8, in the event of a Change in Control, a Participant's Company
Contribution Account and Company Matching Account shall immediately
become 100% vested (if it is not already vested in accordance with the
above vesting schedules).
(d) Notwithstanding subsection (d), the vesting schedule for a
Participant's Company Contribution Account and Company Matching
Account shall not be accelerated to the extent that the Committee
determines that such acceleration would cause the deduction
limitations of Section 280G of the Code to become effective. In the
event that all of a Participant's Company Contribution Account and/or
Company Matching Account is not vested pursuant to such a
determination, the Participant may request independent verification of
the Committee's calculations with respect to the application of
Section 280G. In such case, the Committee must provide to the
Participant within 15 business days of such a request an opinion from
a nationally recognized accounting firm selected by the Participant
(the "Accounting Firm"). The opinion shall state the Accounting Firm's
opinion that any limitation in the vested percentage hereunder is
necessary to avoid the limits of Section 280G and contain supporting
calculations. The cost of such opinion shall be paid for by the
Company.
3.9 Crediting/Debiting of Account Balances. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following rules:
(a) Election of Measurement Funds. A Participant, in connection with his
or her initial deferral election in accordance with Section 3.3(a)
above, shall elect, on the Election Form, one or more Measurement
Fund(s) (as described in Section 3.9(c) below) to be used to determine
the additional amounts to be credited to his or her Account Balance
for the first day in which the Participant commences participation in
the Plan and continuing thereafter for each subsequent business day in
which the Participant participates in the
-9-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Plan, unless changed in accordance with the next sentence. Commencing
with the first business day that follows the Participant's
commencement of participation in the Plan and continuing thereafter
for each subsequent day in which the Participant participates in the
Plan, no later than the close of business on such day, the Participant
may (but is not required to) elect, by submitting an Election Form to
the Committee that is accepted by the Committee, to add or delete one
or more Measurement Fund(s) to be used to determine the additional
amounts to be credited to his or her Account Balance, or to change the
portion of his or her Account Balance allocated to each previously or
newly elected Measurement Fund. If an election is made in accordance
with the previous sentence, it shall apply to the next business day
and continue thereafter for each subsequent day in which the
Participant participates in the Plan, unless changed in accordance
with the previous sentence.
(b) Proportionate Allocation. In making any election described in Section
3.9(a) above, the Participant shall specify on the Election Form, in
increments of one percentage point (1%), the percentage of his or her
Account Balance to be allocated to a Measurement Fund (as if the
Participant was making an investment in that Measurement Fund with
that portion of his or her Account Balance).
(c) Measurement Funds. The Participant may elect one or more of the
following measurement funds, based on certain mutual funds (the
"Measurement Funds"), for the purpose of crediting additional amounts
to his or her Account Balance:
(1) [EXAMPLES: Fund A (described as a mutual fund seeking current
income and an opportunity for growth of principal consistent with
sound common stock investing);
(2) Fund B (described as a mutual fund which seeks long-term growth
of capital through investments in stocks in the United States and
all over the world);
(3) Fund C (described as a mutual fund which seeks long-term growth
of capital and income primarily through investments in common
stocks);
(4) Fund D (described as a mutual fund which seeks as high a level of
current income as is consistent with the preservation of
capital);
(5) Fund E (described as a mutual fund which seeks current income
and, secondarily, growth of capital);
(6) Fund F (described as a mutual fund which seeks long-term growth
of capital by investing in companies outside of the United
States); and
(7) Fund G (described as a mutual fund which seeks long-term growth
of capital through a diversified portfolio of common stocks).]
As necessary, the Committee may, in its sole discretion, discontinue,
substitute or add a Measurement Fund. Each such action will take
effect as of the first day of the calendar quarter that follows by
thirty (30) days the day on which the Committee gives Participants
advance written notice of such change.
-10-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
(d) Crediting or Debiting Method. The performance of each elected
Measurement Fund (either positive or negative) will be determined by
the Committee, in its reasonable discretion, based on the performance
of the Measurement Funds themselves. A Participant's Account Balance
shall be credited or debited on a daily basis based on the performance
of each Measurement Fund selected by the Participant, as determined by
the Committee in its sole discretion, as though (i) a Participant's
Account Balance were invested in the Measurement Fund(s) selected by
the Participant, in the percentages applicable to such business day,
as of the close of business on such business day, at the closing price
on such date; (ii) the portion of the Annual Deferral Amount that was
actually deferred during any business day were invested in the
Measurement Fund(s) selected by the Participant, in the percentages
applicable to such business day, no later than the close of business
on the first business day after the day on which such amounts are
actually deferred from the Participant's Base Annual Salary and/or
Annual Bonus through reductions in his or her payroll, at the closing
price on such date; and (iii) any distribution made to a Participant
that decreases such Participant's Account Balance ceased being
invested in the Measurement Fund(s), in the percentages applicable to
such business day, no earlier than one business day prior to the
distribution, at the closing price on such date. The Participant's
Annual Company Matching Amount, if any, shall be credited to his or
her Company Matching Account for purposes of this Section 3.9(d) as of
the close of business on the first business day in February of the
Plan Year following the Plan Year to which it relates. The
Participant's Annual Company Contribution Amount, if any, shall be
credited to his or her Company Contribution Account for purposes of
this Section 3.9(d) as of the close of business on the date selected
by the Committee in its sole discretion.
(e) No Actual Investment. Notwithstanding any other provision of this Plan
that may be interpreted to the contrary, the Measurement Funds are to
be used for measurement purposes only, and a Participant's election of
any such Measurement Fund, the allocation to his or her Account
Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account
Balance shall not be considered or construed in any manner as an
actual investment of his or her Account Balance in any such
Measurement Fund. In the event that the Company or the Trustee (as
that term is defined in the Trust), in its own discretion, decides to
invest funds in any or all of the Measurement Funds, no Participant
shall have any rights in or to such investments themselves. Without
limiting the foregoing, a Participant's Account Balance shall at all
times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of the
Company.
3.10 FICA and Other Taxes.
(a) Annual Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Base Annual Salary and Annual Bonus that is not being
deferred, in a manner determined by the Employer(s), the Participant's
share of FICA and other employment taxes on such Annual Deferral
Amount. If necessary, the Committee may reduce the Annual Deferral
Amount in order to comply with this Section 3.10.
-11-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
(b) Company Matching Amounts. When a participant becomes vested in a
portion of his or her Company Matching Account, the Participant's
Employer(s) shall withhold from the Participant's Base Annual Salary
and/or Annual Bonus that is not deferred, in a manner determined by
the Employer(s), the Participant's share of FICA and other employment
taxes. If necessary, the Committee may reduce the vested portion of
the Participant's Company Matching Account in order to comply with
this Section 3.10.
(c) Distributions. The Participant's Employer(s), or the trustee of the
Trust, shall withhold from any payments made to a Participant under
this Plan all federal, state and local income, employment and other
taxes required to be withheld by the Employer(s), or the trustee of
the Trust, in connection with such payments, in amounts and in a
manner to be determined in the sole discretion of the Employer(s) and
the trustee of the Trust.
ARTICLE 4
Short-Term Payout; Unforeseeable Financial Emergencies;
Withdrawal Election; 401(k) Roll-Over
4.1 Short-Term Payout. In connection with each election to defer an Annual
Deferral Amount and/or each contribution of an Annual Company Contribution
Amount and/or Annual Company Matching Amount, a Participant may irrevocably
elect to receive a future "Short-Term Payout" from the Plan with respect to
such Annual Deferral Amount, Annual Company Contribution Amount and/or
Annual Company Matching Amount. Subject to the Deduction Limitation, the
Short-Term Payout shall be a lump sum payment in an amount that is equal to
the Annual Deferral Amount, Annual Company Contribution Amount and/or
Annual Company Matching Amount, plus amounts credited or debited in the
manner provided in Section 3.9 above on that amount (reduced by the 401(k)
Roll-Over Amount for such Plan Year), determined at the time that the
Short-Term Payout becomes payable (rather than the date of a Termination of
Employment). Subject to the Deduction Limitation and the other terms and
conditions of this Plan, each Short-Term Payout elected shall be paid out
during a 60 day period commencing immediately after the last day of any
Plan Year designated by the Participant that is at least five Plan Years
after the Plan Year in which the Annual Deferral Amount, Annual Company
Contribution Amount and/or Annual Matching Amount is actually deferred or
contributed. By way of example, if a five year Short-Term Payout is elected
for Annual Deferral Amounts that are deferred in the Plan Year commencing
January 1, 2001, the five year Short-Term Payout would become payable
during a 60 day period commencing January 1, 2007.
4.2 Other Benefits Take Precedence Over Short-Term. Should an event occur that
triggers a benefit under Article 5, 6, 7 or 8, any Annual Deferral Amount,
plus amounts credited or debited thereon, that is subject to a Short-Term
Payout election under Section 4.1 shall not be paid in accordance with
Section 4.1 but shall be paid in accordance with the other applicable
Article. Moreover, any Short-Term Payout shall be adjusted to take into
account any contribution under Section 4.5 below.
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies. If
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's
-12-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Account Balance, calculated as if such Participant were receiving a
Termination Benefit, or the amount reasonably needed to satisfy the
Unforeseeable Financial Emergency. If, subject to the sole discretion of
the Committee, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall
be made within 60 days of the date of approval. The payment of any amount
under this Section 4.3 shall not be subject to the Deduction Limitation.
4.4 Withdrawal Election. A Participant (or, after a Participant's death, his or
her Beneficiary) may elect, at any time, to withdraw all of his or her
Account Balance, calculated as if there had occurred a Termination of
Employment as of the day of the election, less a withdrawal penalty equal
to 10% of such amount (the net amount shall be referred to as the
"Withdrawal Amount"). This election can be made at any time, before or
after Retirement, Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. If made before
Retirement, Disability or death, a Participant's Withdrawal Amount shall be
his or her Account Balance calculated as if there had occurred a
Termination of Employment as of the day of the election. No partial
withdrawals of the Withdrawal Amount shall be allowed. The Participant (or
his or her Beneficiary) shall make this election by giving the Committee
advance written notice of the election in a form determined from time to
time by the Committee. The Participant (or his or her Beneficiary) shall be
paid the Withdrawal Amount within 60 days of his or her election. Once the
Withdrawal Amount is paid, the Participant's participation in the Plan
shall terminate and the Participant shall not be eligible to participate in
the Plan in the future. The payment of this Withdrawal Amount shall not be
subject to the Deduction Limitation.
4.5 401(k) Roll-Over.. In connection with each election to defer an Annual
Deferral Amount, a Participant may elect to have his or her Employer cause
an amount equal to the lesser of the Participant's: (i) Base Annual Salary
portion of his or her Annual Deferral Amount for such Plan Year, (ii) Base
Annual Salary portion of the Annual Deferral Amount for such Plan Year,
adjusted in accordance with the crediting/debiting method set forth in
Section 3.9, or (iii) Maximum 401(k) Amount (the resulting amount being
hereinafter referred to as the "401(k) Roll-Over Amount"), to be
contributed directly to the 401(k) Plan on behalf of the Participant as
soon as is administratively feasible after the calculation of the Maximum
401(k) Amount. If the definition of Base Annual Salary is more inclusive
than the definition of "compensation" under Code Section 401 or the 401(k)
Plan, Base Annual Salary shall be reduced to include only the items that
are includable under Code Section 401 or the 401(k) Plan for purposes of
the calculations in (i) and (ii) above. In no event shall the contribution
to the 401(k) Plan and reduction under this Plan for any Plan Year be
greater than the Annual Deferral Amount for the Plan Year that relates to
the 401(k) Plan Year, it being understood that "earnings" credited or
debited to a Participant's Deferral Account shall not be used for purposes
of this Section 4.5.
4.6 401(k) Roll-Over Takes Precedence Over Other Benefits.. Should an event
occur that triggers a benefit under Articles 4, 5, 6, 7 or 8, such benefit
shall be adjusted by the Committee to permit the contribution of the
maximum amount possible into the 401(k) Plan, consistent with the Code and
regulations.
-13-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or her
commencement of participation in the Plan, shall elect on an Election Form
to receive the Retirement Benefit in a lump sum or pursuant to an Annual
Installment Method of 5, 10 or 15 years. The Participant may annually
change his or her election to an allowable alternative payout period by
submitting a new Election Form to the Committee, provided that any such
Election Form is submitted at least 1 year prior to the Participant's
Retirement and is accepted by the Committee in its sole discretion. The
Election Form most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not make any
election with respect to the payment of the Retirement Benefit, then such
benefit shall be payable in a lump sum. The lump sum payment shall be made,
or installment payments shall commence, no later than 60 days after the
last day on which the Participant Retires. Any payment made shall be
subject to the Deduction Limitation.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
years and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account
Balance.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
6.2 Payment of Pre-Retirement Survivor Benefit. The Pre-Retirement Survivor
Benefit shall be received by his or her Beneficiary in a lump sum. The lump
sum payment shall be made no later than 60 days after the day on which the
Committee is provided with proof that is satisfactory to the Committee of
the Participant's death. Any payment made shall be subject to the Deduction
Limitation.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance if a Participant experiences a Termination of
Employment prior to his or her Retirement, death or Disability.
-14-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
7.2 Payment of Termination Benefit. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an Election
Form to receive the Termination Benefit in a lump sum or pursuant to an
Annual Installment Method of 2 or 3 years. The Participant may annually
change his or her election to an allowable alternative payout period by
submitting a new Election Form to the Committee, provided that any such
Election Form is submitted at least 1 year prior to the Participant's
Termination of Employment and is accepted by the Committee in its sole
discretion. The Election Form most recently accepted by the Committee shall
govern the payout of the Termination Benefit. If a Participant does not
make any election with respect to the payment of the Termination Benefit,
then such benefit shall be payable in a lump sum. The lump sum payment
shall be made, or installment payments shall commence, no later than 60
days after the last day on which the Participant experiences a Termination
of Employment. Any payment made shall be subject to the Deduction
Limitation.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Waiver of Deferral. A Participant who is determined by the Committee
to be suffering from a Disability shall be excused from fulfilling
that portion of the Annual Deferral Amount commitment that would
otherwise have been withheld from a Participant's Base Annual Salary
and/or Annual Bonus for the Plan Year during which the Participant
first suffers a Disability. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for all
other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment with an
Employer after a Disability ceases, the Participant may elect to defer
an Annual Deferral Amount for the Plan Year following his or her
return to employment or service and for every Plan Year thereafter
while a Participant in the Plan; provided such deferral elections are
otherwise allowed and an Election Form is delivered to and accepted by
the Committee for each such election in accordance with Section 3.3
above.
8.2 Continued Eligibility; Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed and shall be eligible for the benefits provided
for in Articles 4, 5, 6 or 7 in accordance with the provisions of those
Articles. Notwithstanding the above, the Committee shall have the right to,
in its sole and absolute discretion and for purposes of this Plan only, and
must in the case of a Participant who is otherwise eligible to Retire, deem
the Participant to have experienced a Termination of Employment, or in the
case of a Participant who is eligible to Retire, to have Retired, at any
time (or in the case of a Participant who is eligible to Retire, as soon as
practicable) after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability
Benefit equal to his or her Account Balance at the time of the Committee's
determination; provided, however, that should the Participant otherwise
have been eligible to Retire, he or she shall be paid in accordance with
Article 5. The Disability Benefit shall be paid
-15-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
in a lump sum within 60 days of the Committee's exercise of such right. Any
payment made shall be subject to the Deduction Limitation.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
9.2 Beneficiary Designation; Change; Spousal Consent. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form, and returning it to the Committee or its designated
agent. A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Committee's rules and procedures, as
in effect from time to time. If the Participant names someone other than
his or her spouse as a Beneficiary, a spousal consent, in the form
designated by the Committee, must be signed by that Participant's spouse
and returned to the Committee. Upon the acceptance by the Committee of a
new Beneficiary Designation Form, all Beneficiary designations previously
filed shall be canceled. The Committee shall be entitled to rely on the
last Beneficiary Designation Form filed by the Participant and accepted by
the Committee prior to his or her death.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received and acknowledged in writing by the
Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the Participant's
designated Beneficiary shall be deemed to be his or her surviving spouse.
If the Participant has no surviving spouse, the benefits remaining under
the Plan to be paid to a Beneficiary shall be payable to the executor or
personal representative of the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 10
Leave of Absence
-16-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment
of the Employer, the Participant shall continue to be considered employed
by the Employer and the Annual Deferral Amount shall continue to be
withheld during such paid leave of absence in accordance with Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was made
for that Plan Year, no deferral shall be withheld.
ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Although each Employer anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue
its sponsorship of the Plan and/or to terminate the Plan at any time with
respect to any or all of its participating Employees, by action of its
board of directors. Upon the termination of the Plan with respect to any
Employer, the Plan Agreements of the affected Participants who are employed
by that Employer shall terminate and their Account Balances, determined as
if they had experienced a Termination of Employment on the date of Plan
termination or, if Plan termination occurs after the date upon which a
Participant was eligible to Retire, then with respect to that Participant
as if he or she had Retired on the date of Plan termination, shall be paid
to the Participants as follows: Prior to a Change in Control, if the Plan
is terminated with respect to all of its Participants, an Employer shall
have the right, in its sole discretion, and notwithstanding any elections
made by the Participant, to pay such benefits in a lump sum or pursuant to
an Annual Installment Method of up to 15 years, with amounts credited and
debited during the installment period as provided herein. If the Plan is
terminated with respect to less than all of its Participants, an Employer
shall be required to pay such benefits in a lump sum. After a Change in
Control, the Employer shall be required to pay such benefits in a lump sum.
The termination of the Plan shall not adversely affect any Participant or
Beneficiary who has become entitled to the payment of any benefits under
the Plan as of the date of termination; provided however, that the Employer
shall have the right to accelerate installment payments without a premium
or prepayment penalty by paying the Account Balance in a lump sum or
pursuant to an Annual Installment Method using fewer years (provided that
the present value of all payments that will have been received by a
Participant at any given point of time under the different payment schedule
shall equal or exceed the present value of all payments that would have
been received at that point in time under the original payment schedule).
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan in whole
or in part with respect to that Employer by the action of its board of
directors; provided, however, that: (i) no amendment or modification shall
be effective to decrease or restrict the value of a Participant's Account
Balance in existence at the time the amendment or modification is made,
calculated as if
-17-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
the Participant had experienced a Termination of Employment as of the
effective date of the amendment or modification or, if the amendment or
modification occurs after the date upon which the Participant was eligible
to Retire, the Participant had Retired as of the effective date of the
amendment or modification, and (ii) no amendment or modification of this
Section 11.2 or Section 12.2 of the Plan shall be effective. The amendment
or modification of the Plan shall not affect any Participant or Beneficiary
who has become entitled to the payment of benefits under the Plan as of the
date of the amendment or modification; provided, however, that the Employer
shall have the right to accelerate installment payments by paying the
Account Balance in a lump sum or pursuant to an Annual Installment Method
using fewer years (provided that the present value of all payments that
will have been received by a Participant at any given point of time under
the different payment schedule shall equal or exceed the present value of
all payments that would have been received at that point in time under the
original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
11.4 Effect of Payment. The full payment of the applicable benefit under
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. Except as otherwise provided in this Article 12, this
Plan shall be administered by a Committee which shall consist of the Board,
or such committee as the Board shall appoint. Members of the Committee may
be Participants under this Plan. The Committee shall also have the
discretion and authority to (i) make, amend, interpret, and enforce all
appropriate rules and regulations for the administration of this Plan and
(ii) decide or resolve any and all questions including interpretations of
this Plan, as may arise in connection with the Plan. Any individual serving
on the Committee who is a Participant shall not vote or act on any matter
relating solely to himself or herself. When making a determination or
calculation, the Committee shall be entitled to rely on information
furnished by a Participant or the Company.
12.2 Administration Upon Change In Control. For purposes of this Plan, the
Company shall be the "Administrator" at all times prior to the occurrence
of a Change in Control. Upon and after the occurrence of a Change in
Control, the "Administrator" shall be an independent third party selected
by the Trustee and approved by the individual who, immediately prior to
such event, was the Company's Chief Executive Officer or, if not so
identified, the Company's highest ranking officer (the "Ex-CEO"). The
Administrator shall have the discretionary power to determine all questions
arising in connection with the administration of the Plan and the
interpretation of the Plan and Trust including, but not limited to benefit
entitlement determinations; provided, however, upon and after the
occurrence of a Change in Control, the Administrator shall have no power to
direct the investment of Plan or Trust assets or select any investment
manager or custodial firm for the Plan or Trust. Upon and after the
occurrence of a Change in Control, the Company must: (1) pay all reasonable
administrative expenses and fees of the Administrator; (2)
-18-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
indemnify the Administrator against any costs, expenses and liabilities
including, without limitation, attorney's fees and expenses arising in
connection with the performance of the Administrator hereunder, except with
respect to matters resulting from the gross negligence or willful
misconduct of the Administrator or its employees or agents; and (3) supply
full and timely information to the Administrator or all matters relating to
the Plan, the Trust, the Participants and their Beneficiaries, the Account
Balances of the Participants, the date of circumstances of the Retirement,
Disability, death or Termination of Employment of the Participants, and
such other pertinent information as the Administrator may reasonably
require. Upon and after a Change in Control, the Administrator may be
terminated (and a replacement appointed) by the Trustee only with the
approval of the Ex-CEO. Upon and after a Change in Control, the
Administrator may not be terminated by the Company.
12.3 Agents. In the administration of this Plan, the Committee may, from time to
time, employ agents and delegate to them such administrative duties as it
sees fit (including acting through a duly appointed representative) and may
from time to time consult with counsel who may be counsel to any Employer.
12.4 Binding Effect of Decisions. The decision or action of the Administrator
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.5 Indemnity of Committee. All Employers shall indemnify and hold harmless the
members of the Committee, any Employee to whom the duties of the Committee
may be delegated, and the Administrator against any and all claims, losses,
damages, expenses or liabilities arising from any action or failure to act
with respect to this Plan, except in the case of willful misconduct by the
Committee, any of its members, any such Employee or the Administrator.
12.6 Employer Information. To enable the Committee and/or Administrator to
perform its functions, the Company and each Employer shall supply full and
timely information to the Committee and/or Administrator, as the case may
be, on all matters relating to the compensation of its Participants, the
date and circumstances the Retirement, Disability, death or circumstances
of the Retirement, Disability, death or Termination of Employment of its
Participants, and such other pertinent information as the Committee or
Administrator may reasonably require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except
as may otherwise be expressly provided.
ARTICLE 14
Claims Procedures
-19-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice received
by the Claimant, the claim must be made within 60 days after such notice
was received by the Claimant. All other claims must be made within 180 days
of the date on which the event that caused the claim to arise occurred. The
claim must state with particularity the determination desired by the
Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's claim
within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any part
of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary;
and
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant (or
the Claimant's duly authorized representative) may file with the Committee
a written request for a review of the denial of the claim. Thereafter, but
not later than 30 days after the review procedure began, the Claimant (or
the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which the
decision was based; and
-20-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
(c) such other matters as the Committee deems relevant.
14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust, and
each Employer shall at least annually transfer over to the Trust such
assets as the Employer determines, in its sole discretion, are
necessary to provide, on a present value basis, for its respective
future liabilities created with respect to the Annual Deferral Amounts,
Annual Company Contribution Amounts, and Company Matching Amounts for
such Employer's Participants for all periods prior to the transfer, as
well as any debits and credits to the Participants' Account Balances
for all periods prior to the transfer, taking into consideration the
value of the assets in the trust at the time of the transfer.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Employers, Participants and the
creditors of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan.
15.3 Distributions From the Trust. Each Employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the
Employer's obligations under this Plan.
ARTICLE 16
Miscellaneous
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employee" within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). The Plan shall be administered and interpreted
to the extent possible in a manner consistent with that intent.
16.2 Unsecured General Creditor. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an Employer. For
purposes of the payment of benefits under this Plan, any and all of an
Employer's assets shall be, and remain, the general, unpledged
unrestricted assets of the Employer. An Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured promise to pay
money in the future.
16.3 Employer's Liability. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a Participant. An
-21-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Employer shall have no obligation to a Participant under the Plan
except as expressly provided in the Plan and his or her Plan Agreement.
16.4 Nonassignability. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate, alienate or
convey in advance of actual receipt, the amounts, if any, payable
hereunder, or any part thereof, which are, and all rights to which are
expressly declared to be, unassignable and non-transferable. No part of
the amounts payable shall, prior to actual payment, be subject to
seizure, attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, be transferable by operation of law in
the event of a Participant's or any other person's bankruptcy or
insolvency or be transferable to a spouse as a result of a property
settlement or otherwise.
16.5 Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged to
be an "at will" employment relationship that can be terminated at any
time for any reason, or no reason, with or without cause, and with or
without notice, unless expressly provided in a written employment
agreement. Nothing in this Plan shall be deemed to give a Participant
the right to be retained in the service of any Employer or to interfere
with the right of any Employer to discipline or discharge the
Participant at any time.
16.6 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and the
payments of benefits hereunder, including but not limited to taking
such physical examinations as the Committee may deem necessary.
16.7 Terms. Whenever any words are used herein in the masculine, they shall
be construed as though they were in the feminine in all cases where
they would so apply; and whenever any words are used herein in the
singular or in the plural, they shall be construed as though they were
used in the plural or the singular, as the case may be, in all cases
where they would so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
16.9 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State
of California without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
Chief Financial Officer
California Pizza Kitchen, Inc.
6053 West Century Boulevard, 11/th/ Floor
Los Angeles, California 90045
-22-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Participant.
16.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's designated Beneficiaries.
16.12 Spouse's Interest. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
16.13 Validity. In case any provision of this Plan shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect
the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal or invalid provision had never been
inserted herein.
16.14 Incompetent. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the care
and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution of the
benefit. Any payment of a benefit shall be a payment for the account of
the Participant and the Participant's Beneficiary, as the case may be,
and shall be a complete discharge of any liability under the Plan for
such payment amount.
16.15 Court Order. The Committee is authorized to 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 in connection with a property settlement or
otherwise, the Committee, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately
distribute the spouse's or former spouse's interest in the
Participant's benefits under the Plan to that spouse or former spouse.
16.16 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the Trust
after a Change in Control, for a distribution of that portion of
his or her benefit that has become taxable. Upon the grant of
such a petition, which grant shall not be unreasonably withheld
(and, after a Change in Control, shall be granted), a
Participant's Employer shall distribute to the Participant
immediately available funds in an amount equal to the taxable
portion of his or her benefit (which amount shall not exceed a
Participant's unpaid Account Balance under the Plan). If the
petition is granted, the tax liability distribution shall be made
-23-
<PAGE>
California Pizza Kitchen
Executive Retirement Savings Plan
Master Plan Document
within 90 days of the date when the Participant's petition is
granted. Such a distribution shall affect and reduce the benefits
to be paid under this Plan.
(b) Trust. If the Trust terminates in accordance with its terms and
benefits are distributed from the Trust to a Participant in
accordance therewith, the Participant's benefits under this Plan
shall be reduced to the extent of such distributions.
16.17 Insurance. The Employers, on their own behalf or on behalf of the
trustee of the Trust, and, in their sole discretion, may apply for and
procure insurance on the life of the Participant, in such amounts and
in such forms as the Trust may choose. The Employers or the trustee of
the Trust, as the case may be, shall be the sole owner and beneficiary
of any such insurance. The Participant shall have no interest
whatsoever in any such policy or policies, and at the request of the
Employers shall submit to medical examinations and supply such
information and execute such documents as may be required by the
insurance company or companies to whom the Employers have applied for
insurance.
16.18 Legal Fees To Enforce Rights After Change in Control. The Company and
each Employer is aware that upon the occurrence of a Change in Control,
the Board or the board of directors of a Participant's Employer (which
might then be composed of new members) or a shareholder of the Company
or the Participant's Employer, or of any successor corporation might
then cause or attempt to cause the Company, the Participant's Employer
or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the
Participant's Employer to institute, or may institute, litigation
seeking to deny Participants the benefits intended under the Plan. In
these circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to any
Participant that the Company, the Participant's Employer or any
successor corporation has failed to comply with any of its obligations
under the Plan or any agreement thereunder or, if the Company, such
Employer or any other person takes any action to declare the Plan void
or unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any Participant the
benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense
of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer,
shareholder or other person affiliated with the Company, the
Participant's Employer or any successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document as of May 1, 2000.
"Company"
California Pizza Kitchen, Inc., a California
corporation
By: /s/ H.G. CARRINGTON JR.
------------------------
H.G. Carrington Jr
Executive Vice President and Chief Financial
Officer
-24-
<PAGE>
Late-Day Trading Addendum With Plan Sponsor for
Plans with Wilmington Trust Company, as Trustee, and
Administrative Management Group ("AMG"), as Plan Recordkeeper
(NSCC/FUNDServe Processed Mutual Funds Only)
THIS ADDENDUM is made as of this 28 day of June, 2001, between California
Pizza Kitchen (the "Plan Sponsor"), plan sponsor of the Executive Deferred Comp
Plan (the "Plan"), and WILMINGTON TRUST COMPANY, as Trustee (the "Trustee").
1. This Addendum supplements the Trust Agreement between the Plan Sponsor
and the Trustee with respect to the Plan and sets forth the mutual
understanding of the late day trade processing requirements for the
Plan. In the event of any inconsistency with the Trust Agreement, the
provisions of this Addendum shall control.
2. The Recordkeeper shall be responsible for providing the Trustee with
all information associated with "late-day trading" of mutual funds
held under the Trust Agreement; and the Plan Sponsor acknowledges that
the "late-day trading" of such securities shall be executed by the
Trustee based on information provided by the Recordkeeper. The method,
timing and processing of this trading shall be as specified below, as
amended in writing from time to time by the parties. The Trustee shall
execute directed trades in accordance with the standards specified
below, and any processing of mutual fund trades which does not comply
with the terms specified below shall be undertaken by the Trustee on a
best efforts basis only, which may include the next business day. The
Plan Sponsor hereby confirms that it has appointed Administrative
Management Group as the Recordkeeper for the Plan, and the Trustee
shall be entitled to rely upon the continuation of such appointment
until notified to the contrary in writing by the Plan Sponsor.
By:
3:00 p.m. CT/4:00 p.m. ET AMG edits/updates any incoming transactions
received since 3 p.m. CT/4:00 p.m. ET of the
previous day. Any trade requests made on the
voice response system after 3 p.m. CT/4:00
p.m. ET will be processed with the next
business day's transactions.
8:00 p.m. CT/9:00 p.m. ET The Trustee will make all reasonable efforts
to receive NAV prices for mutual funds and
provide such prices to AMG by electronic
transmission.
10:00 p.m. CT/11:00 p.m. ET AMG provides purchases and sales detail to
the Trustee by electronic transmission and
in a mutually agreed upon file format. If
there is no activity, a zero file
transmission will be sent.
1:00 a.m. CT/2:00 a.m. ET The Trustee processes the late-day trade
file on its trust accounting system; and the
Trustee creates a Computer-to-Computer (CCF)
Fund/SERV late trade file, which will be
transmitted to DTCC within the DTCC required
timeframes.
10:00 a.m. CT/11:00 a.m. ET The Trustee receives confirmations for the
previous day's trades electronically through
DTCC.
Noon CT/1 p.m. ET The Trustee will notify AMG of any
reconciling differences from the previous
day's activity. The Trustee will promptly
notify AMG of
<PAGE>
subsequent adjustments made by the fund
family, upon a responsible officer of the
Trustee having actual knowledge of said
adjustments.
The above processes assume that all required information, including
pricing information, is received timely and through automated pricing
services, and each step is dependent on the timely performance of the
preceding steps. Pricing data for mutual funds will be obtained from
sources believed to be reliable, but the Trustee shall not be liable
for the accuracy of such prices. AMG will independently obtain pricing
data from sources believed by it to be reliable, and will use the
prices provided by the Trustee as an additional check on pricing
accuracy prior to transmitting AMG's trade file to the Trustee.
3. The Recordkeeper (and not the Trustee) shall be responsible at all
times to maintain records sufficient to identify the date and time of
receipt of all investor/participant-level transactions involving a
Fund, including, without limitation, all purchases, redemptions and
exchanges. At the written request of any mutual fund family or
complex, the Recordkeeper will make available copies of all records of
investor/participant-level transactions maintained by the Recordkeeper
as may be reasonably requested by any mutual fund family or complex to
ensure compliance with applicable law. The Recordkeeper also agrees
that such records will be made available to the Securities and
Exchange Commission in accordance with requirements of Rule 17Ad-7(g)
under the Securities Exchange Act of 1934, as amended, or any other
applicable law. The Recordkeeper represents and warrants that its
internal control structure over the processing and transmission of
participant instructions is and will continue to be suitably designed
to prevent or detect on a timely basis instructions received after the
applicable cut off times for non-late day trading or late day trading,
as the case may be, established by the NSCC or the Funds, if earlier
(collectively, "Cut Off Times"), from being aggregated with
participant instructions received prior to the applicable Cut Off
Times, and to minimize errors that could result in late transmission
of any instructions to any mutual fund family or complex. The
Recordkeeper agrees to grant to any mutual fund family or complex the
right, upon reasonable written notice, to audit such control
functions. Further, AMG (the "Recordkeeper"), will not accept orders
or otherwise act in a manner that is contrary to NSCC requirements for
trading any Plan on the "late-day trading" platform.
4. In no event shall the Trustee or Administrative Management Group be
liable or responsible for any losses arising out of events beyond
their control which prevent or delay the late-day trading of any
mutual funds including, without limitation, any unavailability or
delay in obtaining pricing information, any interruption or delay in
electronic transmissions, any action of any utility, and any
mechanical or other malfunction or electronic interruption or any
other event which prevents or interrupts normal processing; and the
Trustee shall not be liable or responsible for any loss to the Plan
Sponsor, Plan and/or Plan participants that results from
fluctuation(s) of market value(s) during any such period.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized representatives to execute this Agreement as of the date first
written above.
PLAN SPONSOR: TRUSTEE:
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ GREGORY S. LEVIN By: /s/ BOYD S. MINNIX
-------------------- ------------------
Gregory S. Levin Boyd S. Minnix
--------------------------
Title: Vice President and Chief Financial Officer Title: Director of
Retirement Services
ACKNOWLEDGED AND AGREED TO
BY THE RECORDKEEPER:
ADMINISTRATIVE MANAGEMENT GROUP
By: /s/ J.H. BLACK
---------------
Title: John H. Black
Title: Assistant Vice President
<PAGE>
APPOINTMENT OF WILMINGTON TRUST COMPANY
AS SUCCESSOR TRUSTEE
AND AMENDMENT OF TRUST AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of June 28, 2001, by and
between CALIFORNIA PIZZA KITCHEN, INC., a California corporation (the
"Company"), and WILMINGTON TRUST COMPANY, a Delaware corporation ("WTC" or the
"Trustee").
WHEREAS, the Company has heretofore adopted a nonqualified deferred
compensation plan named the California Pizza Kitchen Executive Retirement
Savings Plan (the "Plan");
WHEREAS, in connection with the adoption of the Plan, the Company
heretofore entered into a Trust Agreement dated as of October 1, 1999 (the
"Trust Agreement") with Investors Bank and Trust as trustee, and a true and
accurate copy of which Trust Agreement has been provided to WTC;
WHEREAS, the Company desires to appoint WTC as successor trustee under the
Trust Agreement, and WTC is willing to serve as successor trustee in accordance
with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and intending to be legally bound, the Company and WTC hereby agree as follows:
1. Pursuant to Article VIII of the Trust Agreement, the Company hereby
appoints WTC as successor trustee, and WTC hereby accepts its appointment
as successor trustee.
2. Article 4.2.8 of the Trust Agreement is hereby amended to read in full as
follows:
"To employ agents, accountants, actuaries or other professionals to assist
in performing any of its duties or obligations hereunder, and with the
prior consent of the Company, which consent shall not be unreasonably
withheld, to request the advice and assistance of counsel, including
counsel for the Company, or other counsel designated by the Company or by
the Trustee."
3. Article 6.1 of the Trust Agreement is hereby amended by adding the
following phrase at the end thereof:
", or be under any obligation to monitor any insurance policies or
contracts held in the Trust or the issuers of any such insurance policies
or contracts."
4. Article 6.2 of the Trust Agreement is hereby amended by adding the
following sentence at the end thereof:
"Unless and until notified otherwise in writing by the Company, the Trustee
is hereby authorized to receive and act upon any instructions received
directly from the recordkeeper for the Plan (currently Lincoln National
Life Insurance Company or its
<PAGE>
agent, Administrative Management Group), whether in writing, by facsimile
or electronic transmission, with respect to any investments, beneficiary
payments, tax reporting or other transactions to be processed on behalf of
the Trust, and such instructions shall for all purposes be deemed provided
directly by the Company under this Trust Agreement."
5. Article 6.3 of the Trust Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, in no event shall the Trustee have any duty
to undertake, defend or continue any litigation unless payment of related
fees and expenses in ensure to the reasonable satisfaction of the Trustee."
6. The first sentence of Article 12.1 of the Trust Agreement is hereby amended
to read as follows:
"The Trust shall be construed and administered according to the internal
laws of the jurisdiction in which the principal office of the Trustee is
located."
7. The parties agree that the Trustee shall be paid compensation for its
services by the recordkeeper as part of a "bundled" fee arrangement for the
Plan. To the extent not paid by the recordkeeper, or alternatively by the
Employer, such compensation, costs and expenses shall be paid from the
Trust Fund as provided in Article VII of the Trust Agreement.
8. Except as amended and modified hereby, the terms and provisions of the
Trust Agreement are hereby ratified, approved and confirmed.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed and its corporate seal to be affixed by duly authorized officers as of
the date first above written.
CALIFORNIA PIZZA KITCHEN, INC. WILMINGTON TRUST COMPANY,
as Successor Trustee
By: /s/ GREGORY S. LEVIN By: /s/ MARY A. STOPYRA
------------------------- -------------------------
Gregory S. Levin Mary A. Stopyra
Vice President and Chief Financial Officer By: Vice President
2