Capital Accumulation Plan for Executives - Jack in the Box Inc.
JACK IN THE BOX INC.
CAPITAL ACCUMULATION PLAN FOR EXECUTIVES
Effective April 2, 1990
Amended and Restated June 1, 2001
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TABLE OF CONTENTS
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Article I--PURPOSE; EFFECTIVE DATE.......................................1
1.1 Purpose.......................................................1
1.2 Effective Date................................................1
ARTICLE II--DEFINITIONS..................................................1
2.1 Account.......................................................1
2.2 Actuarial Equivalent..........................................1
2.3 Beneficiary...................................................1
2.4 Board.........................................................1
2.5 Change in Control.............................................2
2.6 Committee.....................................................3
2.7 Company.......................................................3
2.8 Compensation..................................................3
2.9 Deferral Commitment...........................................3
2.10 Deferral Period...............................................3
2.11 Determination Date............................................3
2.12 Disability....................................................3
2.13 Discretionary Contribution....................................3
2.14 Earnings......................................................4
2.15 Financial Hardship............................................4
2.16 Form of Payment Designation...................................4
2.17 401(k) Plan...................................................4
2.18 Matching Contribution.........................................4
2.19 Participant...................................................4
2.20 Plan..........................................................4
2.21 Years of Service..............................................5
ARTICLE III--PARTICIPATION AND DEFERRAL COMMITMENTS......................5
3.1 Eligibility and Participation.................................5
3.2 Form of Deferral..............................................5
3.3 Limitations on Deferral Commitments...........................5
3.4 Commitment Limited by Termination.............................6
3.5 Modification of Deferral Commitment...........................6
3.6 Change in Employment Status...................................6
(i)
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ARTICLE IV--DEFERRED COMPENSATION ACCOUNT................................6
4.1 Account.......................................................6
4.2 Timing of Credits; Withholding................................6
4.3 Matching Contributions........................................7
4.4 Discretionary Contributions...................................7
4.5 Determination of Accounts.....................................7
4.6 Vesting of Accounts...........................................7
4.7 Statement of Accounts.........................................8
ARTICLE V--PLAN BENEFITS.................................................8
5.1 Withdrawals...................................................8
5.2 Termination Benefits..........................................8
5.3 Death Benefit.................................................8
5.4 Form of Payment...............................................9
5.5 Withholding; Payroll Taxes....................................9
5.6 Valuation and Settlement......................................9
5.7 Payment to Guardian...........................................9
ARTICLE VI--BENEFICIARY DESIGNATION.....................................10
6.1 Beneficiary Designation......................................10
6.2 Changing Beneficiary.........................................10
6.3 Change in Marital Status.....................................10
6.4 No Beneficiary Designation...................................11
6.5 Effect of Payment............................................11
ARTICLE VII--ADMINISTRATION.............................................11
7.1 Committee; Duties............................................11
7.2 Agents.......................................................11
7.3 Binding Effect of Decisions..................................11
7.4 Indemnity of Committee.......................................11
7.5 Election of Committee After Change in Contro.................12
ARTICLE VIII--CLAIMS PROCEDURE..........................................12
8.1 Claim........................................................12
8.2 Denial of Claim..............................................12
8.3 Review of Claim..............................................12
8.4 Final Decision...............................................12
(ii)
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ARTICLE IX--AMENDMENT AND TERMINATION OF PLAN...........................13
9.1 Amendment....................................................13
9.2 Company's Right to Terminate.................................13
ARTICLE X--MISCELLANEOUS................................................14
10.1 Unfunded Plan................................................14
10.2 Company Obligation...........................................14
10.3 Unsecured General Creditor...................................14
10.4 Trust Fund...................................................14
10.5 Nonassignability.............................................14
10.6 Not a Contract of Employment.................................15
10.7 Protective Provisions........................................15
10.8 Governing Law................................................15
10.9 Validity.....................................................15
10.10 Notice.......................................................15
10.11 Successors...................................................15
(iii)
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JACK IN THE BOX INC.
CAPITAL ACCUMULATION PLAN FOR EXECUTIVES
ARTICLE I--PURPOSE; EFFECTIVE DATE
1.1 Purpose
The purpose of this Capital Accumulation Plan for Executives is to provide
current tax planning opportunities as well as supplemental funds for retirement
or death for certain key employees of Company. It is intended that the Plan will
aid in attracting and retaining key employees of exceptional ability by
providing them with these benefits.
1.2 Effective Date
The Plan shall be effective as of April 2, 1990.
ARTICLE II--DEFINITIONS
For the purposes of this Plan, the following terms shall have the meanings
indicated, unless the context clearly indicates otherwise:
2.1 Account
"Account" means the vehicle used by Company to measure and determine the
amounts to be paid to a Participant under the Plan.
2.2 Actuarial Equivalent
"Actuarial Equivalent" means equivalence in value between two (2) or more
forms and/or times of payment based on a determination by an actuary chosen by
the Committee, using sound actuarial assumptions at the time of such
determination.
2.3 Beneficiary
"Beneficiary" means the person, persons or entity as designated by the
Participant, entitled under Article VI to receive any Plan benefits payable
after the Participant's death.
2.4 Board
"Board" means the Board of Directors of the Company.
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2.5 Change in Control
"Change in Control" of the Company means, and shall be deemed to have
occurred upon, the first to occur of any of the following events:
(a) Any "Person" (other than those Persons in control of the Company
as of the Effective Date, or other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or a
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock
of the Company) becomes the "Beneficial Owner," directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more
of the combined voting power of the Company's then outstanding securities;
or
(b) During any period of two (2) consecutive years after an employee
becomes a Plan Participant, individuals who at the beginning of such
period constitute the Board (and any new Director, whose election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3)
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
so approved), cease for any reason to constitute a majority thereof; or
(c) The stockholders of the Company approve:
(i) A plan of complete liquidation of the Company; or
(ii) An agreement for the sale or disposition of all or
substantially all of the Company's assets; or
(iii) A merger, consolidation, or reorganization of the Company
with or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
fifty percent (50%) of the combined voting power of the voting
securities of the Company (or such surviving entity) outstanding
immediately after such merger, consolidation, or reorganization.
However, in no event shall a "Change in Control" be deemed to have
occurred, with respect to the Participant, if the Participant is part of a
purchasing group which consummates the Change in Control transaction. The
Participant shall be deemed "part of a purchasing group" for purposes of
the preceding sentence if the Participant is an equity participant in the
purchasing company or group except for:
(i) Passive ownership of less than two percent (2%) of the
stock of the purchasing company; or
(ii) Ownership of equity participation in the purchasing
company or group which is otherwise not significant, as determined
prior to the Change in Control by a majority of the nonemployee
continuing Directors.
For purposes of this Section, the terms "Person" and "Beneficial Owner"
shall have the meanings given those terms in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, and Rule 13d-3 under that Act.
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2.6 Committee
"Committee" means the committee appointed by the Board to administer the
Plan pursuant to Article VII. The initial committee so designated by the Board
shall be the Administrative Committee.
2.7 Company
"Company" means Jack in the Box Inc., a Delaware corporation, and directly
or indirectly affiliated subsidiary corporations, any other affiliate designated
by the Board, or any successor to the business thereof.
2.8 Compensation
"Compensation" means the base salary payable to and bonus earned by a
Participant by Company and considered to be "wages" for purposes of federal
income tax withholding. Compensation shall be calculated before reduction for
any amounts deferred by the Participant pursuant to the Company's tax qualified
plans which may be maintained under Section 401(k) or Section 125 of the
Internal Revenue Code (the "Code"), or under this Plan. Inclusion of any other
forms of compensation is subject to Committee approval.
2.9 Deferral Commitment
"Deferral Commitment" means a commitment made by a Participant to defer a
percentage of Compensation pursuant to Article III. The Deferral Commitment
shall apply to each payment of salary and bonus payable to a Participant. In no
event shall the Deferral Commitment exceed fifteen percent (15%) of the
Participant's base salary and one hundred percent (100%) of the Participant's
bonus less applicable taxes. A Deferral Commitment shall remain in effect until
amended or revoked as provided under Section 3.2.
2.10 Deferral Period
"Deferral Period" means each calendar year. The initial Deferral Period,
however, shall be April 2, 1990 through and including December 31, 1990.
2.11 Determination Date
"Determination Date" means the last day of each calendar month.
2.12 Disability
"Disability" means a physical or mental condition that prevents the
Participant from satisfactorily performing the Participant's usual duties for
Company. The Committee shall determine the existence of Disability and may rely
on advice from a medical examiner satisfactory to the Committee in making the
determination.
2.13 Discretionary Contribution
"Discretionary Contribution" means the Company contribution credited to a
Participant's Account under Section 4.4.
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2.14 Earnings
Effective January 1, 2001, "Earnings" means the rate of growth credited to
an Account on each Determination Date in a calendar year, which shall be equal
to the effective annual yield of the average of the Moody's Average Corporate
Bond Yield Index for the previous calendar month, as published by Moody's
Investors Service, Inc. (or any successor publisher thereto), or, if such index
is no longer published, a substantially similar index selected by the Committee,
plus two (2) percentage points.
Prior to January 1, 2001, "Earnings" means the rate of growth credited to
an Account on each Determination Date in a calendar year, which shall be equal
to the effective annual yield of the average of the Moody's Average Corporate
Bond Yield Index for the previous calendar month, as published by Moody's
Investors Service, Inc. (or any successor publisher thereto), or, if such index
is no longer published, a substantially similar index selected by the Committee.
2.15 Financial Hardship
"Financial Hardship" means a severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or
of a dependent of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstance arising
as a result of events beyond the control of the Participant. Financial Hardship
shall be determined based upon such standards as are, from time to time,
established by the Committee.
2.16 Form of Payment Designation
"Form of Payment Designation" means the form prescribed by the Committee
and completed by the Participant, indicating the chosen form of payment for
benefits payable under this Plan, as elected by the Participant.
2.17 401(k) Plan
"401(k) Plan" means the Jack in the Box Inc. Easy$aver Plus Plan, or any
successor defined contribution plan maintained by the Company that qualifies
under Section 401(a) of the Code by satisfying the requirements of Section
401(k) of the Code.
2.18 Matching Contribution
"Matching Contribution" means the Company contribution credited to a
Participant's Account under Section 4.3.
2.19 Participant
"Participant" means any employee who is eligible, pursuant to Section 3.1,
to participate in this Plan, and who has elected to defer Compensation under
this Plan.
2.20 Plan
"Plan" means this Jack in the Box Inc. Capital Accumulation Plan for
Executives as amended from time to time.
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2.21 Years of Service
"Years of Service" shall have the meaning provided for such term for
purposes of vesting under the 401(k) Plan, whether or not the Participant is a
participant in such plan.
ARTICLE III--PARTICIPATION AND DEFERRAL COMMITMENTS
3.1 Eligibility and Participation
(a) Eligibility. Eligibility to participate in the Plan shall be
limited to those select key employees of Company who are designated by
management, from time to time, and approved by the Committee.
(b) Participation. An employee's participation in the Plan shall be
effective upon notification to the employee by the Committee of
eligibility to participate, and completion and submission of a Deferral
Commitment and a Form of Payment Designation to the Committee by the
thirtieth day of the second month immediately preceding the beginning of
the Deferral Period. Such Deferral Commitment and Form of Payment
Designation shall remain in effect with respect to each succeeding
Deferral Period, until such time as another Deferral Commitment is filed
with the Committee as described in Section 3.2(b) below.
(c) Part-Year Participation. When an individual first becomes
eligible to participate during a Deferral Period, a Deferral Commitment
may be submitted to the Committee within thirty (30) days after the
Committee notifies the individual of eligibility to participate. Such
Deferral Commitment will be effective only with regard to Compensation
earned following submission of the Deferral Commitment to the Committee.
3.2 Form of Deferral
A Participant may elect a Deferral Commitment as follows:
(a) Form of Deferral Commitment. A Deferral Commitment shall be with
respect to each payment of salary and bonus payable by Company to a
Participant during the Deferral Period.
(b) Period of Commitment. Once a Participant has made a Deferral
Commitment, that Commitment shall remain in effect for that Deferral
Period and shall remain in effect for all future Deferral Periods unless
revoked or amended in writing by the Participant and delivered to the
Committee no later than November 30 of the year preceding a subsequent
Deferral Period.
3.3 Limitations on Deferral Commitments
The following limitations shall apply to a Deferral Commitment:
(a) Maximum. The maximum percentage of Compensation deferred shall
be fifteen percent (15%) of each payment of base salary and one hundred
percent (100%) of bonus payable less applicable taxes.
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(b) Minimum. The minimum deferral amount shall be one percent (1%)
of Compensation.
(c) The amount to be deferred shall be stated as a full percentage
of each payment of Compensation.
(d) Changes in Minimum or Maximum. The Committee may change the
minimum or maximum deferral amounts from time to time by giving written
notice to all Participants. No such change may affect a Deferral
Commitment entered into prior to the Committee's action.
3.4 Commitment Limited by Termination
If a Participant terminates employment with Company prior to the end of
the Deferral Period, the Deferral Period shall end as of the date of
termination.
3.5 Modification of Deferral Commitment
Except as provided in Section 5.1(b) below, a Deferral Commitment shall be
irrevocable by the Participant during a Deferral Period.
3.6 Change in Employment Status
If the Committee determines that Participant's employment performance is
no longer at a level that deserves reward through participation in this Plan,
but does not terminate the Participant's employment with Company, the
Participant's existing Deferral Commitment shall terminate at the end of the
Deferral Period, and no new Deferral Commitment may be made by such Participant
after notice of such determination is given by the Board.
ARTICLE IV--DEFERRED COMPENSATION ACCOUNT
4.1 Account
The amounts deferred by a Participant under the Plan, any Company
contributions and Earnings shall be credited to the Participant's Account.
Separate subaccounts may be maintained to reflect different forms of
distribution and levels of vesting. The Account shall be a bookkeeping device
utilized for the sole purpose of determining the benefits payable under the Plan
and shall not constitute a separate fund of assets.
4.2 Timing of Credits; Withholding
A Participant's deferred Compensation shall be credited to the Account at
the time it would have been payable to the Participant. Any withholding of taxes
or other amounts with respect to deferred Compensation that is required by
local, state or federal law shall be withheld from the Participant's
corresponding nondeferred Compensation to the maximum extent possible, and any
remaining amount shall reduce the amount credited to the Participant's Account.
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4.3 Matching Contributions
Company shall credit a Matching Contribution to the Participant's Account
equal to one hundred percent (100%) of the Compensation deferred by the
Participant under this Plan during a Deferral Period, but not to exceed the
first three percent (3%) of the Participant's Compensation before such
deferrals. The Matching Contribution shall be credited to the Account at the
time the Compensation would have been payable to the Participant.
4.4 Discretionary Contributions
Company may make Discretionary Contributions to a Participant's Account.
Discretionary Contributions shall be credited at such times and in such amounts
as recommended by the Committee and approved by the Compensation Committee of
the Board, or the Board in its sole discretion shall determine.
4.5 Determination of Accounts
Each Participant's Account as of each Determination Date shall consist of
the balance of the Account as of the immediately preceding Determination Date,
adjusted as follows:
(a) New Deferrals. The Account shall be increased by any deferred
Compensation credited since such Determination Date.
(b) Company Contributions. The Account shall be increased by any
Matching and/or Discretionary Contributions credited since such
Determination Date.
(c) Distributions. The Account shall be reduced by any benefits
distributed to the Participant since such Determination Date.
(d) Earnings. The Account shall be increased by the Earnings on the
average daily balance in the Account since such Determination Date.
4.6 Vesting of Accounts
Each Participant shall be vested in the amounts credited to such
Participant's Account and Earnings thereon as follows:
(a) Amounts Deferred. A Participant shall be one hundred percent
(100%) vested at all times in the amount of Compensation elected to be
deferred under this Plan and Earnings thereon.
(b) Matching Contributions. A Participant's Matching Contributions
and Earnings thereon shall become twenty-five percent (25%) vested for
each completed Year of Service, subject to approval by the Committee;
however, a Participant shall become one hundred percent (100%) vested if
termination of employment occurs as a result of death or within
twenty-four (24) months of a Change in Control.
(c) Discretionary Contributions. A Participant's Discretionary
Contributions and Earnings thereon shall become vested as determined by
the Compensation Committee of the Board, or the Board.
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4.7 Statement of Accounts
The Committee shall give to each Participant a statement showing the
balances in the Participant's Account on an annual basis and at such times as
may be determined by the Committee.
ARTICLE V--PLAN BENEFITS
5.1 Withdrawals
A Participant's Account may be distributed to the Participant before
termination of employment as follows:
(a) Elective Withdrawals. A Participant may elect to withdraw all or
any portion of the amount deferred by that Deferral Commitment as of a
date specified in the Deferral Commitment. Such date shall not be sooner
than seven (7) years after the date the Deferral Period commences. The
amount withdrawn shall not exceed the amount of Compensation deferred,
without regard to Earnings or Matching and/or Discretionary Contributions.
(b) Financial Hardship or Disability Withdrawals. Upon a finding
that a Participant has suffered a Financial Hardship or Disability, the
Committee may, in its sole discretion, amend the existing Deferral
Commitment or make distributions from the Participant's Account. The
amount of such distribution shall be limited to the amount reasonably
necessary to meet the Participant's needs resulting from the Financial
Hardship or Disability, and will not exceed the Participant's vested
Account balance. If payment is made due to Financial Hardship, the
Participant's deferrals under this Plan shall cease for a twelve (12)
month period. Any resumption of the Participant's deferrals under the Plan
after such twelve (12) month period shall be made only at the election of
the Participant in accordance with Article III herein.
(c) Form of Payment. Such a distribution shall be paid in a lump sum
and shall be charged to the Participant's Account as a distribution. The
distribution shall be subject to taxation as provided in Section 5.5
below.
5.2 Termination Benefits
If a Participant terminates employment with Company, for any reason other
than death, Company shall pay the Participant benefits equal to the vested
balance in the Participant's Account.
5.3 Death Benefit
Upon the death of a Participant, Company shall pay to the Participant's
Beneficiary benefits equal to the Participant's vested Account balance.
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5.4 Form of Payment
Retirement, termination and death benefits shall be paid in the form of
benefit as provided below, specified by the Participant in the Form of Payment
Designation unless the benefit is based on a Small Account as defined in
Subsection (c) below. Payments will commence no later than sixty (60) days after
all information necessary to calculate the benefit amount has been received by
Company following the date of Retirement, termination, or death. The Form of
Payment Designation shall be effective for the entire vested account balance
unless amended in writing by the Participant and delivered to the Committee no
later than November 30 of the year preceding a subsequent Deferral Period. If,
upon termination or Retirement, the Participant's most recent election as to the
form of payment was made within one (1) year of such termination or Retirement,
then the prior election shall be used to determine the form of payment. The
forms of benefit payment are:
(a) A lump sum amount which is equal to the vested Account balance.
(b) Equal annual installments of the vested Account balance
amortized over a period of up to ten (10) years. Earnings on the unpaid
balance shall be equal to the average rate of Earnings which would have
been applicable on the Account over the thirty-six (36) months immediately
preceding the commencement of benefit payments.
(c) Small Account. If the Participant's vested Account balance is
under fifty thousand dollars ($50,000) on the Valuation Date as defined in
Section 5.6, the benefit shall be paid in a lump sum.
5.5 Withholding; Payroll Taxes
Company shall withhold from payments hereunder any taxes required to be
withheld from such payments under local, state or federal law. A Beneficiary,
however, may elect not to have withholding of federal income tax pursuant to
Section 3405(a)(2) of the Code, or any successor provision thereto.
5.6 Valuation and Settlement
The last day of the month in which the Participant retires, terminates, or
dies shall be the Valuation Date. The amount of a lump sum payment and the
initial amount of installments shall be based on the value of the Participant's
vested Account balance on the Valuation Date. The date on which a lump sum is
paid or the date on which installments commence shall be the settlement date.
The settlement date shall be no more than sixty-five (65) days after the
Valuation Date. All payments shall be made as of the first day of the month.
5.7 Payment to Guardian
If a Plan benefit is payable to a minor or a person declared incompetent
or to a person incapable of handling the disposition of property, the Committee
may direct payment to the guardian, legal representative or person having the
care and custody of such minor, incompetent or person. The Committee may require
proof of incompetency, minority, incapacity or guardianship as it may deem
appropriate prior to distribution. Such distribution shall completely discharge
the Committee and Company from all liability with respect to such benefit.
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ARTICLE VI--BENEFICIARY DESIGNATION
6.1 Beneficiary Designation
Each Participant shall have the right, at any time, to designate one (1)
or more persons or entity as Beneficiary (both primary as well as secondary) to
whom benefits under this Plan shall be paid in the event of Participant's death
prior to complete distribution of the Participant's vested Account balance. Each
Beneficiary designation shall be in a written form prescribed by the Committee
and shall be effective only when filed with the Committee during the
Participant's lifetime. Designation by a married Participant to the
Participant's spouse of less than a fifty percent (50%) interest in the benefit
due shall not be effective unless the spouse executes a written consent that
acknowledges the effect of the designation, or it is established that the
consent cannot be obtained because the spouse cannot be located.
6.2 Changing Beneficiary
Any Beneficiary designation may be changed by an unmarried Participant
without the consent of the previously named Beneficiary by the filing of a new
Beneficiary designation with the Committee. A married Participant's Beneficiary
designation may be changed by a Participant with the consent of the
Participant's spouse as provided for in Section 6.1 above, by the filing of a
new Beneficiary designation with the Committee. The filing of a new designation
shall cancel all designations previously filed.
6.3 Change in Marital Status
If the Participant's marital status changes after the Participant has
designated a Beneficiary, the following shall apply:
(a) If the Participant is married at death but was unmarried when
the designation was made, the designation shall be void unless the spouse
has consented to it in the manner prescribed in Section 6.1 above.
(b) If the Participant is unmarried at death but was married when
the designation was made:
(i) The designation shall be void if the spouse was named as
Beneficiary.
(ii) The designation shall remain valid if a nonspouse
Beneficiary was named.
(c) If the Participant was married when the designation was made and
is married to a different spouse at death, the designation shall be void
unless the new spouse has consented to it in the manner prescribed in
Section 6.1 above.
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6.4 No Beneficiary Designation
If any Participant fails to designate a Beneficiary in the manner provided
above, if the designation is void, or if the Beneficiary designated by a
deceased Participant dies before the Participant or before complete distribution
of the Participant's benefits, the Participant's Beneficiary shall be the person
in the first of the following classes in which there is a survivor:
(a) The Participant's surviving spouse;
(b) The Participant's children in equal shares, except that if any
of the children predeceases the Participant but leaves issue surviving,
then such issue shall take by right of representation the share the
deceased child would have taken if living;
(c) The Participant's estate.
6.5 Effect of Payment
Payment to the Beneficiary shall completely discharge the Company's
obligations under this Plan.
ARTICLE VII--ADMINISTRATION
7.1 Committee; Duties
This Plan shall be administered by the Committee, which shall consist of
not less than three (3) persons appointed by the Board, except after a Change in
Control as provided in Section 7.5 below. The Committee shall have the authority
to make, amend, interpret and enforce all appropriate rules and regulations for
the administration of the Plan and decide or resolve any and all questions,
including interpretations of the Plan, as may arise in such administration. A
majority vote of the Committee members shall control any decision. Members of
the Committee may be Participants under this Plan.
7.2 Agents
The Committee may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit, and may from time to time consult
with counsel who may be counsel to the Company.
7.3 Binding Effect of Decisions
The decision or action of the Committee 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, conclusive and binding upon all persons having any interest in
the Plan.
7.4 Indemnity of Committee
The Company shall indemnify and hold harmless the members of the Committee
against any and all claims, loss, damage, expense or liability arising from any
action or failure to act with respect to this Plan on account of such member's
service on the Committee, except in the case of gross negligence or willful
misconduct.
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7.5 Election of Committee After Change in Control
After a Change in Control, vacancies on the Committee shall be filled by
majority vote of the remaining Committee members and Committee members may be
removed only by such a vote. If no Committee members remain, a new Committee
shall be elected by majority vote of the Participants in the Plan immediately
preceding such Change in Control. No amendment shall be made to Article VII or
other Plan provisions regarding Committee authority with respect to the Plan
without prior approval by the Committee.
ARTICLE VIII--CLAIMS PROCEDURE
8.1 Claim
Any person or entity claiming a benefit, requesting an interpretation or
ruling under the Plan (hereinafter referred to as "Claimant"), or requesting
information under the Plan shall present the request in writing to the
Committee, which shall respond in writing as soon as practicable.
8.2 Denial of Claim
If the claim or request is denied, the written notice of denial shall
state:
(a) The reasons for denial, with specific reference to the Plan
provisions on which the denial is based;
(b) A description of any additional material or information required
and an explanation of why it is necessary; and
(c) An explanation of the Plan's claim review procedure.
8.3 Review of Claim
Any Claimant whose claim or request is denied or who has not received a
response within sixty (60) days may request a review by notice given in writing
to the Committee. Such request must be made within sixty (60) days after receipt
by the Claimant of the written notice of denial, or in the event Claimant has
not received a response sixty (60) days after receipt by the Committee of
Claimant's claim or request. The claim or request shall be reviewed by the
Committee which may, but shall not be required to, grant the Claimant a hearing.
On review, the Claimant may have representation, examine pertinent documents,
and submit issues and comments in writing.
8.4 Final Decision
The decision on review shall normally be made within sixty (60) days after
the Committee's receipt of Claimant's claim or request. If an extension of time
is required for a hearing or other special circumstances, the Claimant shall be
notified and the time limit shall be one hundred twenty (120) days. The decision
shall be in writing and shall state the reasons and the relevant Plan
provisions. All decisions on review shall be final and bind all parties
concerned.
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ARTICLE IX--AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment
The Board may at any time amend the Plan by written instrument, notice of
which is given to all Participants and to Beneficiaries receiving installment
payments, subject to the following:
(a) Preservation of Account Balance. No amendment shall reduce the
amount accrued in any Account to the date such notice of the amendment is
given.
(b) Changes in Earnings Rate. No amendment shall reduce, either
prospectively or retroactively, the rate of Earnings to be credited to the
amount already accrued in Participant's Account and any amounts credited
to the Account under Deferral Commitments already in effect on that date.
9.2 Company's Right to Terminate
The Board may at any time partially or completely terminate the Plan if,
in its judgment, the tax, accounting or other effects of the continuance of the
Plan, or potential payments thereunder would not be in the best interests of
Company.
(a) Partial Termination. The Board may partially terminate the Plan
by instructing the Committee not to accept any additional Deferral
Commitments. If such a partial termination occurs, the Plan shall continue
to operate and be effective with regard to Deferral Commitments entered
into prior to the effective date of such partial termination.
(b) Complete Termination. The Board may completely terminate the
Plan by instructing the Committee not to accept any additional Deferral
Commitments, and by terminating all ongoing Deferral Commitments. In the
event of complete termination, the Plan shall cease to operate and Company
shall pay out each Account. Payment shall be made as a lump sum or in
equal monthly installments over the following period, based on the vested
Account balance:
Account Balance Payout Period
------------------------------------------------------------------
Less than $50,000 Lump Sum
$50,000 but not more than $100,000 3 Years
$100,000 or more 5 Years
==================================================================
Earnings shall continue to be credited on the unpaid balance in each
Account. Earnings on the unpaid balance shall be equal to the average rate of
Earnings which would have been applicable on the Account over the thirty-six
(36) months immediately preceding the commencement of benefit payments.
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ARTICLE X--MISCELLANEOUS
10.1 Unfunded Plan
This plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of "management or highly-compensated
employees" within the meaning of Sections 201, 301 and 401 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and therefore is
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly,
the Board may terminate the Plan and make no further benefit payments or remove
certain employees as Participants if it is determined by the United States
Department of Labor, a court of competent jurisdiction, or an opinion of counsel
that the Plan constitutes an employee pension benefit plan within the meaning of
Section 3(2) of ERISA (as currently in effect or hereafter amended) which is not
so exempt.
10.2 Company Obligation
The obligation to make benefit payments to any Participant under the Plan
shall be an obligation solely of the Company with respect to the deferred
Compensation receivable from, and contributions by, that Company and shall not
be an obligation of another Company.
10.3 Unsecured General Creditor
Except as provided in Section 10.4, Participants and Beneficiaries shall
be unsecured general creditors, with no secured or preferential right to any
assets of Company or any other party for payment of benefits under this Plan.
Any property held by Company for the purpose of generating the cash flow for
benefit payments shall remain its general, unpledged and unrestricted assets.
Company's obligation under the Plan shall be an unfunded and unsecured promise
to pay money in the future.
10.4 Trust Fund
Company shall be responsible for the payment of all benefits provided
under the Plan. At its discretion, Company may establish one (1) or more trusts,
with such trustees as the Board may approve, for the purpose of providing for
the payment of such benefits. Although such a trust shall be irrevocable, its
assets shall be held for payment of all Company's general creditors in the event
of insolvency. To the extent any benefits provided under the Plan are paid from
any such trust, Company shall have no further obligation to pay them. If not
paid from the trust, such benefits shall remain the obligation of Company.
10.5 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 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 or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency.
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10.6 Not a Contract of Employment
This Plan shall not constitute a contract of employment between Company
and the Participant. Nothing in this Plan shall give a Participant the right to
be retained in the service of Company or to interfere with the right of Company
to discipline or discharge a Participant at any time.
10.7 Protective Provisions
A Participant will cooperate with Company by furnishing any and all
information requested by Company, in order to facilitate the payment of benefits
hereunder, and by taking such physical examinations as Company may deem
necessary and taking such other action as may be requested by Company.
10.8 Governing Law
The provisions of this Plan shall be construed and interpreted according
to the laws of the State of California, except as preempted by federal law.
10.9 Validity
If any provision of this Plan shall be held 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 and
invalid provision had never been inserted herein.
10.10 Notice
Any notice required or permitted under the Plan shall be sufficient if in
writing and hand delivered or sent by registered or certified mail. 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. Mailed notice to the Committee shall be directed to the Company's
address. Mailed notice to a Participant or Beneficiary shall be directed to the
individual's last known address in Company's records.
10.11 Successors
The provisions of this Plan shall bind and inure to the benefit of Company
and its successors and assigns. The term successors as used herein shall include
any corporate or other business entity which shall, whether by merger,
consolidation, purchase or otherwise acquire all or substantially all of the
business and assets of Company, and successors of any such corporation or other
business entity.
JACK IN THE BOX INC.
By: LAWRENCE E. SCHAUF
------------------------------------
Lawrence E. Schauf
Executive Vice President
and Secretary
Dated: December 7, 2001
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