CBRLGroup, Inc. 2005DEFERRED COMPENSATION PLAN (EffectiveJanuary 1, 2005)

TABLE OF CONTENTS

 

ARTICLE I	DEFINITIONS AND CONSTRUCTION
ARTICLE II	ADMINISTRATION
ARTICLE III	PARTICIPATION
ARTICLE IV	BENEFITS
ARTICLE V	VESTING
ARTICLE VI	TRUST
ARTICLE VII	PAYMENT OF BENEFITS
ARTICLE VIII	IN-SERVICE DISTRIBUTIONS
ARTICLE IX	NATURE OF THE PLAN
ARTICLE X	EMPLOYMENT RELATIONSHIP
ARTICLE XI	AMENDMENT AND TERMINATION
ARTICLE XII	CLAIMS PROCEDURE
ARTICLE XIII	MISCELLANEOUS

 

                                         

                                

                                           

                               

                                           

                                          

                                          

                                          

                              

 

 

 

WHEREAS, effective as of January 1, 1994, Cracker Barrel Old Country Store, Inc. (the “Company”) adopted the Cracker Barrel Old Country Store, Inc. Deferred Compensation Plan (the “Prior Plan”) to provide retirement and incidental benefits for certain executive employees of the Company; and

 

WHEREAS, effective as of January 1, 2003, CBRL Group, Inc. assumed sponsorship of the Prior Plan, and amended and restated the Plan in its entirety;

 

NOW, THEREFORE, in order to comply with the requirements of the Code, as amended by the American Jobs Creation Act of 2004, and effective as of  the Effective Date, CBRL, Inc. hereby adopts the CBRL, Inc. 2005 Deferred Compensation Plan, as set forth herein or as hereafter amended, for the purpose of assuring compliance with the Code with respect to deferrals of compensation on or after January 1, 2005.

 

1.1           Definitions. This Plan shall be deemed to have amended and restated the Prior Plan and, commencing on the Effective Date, shall govern all amounts credited to a Participant's Account other than Prior Plan Deferrals.  The terms of the Prior Plan shall remain in effect with respect to the portion of a Participant's Account consisting of Prior Plan Deferrals.  Where the following words and phrases appear in the Plan, they shall have the respective meanings set forth below, un1ess their context clearly indicates to the contrary.

 

(a)

Account: A memorandum bookkeeping account established on the records of the Company for a Member which is credited with amounts determined

pursuant to Sections 4.1 and 4.2 of the Plan.  As of any determination date, a Member’s benefit under the Plan shall be equal to the amount credited to his Account as of such date.

	(b)	Board: The Board of Directors of the Company.
	(c)	Committee: The administrative committee appointed by the Board to administer the Plan.

	(d)	Company: CBRL Group, Inc.
	(e)	Compensation: The total of all amounts paid by the Company to or for the benefit of a Member for services rendered or labor performed while a Member

	(as reported for federal income tax purposes on such Member’s Form W-2 or its equivalent), including the Member’s deferral contributions to this Plan and to the
	Qualified Plan and any bonus awarded to such Member by the Company.

(j)

Interest Credit: The interest applied to a Member’s Account as of the end of each calendar quarter. Such interest shall be at one and one-half

	percent (1.5%) over the ten (10) year Treasury Bill rate in effect as of the beginning of such calendar quarter.

(k)

Member: Any management or highly compensated employee or outside director of the Company who has been designated by the Committee

as a Member of the Plan until such employee ceases to be a Member in accordance with Section 3.1 of the Plan.

 

(n)

Prior Plan:  The CBRL Group, Inc. Deferred Compensation Plan, as in effect immediately prior to the Effective Date of this Plan.

	(o)	Prior Plan Deferrals: The amount which, immediately prior to the Effective Date, was credited to the Member's Account and which on such date was

not subject to forfeiture, and any Investment Credit allocated to such amount since the Effective Date.

	(p)	Qualified Plan: The Cracker Barrel Old Country Store, Inc. and Affiliates Employee Savings Plan , as amended from time to time.

(q)

Specified Employee:   A key employee (as defined in Section 416(i) of the Code, but without regard to paragraph (5) thereof) of the Company.

Provided, however, that no Member shall be considered to be a Specified Employee as of any date unless on such

 

         

 

 

date the stock of the Company is publicly traded on an established securities market or otherwise.

 

(r)

Trust Agreement: Any agreement which may be entered into between the Company and the Trustee establishing a trust to hold and invest contributions

	made by the Company under the Plan and from which all or a portion of the amounts payable under the Plan to Members and their beneficiaries will be distributed.

	(s)	Trust Assets: All assets held by the Trustee under the Trust Agreement.
	(t)	Trustee: The trustee or trustees qualified and acting under the Trust Agreement at any time.

1.2           Number and  Gender.  Wherever appropriate herein, words used in the singular shall be considered to include the plural and the plural to include the singular. The masculine gender, where appearing in this Plan, shall be deemed to include the feminine gender.

 

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

 

 

The Plan shall be administered by the Committee, which shall be authorized, subject to the provisions of the Plan, to establish rules and regulations and make such interpretations and determinations as it may deem necessary or advisable for the proper administration of the Plan, including, without limitation, the discretionary power (1) to construe the Plan and the Trust, (ii) to determine the eligibility of any employee of the Company or its subsidiaries for participation in the Plan, and (iii) to determine the eligibility for and amount of benefits payable to a Member or the Member’s designated beneficiary hereunder. All such rules, regulations, interpretations and determinations shall be binding on all Plan Members and their beneficiaries. The Committee shall be composed of not less than three (3) individuals who shall be appointed by the Board. Each member of the Committee shall serve until the member resigns or is removed by the Board. Upon the resignation or removal of a member of the Committee, the Board shall appoint a substitute member. No member of the Committee shall have any right to vote or decide upon any matter relating solely to himself or herself under the Plan or to vote in any case which his individual right to claim any benefit under the Plan is particularly involved. In any case in which a Committee member is so disqualified to act, and the remaining members cannot agree, the

.

 

3.1

Eligibility. Any management or highly compensated employee or outside director of the Company shall become a Member upon designation by the Committee.

Once an employee or outside director has been designated as a Member, he or she shall automatically continue to be a Member until he or she has received payment in full of all benefits accrued for him or her under this Plan or until he or she is removed as a Member by the Committee.

 

3.2

Election. Any Member may file an Election to defer receipt of an integral percentage or sum certain (in an even $1,000 amount) of his or her Compensation

for any Plan Year under the Plan. A Member’s Election to defer receipt of Compensation for any Plan Year shall be made prior to the beginning of such Plan Year, shall be

irrevocable for such Plan Year, and shall specify the time and form of payment of the portion of the Member's Account attributable to amounts allocated to the Member's

Account for the Plan Year. The reduction in a Member’s Compensation pursuant to such Election shall be effected by substantially equal Compensation reductions as

of each payroll period within the Plan Year.

 

3.3

Initial  Election. Notwithstanding the provisions of Section 3.2 above, Members may make their first Election during such thirty (30) day period following the

date on which they become Members, provided, however, that such Election shall be attributable only to Compensation for services to be performed subsequent to the Election.

 

 

 

All amounts credited to a Member’s Account shall be fully vested and not subject to forfeiture for any reason; provided, however, such amounts shall remain subject to the claims of the general creditors of the Company, present and future, and no payments shall be made under this Plan to any Member or a Member’s designated beneficiary during any period in which the Committee, in its sole and absolute discretion, determines that the Company is insolvent and notifies the Trustee in writing of such determination.

 

ARTICLE VI

In the event the Company establishes a Trust in connection with this Plan, the Company may, from time to time and in its sole discretion, pay and deliver money or other property to the Trustee for the payment of benefits under the Plan. Distributions due under the Plan to or on behalf of Members shall be made by the Trustee in accordance with the terms of the Trust Agreement and the Plan; provided, however, that the Company shall remain obligated to pay all amounts due to such persons under the Plan, to the extent that such amounts are not paid from the Trust. Nothing in the Plan or the Trust Agreement shall relieve the Company of its obligation to make the distributions required in Article VII hereof except to the extent that such obligation is satisfied by the application of funds held by the Trustee under the Trust Agreement. No Member or beneficiary of a deceased Member shall have any security or other interest in Trust Assets. Any and all Trust Assets shall remain subject to the claims of the general creditors of the Company, present and future, and no payment shall be made under the Plan during any period in which the Committee, in its sole and absolute discretion, determines that the Company is insolvent and notifies the Trustee in writing of such determination. The Trust Agreement shall prohibit the location of trust assets outside the United States or the transfer of trust assets outside the United States.  Should an inconsistency or conflict exist between the specific terms of the Plan and those of the Trust Agreement, then the relevant terms of the Plan shall govern and control.

 

7.1           Termination  of  Employment.  Upon a Member’s termination of employment or service with the Company for any reason other than death (including retirement or Disability), the amount credited to each Member’s Account as of the date of such Member’s termination of employment or service shall be distributed to such Member pursuant to Sections 7.3 and 7.4 below.

 

7.2           Death.  Upon a Member’s death, the amount credited to such Member’s Account as of the date of such Member’s death shall be distributed to such Member’s designated beneficiary pursuant to Sections 7.3 and 7.4 below. The Member, by written instrument filed

 

 

7.3           Time of Payment.  Subject to the requirements of this section, Payment of a Member’s benefit hereunder shall begin as soon as administratively feasible following the Distribution Date.

 

(a)           The "Distribution Date" of a Member's Account shall be the date specified as the Distribution Date in the Member's Election.  Provided, however, that the Distribution Date shall not occur before the earliest of:

 

	(1)	the Member's separation from service;
	(2)	the Member's Disability; or
	(3)	the Member’s death.

 

(b)           Subject to the requirements of Article VIII, distribution of a Member's Account may occur at a specified time (or pursuant to a fixed schedule) specified in the Member’s Election, or otherwise specified under the Plan at the date of deferral.

 

(c)           Subject to the requirements of Article VIII, all or a portion of a Member's Account may be distributed upon the occurrence of an Unforeseeable Emergency.

 

(d)           In the case of any Specified Employee, any distribution as the result of the Member's separation from service may not occur before the date which is six months after the date of the Member’s separation from service (or, if earlier, the date of death of the Member).

 

(e)           A Member may elect to postpone the commencement of benefits hereunder to a date which is specified by the Member in an Election; provided, however, that:

 

	(1)	such an election may not take effect until at least 12 months after  the date on which it is made,
	(2)	except in the case of a payment of benefits as the result of the Member's death or Disability, or a distribution as the result of an Unforseeable Emergency, as described in Article VIII, the first payment with respect to which the election is made must be deferred for a period of at least 5 years from the date on which the payment would otherwise have been made, and
	(3)	any election related to a payment at a specified time or pursuant to a fixed schedule may not be made less than 12 months prior to the first scheduled payment.

 

 

7.4           Form of Payment.  Subject to the prior approval of the Committee, a Member, or the Member’s designated beneficiary in the case of the death of the Member, may elect to receive benefits hereunder in either of the following forms or any combination thereof:

 

(a)           single sum payment; or

 

(b)           monthly, quarterly, or annual installment payments over a specified term not to exceed the greater of ten (10) years or the Member’s life expectancy as of the Distribution Date.

 

The form of payment shall be specified by the Member in an Election.  A Member may specify different forms and times of payment for amounts attributable to allocations to the member's Account with respect to each Plan Year.  Provided, however, that any election by a Member to receive payment in installments shall not be effective unless balance in the Member's Account (or the portion of the Account to which the installment election applies) exceeds $5,000.  The Committee shall maintain records sufficient to determine the portion of the Member's Account to which each such Election applies.

 

 Upon written application by a Member who has experienced an Unforeseeable Emergency, as determined by the Committee, the Committee may distribute to such Member an amount not to exceed the least of (i) the amount credited to such Member’s Account, (ii) the amount requested by the Member, or (iii) the amount determined by the Committee as being reasonably necessary to satisfy the need created by the Unforseeable Emergency, plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such need is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Member's assets (to the extent the liquidation of such assets would not itself cause severe financial hardship).

 

The Plan shall constitute an unfunded, unsecured obligation of the Company for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. The Plan is not intended to meet the qualification requirements of Section 401 of the Internal Revenue Code of 1986, as amended. The Company in its sole discretion may set aside such amounts for the payment of Accounts as the Company from time to time may determine. No Member shall have any security or other interest in any such amounts set aside or any other assets of the Company. Neither the establishment of the Plan, the operation thereof, nor the setting aside of any amounts shall be deemed to create a funding arrangement. Members shall

 

Nothing in the adoption or implementation of the Plan shall confer on any employee the right to continued employment by the Company or affect in any way the right of the Company to terminate his employment at any time. Any question as to whether and when there has been a termination of a Member’s employment, and the cause of such termination, shall be determined by the Committee in its discretion, and its determination shall be final.

 

The Board may amend or terminate the Plan, by resolution duly adopted, without the consent of the Members; provided, however, that no such amendment or termination shall adversely affect any benefits which have been earned prior to any such amendment or termination. Further, upon termination of the Plan, the Committee, in its sole discretion, may elect to distribute the amount credited to each Member’s Account in a lump sum cash payment as soon as administratively feasible following the date of termination of the Plan.

 

12.1         Claims.  Any claim for benefits shall be made in writing to the Committee. The Committee will handle claims in accordance with the following provisions:

 

(a)           General Rule.  If a claim is wholly or partially denied, the Committee shall notify the Member or beneficiary claimant, in accordance with paragraph (c) of this Section, of the Plan's adverse benefit determination within a reasonable period of time, but not later than 90 days after receipt of the claim by the Plan, unless the Committee determines that special circumstances require an extension of time for processing the claim.  If the Committee determines that an extension of time for processing is required, written notice of the extension shall be furnished to the Member or beneficiary claimant prior to the termination of the initial 90-day period.  In no event shall such extension exceed a period of 90 days from the end of such initial period.  The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan expects to render the benefit determination.

 

(b)           Calculating Time Periods.  For purposes of this Section 12.1, the period of time within which a benefit determination is required to be made shall begin at the time a claim is filed in accordance with the Plan's claim procedures, without regard to whether all the information necessary to make a benefit determination accompanies the filing.

 

(c)           Manner and Content of Notification of Benefit Determination.  The Committee shall provide a Member or beneficiary claimant with written notification of any adverse benefit determination.  The notification shall set forth, in a manner calculated to be understood by the Member or beneficiary claimant--

 

	(1)	The specific reason or reasons for the adverse determination;
	(2)	Reference to the specific Plan provisions on which the determination is based;
	(3)	A description of any additional material or information necessary for the Member or beneficiary claimant to perfect the claim and an explanation of why such material or information is necessary;
	(4)	A description of the Plan's review procedures as described in Section 12.2 and the time limits applicable to such procedures, including a statement of the Member or beneficiary claimant's right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.

 

12.2         Appeal of Adverse Benefit Determinations.  Within 60 days after the receipt from the Committee of any written denial of a claim for benefits, a Member or beneficiary whose claim is denied may request, by written application to the Committee, a review by the Committee of the decision denying the payment of benefits.

 

(a)           Submission of Additional Information.  In connection with an appeal of an adverse benefit determination under this Section 12.2, a Member or beneficiary shall be entitled to submit written comments, documents, records, and other information relating to the claim for benefits.  Review of an appeal under this Section 12.2 shall take into account all comments, documents, records, and other information submitted by the Member or beneficiary relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.

 

(b)           Review of Relevant Information.  The Member or beneficiary shall also be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Member or beneficiary's claim for benefits.  For purposes of this Section, the determination of whether a document, record, or other information shall be considered "relevant" shall be made in accordance with the definition in Section 12.4(c).

 

12.3         Notification of Benefit Determination on Review.

 

(a)           Manner and Content of Notification of Benefit Determination on Review.  The Committee shall provide a Member or beneficiary claimant with written notification of the Plan's benefit determination on review.  In the case of an adverse benefit

 

 

	(1)	The specific reason or reasons for the adverse determination;
	(2)	Reference to the specific plan provisions on which the determination is based;
	(3)	A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits.  For purposes of this Section, determination of whether documents, records, and other information shall be considered "relevant" shall be made in accordance with the definition provided in Section 12.4(c);
	(4)	A statement of the Member or beneficiary claimant's right to bring a civil action under Section 502(a) of ERISA.

(b)           Timing of Notification of Benefit Determination on Review.

 

(1)

General Rule.  Except as provided in paragraph (2) of this Section, the Committee shall notify a Member or beneficiary claimant in accordance with paragraph (a) of this Section of the Plan's benefit determination on review within a reasonable period of time, but not later than 60 days after receipt of the claimant's request for review by the Plan, unless the Committee determines that special circumstances require an extension of time for processing the claim.  If the Committee determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 60-day period.  In no event shall such extension exceed a period of 60 days from the end of the initial period.  The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan expects to render the determination on review.

(2)

Special Rule.  In the event that the Committee holds regularly scheduled meetings at least quarterly, paragraph (1) of this Section shall not apply, and the Committee shall instead make a benefit determination no later than the date of the meeting of the Committee that immediately follows the Plan's receipt of a request for review, unless the request for review is filed within 30 days preceding the date of such meeting.  In such case, a benefit determination may be made by no later than the date of the second meeting following the Plan's receipt of the request for review.  If special circumstances require further extension of time for processing, a benefit determination shall be rendered not later than the third meeting of the Committee following the Plan's receipt of the request for review.  If such an extension of time for review is required because of special circumstances, the Committee shall provide the claimant with written

		notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension.  The Committee shall notify the claimant, in accordance with paragraph (a) of this Section, of the benefit determination as soon as possible, but no later than 5 days after the benefit determination is made.
	(3)	Calculating Time Periods.  For purposes of this Section 12.3, the period of time within which a benefit determination on review is required to be made shall begin at the time an appeal is filed in accordance with the reasonable procedures of a Plan, without regard to whether all the information necessary to make a benefit determination on review accompanies the filing.  In the event that a period of time is extended as permitted pursuant to paragraph (1) or (2) of this Section due to a claimant's failure to submit information necessary to decide a claim, the period for making the benefit determination on review shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information.

12.4         Definitions.   For purposes of this Article XII, the following terms shall have the meanings indicated:

 

(a)           Adverse benefit determination.  "Adverse benefit determination" means any of the following: a denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a benefit, including any such denial, reduction, termination, or failure to provide or make payment that is based on a determination of a Member's or beneficiary's eligibility to participate in the Plan.

 

(b)           Notice or notification.  "Notice" or "Notification" means the delivery or furnishing of information to an individual in a manner that satisfies the standards of 29 CFR 2520.104b-1(b) as appropriate with respect to material required to be furnished or made available to an individual.

 

(c)           Relevant.  A document, record or other information shall be considered "relevant" to the Member or beneficiary's claim if such document, record or other information:

 

	(1)	was relied upon in making the benefit determination;
	(2)	was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination; and demonstrates compliance with the administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with the Plan and that, where appropriate, the Plan provisions have been applied consistently with respect to similarly situated Members or beneficiaries.

13.1           Indemnification. The Company shall indemnify and hold harmless each member of the Committee and any other person acting on its behalf, against any and all expenses and liabilities arising out of his or her administrative functions or fiduciary responsibilities, excepting only expenses and liabilities arising out of the individual’s own willful misconduct or lack of good faith. Expenses against which such person shall be indemnified hereunder include, without limitation, the amounts of any settlement or judgment, costs, counsel, fees and related charges reasonably incurred in connection with a claim asserted or a proceeding brought or settlement thereof.

 

13.2           Effective  Date.  The Plan shall become operative and effective as of the Effective Date and shall continue until amended or terminated as provided in Article XI.

 

13.3           Withholding Taxes. The Company shall have the right to deduct from any payments made under this Plan, any federal, state or local taxes required by law to be withheld with respect to such payments.

 

13.4           Nonalienation of Benefits.  Benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, attachment, garnishment, execution or levy of any kind, either voluntary or involuntary, including any such liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of the Member, prior to actually being received; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits subject to the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder shall be void and without any force and effect.

 

13.5           Severability.  If any provision of the Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; rather, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein.

 

13.6           Jurisdiction and Applicable Law. The situs of the Plan hereby created is Tennessee. All provisions of the Plan shall be construed in accordance with the laws of Tennessee except to the extent preempted by federal law.  This Plan is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, and shall be interpreted in accordance with such intent.

 

IN WITNESS WHEREOF, the undersigned has caused this amended and restated Plan to be executed this  27th  day of  September,  2005, effective as of January 1, 2005.

 

CBRL Group, Inc.

 

 

	By:	/s/Michael J. Zylstra
	Title: