exv10w4






EXHIBIT 10.4




PepsiAmericas, Inc.

Supplemental Pension Plan




 






As Amended and Restated Effective January 1, 2008


















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 “Actuarial Equivalent”
	 	 	1	 
	1.2 “Advance Election”
	 	 	1	 
	1.3 “Appendix”
	 	 	1	 
	1.4 “Beneficiary”
	 	 	1	 
	1.5 “Trust Committee”
	 	 	2	 
	1.6 “Board of Directors”
	 	 	2	 
	1.7 “Change of Control”
	 	 	2	 
	1.8 “Company”
	 	 	2	 
	1.9 “Compensation”
	 	 	2	 
	1.10 “Compensation Committee”
	 	 	3	 
	1.11 “Compensation Limit”
	 	 	3	 
	1.12 “Death Benefit”
	 	 	3	 
	1.13 “Designated Participant”
	 	 	3	 
	1.14 “Effective Date”
	 	 	3	 
	1.15 “Eligible Employee”
	 	 	3	 
	1.16 “Employee”
	 	 	3	 
	1.17 “Employee Savings Deferral”
	 	 	3	 
	1.18 “Employer”
	 	 	3	 
	1.19 “ERISA”
	 	 	3	 
	1.20 “Grandfathered Pension Benefit(s)”
	 	 	4	 
	1.21 “Installment Form of Payment”
	 	 	4	 
	1.22 “Internal Revenue Code” or “Code”
	 	 	4	 
	1.23 “Investment Grade Rating”
	 	 	4	 
	1.24 “Long Term Incentive Plan”
	 	 	4	 
	1.25 “LTIP Cash Account”
	 	 	4	 
	1.26 “Maximum Annual Benefit Limitation”
	 	 	4	 
	1.27 “Non-Grandfathered Pension Benefit(s)”
	 	 	4	 
	1.28 “MIC Award”
	 	 	4	 
	1.29 “Notice Date”
	 	 	4	 
	1.30 “Parent”
	 	 	4	 
	1.31 “Participant”
	 	 	5	 
	1.32 “Participating Employer”
	 	 	5	 
	1.33 “Payment Date”
	 	 	5	 
	1.34 “Pension Benefit”
	 	 	5	 
	1.35 “Pension Plan”
	 	 	5	 
	1.36 “Plan”
	 	 	5	 
	1.37 “Plan Year”
	 	 	5	 
	1.38 “Retirement Benefit”
	 	 	5	 
	1.39 “Senior Vice President”
	 	 	5	 
	1.40 “Single Lump Sum”
	 	 	5	 
	1.41 “Spouse”
	 	 	5	 






i









 






	 	 	 	 	 
	 	 	Page	 
	1.42 “Successor Plan”
	 	 	6	 
	1.43 “Survivor Benefit”
	 	 	6	 
	1.44 “Termination of Employment”
	 	 	6	 
	1.45 “Trust”
	 	 	6	 
	 
	 	 	 	 
	ARTICLE II PARTICIPATION
	 	 	6	 
	 
	 	 	 	 
	2.1 Eligibility
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III EXCESS RETIREMENT AND DEATH BENEFITS
	 	 	6	 
	 
	 	 	 	 
	3.1 Amount of Pension Benefits
	 	 	6	 
	3.2 Amount of Survivor Benefit
	 	 	7	 
	3.3 Pre-Effective Date Benefits
	 	 	7	 
	3.4 Benefits Transferred from PEP
	 	 	8	 
	3.5 Freezing of Benefits
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV VESTING AND FORFEITURES
	 	 	8	 
	 
	 	 	 	 
	4.1 Fully Vested Deferral Accounts
	 	 	8	 
	 
	 	 	 	 
	ARTICLE V DISTRIBUTIONS
	 	 	8	 
	 
	 	 	 	 
	5.1 Form and Timing of Distributions
	 	 	8	 
	5.2 Procedures for Elections
	 	 	9	 
	5.3 Survivor Benefit
	 	 	10	 
	5.4 Cashout Distributions
	 	 	10	 
	5.5 Prior to 2001
	 	 	10	 
	5.6 Payments of Pension and Survivor Benefit Due
to an Investment Grade Rating Change
	 	 	11	 
	5.7 Payment of Pension Due to a Change of Control
	 	 	11	 
	 
	 	 	 	 
	ARTICLE VI AMENDMENT
	 	 	12	 
	 
	 	 	 	 
	6.1 Prior to a Change of Control
	 	 	12	 
	6.2 After a Change of Control
	 	 	12	 
	 
	 	 	 	 
	ARTICLE VII TERMINATION
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VIII ADMINISTRATION
	 	 	13	 
	 
	 	 	 	 
	8.1 Authority to Administer Plan
	 	 	13	 
	8.2 Facility of Payment
	 	 	14	 
	8.3 Claims Procedure
	 	 	14	 
	8.4 Notices to Participants, Etc
	 	 	17	 
	8.5 Notices to Trust Committee
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS PROVISIONS
	 	 	18	 
	 
	 	 	 	 
	9.1 Expenses
	 	 	18	 
	9.2 Indemnification and Exculpation
	 	 	18	 
	9.3 Funding
	 	 	18	 
	9.4 Corporate Action
	 	 	19	 
	9.5 Interests not Transferable
	 	 	19	 
	9.6 Effect on Other Benefit Plans
	 	 	19	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	9.7 Legal Fees and Expenses
	 	 	19	 
	9.8 Deduction of Taxes from Amounts Payable
	 	 	19	 
	9.9 Facility of Payment
	 	 	19	 
	9.10 Merger
	 	 	20	 
	9.11 409A
	 	 	20	 
	9.12 Gender and Number
	 	 	20	 
	9.13 Invalidity of Certain Provisions
	 	 	20	 
	9.14 Headings
	 	 	20	 
	9.15 Governing Law
	 	 	20	 
	 
	 	 	 	 
	SCHEDULE A NON-GRANDFATHERED PENSION BENEFIT(S)
	 	 	1	 








iii









 









PepsiAmericas,
Inc. Supplemental Pension Plan
 





     PepsiAmericas, Inc., effective January 1, 2008 (“Effective Date”), adopts and restates
the PepsiAmericas, Inc. Supplemental Pension Plan (“Plan”).



     This plan is intended, with respect to each participating employer, to be an unfunded,
deferred compensation plan for a select group of management or highly compensated employees, as
described in sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income Security
Act of 1974 (“ERISA”) and in part to be an excess benefit plan described in section 3(36) of ERISA.



     The accruals of all benefits under this Plan generally ended December 31, 2001. Benefit
accruals under the Plan totally ended on January 1, 2007, when the last Participant in the Plan
completed twenty years of service. All benefit accruals under the Plan became fully vested on
March 1, 2006.



     The Plan is being amended and restated effective as of January 1, 2008 to comply with Section
409A of the Internal Revenue Code of 1986, as amended (“Code”).



ARTICLE I




DEFINITIONS



     The following sections of this Article I provide basic definitions of terms used throughout
this Plan, and whenever used herein in a capitalized form, except as otherwise expressly provided,
the terms shall be deemed to have the following meanings:



     1.1 “Actuarial Equivalent” means an amount equal in value to the benefit replaced as
determined (i) in accordance with the terms of the Pension Plan with respect to the determination
of any form of benefit other than a single sum, or (ii) with respect to a single sum distribution,
by: (A) using an assumed annual discount rate equal to the weekly average, as of the last full week
of the fourth calendar month prior to the month containing the date the single sum will be paid, of
the Bond Buyer’s Average of 20 Municipal Bonds, rounded to the nearest 1/4%, as published weekly by
the Federal Reserve Bank of St. Louis and (B) assuming the payee lives for the duration of his life
expectancy where such life expectancy is calculated according to the UP94 Mortality Table.



     1.2 “Advance Election” means a Participant’s election to receive his or her Pension
Benefit as a Single Lump Sum or an Installment Form of Payment, made in compliance with the
requirements of Section 5.2 of this Plan.



     1.3 “Appendix” means a written supplement attached to this Plan and made a part hereof
which has been added in accordance with the provisions of this Plan.



     1.4 “Beneficiary” means, with respect to the Survivor Benefit payable upon the death
of a Participant, any person designated by the Participant (actually or by default) to receive
any Death Benefit which is payable with respect to the death of a Participant under the
Pension Plan.



 









 





     1.5 “Trust Committee” means the Trust Committee appointed pursuant to the terms of the
Trust which will have the power to manage and control the operation and administration of this
Plan.



     1.6 “Board of Directors” means the board of directors of the Company or the Parent.



     1.7 “Change of Control” means, determined separately for each Participating Employer,
an event which shall be deemed to have occurred if (i) there shall be consummated (A) any
consolidation or merger of the Parent, if one exists, or the Participating Employer in which either
the Parent or the Participating Employer, respectively, is not the continuing or surviving
corporation or pursuant to which shares of the Parent’s or the Participating Employer’s common
stock are converted into cash, securities or other property, other than a merger in which the
holders of the Parent’s or the Participating Employer’s common stock, respectively, immediately
prior to the merger have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or in a series of related transactions) of all or substantially all
the assets of either the Parent or the Participating Employer, or (ii) the shareholders of either
the Parent or the Participating Employer shall approve any plan or proposal for such corporation’s
liquidation or dissolution, or (iii) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act, other than the Parent, Participating Employer or their subsidiaries,
or any employee benefit plan sponsored by the Parent, the Participating Employer or their
subsidiaries, shall become the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of securities of either the Parent or the Participating Employer representing
twenty-five percent (25%) or more of the combined voting power of the Parent’s or the Participating
Employer’s, respectively, then outstanding securities ordinarily (and apart from rights accruing in
special circumstances) having the right to vote in the election of directors, as a result of a
tender or exchange offer, open market purchases, privately negotiated purchases or otherwise, or
(iv) at any time during a period of two consecutive years, individuals who at the beginning of such
period constituted the board of directors of the Participating Employer shall cease for any reason
to constitute at least a majority thereof, unless the election or the nomination for election by
the Parent’s or the Participating Employer’s shareholders, respectively, of each new director
during such two-year period was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such two-year period; provided however,
notwithstanding (i), (ii), (iii) or (iv) above, the proposed transaction wherein PepsiCo, Inc.
would acquire a less than fifty percent (50%) interest in the common stock of PepsiAmericas, Inc.
or its successor by merger shall not constitute a “Change of Control.”



     1.8 “Company” means PepsiAmericas, Inc. or any successor entity by operation of law or
any successor entity which affirmatively adopts the Plan, the Trust and the obligations of
PepsiAmericas, Inc. with respect to the Plan and the Trust.



     1.9 “Compensation” means, with respect to each Participating Employer, for purposes of
computing the Pension Benefit, a Participant’s “Compensation,” as defined in the Pension Plan.
Notwithstanding the preceding sentence, Compensation shall be determined




     (a) without regard to the Compensation Limit;



2









 






     (b) by including a Participant’s MIC Award paid or payable during the Plan Year
(whether or not payment of all or a portion of the MIC Award is deferred by the Participant
to a later Plan Year) but will not include that portion of an MIC Award plus earnings paid
during the same Plan Year as a result of an earlier election to defer payment of such
portion of the MIC Award;




     (c) by including a Participant’s LTIP Cash Account paid or payable during the Plan Year
(whether or not all or a portion of the LTIP Cash Account payment is deferred by the
Participant to a later Plan Year) but will not include that portion of an LTIP Cash Account
plus earnings paid during the same Plan Year as a result of an earlier election to defer
payment of such portion of the LTIP Cash Account; and




     (d) by including Employee Savings Deferrals deferred during the Plan Year.



     1.10 “Compensation Committee” means the Compensation Committee of the Board of
Directors.



     1.11 “Compensation Limit” means the limitation on the amount of Compensation which may
be considered after application of Code section 401(a)(17).



     1.12 “Death Benefit” means a monthly (or single sum) benefit payable to a Beneficiary
and determined in accordance with the Pension Plan.



     1.13 “Designated Participant” means an individual on the list of Employees set forth
in an Appendix to the Pension Plan as not being an eligible employee for the purpose of the Pension
Plan.



     1.14 “Effective Date” means January 1, 2008.



     1.15 “Eligible Employee” means with respect to each Participating Employer for a Plan
Year regarding the Pension Benefit, each Employee who is a participant in the Pension Plan.



     1.16 “Employee” means any person who is considered to be an employee of a
Participating Employer pursuant to the personnel policies of the Participating Employer; and on and
after a Change of Control, who renders services as a common law employee to the Participating
Employer.



     1.17 “Employee Savings Deferral” means the amount identified by the same term in, and
which the Participant has contributed to, the PepsiAmericas, Inc. Executive Deferred Compensation
Plan for the Plan Year.



     1.18 “Employer” means a member of the same controlled group of corporations, within
the meaning of Section 414(b) and (c) of the Code, as the Company.



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



3









 





     1.20 “Grandfathered Pension Benefit(s)” means a Participant’s vested Pension Benefit
on December 31, 2004.



     1.21 “Installment Form of Payment” means, with respect to his or her Single Lump Sum
form payment the Pension Benefit, the term of five (5) years over which to pay such Single Lump Sum
form of the Pension Benefit in annual installments during the 5-year period, with each installment
being equal to the amount necessary to amortize such Single Lump Sum in five (5) equal installments
using an interest rate equal to the discount rate that was used in determining the amount of the
Single Sum Payment.



     1.22 “Internal Revenue Code” or “Code” means the Internal Revenue Code of
1986, as amended, any subsequent Internal Revenue Code and final Treasury Regulations. If there is
a subsequent Internal Revenue Code, any references herein to Internal Revenue Code sections shall
be deemed to refer to comparable sections of any subsequent Internal Revenue Code.



     1.23 “Investment Grade Rating” means a rating either (a) at or above Baa3 by Moody’s
Investors Service, Inc. or (b) at or above BBB by Standard & Poor’s Corporation, or the prevailing
equivalent ratings at the time.



     1.24 “Long Term Incentive Plan” means the plan designated as such and adopted by each
Participating Employer.



     1.25 “LTIP Cash Account” means the vested account under the Long Term Incentive Plan
which is payable after the end of its vesting period and which the Participant has not elected to
have paid in the form of options to purchase shares of PepsiAmericas, Inc. common stock.



     1.26 “Maximum Annual Benefit Limitation” means the limitation imposed by Code section
415 on benefits payable by defined benefit pension plans qualified under Code section 401(a)
including application of the combination limitations of Code section 415(e) to cause a further
reduction, if any, of such benefits.



     1.27 “Non-Grandfathered Pension Benefit(s)” means a Participant’s non-vested Pension
Benefit on December 31, 2004, the amounts of which is set forth on Schedule A.



     1.28 “MIC Award” means the amount of award payable to a Participant under the
PepsiAmericas, Inc. Management Incentive Compensation Plan.



     1.29 “Notice Date” means the date established by the Trust Committee as the deadline
for it to receive an Advance Election or any other notification with respect to an administrative
matter in order to be effective under this Plan.



     1.30 “Parent” means any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Exchange Act), other than any employee benefit plan sponsored by the Parent or a Participating
Employer, (i) having directly or indirectly a beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Participating Employer representing twenty-five
percent (25%) or more of the combined voting power of the Participating Employer’s then outstanding
securities ordinarily (and apart from rights accruing in



4









 





special circumstances) having the right to
vote in the election of directors; and (ii) with an Investment Grade Rating.




     1.31 “Participant” means an Eligible Employee who begins to participate in this Plan
after completing the eligibility requirements. An individual will remain a Participant until the
payment of his or her Pension Benefit, if any, is completed, or made in a Single Lump Sum. A
“Grandfathered Participant” means a Participant who: (a) is an Employee on December 31, 2001; (b)
has attained age 50 and has ten (10) years of Continuous Service under the Pension Plan as of
December 31, 2001, or who is Disabled under the Pension Plan on December 31, 2001; and (c) who is
included on a list to be compiled under the Pension Plan as of January 1, 2002.



     1.32 “Participating Employer” means PepsiAmericas, Inc. and Pepsi-Cola General
Bottlers, Inc.



     1.33 “Payment Date” means the date a Participant’s Retirement Benefit, or if
applicable, a Beneficiary’s Death Benefit, payable from the Pension Plan is distributed or
commences to be distributed. Notwithstanding the above, the Payment Date for the Non-Grandfathered
Pension Benefit(s) shall be the first day of the month following the sixth month anniversary of the
Participant’s Termination of Employment.



     1.34 “Pension Benefit” means the monthly (or Single Lump Sum) Pension Benefit payable
under this Plan to a Participant.



     1.35 “Pension Plan” means the PepsiAmericas, Inc. Pension Plan for Salaried Employees
and any Successor Plan.



     1.36 “Plan” means the PepsiAmericas, Inc. Supplemental Pension Plan, as it may be
validly amended from time to time.



     1.37 “Plan Year” means the annual accounting period of this Plan which ends on each
December 31.



     1.38 “Retirement Benefit” means a monthly (or single sum) accrued benefit payable
under the Pension Plan.



     1.39 “Senior Vice President” means the Executive Vice President of Human Resources of
PepsiAmericas, Inc., or any person who shall succeed to the functional responsibilities of said
office. The Senior Vice President shall have the power and authority to act, to the extent
delegated to him or her, on behalf of the Company (and all Employees) with respect to matters which
relate to the Plan. The Senior Vice President may employ a
representative to act on its behalf and such person shall have the authority to act within the
scope of such empowerment to the full extent the Senior Vice President could have acted.



     1.40 “Single Lump Sum” means the distribution of a Participant’s total Pension Benefit
in an Actuarial Equivalent present value form of a single payment.



     1.41 “Spouse” means a person who is considered the Participant’s Spouse under the
Pension Plan.



5









 





     1.42 “Successor Plan” means a tax-qualified, retirement plan described in section
401(a) of the Code into which the assets and liabilities have been merged or transferred in
accordance with section 414(l) of the Code and section 208 of ERISA from the Pension Plan and which
provides benefits, options, features and rights, each comparable in material respects to those
available in the Pension Plan.



     1.43 “Survivor Benefit” means a monthly (or Single Lump Sum) benefit payable to a
Beneficiary and determined in accordance with this Plan.



     1.44 “Termination of Employment” occurs when a person ceases to be an Employee as
determined by the personnel policies of the Participating Employer; provided however, transfer of
employment from a Participating Employer, or from one affiliate of a Participating Employer, to
another affiliate of a Participating Employer shall not constitute a Termination of Employment for
purposes of this Plan. If a person would cease to be an Employee because of a Change of Control,
solely for the purpose of this Plan, such person will not be considered to have incurred a
Termination of Employment if the person’s successor employer, either expressly or by operation of
law, assumes the Plan and Trust, the obligations and liabilities of the Plan and Trust with respect
to such Participating Employer, and agrees to the responsibilities of the such Participating
Employer under the Plan and Trust. For purposes of the Non-Grandfathered Pension Benefit,
termination of employment means a separation from service within the meaning of Section 409A(a)(2)
of the Code.



     1.45 “Trust” means the trust created by the PepsiAmericas, Inc. Benefit Trust
Agreement as it may be validly amended from time to time.



ARTICLE II




PARTICIPATION



     2.1 Eligibility. Each person who has accrued a Pension Benefit as of the Effective
Date shall be a Participant as of the Effective Date. No other person shall become a Participant
under the Plan.



ARTICLE III




EXCESS RETIREMENT AND DEATH BENEFITS



     3.1 Amount of Pension Benefits. Effective on and after the Effective Date, a Pension
Benefit (reduced by the Actuarial Equivalent of any payments under Section 5.6) will be paid
under this Plan, commencing on the Payment Date and to be paid in the same form as the
Retirement Benefit elected by such Participant under the Pension Plan, or if the Participant has
not made such an election under the Pension Plan, then in the automatic form of payment of the
Retirement Benefit, to a Participant in an annual amount payable monthly equal to the amount by
which (a) exceeds (b):




     (a) The amount of the annual Retirement Benefit the Participant would have been
entitled to receive under the Pension Plan (1) had the Pension Plan (and any other plan
referenced by the Pension Plan for the purpose of determining an “Offset Benefit” as



6









 






defined
in the Pension Plan) not applied the Maximum Annual Benefit Limitation in determining
benefits payable from the Pension Plan; and, if applicable, (2) had the Participant not been
excluded from being an “Eligible Employee” by being listed on an Appendix to the Pension
Plan (and any other plan referenced by the Pension Plan for the purpose of determining an
“Offset Benefit” as defined in the Pension Plan). For purposes of this Section 3.1(a), the
compensation used for determining a Retirement Benefit payable from the Pension Plan (and
any other plan referenced by the Pension Plan for the purpose of determining an “Offset
Benefit” as defined in the Pension Plan) shall mean Compensation as defined in this Plan for
a Plan Year.




     (b) The amount of the annual Retirement Benefit payable monthly which the Participant
is entitled to receive under the Pension Plan, if it were to commence on the Payment Date
and to be paid in the same form of payment as (a).




     (c) Notwithstanding any provision of the Plan to the contrary, the Payment Date for the
Non-Grandfathered Pension Benefit shall be the first day of the month next following the
sixth month anniversary of the Participant’s Termination of Employment, and the form of
payment shall be a lump sum distribution.



     3.2 Amount of Survivor Benefit. Effective on and after the Effective Date, a Survivor
Benefit (reduced to reflect the Actuarial Equivalent of any payments to the Participant of the
Beneficiary or to such Beneficiary under Section 5.6) will be paid under this Plan, commencing on
the Payment Date and paid in the same form as the Death Benefit, to a Beneficiary of a deceased
Participant in an annual amount payable monthly equal to the amount by which (a) exceeds (b):




     (a) The amount of the annual Death Benefit the Beneficiary of a deceased Participant
would have been entitled to receive under the Pension Plan (1) had the Pension Plan not
applied the Maximum Annual Benefit Limitation in determining benefits payable from the
Pension Plan; and, if applicable, (2) had the Participant not been excluded from being an
“Eligible Employee” by being listed on an Appendix to the Pension Plan. For purposes of
this Section 5.2(a), the compensation used for determining a Death Benefit payable from the
Pension Plan means Compensation as defined in this Plan for a Plan Year.




     (b) The amount of the annual Death Benefit payable monthly which the Beneficiary of a
deceased Participant is entitled to receive under the Pension Plan commencing on the Payment
Date and paid in the same form of payment as (a).




     (c) Notwithstanding any provision of the Plan to the contrary, the Non-Grandfathered
Pension Benefit shall be paid to the Beneficiary in a lump sum 120 days following the death
of the Participant.



     3.3 Pre-Effective Date Benefits. Any Pension Benefit or Survivor Benefit accrued by a
Participant prior to January 1, 2001, who never became an Eligible Employee after January 1, 2001,
shall be determined and paid solely under the terms of the ERP as it existed prior to January 1,
2001.




7











 





     3.4 Benefits Transferred from PEP. Effective as of January 1, 2001, this Plan
assumes, in Sections 3.1 and 3.2, the liabilities and obligations as of January 1, 2001, accrued by
a Participant as of January 1, 2001, under the PepsiCo Pension Equalization Plan, but only if and
to the extent there was a transfer of liabilities and assets to the Pension Plan from the PepsiCo
Salaried Employees Retirement Plan prior to January 1, 2002, with respect to such Participant.



     3.5 Freezing of Benefits. Notwithstanding anything in this Plan to the contrary, a
Participant’s Pension Benefit or a Beneficiary’s Survivor Benefit shall be calculated by freezing
each at their December 31, 2001 levels; provided however, that the Pension Benefit and Survivor
Benefit with respect to a Participant who is a Grandfathered Participant shall be calculated by
freezing only the Compensation of such a Participant as of their December 31, 2001 levels. Benefit
accruals ceased on January 1, 2007 when the last Grandfathered Participant completed twenty years
of service under the Pension Plan.



ARTICLE IV




VESTING AND FORFEITURES



     4.1 Fully Vested Deferral Accounts.



     A Participant shall be fully vested and have a nonforfeitable right to his or her Pension
Benefit at the same time and to the same extent as the Participant’s Retirement Benefit is vested
under the Pension Plan. All Participants in the Plan were fully vested in their Pension Benefit on
March 1, 2006.



ARTICLE V




DISTRIBUTIONS



     Benefits payable under this Plan shall be paid in the form and time prescribed below.



     5.1 Form and Timing of Distributions. This section shall govern the form and timing
of distributions of Pension Benefits that begin on or after the Effective Date. The provisions of
this Section 5.1 are in all cases subject to the cashout rules set forth in Section 5.4, and the
provisions governing the Non-Grandfathered Pension Benefit(s).




     (a) No Advance Election: This subsection shall apply to a Participant who does not
have an Advance Election in effect as of the close of business on the day before his or her
Termination of Employment and for whom Sections 5.6 and 5.7 do not apply.
Subject to the next sentence, a Participant described in this subsection shall be paid
his or her Pension Benefit in the same form and at the same time as he or she is paid his or
her Retirement Benefit under the Pension Plan (disregarding that portion of the Retirement
Benefit paid in a Single Lump Sum). If a Participant’s Payment Date occurs while he or she
is still an employee of the Participating Employer (because of the time of payment
provisions in Code Section 401(a)(9)), payment under the Plan shall not begin until the
first of the month next following the Participant’s Termination of Employment and the form
of payment under this Plan shall remain the Installment Form of Payment for fifteen (15)
years.



8









 






     (b) Advance Election in Effect: This subsection shall apply to a Participant: (i) who
has an Advance Election in effect as of the close of business on the day before his or her
Termination of Employment, (ii) whose Termination of Employment is after the Effective Date,
and (iii) if Sections 5.6 or 5.7 do not apply. To be in effect, an Advance Election must
meet the advance receipt and other requirements of Section 5.2.




     (1) Lump Sum Election: If a Participant covered by this subsection has an
Advance Election to receive a Single Lump Sum in effect as of the close of business
on the day before his or her Termination of Employment, the Participant’s Pension
Benefit under the Plan shall be paid as a Single Lump Sum as of the first of the
month coincident with or next following his or her Termination of Employment.




     (2) Installment Election: If a Participant covered by this subsection has an
Advance Election to receive an Installment Form of Payment in effect as of the close
of business on the day before his or her Termination of Employment, the
Participant’s Pension Benefit under the Plan shall be paid in an Installment Form of
Payment beginning on the first of the month coincident with or next following his or
her Termination of Employment.




     (c) Non-Grandfathered Benefit(s): Notwithstanding any provision of the Plan to the
contrary, a Participant’s Non-Grandfathered Pension Benefit shall be paid in a lump sum on
the date specified in Section 3.1(c).



     5.2 Procedures for Elections. This section sets forth the procedures for making
Advance Elections. Notwithstanding any provisions of the Plan to the contrary, Advance Elections
shall not be permitted for Non-Grandfathered Pension Benefit(s).




     (a) In General: To qualify as an Advance Election for purposes of Section 5.1, an
election must be made in writing, on the form designated by the Trust Committee, and must be
signed by the Participant. These requirements also apply to any revocations of such
elections. Spousal consent is not required for any election (or revocation of election)
under the Plan.




     (b) Advance Election: To qualify as an Advance Election, an election must be made on
or after the Effective Date, and meet the following requirements:




     (1) Election: The Participant shall designate on the Advance Election form
whether the Participant elects to take his Retirement Benefit in the form of an
Installment Form of Payment or a Single Lump Sum.




     (2) Receipt by Trust Committee: The Advance Election must be received by the
Trust Committee before the start of the calendar year containing the Participant’s
Termination of Employment, and at least six (6) months before the
Termination of Employment. An election that meets the foregoing requirements shall
remain effective until it is changed or revoked.



9









 






     (3) Change or Revocation of Election: A Participant may change an Advance
Election by filing a new Election that meets the foregoing requirements. A
Participant may revoke an Advance Election only by filing a revocation that is
received by the Trust Committee before the start of the calendar year containing the
Participant’s Termination of Employment, and at least six (6) months before
the Termination of Employment.



     Any Advance Election by a Participant shall be void if the Participant is not entitled to a
Pension Benefit.




     (c) Non-Grandfathered Benefit(s): No Advance Election shall be permitted for the
Non-Grandfathered Benefit(s). Payment shall be made in accordance with Section 5.1(c).



     5.3 Survivor Benefit. This section shall govern the form and timing of distributions
of Survivor Benefits that begin on or after the Effective Date. The provisions of this Section 5.3
are in all cases subject to the cashout rules set forth in Section 5.4. The Survivor Benefit
payable to the Beneficiary of a Participant who is entitled to a Pension Benefit and who dies on or
after the Participant’s Payment Date shall be in the form selected by the Participant commencing as
of such Payment Date. Where a Participant who is entitled to a Pension Benefit dies prior to his
Payment Date, the form of payment of his or her Spouse’s Survivor Benefit shall be the same as the
form of payment of any Death Benefit payable under the Pension Plan.



     Notwithstanding any provision of the Plan to the contrary, the Non-Grandfathered Pension
Benefit payable on the death of the Participant shall be payable in accordance with Section 3.2(c).



     5.4 Cashout Distributions.




     (a) Distribution of Participant’s Pension Benefit: If at a Participant’s Termination
of Employment, the Single Lump Sum value of the Participant’s Pension Benefit is equal to or
less than $20,000, the Trust Committee shall distribute to the Participant such Single Lump
Sum value.




     (b) Distribution of Pre-Retirement Spouse’s Survivor Benefit: If at the Participant’s
date of death, the Single Lump Sum value of the Beneficiary’s Survivor Benefit to be paid
is equal to or less than $20,000, the Trust Committee shall distribute to the Beneficiary
such Single Lump Sum.




Any Single Lump Sum distributed under this section shall be in lieu of the Pension Benefit
or Survivor Benefit that otherwise would be distributable to the Participant or Beneficiary
hereunder.



     5.5 Prior to 2001. The timing and form of payment of a Pension Benefit or Survivor
Benefit with respect to a Participant or Beneficiary as of any date of determination prior to
January 1, 2001, shall be determined by the terms and provisions of the ERP as of such date.



10









 





     5.6 Payments of Pension and Survivor Benefit Due to an Investment Grade Rating Change.
Notwithstanding Sections 5.1 or 5.3, the following shall apply:




     (a) Pension Benefit Prior to Payment Date. If, prior to a Change of Control or
more than three (3) years after a Change of Control, either (1) the Participating Employer
or (2) the Parent, is rated below an Investment Grade Rating and the Participant’s Payment
Date has not occurred, then on such date of rating below Investment Grade Rating, and on
each December 31 after such date and prior to the date the Participating Employer and the
Parent both have an Investment Grade Rating, a single sum payment shall be made immediately
to such Participant of the amount by which the Actuarial Equivalent of (1) exceeds the sum
of (2) plus (3):




     (1) the amount determined in Section 3.1(a) based upon the assumption that (A)
the Participant has a nonforfeitable right to his Retirement Benefit from the
Pension Plan, (B) the Participant incurs a Termination of Employment as of the date
of determination, and (C) the Retirement Benefit payable from the Pension Plan would
commence upon the earliest date of payment allowed under the Pension Plan
immediately following such Termination of Employment.




     (2) the Actuarial Equivalent of the amount determined in Section 3.1(b) based
upon the same assumptions as those in Section 5.6(a)(1).




     (3) the Actuarial Equivalent of amounts paid to such Participant based on any
prior determination date pursuant to Section 5.6(a)(1).




     (b) Pension Benefit After Payment Date. On or after the Payment Date of a
Participant’s Pension Benefit, if either (1) the Participating Employer or (2) the Parent is
rated below an Investment Grade Rating, then a Single Lump Sum payment of such unpaid
Pension Benefit shall be made immediately to such Participant.




     (c) Survivor Benefit. If either (1) the Participating Employer or (2) the
Parent is rated below an Investment Grade Rating, then a Beneficiary who is receiving, or
would as of such date otherwise be eligible to commence to receive a Survivor Benefit shall
be paid immediately an Single Lump Sum payment of such unpaid Survivor Benefit.




     (d) Non-Grandfathered Benefit. This Section 5.6 shall not apply to the
Non-Grandfathered Pension Benefit.



     5.7 Payment of Pension Due to a Change of Control. On and after a Change of Control
involving the Parent or a Participating Employer and notwithstanding Sections 5.1 or 5.3, the
following shall apply:




     (a) Termination of Employment. Upon Termination of Employment of a Participant
within three (3) years following a Change of Control, a single sum payment shall be made
immediately to such Participant of the amount by which the Actuarial Equivalent of (1)
exceeds (2) plus (3):



11









 






     (1) the amount determined in Section 3.1(a) based upon the assumption that (A)
the Participant has a nonforfeitable right to his Retirement Benefit from the
Pension Plan, (B) the Participant’s early Retirement Benefit under the Pension Plan
is determined using the Table of reduction factors that would have been available to
such Participant had he or she not incurred a Termination of Employment until the
third (3rd) anniversary of the Change of Control date and based upon the
Participant’s age as of the Payment Date, and (C) the Retirement Benefit payable
from the Pension Plan would commence upon the earliest date of payment allowed under
the Pension Plan.




     (2) the Actuarial Equivalent of the amount determined in Section 3.1(b) based
upon the same assumptions as those in Section 5.7(a)(1) except (A).




     (3) the Actuarial Equivalent of any amounts previously paid to the Participant
under Section 5.6.




     (b) Investment Grade Rating Within Three Years. If, within three (3) years
following a Change of Control, either (1) the Participating Employer or (2) the Parent, if
any, is rated below an Investment Grade Rating, then a Single Lump Sum payment shall be made
immediately to such Participant of an amount determined in Section 5.7(a) hereof as if such
Participant had incurred a Termination of Employment as of such date the rating drops below
an Investment Grade Rating.




     (c) Non-Grandfathered Benefit. This Section 5.7 shall not apply to the
Non-Grandfathered Pension Benefit.



ARTICLE VI




AMENDMENT



     6.1 Prior to a Change of Control. The Company reserves the right to amend this Plan
with respect to the Pension Benefit (or Survivor Benefit) accrued as a liability of each
Participating Employer from time to time by action of its Senior Vice President, but without the
written consent of each Participant and Beneficiary of a deceased Participant, no such action may
reduce or relieve the Participating Employer of any obligation with respect to any Pension Benefit
(or Survivor Benefit) accrued by such Participant (or Beneficiary) as of the date of such
amendment, except to the extent such amendment is required by written opinion of counsel to the
Company to avoid recognition of income by a Participant or Beneficiary subject to federal income
taxation.



     6.2 After a Change of Control. This Plan may not be amended with respect to the
Pension Benefit (or Survivor Benefit) accrued as a liability of each Participating Employer
maintained by a Participating Employer following a Change of Control for that Participating
Employer without the consent of affected Participants of such Participating Employer; however, this
Section 6.2 will not apply to the Pension Benefit (or Survivor Benefit) accrued as a liability by
Participating Employers not involved in a Change of Control.



12









 





ARTICLE VII




TERMINATION



     The Company, by action of the Board of Directors, reserves the right to terminate this Plan
with respect to the Pension Benefit (or Survivor Benefit) accrued as a liability of each
Participating Employer, provided the Participating Employer pays to each Participant and
Beneficiary, on such date of termination of this Plan, the Single Lump Sum value of a Participant’s
unpaid Pension Benefit (or of a Beneficiary’s unpaid Survivor Benefit) as of the date of
termination shall be paid as soon as administratively possible; provided however, for this purpose
a Participant’s Pension Benefit shall be equal to the amount by which the Actuarial Equivalent of
(1) exceeds (2) plus (3):




     (1) the amount determined in Section 3.1(a) based upon the assumption that (A)
the Participant has a nonforfeitable right to his Retirement Benefit from the
Pension Plan, (B) the Participant’s early Retirement Benefit under the Pension Plan
is determined using the Table of reduction factors that would have been available to
such Participant had he or she not incurred a Termination of Employment until the
day preceding his or her sixty-fifth (65th) birthday and based upon the
Participant’s age as of the Payment Date, and (C) benefits payable from the Pension
Plan would commence upon the earliest date of payment allowed under the Pension
Plan.




     (2) the Actuarial Equivalent of the amount determined in Section 3.1(b) based
upon the same assumptions as those in subsection (a)(1) above except (A).




     (3) the Actuarial Equivalent of any amounts previously paid to the Participant
under Section 5.6.



     Notwithstanding the above, except as permitted under Section 409A of the Code, payment of the
Non-Grandfathered Pension Benefit following the termination of the Plan shall be made in a lump sum
on the first day following the one year anniversary of the termination of the Plan.



ARTICLE VIII




ADMINISTRATION



     8.1 Authority to Administer Plan. The Plan shall be administered by the Trust
Committee, which shall have the authority to interpret the Plan and issue such regulations as it
deems appropriate. The Trust Committee shall maintain Plan records and make benefit
calculations, and may rely upon information furnished it by the Participant in writing, including
the Participant’s current mailing address, age and marital status. The Trust Committee’s
interpretations, determinations, regulations and calculations shall be final and binding on all
persons and parties concerned.



13









 





     8.2 Facility of Payment. Whenever, in the Trust Committee’s opinion, a person
entitled to receive any payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage his or her financial
affairs, the Trust Committee may make payments to such person or to the legal representative of
such person for his or her benefit, or the Trust Committee may apply the payment for the benefit of
such person in such manner as it considers advisable. Any payment of a benefit or installment
thereof in accordance with the provisions of this section shall be a complete discharge of any
liability for the making of such payment under the provisions of the Plan.



     8.3 Claims Procedure.




     (a) Definitions. For purposes of this Section 8.3, the following words or
phrases in quotes when capitalized will have the meaning set forth below:




     (1) “Adverse Benefit Determination” means a denial, reduction or the
termination of, or a failure to provide or make payment (in whole or in part) with
respect to a Claim for a benefit, including any such denial, reduction, termination,
or failure to provide or make payment that is based on a determination of a
Participant’s or Beneficiary’s eligibility to participate in the Plan.




     (2) “Claim” means a request for a benefit or eligibility to participate in the
Plan, made by a Claimant in accordance with the Plan’s procedures for filing Claims,
as described in this Section 8.3.




     (3) “Claimant” is defined in Section 8.3(b)(2).




     (4) “Notice” or “Notification” means the delivery or furnishing of information
to an individual in a manner that satisfies applicable Department of Labor
regulations with respect to material required to be furnished or made available to
an individual.




     (5) “Relevant Documents” include documents, records or other information with
respect to a Claim that:




     (A) were relied upon by the Trust Committee in making the benefit
determination;




     (B) were submitted to, considered by or generated for, the Trust
Committee in the course of making the benefit determination, without regard
to whether such documents, records or other information were relied upon by
the Trust Committee in making the benefit determination;




     (C) demonstrate compliance with administrative processes and safeguards
required in making the benefit determination; or




     (D) constitute a statement of policy or guidance with respect to the
Plan concerning the denied benefit for the Participant’s circumstances,



14









 






without regard to whether such advice was relied upon by the Trust Committee
in making the benefit determination.




     (b) Procedure for Filing a Claim. In order for a communication from a Claimant
to constitute a valid Claim, it must satisfy the following paragraphs (1) and (2) of this
paragraph (b).




     (1) Any Claim submitted by a Claimant must be in writing on the appropriate
Claim form (or in such other manner acceptable to the Trust Committee) and
delivered, along with any supporting comments, documents, records and other
information, to the Trust Committee in person, or by mail postage paid, to the
address for the Trust Committee.




     (2) Claims and appeals of denied Claims may be pursued by a Participant or an
authorized representative of the Participant (each of whom will be referred to in
this section as a “Claimant”). However, the Trust Committee may establish
reasonable procedures for determining whether an individual has been authorized to
act on behalf of a Participant.




     (c) Initial Claim Review. The initial Claim review will be conducted by the
Trust Committee, with or without the presence of the Claimant, as determined by the Trust
Committee in its discretion. The Trust Committee will consider the applicable terms and
provisions of the Plan and amendments to the Plan, information and evidence that is
presented by the Claimant and any other information it deems relevant. In reviewing the
Claim, the Trust Committee will also consider and be consistent with prior determinations of
Claims from other Claimants who were similarly situated and which have been processed
through the Plan’s claims and appeals procedures within the past 24 months.




     (d) Initial Benefit Determination.




     (1) The Trust Committee will notify the Claimant of the Trust Committee’s
determination within a reasonable period of time, but in any event (except as
described in paragraph (2) below) within 90 days after receipt of the Claim by the
Trust Committee.




     (2) The Trust Committee may extend the period for making the benefit
determination by 90 days if it determines that such an extension is necessary due to
matters beyond the control of the Plan and if it notifies the Claimant, prior to the
expiration of the initial-90 day period, of circumstances requiring the extension of
time and the date by which the Trust Committee expects to render a decision.




     (e) Manner and Content of Notification of Adverse Benefit Determination.




     (1) The Trust Committee will provide a Claimant with written or electronic
Notice of any Adverse Benefit Determination, in accordance with applicable
Department of Labor regulations.



15









 






     (2) The Notification will set forth in a manner calculated to be understood by
the Claimant:




     (A) The specific reason or reasons for the Adverse Benefit
Determination;




     (B) Reference to the specific provision(s) of the Plan on which the
determination is based;




     (C) 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




     (D) A description of the Plan’s review procedures and the time limits
applicable to such procedures, including a statement of the Claimant’s right
to bring a civil action under Section 502(a) of ERISA following an Adverse
Benefit Determination on review.




     (f) Procedure for Filing a Review of an Adverse Benefit Determination.




     (1) Any appeal of an Adverse Benefit Determination by a Claimant must be
brought to the Trust Committee within 60 days after receipt of the Notice of the
Adverse Benefit Determination. Failure to appeal within such 60-day period will be
deemed to be a failure to exhaust all administrative remedies under the Plan. The
appeal must be in writing utilizing the appropriate form provided by the Trust
Committee (or in such other manner acceptable to the Trust Committee); provided,
however, that if the Trust Committee does not provide the appropriate form, no
particular form is required to be utilized by the Participant. The appeal must be
filed with the Trust Committee at the address listed in the Summary Plan
Description.




     (2) A Claimant will have the opportunity to submit written comments, documents,
records and other information relating to the Claim.




     (g) Review Procedures for Adverse Benefit Determinations.




     (1) The Trust Committee will provide a review that takes into account all
comments, documents, records and other information submitted by the Claimant without
regard to whether such information was submitted or considered in the initial
benefit determination.




     (2) The Claimant will be provided, upon request and free of charge, reasonable
access to and copies of all Relevant Documents.




     (3) The review procedure may not require more than two levels of appeals of an
Adverse Benefit Determination.



16









 






     (h) Timing and Notification of Benefit Determination on Review. The Trust
Committee will notify the Claimant within a reasonable period of time, but in any event
within 60 days after the Claimant’s request for review, unless the Trust Committee
determines that special circumstances require an extension of time for processing the review
of the Adverse Benefit Determination. If the Trust Committee determines that an extension
is required, written Notice will be furnished to the Claimant prior to the end of the
initial 60-day period indicating the special circumstances requiring an extension of time
and the date by which the Trust Committee expects to render the determination on review,
which in any event will be within 60 days from the end of the initial 60-day period. If
such an extension is necessary due to a failure of the Claimant to submit the information
necessary to decide the Claim, the period in which the Trust Committee is required to make a
decision will be tolled from the date on which the notification is sent to the Claimant
until the Claimant adequately responds to the request for additional information.




     (i) Manner and Content of Notification of Benefit Determination on Review.




     (1) The Trust Committee will provide a written or electronic Notice of the
Plan’s benefit determination on review, in accordance with applicable Department of
Labor regulations.




     (2) The Notification will set forth:




     (A) The specific reason or reasons for the Adverse Benefit
Determination;




     (B) Reference to the specific provision(s) of the Plan on which the
determination is based;




     (C) A statement that the Claimant is entitled to receive, upon request
and free of charge, reasonable access to and copies of all Relevant
Documents; and




     (D) A statement of the Claimant’s right to bring a civil action under
Section 502(a) of ERISA following an Adverse Benefit Determination on
review.




     (j) Statute of Limitations. No cause of action may be brought by a Claimant
who has received an Adverse Benefit Determination later than two years following the date of
such Adverse Benefit Determination.



     8.4 Notices to Participants, Etc. Any notice, report or statement given, made,
delivered or transmitted to a Participant or any other person entitled to or claiming benefits
under the Plan will be deemed to have been duly given, made or transmitted when sent via messenger,
delivery service, facsimile or mailed by first class mail with postage prepaid and addressed to the
Participant or such person at the address last appearing on the records of the Trust Committee. A
Participant or other person may record any change of his or her address from time to time by
following the procedures established by the Trust Committee.



17









 





     8.5 Notices to Trust Committee. Any written direction, notice or other communication
from Participants or any other person entitled to or claiming benefits under the Plan to the Trust
Committee will be deemed to have been duly given, made or transmitted either when delivered to such
location as will be specified upon the forms prescribed by the Trust Committee for the giving of
such direction, notice or other communication or when otherwise received by the Trust Committee.



ARTICLE IX




MISCELLANEOUS PROVISIONS



     9.1 Expenses. The expenses of administering this Plan shall be borne by each
Participating Employer, as determined by the Trust Committee.



     9.2 Indemnification and Exculpation. The members of the Trust Committee, its agents
and officers, directors and employees of the Company and each Participating Employer shall be
indemnified and held harmless by each Participating Employer against and from any and all loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by them in connection
with or resulting from any claim, action, suit, or proceeding to which they may be a party or in
which they may be involved by reason of any action taken or failure to act under this Plan and
against and from any and all amounts paid by them in settlement (with the Participating Employer’s
written approval) or paid by them in satisfaction of a judgment in any such action, suit, or
proceeding. The foregoing provision shall not be applicable to any person if the loss, cost,
liability, or expense is due to such person’s gross negligence or willful misconduct.



     9.3 Funding. While all benefits payable under this Plan with respect to Participants
of a Participating Employer constitute general corporate obligations, the Company may establish a
separate irrevocable grantor trust for the benefit of all Participants, which trust shall be
subject to the claims of the general creditors of each Participating Employer in the event of such
corporation’s insolvency, to be used as a reserve for the discharge of that Participating
Employer’s obligations under this Plan to its Participants. Any payments made to a Participant
under the separate trust for his or her benefit shall reduce dollar for dollar the amount payable
to the Participant from the general assets of the Participating Employer. The amounts payable
under this Plan shall be reflected on the accounting records of the Participating Employer with
respect to its Participants but shall not be construed to create or require the creation of a
trust, custodial, or escrow account, except as described above in this Section. No Participant (or
Beneficiary of a Participant) shall have any right, title, or interest whatever in or to any
investment reserves, accounts, or funds that the Participating Employer may purchase, establish, or
accumulate to aid in providing benefits under this Plan. Nothing contained in this Plan, and
no action taken pursuant to its provisions, shall create a trust or fiduciary relationship of
any kind between the Company, a Participating Employer, the Parent or Compensation Committee and a
Participant, Beneficiary or any other person. Neither a Participant nor Beneficiary shall acquire
any interest greater than that of an unsecured, general creditor. Neither the Company, the Parent
nor another Participating Employer will have any liability for the Pension Benefit (or Survivor
Benefit) of a Participant of a different Participating Employer, nor will the assets of any trust
held for the benefit of the Company or another Participating Employer be used to pay the Pension
Benefit (or Survivor Benefit) of a Participant of a different Participating Employer.



18









 





     9.4 Corporate Action. Any action required of or permitted by the Company under this
Plan shall be by resolution of its Board of Directors, the Compensation Committee or any person or
persons authorized by resolution of such Compensation Committee.



     9.5 Interests not Transferable. Amounts payable under the Plan or the right to
receive future benefits under the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or
levy of any kind, either voluntary or involuntary, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable
hereunder, including any assignment or alienation in connection with a divorce, separation, child
support or similar arrangement, shall be null and void and not binding on a Participating Employer.
A Participating Employer shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits hereunder.



     9.6 Effect on Other Benefit Plans. Amounts credited or paid under this Plan shall not
be considered to be compensation for the purposes of a qualified pension plan maintained by the
Company, the Parent or any Participating Employer. The treatment of such amounts under other
employee benefits plans shall be determined pursuant to the provisions of such plans.



     9.7 Legal Fees and Expenses. After a Change of Control, the Participating Employer
involved in the Change of Control shall pay all reasonable legal fees and expenses which the
Participant or a Beneficiary may incur as a result of the Participating Employer’s contesting the
validity, enforceability or the Participant’s interpretation of, or determinations made under, this
Plan or the Trust with respect to Pension Benefits (or Survivor Benefits) of that Participating
Employer.



     9.8 Deduction of Taxes from Amounts Payable.




     (a) Distribution. The Participating Employer shall deduct from the amount to
be distributed such amount as the Participating Employer, in its sole discretion, deems
proper to protect the Participating Employer against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted, the
Participating Employer may discharge any such liability and pay the amount remaining to the
Participant, the Beneficiary or the deceased Participant’s estate, as the case may be.




     (b) Withholding. The Participating Employer may withhold whatever taxes
(including FICA, state or federal taxes) it, in its sole discretion, deems proper to protect
the Participating Employer against liability for the payment of such withholding taxes
and out of the money so deducted, the Participating Employer may discharge any such
liability. Withholding for this purpose may come from any wages due to the Participant, or
if none, from the Participant’s Pension Benefit hereunder.



     9.9 Facility of Payment. If a Participant or Beneficiary is declared an incompetent
or is a minor and a conservator, guardian, or other person legally charged with his or her care has
been appointed, any benefits to which such Participant or Beneficiary is entitled shall be payable
to such conservator, guardian, or other person legally charged with his or her care. The decision
of the Trust Committee in such matters shall be final, binding, and conclusive upon the



19









 




Company,
Participating Employer and upon each Participant, Beneficiary, and every other person or party
interested or concerned. The Company, Participating Employer and the Trust Committee shall not be
under any duty to see to the proper application of such payments.




     9.10 Merger. This Plan shall be binding and enforceable with respect to the
obligation of each Participating Employer against any successor to such Participating Employer by
operation of law or by express assumption of the Plan, and such successor shall be substituted
hereunder for the Participating Employer.



     9.11 409A. The Non-Grandfathered Benefit(s) under the Plan are intended and shall be
construed to meet the requirements of Section 409A of the Code.



     9.12 Gender and Number. Except when the context indicates to the contrary, when used
herein, masculine terms shall be deemed to include the feminine, and singular the plural.



     9.13 Invalidity of Certain Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions
hereof and this Plan shall be construed and enforced as if such provisions, to the extent invalid
or unenforceable, had not been included.



     9.14 Headings. The headings or articles are included solely for convenience of
reference, and if there is any conflict between such headings and the text of this Plan, the text
shall control.



     9.15 Governing Law. This Plan shall be governed by the laws of the State of
Minnesota.


Dated: December 29, 2008




	 	 	 	 	 
	 	PepsiAmericas, Inc.



 	 
	 	By:  	/s/ Anne D. Sample
 	 
	 	 	Title:  Executive Vice President of Human Resources 	 



20









 








SCHEDULE A

Non-Grandfathered Pension Benefit(s)




	 	 	 	 	 
	 	 	Non-Grandfathered
	Name of Participant	 	Monthly Pension Benefit
	Holmes, Michael
	 	$	30.98	 
	Nehs, William
	 	$	29.70	 
	Rogers, James
	 	$	223.31	 





The above Participants are only entitled to receive their monthly benefit paid in a lump sum on the
Payment Date as defined in Section 1.33 of the Plan.





A-1