exv4w8






EXHIBIT 4.8




PepsiAmericas, Inc.




Hourly 401(k) Plan




(As Amended and Restated Effective January 1, 2008)




 









 








TABLE OF CONTENTS






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I
	 	Definitions	 	 	1	 
	1.01
	 	“Accounting Period”	 	 	1	 
	1.02
	 	“Accounts”	 	 	1	 
	1.03
	 	“Accrued Benefit”	 	 	3	 
	1.04
	 	“Administrative Committee”	 	 	3	 
	1.05
	 	“Administrative Services Agreement”	 	 	3	 
	1.06
	 	“Administrator”	 	 	3	 
	1.07
	 	“Alternate Payee”	 	 	3	 
	1.08
	 	“Appendix”	 	 	3	 
	1.09
	 	“Authorized Leave of Absence”	 	 	3	 
	1.10
	 	“Beneficiary”	 	 	4	 
	1.11
	 	“Board of Directors”	 	 	4	 
	1.12
	 	“Break in Service”	 	 	4	 
	1.13
	 	“Business Day”	 	 	4	 
	1.14
	 	“CEO”	 	 	4	 
	1.15
	 	“Change Date”	 	 	4	 
	1.16
	 	“Commonly Controlled Entity”	 	 	4	 
	1.17
	 	“Company”	 	 	4	 
	1.18
	 	“Company Stock”	 	 	5	 
	1.19
	 	“Compensation”	 	 	5	 
	1.20
	 	“Computation Period”	 	 	6	 
	1.21
	 	“Contract Administrator”	 	 	7	 
	1.22
	 	“Contributions”	 	 	7	 
	1.23
	 	“Contribution Dollar Limit”	 	 	8	 
	1.24
	 	“Contribution Election” or “Election”	 	 	8	 
	1.25
	 	“Contribution Percentage”	 	 	8	 
	1.26
	 	“Conversion Election”	 	 	8	 
	1.27
	 	“Custodial Agreement”	 	 	8	 
	1.28
	 	“Custodian”	 	 	8	 
	1.29
	 	“Direct Rollover”	 	 	8	 






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	 	 	 	 	Page	 
	1.30
	 	“Disability“ or ”Disabled”	 	 	8	 
	1.31
	 	“Distributee”	 	 	8	 
	1.32
	 	“Early Retirement Date”	 	 	9	 
	1.33
	 	“Effective Date”	 	 	9	 
	1.34
	 	“Elective Deferral”	 	 	9	 
	1.35
	 	“Eligible Employee”	 	 	9	 
	1.36
	 	“Eligible Retirement Plan”	 	 	10	 
	1.37
	 	“Eligible Rollover Distribution”	 	 	10	 
	1.38
	 	“Employee”	 	 	10	 
	1.39
	 	“Employer”	 	 	11	 
	1.40
	 	“Employment Date”	 	 	11	 
	1.41
	 	“ERISA”	 	 	11	 
	1.42
	 	“Fiduciary”	 	 	11	 
	1.43
	 	“Forfeiture”	 	 	11	 
	1.44
	 	“Forfeiture Account”	 	 	11	 
	1.45
	 	“Highly Compensated Eligible Employee“ or ”HCE”	 	 	11	 
	1.46
	 	“Hour of Service”	 	 	11	 
	1.47
	 	“Hussmann”	 	 	12	 
	1.48
	 	“Hussmann Participant”	 	 	12	 
	1.49
	 	“Hussmann Plan”	 	 	12	 
	1.50
	 	“Insurance Contract Arrangement”	 	 	12	 
	1.51
	 	“Internal Revenue Code“ or ”Code”	 	 	12	 
	1.52
	 	“Investment Election”	 	 	13	 
	1.53
	 	“Investment Fund” or “Fund”	 	 	13	 
	1.54
	 	“Limitation Year”	 	 	13	 
	1.55
	 	“Limited Deferrals”	 	 	13	 
	1.56
	 	“Management Committee”	 	 	13	 
	1.57
	 	“Maternity/Paternity Absence”	 	 	13	 
	1.58
	 	“Midas”	 	 	13	 
	1.59
	 	“Midas Participant”	 	 	13	 






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	 	 	 	 	Page	 
	1.60
	 	“Midas Plan”	 	 	14	 
	1.61
	 	“Named Fiduciary”	 	 	14	 
	1.62
	 	“Non-Highly Compensated Employee”	 	 	14	 
	1.63
	 	“Normal Retirement Date”	 	 	14	 
	1.64
	 	“Notice Date”	 	 	14	 
	1.65
	 	“Participant”	 	 	14	 
	1.66
	 	“Payment Date”	 	 	14	 
	1.67
	 	“Plan”	 	 	15	 
	1.68
	 	“Plan Administrator”	 	 	15	 
	1.69
	 	“Plan Year”	 	 	15	 
	1.70
	 	“QDRO”	 	 	15	 
	1.71
	 	“Related Plan”	 	 	15	 
	1.72
	 	“Rollover Contribution”	 	 	15	 
	1.73
	 	“Senior Vice President”	 	 	15	 
	1.74
	 	“Service”	 	 	16	 
	1.75
	 	“Settlement Date”	 	 	16	 
	1.76
	 	“Severance from Service Date”	 	 	16	 
	1.77
	 	“Spousal Consent”	 	 	16	 
	1.78
	 	“Spouse”	 	 	16	 
	1.79
	 	“Sweep Date”	 	 	16	 
	1.80
	 	“Termination of Employment”	 	 	16	 
	1.81
	 	“Trade Date”	 	 	17	 
	1.82
	 	“Transition Service”	 	 	17	 
	1.83
	 	“Trust”	 	 	17	 
	1.84
	 	“Trust Agreement”	 	 	17	 
	1.85
	 	“Trust Fund”	 	 	17	 
	1.86
	 	“Trustee”	 	 	17	 
	1.87
	 	“Trustee Transfer”	 	 	17	 
	1.88
	 	“Unit Value”	 	 	17	 
	1.89
	 	“Valuation Date”	 	 	17	 






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(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	1.90
	 	“Vesting Service”	 	 	18	 
	 
	ARTICLE II
	 	Participation and Service	 	 	19	 
	2.01
	 	Eligibility	 	 	19	 
	2.02
	 	Service	 	 	20	 
	2.03
	 	Break in Service	 	 	22	 
	2.04
	 	Authorized Leave of Absence	 	 	23	 
	2.05
	 	Transfers	 	 	24	 
	 
	ARTICLE III
	 	Participant Contributions	 	 	25	 
	3.01
	 	Pre-Tax Contribution Elections	 	 	25	 
	3.02
	 	Post-Tax Contribution Elections	 	 	26	 
	3.03
	 	Election Procedures	 	 	26	 
	 
	ARTICLE IV
	 	Employer Contributions and Allocations	 	 	28	 
	4.01
	 	Participant Contributions	 	 	28	 
	4.02
	 	Matching Contributions	 	 	28	 
	4.03
	 	Formula Based Contributions	 	 	29	 
	4.04
	 	Special Contributions	 	 	29	 
	4.05
	 	Miscellaneous	 	 	31	 
	 
	ARTICLE V
	 	Rollovers	 	 	32	 
	5.01
	 	Rollovers	 	 	32	 
	5.02
	 	Transfers	 	 	32	 
	5.03
	 	Qualified Hurricane Distribution Recontribution	 	 	32	 
	 
	ARTICLE VI
	 	Accounting For Participants’ Accounts And For Investment Funds	 	 	33	 
	6.01
	 	Individual Participant Accounting	 	 	33	 
	6.02
	 	Accounting for Investment Funds	 	 	34	 
	6.03
	 	Accounts for Alternate Payees	 	 	35	 
	6.04
	 	Transition Rules	 	 	35	 
	 
	ARTICLE VII
	 	Investment Funds and Elections	 	 	36	 
	7.01
	 	Investment of Contributions	 	 	36	 
	7.02
	 	Investment of Accounts	 	 	36	 






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	 	 	 	 	Page	 
	7.03
	 	Investment Funds	 	 	37	 
	7.04
	 	Transition Rules	 	 	37	 
	7.05
	 	Risk of Loss	 	 	38	 
	7.06
	 	Interests in the Investment Funds	 	 	38	 
	7.07
	 	Sole Source of Benefits	 	 	38	 
	7.08
	 	Alternate Payees	 	 	38	 
	 
	ARTICLE VIII
	 	Vesting and Forfeitures	 	 	39	 
	8.01
	 	Fully Vested Contribution Accounts	 	 	39	 
	8.02
	 	Vesting; Payment of Accrued Benefit On or After Retirement or Disability	 	 	39	 
	8.03
	 	Vesting Schedule	 	 	39	 
	8.04
	 	Forfeitures	 	 	40	 
	8.05
	 	Forfeiture Account	 	 	41	 
	8.06
	 	Repayment	 	 	41	 
	 
	ARTICLE IX
	 	Participant Loans	 	 	42	 
	9.01
	 	Participant Loans Permitted	 	 	42	 
	9.02
	 	Loan Funding Limits	 	 	42	 
	9.03
	 	Maximum Number of Loans	 	 	42	 
	9.04
	 	Source of Loan Funding	 	 	43	 
	9.05
	 	Interest Rate	 	 	43	 
	9.06
	 	Repayment	 	 	43	 
	9.07
	 	Repayment Hierarchy	 	 	43	 
	9.08
	 	Loan Application, Note and Security	 	 	43	 
	9.09
	 	Default, Suspension and Acceleration Feature	 	 	44	 
	 
	ARTICLE X
	 	In-Service Withdrawals	 	 	45	 
	10.01
	 	Withdrawals for General Hardship	 	 	45	 
	10.02
	 	Withdrawals for 401(k) Hardship	 	 	45	 
	10.03
	 	Withdrawals for Participants over age 591/2 or who are Disabled	 	 	47	 
	10.04
	 	Unrestricted Withdrawals	 	 	47	 
	10.05
	 	Withdrawal Processing	 	 	47	 






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	 	 	 	 	Page	 
	10.06
	 	Outstanding Loan	 	 	48	 
	10.07
	 	Spousal Consent	 	 	49	 
	10.08
	 	Required Withdrawals	 	 	49	 
	10.09
	 	Transfer of Accounts	 	 	49	 
	10.10
	 	Withdrawals for Hurricane Victims	 	 	49	 
	 
	ARTICLE XI
	 	Distributions On And After Termination of Employment	 	 	50	 
	11.01
	 	Request for Distribution of Benefits	 	 	50	 
	11.02
	 	Deadline for Distribution	 	 	50	 
	11.03
	 	Payment Form and Medium	 	 	51	 
	11.04
	 	Small Amounts Paid Immediately	 	 	51	 
	11.05
	 	Payment Within Life Expectancy	 	 	51	 
	11.06
	 	Continued Payment of Amounts in Payment Status on the Effective Date	 	 	51	 
	11.07
	 	TEFRA Transitional Rule	 	 	52	 
	11.08
	 	Direct Rollover	 	 	52	 
	11.09
	 	Delay	 	 	52	 
	 
	ARTICLE XII
	 	Distribution of Accrued Benefits on Death	 	 	53	 
	12.01
	 	Payment to Beneficiary	 	 	53	 
	12.02
	 	Beneficiary Designation	 	 	53	 
	12.03
	 	Benefit Election	 	 	54	 
	12.04
	 	Payment Form	 	 	54	 
	12.05
	 	Required Commencement of Distribution	 	 	55	 
	12.06
	 	Direct Rollover	 	 	59	 
	 
	ARTICLE XIII
	 	Maximum Contributions	 	 	60	 
	13.01
	 	Limit on Pre-Tax Contributions	 	 	60	 
	13.02
	 	Actual Deferral Percentage Test	 	 	60	 
	13.03
	 	Actual Contribution Percentage Test	 	 	61	 
	13.04
	 	Maximum Prohibition	 	 	62	 
	13.05
	 	Imposition of Limitations	 	 	63	 
	13.06
	 	Return of Excess Annual Additions, Deferrals and Contributions	 	 	63	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	13.07
	 	Incorporation by Reference	 	 	67	 
	 
	ARTICLE XIV
	 	Custodial Arrangements	 	 	68	 
	14.01
	 	Custodial Agreement	 	 	68	 
	14.02
	 	Selection of Custodian	 	 	68	 
	14.03
	 	Custodian’s Duties	 	 	68	 
	14.04
	 	Separate Entity	 	 	69	 
	14.05
	 	Plan Asset Valuation	 	 	69	 
	14.06
	 	Right of Employers to Plan Assets	 	 	69	 
	 
	ARTICLE XV
	 	Administration and Investment Management	 	 	71	 
	15.01
	 	General	 	 	71	 
	15.02
	 	Senior Vice President Authority to Act as Employer with Respect to the Plan and Trust	 	 	71	 
	15.03
	 	Management Resources and Compensation Committee of the Board of	 	 	 	 
	 
	 	Directors Authority to Act as Employer with Respect to the Plan and Trust	 	 	73	 
	15.04
	 	Management Committee and Administrator as Named Fiduciaries for the Plan	 	 	73	 
	15.05
	 	Management Committee as Named Fiduciary for the Trust	 	 	74	 
	15.06
	 	Actions	 	 	74	 
	15.07
	 	Procedures for Designation of a Named Fiduciary	 	 	74	 
	15.08
	 	Compensation	 	 	75	 
	15.09
	 	Discretionary Authority of each Named Fiduciary	 	 	75	 
	15.10
	 	Responsibility and Powers of the Administrator Regarding Administration of the Plan	 	 	76	 
	15.11
	 	Allocations and Delegations of Responsibility	 	 	76	 
	15.12
	 	Bonding	 	 	77	 
	15.13
	 	Information to be Supplied by Employer	 	 	78	 
	15.14
	 	Information to be Supplied by Named Fiduciary	 	 	78	 
	15.15
	 	Misrepresentations	 	 	78	 
	15.16
	 	Records	 	 	78	 
	15.17
	 	Plan Expenses	 	 	79	 
	15.18
	 	Fiduciary Capacity	 	 	79	 
	 
	 	 	 	 	 	 





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	 	 	 	 	Page	 
	15.19
	 	Employer’s Agent	 	 	79	 
	15.20
	 	Plan Administrator	 	 	79	 
	15.21
	 	Plan Administrator Duties and Power	 	 	79	 
	15.22
	 	Named Fiduciary Decisions Final	 	 	80	 
	15.23
	 	No Agency	 	 	80	 
	 
	ARTICLE XVI
	 	Claims Procedure	 	 	81	 
	16.01
	 	Claims Procedure	 	 	81	 
	16.02
	 	Notices to Participants, Etc	 	 	85	 
	16.03
	 	No Administrator	 	 	85	 
	16.04
	 	Administrator’s Discretion	 	 	85	 
	 
	ARTICLE XVII
	 	Adoption and Withdrawal from Plan	 	 	86	 
	17.01
	 	Procedure for Adoption	 	 	86	 
	17.02
	 	Procedure for Withdrawal	 	 	86	 
	 
	ARTICLE XVIII
	 	Amendment, Termination and Merger	 	 	87	 
	18.01
	 	Amendments	 	 	87	 
	18.02
	 	Plan Termination	 	 	88	 
	18.03
	 	Plan Merger	 	 	89	 
	 
	ARTICLE XIX
	 	Special Top-Heavy Rules	 	 	92	 
	19.01
	 	Application of Article XIX	 	 	92	 
	19.02
	 	Definitions Concerning Top-Heavy Status	 	 	92	 
	19.03
	 	Calculation of Top-Heavy Ratio	 	 	93	 
	19.04
	 	Effect of Top-Heavy Status	 	 	94	 
	19.05
	 	Effect of Discontinuance of Top-Heavy Status	 	 	94	 
	19.06
	 	Intent of Article XIX	 	 	94	 
	 
	ARTICLE XX
	 	Miscellaneous Provisions	 	 	95	 
	20.01
	 	Assignment and Alienation	 	 	95	 
	20.02
	 	Protected Benefits	 	 	95	 
	20.03
	 	Plan Does Not Affect Employment Rights	 	 	95	 
	20.04
	 	Deduction of Taxes from Amounts Payable	 	 	95	 
	20.05
	 	Facility of Payment	 	 	95	 






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	 	 	 	 	Page	 
	20.06
	 	Source of Benefits	 	 	96	 
	20.07
	 	Indemnification	 	 	96	 
	20.08
	 	Reduction for Overpayment	 	 	96	 
	20.09
	 	Limitation on Liability	 	 	96	 
	20.10
	 	Company Merger	 	 	97	 
	20.11
	 	Employees’ Trust	 	 	97	 
	20.12
	 	Gender and Number	 	 	97	 
	20.13
	 	Invalidity of Certain Provisions	 	 	97	 
	20.14
	 	Headings	 	 	97	 
	20.15
	 	Uniform and Nondiscriminatory Treatment	 	 	97	 
	20.16
	 	Notice and Information Requirements	 	 	97	 
	20.17
	 	Military Service	 	 	98	 
	20.18
	 	Law Governing	 	 	98	 






-ix-









 






PepsiAmericas, Inc. Hourly 401(k) Plan




     Whitman Corporation established the Whitman Corporation Master Retirement Savings Plan
for the benefit of eligible employees of the Company and its participating affiliates. The Plan is
intended to constitute a qualified profit sharing plan, as described in Section 401(a) of the Code,
which includes a qualified cash or deferred arrangement, as described in Section 401(k) of the
Code.



     The Plan constitutes an amendment and restatement of the Supplemental Retirement and Savings
Plan for Hourly Employees of IC Industries, Inc. and includes the spin-off of liabilities and
assets to the Hussmann Corporation Retirement Savings Plan for Hourly Employees and the Midas
International Corporation Retirement Savings Plan for Hourly Employees on or after January 1, 1998,
the merger of Pepsi-Cola General Bottling Company of Oshkosh, Inc. and Beverage Bottlers Inc.
401(k) Plan as of July 1, 1995, and the merger of the Lou Gen Ltd. Profit Sharing Plan and Trust as
of January 1, 1997.



     Effective as of January 1, 2000, Whitman Corporation transferred sponsorship of the Whitman
Corporation Master Retirement Savings Plan to Pepsi-Cola General Bottlers, Inc. and such plan was
thus renamed the Pepsi-Cola General Bottlers, Inc. Hourly Retirement Savings Plan.



     Effective as of February 15, 2001, PepsiAmericas, Inc. assumed sponsorship of the Pepsi-Cola
General Bottlers, Inc. Hourly Retirement Savings Plan and such plan was renamed as the
PepsiAmericas, Inc. Hourly Retirement Savings Plan.



     Effective July 1, 2001, the Delta Beverage Group, Inc. Retirement Plan is merged into this
Plan and its assets and liabilities are transferred into this Plan.



     Effective October 1, 2001, the PepsiAmericas, Inc. Employees Retirement Plan is merged into
this Plan and its assets and liabilities are transferred into this Plan.



     Effective as of January 1, 2003, the Plan was renamed and is now known as the PepsiAmericas,
Inc. Hourly 401(k) Plan.



     Effective as of January 1, 2005, the Plan was amended and restated to incorporate previous
amendments and comply with all law changes effective as of that date.



     Effective January 1, 2008, (the “Effective Date”) the Plan is hereby amended and restated,
except to the extent that failure to retroactively make any provisions effective prior to the
Effective Date would result in the Plan (as it existed prior to the Effective Date) containing a
disqualifying provision, as defined in Revenue Procedure 2007-44 (as modified by any Treasury
guidance modifying the term “disqualifying provision”), or an operational defect, as defined in
Revenue Procedure 2008-50, in which case such provision (and any definitions pertinent to the
application of such provision) will be retroactively effective to the date which will result in no
such disqualifying provision or



 









 





operational defect in the Plan prior to the Effective Date. Except
to the extent required by the preceding sentence, the benefits, rights and features of an
individual who participated in the Plan before the Effective Date, but who does not have an account
balance under the Plan on such date, will be determined under the applicable instruments in effect
for the Plan on the earlier of: (1) the day on which such individual’s account was reduced to
zero; or (2) the day on which such individual’s employment terminated. The terms of this Plan
apply to any accounts created for such individual hereunder on or after the Effective Date.






 









 








ARTICLE I




Definitions



     The following sections of this Article I provide basic definitions of terms used throughout
the Plan, and whenever used herein in a capitalized form, except as otherwise expressly provided or
defined in an Appendix (but in such case only with respect to persons covered by such Appendix),
the terms shall be deemed to have the following meanings:



     1.01 “Accounting Period” means the periods generally designated by the Administrator with
respect to each Investment Fund not to exceed one year in duration.



     1.02 “Accounts” means the record of a Participant’s interest in the Plan’s assets represented
by his or her:



     (a) “Catch-up Account” which means a Participant’s interest in the Plan’s
assets composed of Catch-up Contributions allocated on or after July 1, 2002, to the Participant
under the Plan, plus all income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.



     (b) “Formula Based Account” which means a Participant’s interest in the
Plan’s assets composed of Formula Based Contributions allocated on or after January 1, 2001 to the
Participant under the Plan, the amount allocated under the Plan, as of January 1, 2001, if any (as
identified by the Administrator), and an amount allocated from the Lou Gen Ltd. Profit Sharing
Plan, if any, which continues to be accounted for under the Plan (as identified by the
Administrator), plus all income and gains credited to, and minus all losses, expenses, withdrawals
and distributions charged to, such Account.



     (c) “Matching Account” which means a Participant’s interest in the Plan’s
assets composed of Matching Contributions allocated on or after January 1, 2001, to the Participant
under the Plan, the amount allocated under the Plan, as of January 1, 2001, if any (as identified
by the Administrator), and including an amount allocated from the Lou Gen Ltd. Profit Sharing Plan,
if any, including an amount allocated from the Delta Beverage Group, Inc. Retirement Plan, as of
July 1, 2001, if any, and including an amount allocated from the PepsiAmericas, Inc. Employees
Retirement Plan, as of October 1, 2001, if any, which continues to be accounted for under the Plan
(as identified by the Administrator), plus all income and gains credited to, and minus all losses,
expenses, withdrawals and distributions charged to, such Account.



     (d) “Post-Tax Account” which means a Participant’s interest in the Plan’s
assets composed of post-tax contributions allocated on or after January 1, 2001, to the Participant
under the Plan, the amount allocated under the Plan as of January 1, 2001, if any (as identified by
the Administrator), and including an amount allocated from the Lou Gen Ltd. Profit Sharing Plan, if
any, which continues to be accounted for under the Plan (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.



 









 





     (e) “Pre-Tax Account” which means a Participant’s interest in the Plan’s
assets composed of Pre-Tax Contributions allocated on or after January 1, 2001, to the Participant
under the Plan, the amount allocated under the Plan, as of January 1, 2001, if any (as identified
by the Administrator), including an amount allocated from the Pepsi-Cola General Bottling Company
of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan, if any, which continue to be accounted for
under the Plan (as identified by the Administrator), including an amount allocated from the Lou Gen
Ltd. Profit Sharing Plan, if any, prior to January 1, 2001, including an amount allocated from the
PepsiCo Long Term Savings Program as of May 21, 1999 (or, if later, the date of the transfer of
assets and liabilities from the PepsiCo Long Term Savings Program), if any, which continues to be
accounted for under the
Plan (as identified by the Administrator), including an amount allocated from the Delta
Beverage Group, Inc. Retirement Plan, as of July 1, 2001, if any, and including an amount allocated
from the PepsiAmericas, Inc. Employees Retirement Plan, as of October 1, 2001, if any, plus all
income and gains credited to, and minus all losses, expenses, withdrawals and distributions charged
to, such Account.



     (f) “Rollover Account” which means a Participant’s interest in the Plan’s
assets composed of Rollover Contributions allocated on or after January 1, 2001, to the Participant
under the Plan, the amount allocated under the Plan, as of January 1, 2001, if any (as identified
by the Administrator), including an amount allocated from the Lou Gen Ltd. Profit Sharing Plan, if
any, which continues to be accounted for under the Plan (as identified by the Administrator),
including an amount allocated from the Delta Beverage Group, Inc. Retirement Plan, as of July 1,
2001, if any, and including an amount allocated from the PepsiAmericas, Inc. Employees Retirement
Plan, as of October 1, 2001, if any, plus all income and gains credited to, and minus all losses,
expenses, withdrawals and distributions charged to, such Account.



     (g) “Special Account” which means a Participant’s interest in the Plan’s
assets composed of Special Contributions allocated on or after January 1, 2001, to the Participant
under the Plan, the amount allocated under the Plan, as of January 1, 2001 if any (as identified by
the Administrator), plus all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.



     With respect to an Alternate Payee or Beneficiary, references to Accounts will be deemed to be
references to all or that portion of a Participant’s Formula Based Account, Matching Account,
Post-Tax Account, Pre-Tax Account, Rollover Account and Special Account which, under the terms of
the Plan, has been allocated to an Account maintained for such Alternate Payee or Beneficiary, plus
all income and gains credited to, and minus all losses, expenses and withdrawals charged to, such
Account. References herein to Accounts will also be deemed to include each of a Participant’s
Accounts and references herein to an Account will be deemed to include any or each of the
Participant’s Accounts.



     Effective on and after August 5, 1999, a Participant’s Accounts will be reduced by the amounts
allowed under Sections 401(a)(13)(C) and (D) of the Code for crimes against the Plan.



2









 





     Notwithstanding the above, each of the Accounts for each Hussmann Participant and Midas
Participant shall be reduced to zero effective as of the date of transfer of liabilities and assets
of such Accounts to the Hussmann Plan and Midas Plan, respectively.



     1.03 “Accrued Benefit” means the units held in, or posted to, Accounts on the Settlement Date
in accordance with the terms of this Plan, including any applicable Administrative Services
Agreement.



     1.04 “Administrative Committee” means the committee appointed pursuant to the terms of the
Plan to manage and control the operation and administration of the Plan. Effective as of November
20, 1998, “Administrative Committee” means the committee appointed pursuant to the terms of the
Plan and Trust as the Named Fiduciary for the investment of Plan assets in the Trust. Effective as
of January 1, 2000, the Management Committee assumed the responsibilities of the Administrative
Committee.



     1.05 “Administrative Services Agreement” means a contractual arrangement with, or if no
separate contractual arrangement exists, that portion of an Insurance Contract Arrangement with, a
Trustee, Named Fiduciary or a Contract Administrator which describes the services to be rendered by
the Trustee, Named Fiduciary or Contract Administrator to or on behalf of the Plan and which
Administrative Services Agreement is incorporated into and made a part of the Plan.



     1.06 “Administrator” means the Senior Vice-President—Human Resources of PepsiAmericas, Inc.,
or any person who shall succeed to the functional responsibilities of said office. The
Administrator shall manage and control the operation and administration of the Plan.



     1.07 “Alternate Payee” means an individual who is entitled to all or a portion of a
Participant’s Account pursuant to a QDRO.



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



     1.09 “Authorized Leave of Absence” means an absence, with or without Compensation, authorized
on a nondiscriminatory basis by a Commonly Controlled Entity under its standard personnel practices
applicable to the Employee, including any period of time during which such person is covered by a
short-term disability plan of his or her Employer and any period of time required to be recognized
by the collective bargaining agreement between the Employer and such Employee’s collective
bargaining representative. An Employee who leaves the service of a Commonly Controlled Entity to
enter the Armed Forces of the United States of America and who reenters the service of the Commonly
Controlled Entity with reemployment rights under any statute granting reemployment rights to
persons in the Armed Forces shall be deemed to have been on an Authorized Leave of Absence. The
date that an Employee’s Authorized Leave of Absence ends shall be determined in accordance with



3









 






the
personnel policies of such Commonly Controlled Entity, which ending date shall be no earlier than
the date that the Authorized Leave of Absence is scheduled to end, unless the Employee communicates
to such Commonly Controlled Entity that he or she is to have a Termination of Employment as of an
earlier date.




     1.10 “Beneficiary” means any person designated by a Participant (or a Beneficiary of the
Participant) to receive any benefits which shall be payable with respect to the death of a
Participant under the Plan or as a result of a QDRO.



     1.11 “Board of Directors” means the board of directors of the Company.



     1.12 “Break in Service” means: (a) on and after January 1, 2000, the five (as modified by
Section 2.03(d)) or more years of Break in Service as described in the first paragraph of Section
2.03; and (b) prior to January 1, 2000, means the end of five consecutive Computation Periods (or
six consecutive Computation Periods if absence from employment was due to a Maternity/Paternity
Absence) for which a Participant is credited with less than 501 Hours of Service.



     1.13 “Business Day” means any day or part of a day on which the New York Stock Exchange and
the Trustee are open for business.



     1.14 “CEO” means the Chief Executive Officer of the Company.



     1.15 “Change Date” means the one or more dates during the Plan Year generally designated by
the Administrator (or, with respect to a specific Employee group, as may be provided in an
Appendix) as the dates available for implementing or changing a Participant’s Contribution
Election.



     1.16 “Commonly Controlled Entity” means: (a) an Employer and any corporation, trade or
business, but only for so long as it and the Employer are members of a controlled group of
corporations as defined in Section 414(b) of the Code or under common control as defined in Section
414(c) of the Code; provided, however, that solely for purposes of the limitations of Section 415
of the Code, the standard of control under Sections 414(b) and 414(c) of the Code shall be deemed
to be “more than 50%” rather than “at least 80%,” (b) an Employer and an organization, but only for
so long as it and the Employer are, on and after the Effective Date, members of an affiliated
service group as defined in Section 414(m) of the Code, (c) an Employer and an organization, but
only for so long as the employees of it and the Employer are required to be aggregated, on and after the Effective Date, under
Section 414(o) of the Code, or (d) any other organization designated as such by the Administrator.




     1.17 “Company” means PepsiAmericas, Inc. or any successor corporation by merger,
consolidation, purchase, or otherwise, which elects to adopt the Plan and the Trust.



     1.18 “Company Stock” means common stock issued by PepsiAmericas, Inc.



     1.19 “Compensation” means:




4









 







     (a) for purposes of allocating Contributions with respect to a Participant,
compensation as specified in an Appendix which applies to such Participant; and elective deferrals
that are not included in the gross income of a Participant by reason of Sections 125, 132(f)(4) and
402(e)(3) will be included;



     (b) for purposes of applying Section 415 of the Code to the Plan and its
Participants for any Limitation Year, such compensation from a Commonly Controlled Entity, as
determined by the Administrator, and satisfying the definition of compensation under Section 415 of
the Code (within the meaning of Treasury Regulation Sections 1.415-2(d)(2) and (3)); and



     (c) for any determination period with respect to an applicable provision of the Code
other than Section 415, such compensation from a Commonly Controlled Entity, as determined by the
Administrator, and which satisfies the requirements of Section 414(s) of the Code.



     (d) For purposes of the definition of “Compensation” for purposes of allocating
Contributions hereunder:




     (1) an amount included in an individual’s final paycheck for employment as an
Eligible Employee will be treated as if it were paid to an Eligible Employee, if it is paid
during a Plan Year in which the individual is an Eligible Employee, even though, on the date
he receives the paycheck, the individual no longer is an Eligible Employee;




     (2) an amount that should have been paid in a manner that met the
requirements imposed by this Section 1.19 (as modified by subsection (d)(1), above), but
that was mistakenly paid in a different manner, will be treated as meeting the requirements
imposed by this Section 1.19;




     (3) all amounts paid in settlement (including, but not limited to, amounts
paid for front and back pay and emotional distress) to an Eligible Employee will be excluded
from the definition of “Compensation” hereunder unless otherwise ordered pursuant to the
final decision of the presiding court, arbitrator, or administrative agency after all
available appeals have been exhausted; and




     (4) if it is not entirely clear whether an item of remuneration meets the
requirements of subsection (d)(2) or (d)(3), above, the Administrator, in his or her sole
discretion, will determine whether the item meets the requirements of such subsection (d)(2)
or (d)(3), above.



     (e) For Limitation Years beginning on and after January 1, 1998, for purposes of
applying the limitations described in Sections 1.46, 13.05 and 19.02(d) of the Plan, Compensation
paid or made available during such Limitation Years shall include elective amounts that are not
includible in the gross income of the Employee by reason of Sections 125, 132(f)(4) and 402(e)(3)
of the Code. For purposes of the definition of Compensation under this Section 1.19, amounts under
Section 125 of the Code include



5









 





any amounts not available to a Participant in cash in lieu of group
health coverage because the Participant is unable to certify that such Participant has other health
coverage. An amount will be treated
as an amount under Section 125 of the Code only if the Employer does not request or collect
information regarding the Participant’s other health coverage as part of the enrollment process for
the health plan.




     (f) In addition to other applicable limitations that may be set forth in the Plan,
and notwithstanding any other contrary provision of the Plan, annual Compensation taken into
account under the Plan for the purpose of calculating the Contributions to the Plan by or in
respect of a Participant for any Plan Year will not exceed the applicable compensation limit under
Section 401(a)(17) of the Code, as adjusted.



     (g) For purposes of applying Section 415 of the Code and effective for Limitation
Years beginning on or after July 1, 2007, Compensation shall not include any amounts paid after
severance from employment, unless such amounts are described in subparagraphs (1) and (2) below,
and only if such amounts are paid by the later of 2 1/2 months after severance from employment or by
the end of the Limitation Year that includes the date of such severance of employment:




     (1) Regular pay. Compensation shall include regular pay after severance of
employment if:




     (A) The payment is regular compensation for services during the
Participant’s regular working hours, or compensation for services outside the
Participant’s regular working hours (such as overtime or shift differential),
commissions, bonuses, or other similar payments; and




     (B) The payment would have been paid to the Participant prior to a
severance of employment if the Participant had continued in employment with the
Employer.




     (2) Leave cash-outs.




     (A) Payments of unused accrued bona fide sick, vacation or other
leave shall be included in Compensation, if those amounts would have been included
in the definition of Compensation if they were paid prior to the Participant’s
severance of employment, but only if the Participant would have been able to use the
leave if his or her employment had continued.



     1.20 “Computation Period” means, prior to January 1, 2000:



     (a) with respect to Eligibility Service and any Break in Service with respect to
Eligibility Service, the twelve (12) consecutive month period commencing with an Employee’s
Employment Date (or if Eligibility Service is disregarded due to the occurrence of a Break in
Service, the Employment Date thereafter) and the Plan Year which includes the first anniversary of
the Employment Date and each subsequent Plan Year; and



6









 





     (b) with respect to Vesting Service and any Break in Service with respect to Vesting
Service, the Plan Year beginning with the Plan Year in which occurs the Employee’s Employment Date
(or if Vesting Service is disregarded due to the occurrence of a Break in Service, the Employment
Date thereafter) and each Plan Year thereafter.



     1.21 “Contract Administrator” means each individual and entity designated by the Senior Vice
President or a Named Fiduciary, pursuant to this Plan, to render services to the Plan or Trust as a
Fiduciary.



     1.22 “Contributions” means amounts contributed to the Plan by the Employer or an Eligible
Employee. Specific types of contributions include:



     (a) “Catch-up.” An amount of Contributions for a Plan Year (prior to the
application of this Section 1.22(a)) pursuant to a Participant’s Contribution Election which
exceeds the lowest of the following three amounts for such Plan Year: (i) the maximum actual
deferral percentage described in Section 13.02 multiplied by the Participant’s Compensation; (ii)
the percentage limitation on Pre-Tax Contributions described in Section 3.01(a) multiplied by the
Participant’s Compensation, or (iii) the Contribution Dollar Limit or other limit contained in the
Code on annual additions permitted to be made under the Plan (without regard to Section 414(v) of
the Code), provided, however, that the amount of Catch-up Contributions added to the account of any
Participant for a Plan Year under this Plan or under any similar provision of any other plan
maintained by the Company or a Commonly Controlled Entity may not exceed the applicable dollar
limit described in Section 414(v)(2)(B)(i) of the Code, as adjusted in accordance with Section
414(v)(2)(C) of the Code. The determination as to whether the Contributions made on behalf of a
Participant exceed one of the limitations described in the preceding sentence shall be determined
as of the last day of the Plan Year, and any portion of such Contributions determined to be
Catch-up Contributions shall be allocated to the Participant’s Catch-up Account as of the last day
of such Plan Year. Contributions made on behalf of a Participant pursuant to Section 3.01(d) which
do not exceed one of the limitations described in the first sentence of this Section 1.21(a) shall
be treated as Pre-Tax Contributions. Catch-up Contributions shall not be taken into account in
applying the limits described in Sections 13.01, 13.02, 13.05, 13.07, 13.08, Article XIX, or
Section 414(v) of the Code.



     (b) “Formula Based.” An amount contributed by the Employer and allocated
based on a formula to eligible Participants’ Accounts.



     (c) “Matching.” An amount contributed by the Employer based upon the amount
contributed by the eligible Participant as a Pre-Tax or Post-Tax Contribution.



     (d) “Post-Tax.” An amount contributed on a post-tax basis.



     (e) “Pre-Tax.” An amount contributed on a pre-tax basis in conjunction with
a Participant’s Code Section 401(k) salary deferral agreement.



     (f) “Rollover.” An amount contributed as a Rollover Contribution.



7









 





     (g) “Special.” An amount contributed by the Employer to avoid prohibited
discrimination under Section 401(a)(4) of the Code.



     1.23 “Contribution Dollar Limit” means the annual limit imposed on each Participant pursuant
to Section 402(g) of the Code (as indexed for cost of living adjustments pursuant to Sections
402(g)(5) and 415(d) of the Code).



     1.24 “Contribution Election” or “Election” means the election made by a Participant to reduce
his or her Compensation from the Employer by an amount equal to the product of his or her
Contribution Percentage and such Compensation subject to the Contribution Election.



     1.25 “Contribution Percentage” means the whole integer percentage (or flat dollar amount which
results in a percentage) of a Participant’s Compensation which is to be contributed to the Plan by
his or her Employer as a Pre-Tax or a Post-Tax Contribution.



     1.26 “Conversion Election” means an election by a Participant to change the investment of all
or some specified portion of such Participant’s Accounts pursuant to procedures adopted by the
responsible Named Fiduciary. No Conversion Election shall be deemed to have been given to the
Named Fiduciary unless it is complete and delivered in accordance with the procedures established
by such Named Fiduciary for this purpose.



     1.27 “Custodial Agreement” means the Trust Agreement or an insurance contract to provide for
the holding of the assets of the Plan.



     1.28 “Custodian” means the Trustee or an insurance company if the contract issued by such
company is not held by the Trustee.



     1.29 “Direct Rollover” means a payment by the Plan to the Eligible Retirement Plan specified
by the Distributee.



     1.30 “Disability” or “Disabled” means a Participant is eligible to receive disability benefits
under the Social Security Act.



     1.31 “Distributee” includes an Employee or former Employee, the Employee’s or former
Employee’s surviving Spouse, and the Employee’s or former Employee’s Spouse or former Spouse who is
the Alternate Payee under a QDRO with regard to the interest of the Spouse or former Spouse. In
addition, effective April 1, 2007, Distributee includes a Participant’s Beneficiary.



     1.32 “Early Retirement Date” has the meaning given to it in an Appendix.



     1.33 “Effective Date” means January 1, 2008, the date upon which the provisions of this
document become effective (unless otherwise specified in an Appendix with respect to a specific
Employee group). In general, the provisions of this document only apply to Participants who are
Employees on or after the Effective Date.



8









 





However, investment and distribution provisions apply to
all Participants with Account balances to be invested or distributed after the Effective Date.




     1.34 “Elective Deferral” means amounts subject to the Contribution Dollar Limit.



     1.35 “Eligible Employee” means any Employee of the Employer who meets the eligibility
requirements of Section 2.01 (including an Employee on an Authorized Leave of Absence), who is not
a member of a group of Employees represented by a collective bargaining representative
(“Non-Union”) and who is paid on the basis of an hourly rate, including overtime, or who is a
member of a Union designated in Appendix 17.1 , excluding the following:



     (a) an Employee who is a member of a group of Employees represented by a collective
bargaining representative, unless a currently effective collective bargaining agreement between his
or her Employer and the collective bargaining representative of the group of Employees of which he
or she is a member provides for coverage by the Plan;



     (b) any person who is considered an Employee solely because of the application of
Section 414 of the Code;



     (c) any person who is not a U.S. citizen or resident alien;



     (d) temporary employees;



     (e) an individual employed pursuant to an agreement providing that the individual is
not eligible to participate in the Plan;



     (f) an individual who is not contemporaneously classified as an Employee for
purposes of the Employer’s payroll system. In the event any such individual is reclassified as an
Employee for any purpose, including, without limitation, as a common law or statutory employee, by
any action of any third party, including, without limitation, any government agency, or as a result
of any private lawsuit, action, or administrative proceeding, such individual will, notwithstanding
such reclassification, remain ineligible for participation hereunder and will not be considered an
Eligible Employee. In addition to and not in
derogation of the foregoing, the exclusive means for an individual who is not
contemporaneously classified as an Employee of the Employer on the Employer’s payroll system to
become eligible to participate in this Plan is through an amendment to this Plan which specifically
renders such individual eligible for participation hereunder;



     (g) an Employee whose basic compensation for services on behalf of an Employer is
not paid directly by an Employer;



     (h) an Employee who is making contributions to or receiving an employer contribution
under any other tax-qualified defined contribution pension plan that is sponsored by any Commonly
Controlled Entity and that provides for before-tax or after-tax contributions;



9









 





     (i) a clerical or other office employee;



     (j) an Employee eligible to participate in any other qualified retirement savings
plan in which an Employer participates; and



     (k) an individual who is incarcerated and is on a work release program.



     1.36 “Eligible Retirement Plan” means an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, an eligible deferred compensation plan
described in Section 457(b) of the Code which is maintained by an eligible employer described in
Section 457(e)(1)(A) of the Code (but only if such employer agrees to separately account for
amounts transferred into such plan from the Plan), an annuity contract described in Section 403(b)
of the Code, or a qualified trust described in Section 401(a) of the Code which accepts a
Distributee’s Eligible Rollover Distribution. This definition of “Eligible Retirement Plan” will
also apply in the case of a distribution to a surviving Spouse, or to a Spouse or former Spouse who
is the Alternate Payee under a QDRO.



     1.37 “Eligible Rollover Distribution” means any distribution of all or any portion of the
balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not
include any distribution that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the Distributee or the joint
lives (or joint life expectancies) of the Distributee and the Distributee’s designated Beneficiary,
or for a specified period of ten years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; or any “hardship withdrawal”, whether described in
Section 401(k)(2)(B) of the Code and the regulations promulgated thereunder or otherwise. The
portion of a distribution which consists of Post-Tax Contributions which are not includible in
gross income may be transferred only in a trustee-to-trustee transfer and may be transferred only
to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or
to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting for the
portion of such distribution which is includible in gross income and the portion of such
distribution which is not so includible.



     1.38 “Employee” means any person who renders services as a common law employee to a Commonly
Controlled Entity or is on an Authorized Leave of Absence, including the period of time before
which the trade or business became a Commonly Controlled Entity, but excluding the period of time
after which it ceases to be a Commonly Controlled Entity. No person who was hired through a
temporary agency (including but not limited to any leased Employee) shall be considered an Employee
and no person, the terms of whose services are governed by an independent contractor or consulting
agreement with an Employer, shall be considered an Employee except to the extent explicitly
provided to the contrary in such agreement; provided, however, any individual considered an
Employee of a Commonly Controlled Entity under Section



10









 





414(n) of the Code shall be deemed employed
by the Commonly Controlled Entity for which the individual performed services.




     1.39 “Employer” means the Company and any Commonly Controlled Entity which has adopted the
Plan; provided, that an entity will cease to be an Employer when it ceases to be a Commonly
Controlled Entity; provided, further, Hussmann and Midas ceased to be Employers effective January
1, 1998.



     1.40 “Employment Date” means the day an Employee first earns an Hour of Service.



     1.41 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. Reference
to any specific Section shall include such Section, any valid regulation promulgated thereunder,
and any comparable provision of any future legislation amending, supplementing or superseding such
Section.



     1.42 “Fiduciary” means: (a) any individual or entity who performs a Fiduciary function under
the Plan as defined in accordance with Section 3(21) of ERISA; (b) such individual or entity which
the Senior Vice President, acting on behalf of the Company, designates to be a Named Fiduciary with
respect to such person’s authority to control and manage the operation and administration of the
Plan or Trust; or (c) such individual or entity which a Named Fiduciary, acting on behalf of the
Plan, designates to be a Fiduciary with respect to such person’s authority to control and manage
the operation and administration of the Plan or Trust.



     1.43 “Forfeiture” means the portion of the Participant’s Accrued Benefit which is forfeited
pursuant to the terms of the Plan.



     1.44 “Forfeiture Account” means an account holding amounts forfeited by Participants.



     1.45 “Highly Compensated Eligible Employee” or “HCE” means an Eligible Employee who is a
“highly compensated employee” within the meaning of Section 414(q) of the Code (determined as if
the election described in Section 414(q)(1)(B)(ii) of the Code has not been made), the provision of
which are incorporated herein by reference.



     1.46 “Hour of Service” means, as it applies to Eligibility Service and Vesting
Service, each hour for which an Employee is entitled to:



     (a) payment for the performance of duties for any Commonly Controlled Entity;



     (b) payment from any Commonly Controlled Entity for any period during which no
duties are performed (irrespective of whether the employment relationship has terminated) due to
vacation, holiday, sickness, incapacity (including disability), layoff, leave of absence, jury duty
or military service;



11









 





     (c) back pay, irrespective of mitigation of damages, by award or agreement with any
Commonly Controlled Entity (and these hours shall be credited to the period to which the agreement
pertains); or



     (d) no payment, but is on an Authorized Leave of Absence (and these hours shall be
based upon his or her normally scheduled hours per week or a 40 hour week if there is no regular
schedule).



     The crediting of hours shall be made in accordance with Department of Labor Regulation
Sections 2530.200b-2 and 3, but in no event shall hours be credited in excess of the minimum number
required thereunder for a Computation Period in order to avoid a Break in Service. An equivalent
number of hours shall be credited for each payroll period in which the Employee would be credited
with at least 1 hour. The payroll period equivalency is 190 hours monthly.



     1.47 “Hussmann” means Hussmann Corporation or a subsidiary of Hussmann Corporation.



     1.48 “Hussmann Participant” means a person who: (a) has a balance in one or more of the
Accounts or had accrued a right to have a balance in one or more of the Accounts; and (b) is an
Employee of Hussmann or a person whose last employment with a Commonly Controlled Entity was with
Hussmann, or a Beneficiary of either such person.



     1.49 “Hussmann Plan” means the Hussmann Corporation Retirement Savings Plan for Hourly
Employees.



     1.50 “Insurance Contract Arrangement” means a contractual arrangement of one or more contracts
with an entity, whether or not subject to the applicable regulations of a State regarding reserve
requirements, which assumes the risk of payment of a Benefit primarily from its assets and which
Insurance Contract Arrangement is incorporated and made a part of this Plan, but only to the extent
it is specifically referred to herein and is not inconsistent with the terms and provisions of this
Plan.



     1.51 “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.



     1.52 “Investment Election” means an election by which a Participant directs the investment of
his or her Contributions pursuant to procedures adopted by the responsible Named Fiduciary. No
Investment Election shall be deemed to have been given to the Named Fiduciary unless it is complete
and delivered in accordance with the procedures established by such Named Fiduciary for this
purpose.



     1.53 “Investment Fund” or “Fund” means one or more collective investment funds, a pool of
assets, or deposits with the Custodian, a mutual fund, insurance



12









 





contract, or managed pool of
assets. The Investment Funds which are authorized for investment by a particular Participant are
described in an Appendix which applies to such Participant. The Investment Funds for all
participants will be those set forth in Appendix 1.53. Each Appendix labeled as an “Adoption
Agreement” is amended to provide that the term “Investment Fund” will be defined to be those
Investment Funds set forth on Appendix 1.53.




     1.54 “Limitation Year” means each consecutive twelve-month period beginning January 1 and
ending December 31. Effective for Limitation Years beginning on or after July 1, 2007, if the Plan
is terminated as of a date other than the last day of a Limitation Year, the Plan shall be treated
as if the Plan had been amended to change its Limitation Year.



     1.55 “Limited Deferrals” means Elective Deferrals subject to the limits of Section 401(a)(30)
of the Code.



     1.56 “Management Committee” means, effective as of January 1, 2000, the committee appointed
pursuant to the terms of the Plan and Trust as a Named Fiduciary for the investment of Plan assets
in the Trust.



     1.57 “Maternity/Paternity Absence” means a paid or unpaid and unapproved absence from
employment with a Commonly Controlled Entity: (a) by reason of the pregnancy of the Employee; (b)
by reason of the birth of a child of the Employee; (c) by reason of the placement of a child under
age eighteen (18) in connection with the adoption of such child by the Employee (including a trial
period prior to adoption); and (d) for the purpose of caring for a child of the Employee
immediately following the birth or adoption of such child. The Employee must prove to the
satisfaction of the Administrator or its agent that the absence meets the above requirements and
must supply information concerning the length of the absence unless the Administrator has access to
relevant information without the Employee submitting it.



     1.58 “Midas” means Midas International Corporation or a subsidiary of Midas International
Corporation.



     1.59 “Midas Participant” means a person who: (a) has a balance in one or more of the Accounts
or had accrued a right to have a balance in one or more of the Accounts; and (b) is an Employee of
Midas or a person whose last employment with a Commonly Controlled Entity was with Midas, or a
Beneficiary of either such person.



     1.60 “Midas Plan” means the Midas International Corporation Retirement Savings Plan for Hourly
Employees.



     1.61 “Named Fiduciary” means:



     (a) with respect to the authority each has over management and control of the Plan’s
administration and operation or discretionary authority and control it may have with respect to the
Plan, the Administrator and such other person who may be designated to be a Named Fiduciary
pursuant to Article XV; or



13









 





     (b) with respect to the management and control of the Plan’s assets or the
discretionary authority it may have with respect to the Plan’s assets, the Trustee, the Management
Committee, and other such persons who may be designated to be a Named Fiduciary pursuant to Article
XV.



     1.62 “Non-Highly Compensated Employee” or “NHCE” means an Employee who is not an HCE.



     1.63 “Normal Retirement Date” means the date a Participant attains sixty-five (65) years of
age.



     1.64 “Notice Date” means the date established by the responsible Named Fiduciary as the
deadline for it to receive notification with respect to an administrative matter in order to be
processed as of a Change Date designated by the responsible Named Fiduciary.



     1.65 “Participant” means an Eligible Employee who begins to participate in the Plan after
completing the eligibility requirements. A Participant’s participation continues until his or her
Termination of Employment and his or her Accrued Benefit is distributed or forfeited; provided
however, each Hussmann Participant and Midas Participant shall cease to be a Participant on the
date of transfer of assets and liabilities to the Hussmann Plan or Midas Plan, respectively.



     1.66 “Payment Date” means the date on or after the Settlement Date on which a Participant’s
Accrued Benefit is distributed or commences to be distributed, which date shall be at least the
minimum number of days required by law, if any, after the date the Participant has received any
notice required by law, if any.



     If a distribution is one to which Sections 411(a)(11) and 417 of the Internal Revenue Code do
not apply, such distribution may commence less than thirty (30) days after the notice required
under Section 401(a)(11) of the Treasury Regulations is given, provided that:



     (a) the Plan Administrator clearly informs the Participant that the Participant has
a right to a period of at least thirty (30) days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if applicable, a particular distribution
option), and



     (b) the Participant, after receiving the notice, affirmatively elects a
distribution.



     1.67 “Plan” means the PepsiAmericas, Inc. Hourly 401(k) Plan, as set forth herein and as
hereafter may be amended from time to time.



     1.68 “Plan Administrator” means the person appointed pursuant to the terms of the Plan to have
responsibility and control over the management, administration and operation of the Plan, as
provided herein.



14









 





     1.69 “Plan Year” means the Annual Accounting period of the Plan and Trust which ends on each
December 31.



     1.70 “QDRO” means a domestic relations order which the Administrator has determined to be a
qualified domestic relations order within the meaning of Section 414(p) of the Code.



     1.71 “Related Plan” means:



     (a) with respect to Section 401(k) and 401(m) of the Code, any plan or plans
maintained by a Commonly Controlled Entity which is treated with this Plan as a single plan for
purposes of Sections 401(a)(4) or 410(b) of the Code; and



     (b) with respect to Section 415 of the Code, any other defined contribution plan or
a defined benefit plan (as defined in Section 415(k) of the Code) maintained by a Commonly
Controlled Entity, respectively called a “Related Defined Contribution Plan” and a “Related Defined
Benefit Plan.”



     1.72 “Rollover Contribution” means:



     (a) an amount contributed by a Participant that constitutes all or part of an
“eligible rollover distribution” (within the meaning of Section 402(f)(2)(A) of the Code), as
described in Section 5.01, provided that such distribution (1) is made by an individual retirement
account described in Section 408(a) of the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, and (2) does not include after-tax employee
contributions (or any earnings allocable thereto); or



     (b) a Trustee Transfer: (1) to the Custodian of an amount by the custodian of a
retirement plan qualified for tax-favored treatment under Section 401(a) of the Code, which plan
provides for such transfer; (2) with respect to which the benefits otherwise protected by Section
411 of the Code in such transferor plan are no longer required by Section 411 of the Code to be
protected in this Plan; and (3) which does not include amounts subject to Section 401(k) of the
Code.



     1.73 “Senior Vice President” means the Senior Vice President-Human Resources or the Executive
Vice President-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
Employers) with respect to matters which relate to the Plan and Trust.



     1.74 “Service” means the period of a Participant’s employment calculated in accordance with
Sections 2.2, 2.3, 2.4 and 2.5 hereof for purposes of determining his or her nonforfeitable right
to benefits under the Plan.



     1.75 “Settlement Date” means the date on which the transactions from the most recent Trade
Date are settled.



15









 





     1.76 “Severance from Service Date” means the date on which an Employee’s period of Service is
deemed to end, determined in accordance with Section 2.2(1).



     1.77 “Spousal Consent” means the irrevocable written consent given by a Spouse to a
Participant’s Beneficiary designation. The Spouse’s consent must acknowledge the effect on the
Spouse of the Participant’s designation and be duly witnessed by a Plan representative or notary
public. Spousal Consent shall be valid only with respect to the Spouse who signs the Spousal
Consent and only for the
particular choice made by the Participant which requires Spousal Consent. A Participant may
revoke (without Spousal Consent) a prior designation that required Spousal Consent at any time
before the Sweep Date associated with the Settlement Date upon which payments will begin. Spousal
Consent also means a determination by the Administrator that there is no Spouse, the Spouse cannot
be located or such other circumstances as may be established by applicable law.



     1.78 “Spouse” means a person, who, as of the earlier of a Participant’s Payment Date and
death, is alive and married to the Participant within the meaning of the laws of the State of the
Participant’s residence as evidenced by a valid marriage certificate or other proof acceptable to
the Administrator. A Spouse who was the Spouse on the Payment Date but who is divorced from the
Participant at the Participant’s death shall still be the Spouse at the date of the Participant’s
death, except as otherwise provided in a QDRO.



     1.79 “Sweep Date” means the date established by the responsible Named Fiduciary as the cutoff
date and time for the responsible Named Fiduciary to receive notification with respect to a
financial transaction for an Accounting Period in order to be processed with respect to a Trade
Date designated by the responsible Named Fiduciary (or, with respect to a specific Employee group,
as may be provided in an Appendix).



     1.80 “Termination of Employment” occurs when a person ceases to be an Employee, as determined
by the personnel policies of the Commonly Controlled Entity to whom he or she rendered services;
provided, however, for periods prior to January 1, 2003, where a Commonly Controlled Entity ceases
to be such with respect to an Employee as a result of either an asset sale or stock sale an
Employee of the Commonly Controlled Entity shall be deemed not to have incurred a Termination of
Employment: (a) unless the Administrator shall make a determination that the transaction satisfies
Section 401(k) of the Code, or if no such determination is made, until such Employee ceases to be
employed by the successor to the Commonly Controlled Entity; or (b) if the Administrator shall make
a Trustee Transfer of his or her Accrued Benefit. Transfer of employment from one Commonly
Controlled Entity to another Commonly Controlled Entity shall not constitute a Termination of
Employment for purposes of the Plan.



     1.81 “Trade Date” means the Business Day as of which a financial transaction is effected.



16









 





     1.82 “Transition Service” means, with respect to an Employee who was a Participant prior to
January 1, 2000, and who continues to participate thereafter, for the Computation Period in which
the Effective Date occurs, the greater of: (a) his or her Year of Service measured under the Plan
as it existed immediately prior to January 1, 2000, and based on the Employee’s days of continuous
service earned during such Computation Period; or (b) the Service recognized for such Computation
Period under the Plan, as amended as of the Effective Date.



     1.83 “Trust” means the legal entity resulting from the agreement between the Company and the
Trustee and all amendments thereto, in which some or all of the assets of this Plan will be
received, held, invested and distributed to or for the benefit of Participants and Beneficiaries.



     1.84 “Trust Agreement” means the agreement between the Company and the Trustee establishing
the Trust, and any amendments thereto.



     1.85 “Trust Fund” means any property, real or personal, received by and held by the Trustee,
plus all income and gains and minus all losses, expenses, withdrawals and distributions chargeable
thereto.



     1.86 “Trustee” means any corporation, individual or individuals designated in the Trust
Agreement who shall accept the appointment as Trustee to execute the duties of the Trustee as set
forth in the Trust Agreement.



     1.87 “Trustee Transfer” means: (a) a transfer to the Custodian of an amount by the custodian
of a retirement plan qualified for tax-favored treatment under Section 401(a) of the Code or by the
trustee(s) of a trust forming part of such a plan, which plan provides for such transfer; or (b) a
Direct Rollover within the meaning of Section 402(c)(8)(B) of the Code; provided that with respect
to any withdrawal or distribution from the Plan, a Participant may elect a transfer to only one
eligible retirement plan, except as may otherwise be determined by the Administrator, in a uniform
and nondiscriminatory manner.



     1.88 “Unit Value” means the value of a unit or share in the applicable Investment Fund, as
determined in good faith by the Trustee or the Management Committee.



     1.89 “Valuation Date” means the close of business on each Business Day.



     1.90 “Vesting Service” means the sum of the Years of Service of an Employee, unless a separate
provision is otherwise provided for in an Appendix which applies to such Participant; provided
however, Years of Service shall be disregarded:



     (a) if the Employee had no vested interest in his or her Contributions by an
Employer, and such Years of Service were earned before the Break in Service; or



17









 





     (b) if such Years of Service were earned after a Break in Service, for purposes of
determining the nonforfeitable percentage of his or her Accrued Benefit earned before such Break in
Service; or



     (c) if applicable as provided in the Appendix for such Employee, such Years of
Service were earned prior to the date the Employee’s Employer became a Commonly Controlled Entity,
unless the Administrator makes such a determination not to apply this exclusion with respect to
each such Employee in a uniform and nondiscriminatory manner; or



     (d) if applicable as provided in the Appendix for such Employee, such Years of
Service were earned before the Effective Date with respect to an Eligible Employee.



     Notwithstanding the foregoing, on and after January 1, 2000, a reference to Vesting Service
will mean a reference to such person’s Service.



     Effective July 1, 1995, each Eligible Employee who was employed as a non-union hourly employee
at Marquette Bottling Works, Inc. or Pepsi-Cola Bottling Company of Oshkosh, Inc., and who was a
participant on July 1, 1995, will have recognized as Vesting Service by this Plan the greater of:
(1) all service recognized by the former plan as of July 1, 1995, or (2) the Vesting Service
otherwise recognized by this Plan without this provision.



18









 





ARTICLE II




Participation and Service



     2.01 Eligibility




     (a) An Eligible Employee that is not represented by a Union shall become a
Participant in this Plan as follows:




     (1) Any Employee who was a Participant in the Plan immediately before January
1, 2008, shall continue to participate in accordance with the provisions of the Plan, as
amended and in effect on and after January 1, 2008.




     (2) Any other Employee who is a regular, full-time Employee or a regular
part-time non-union Employee scheduled to work thirty (30) or more Hours of Service per week
will become a Participant in the separate portions of the Plan as follows:




     (A) In the portion of the Plan described in Article III and Article V
of the Plan relating to Pre-Tax Contributions, Post-Tax Contributions, Catch-up
Contributions and Rollovers, on the day he or she becomes an Employee.




     (B) In the portion of the Plan described in Sections 4.02, 4.03 and
4.04 relating to Matching Contributions, Formula Based Contributions and Special
Contributions, on the day he or she becomes an Eligible Employee and has completed
six (6) consecutive months of service with the Employer.




     (3) Any other Eligible Employee who is a regular, part-time Employee
scheduled to work fewer than thirty (30) Hours of Service per week will become a Participant
in all portions of the Plan on the first day of the first full pay period on or after the
date on which such Employee completes one year of eligibility service as described in
Section 2.01(d).



     (b) An Eligible Employee that the Appendix reflects to be represented by the Union,
unless provided otherwise in an Appendix, shall become a Participant in this Plan as follows:




     (1) Any Employee who was a Participant in the Plan immediately before January
1, 2008, shall continue to participate in accordance with the provisions of the Plan, as
amended and in effect on and after January 1, 2008.




     (2) Any other Employee who is a regular, full time Employee or a regular,
part time Employee scheduled to work forty (40) or more Hours of Service per week will
become a Participant on the first payroll period after he or she becomes an Employee and has
earned one year of Service described in Section 2.02.



19









 






     (3) Any other Employee who is a regular, part time Employee scheduled to work
fewer than forty (40) Hours of Service per week will become a Participant in all portions of
the Plan on the first day of the first full pay period on or after the date on which such
Employee completes one year of eligibility service as described in Section 2.01(d).



     (c) Participation Upon Change of Job Status. An Employee who is not an
Eligible Employee shall become a Participant on the later of: (1) the date he or she would have
become a Participant had he or she always been an Eligible Employee, or (2) the date he or she
becomes an Eligible Employee.



     (d) Service Requirement. For the purposes referenced in this Section 2.01,
Service for an Employee’s eligibility to participate in the Plan shall be determined by reference
to whether the Employee completes 1,000 or more Hours of Service in the 12-month period between the
date he or she first completes one Hour of Service and the first anniversary thereof; thereafter,
Service for his or her eligibility to participate in the Plan shall be determined by reference to
whether he or she completes 1,000 or more Hours of Service in any Plan Year, beginning with the
first Plan Year commencing after he or she first completes one Hour of Service. An Employee who
completes 1,000 or more Hours of Service in both the initial 12-month eligibility computation
period and the first Plan Year commencing after he or she first completes one Hour of Service shall
be credited with two (2) years of service for purposes of this Section 2.01.



     (e) Participation After Break in Service. If a Participant or an Employee
who is not a Participant incurs a Break in Service, as defined in Section 2.03, his or her
participation in the Plan shall be determined in accordance with the provisions of Section 2.03.



     (f) CIC Employee Participation. Effective January 10, 2005, Employees who
were participants in the 401(k) plan sponsored by Central Investment Corporation became
Participants in the Plan, subject to the terms and conditions provided in Appendix 2.01(f) attached
hereto.



     2.02 Service



     Subject to the following sections of this Article, a Participant’s nonforfeitable right to
benefits under the Plan shall be based upon his or her period of Service, determined as provided in
this section:



     (a) Pre-1976 Service: For a Participant as of January 1, 1976, who had been
covered under the prior provisions of the Plan, the Participant’s period of continuous service
prior to January 1, 1976, determined in accordance with the prior provisions of the Plan, shall be
counted as Service hereunder.



     (b) Post-1975 Service:




     (1) for an Employee who was a Participant prior to January 1, 1976 and who
continues to participate thereafter, his or her period of Service after



20









 






January 1, 1976
shall commence as of January 1, 1976 and, subject to the Break in Service rules set forth in
Section 2.03 below, extend to his or her Severance from Service Date.




     (2) for an Employee who becomes a Participant on or after January 1, 1976,
his or her period of Service shall commence as of the date he or she is first credited with
an Hour of Service and (subject to the continuous service rules set forth in the prior
provisions of the Plan, the Break in Service rules set forth in Section 2.03 below, and the
Plan termination rules in Article XII) extend to his or her Severance from Service Date.
Notwithstanding the preceding sentence:




     (3) for Plan Years beginning on or after January 1, 1976, such Employee’s
period of Service shall commence on January 1 of the first Plan Year in which he or she
satisfies the 1000 hour requirement of Section 2.01(a)(3) or Section 2.01(b)(3) if he or she
does not satisfy such requirement in the 12-month period beginning on the date he or she
first completes one Hour of Service, and




     (4) for periods prior to January 1, 1976, any such Employee shall not receive
credit for Service for any period (such as part-time employment) that was not credited as
service under the provisions of the Plan in effect prior to January 1, 1976.




     (5) for the Computation Period in which occurs January 1, 2000, the Employee
will receive no less than Transition Service credit.



     (c) Severance from Service. The following rules shall apply in the event of
a Participant’s severance from Service:




     (1) Severance from Service Date. An Employee’s Severance from
Service Date shall be the earlier of the following:




     (A) The date on which the Employee quits, retires, is discharged or
dies; or




     (B) The date which is twelve (12) months after the date on which the
Employee is absent from service for any other reason (e.g., sickness, layoff,
vacation).




     (2) Period of Severance.




     (A) An Employee’s Period of Severance commences on his or her
Severance from Service Date and ends on the date on which the Employee is again
credited with an Hour of Service by the Employer.




     (B) If an Employee has a Severance from Service Date as a result of
quitting, discharge or retirement and then earns an Hour of Service within twelve
(12) months from the Severance from Service Date, the Period of Severance shall be
counted as part of such Employee’s



21









 






period of Service. If an Employee is absent from
service for any reason other than quitting, discharge or retirement and during such
absence he or she quits, is discharged or retires, his or her Period of Severance
shall be counted as part of such Employee’s period of Service only if he or she
earns an Hour of Service within twelve (12) months from the date of commencement of
such absence from service. In all other cases, an Employee’s Period of Severance
shall be disregarded in determining such Employee’s period of Service.



     (d) Applicability.




     (1) Service Prior to January 1, 2000. The provisions of this Section
2.02 shall not apply to the determination of a Participant’s Service prior to January 1,
2000, if it represents an aggregate number less than the Participant’s Years of Continuous
Service prior to January 1, 2000.




     (2) Transfer Service and Imputed Service. Subject to the Break in
Service rules set forth in Section 2.03 below, Service that qualifies as Hourly Transfer
Service, Salary Transfer Service or Imputed Service will be counted as Service hereunder.



     2.03 Break in Service



     Effective as of January 1, 2000 and upon incurring a Break in Service, as defined herein, the
provisions of this Section 2.03 shall apply in determining an Employee’s eligibility for
participation and period of Service under the Plan. For purposes hereof and except as provided
below, a Break in Service shall mean, for Participants, a 12-consecutive month period beginning on
the Severance from Service Date and ending on the first anniversary of such date (provided the
Employee is not credited with an Hour of Service during such period) and, for Employees who are not
Participants, a 12-month computation period during which he or she is credited with 500 or less
Hours of Service. The applicable computation period for such Employees who are not Participants
shall be the 12-month period beginning on the Employee’s date of employment and Plan Years
commencing after such date of employment. Upon a Break in Service, the following rules shall
apply:



     (a) Vested Participants. Subject to Section 2.01(d), a Participant who has
satisfied the requirements for vesting under Section 8.03 at the time he or she incurs a Break in
Service and who is again employed as an Eligible Employee shall re-participate in the Plan as of
the date he or she again
completes an Hour of Service and his or her pre-break Service shall be restored in determining
his or her rights and benefits under the Plan.



     (b) Non-Vested Former Participants. Any Participant not described in
subsection (a) who incurs a Break in Service and who is again employed as an Eligible Employee
shall (except as provided below) re-participate in the Plan as of the date he or she again
completes an Hour of Service. His or her years of pre-break Service shall



22









 





be restored, but only if
the number of his or her consecutive 1-year Breaks in Service is less than the greater of: (i) 5,
or (ii) the aggregate number of his or her pre-break 12-month periods. A former Participant who
has not had his or her pre-break Service restored under the preceding sentence shall be treated as
a new, first-time employee upon his or her re-employment by the Employer and shall be required to
satisfy the eligibility requirements of Section 2.01 for participation in the Plan.




     (c) Other Employees. In the case of an Employee who is not a Participant at
the time he or she incurs a Break in Service, his or her pre-break Service shall be restored only
if the number of his or her consecutive 1-year Breaks in Service is less than the greater of: (i)
5, or (ii) the aggregate number of his or her pre-break Years of Service. A rehired Employee who
has not had his or her pre-break Service restored under the preceding sentence shall be treated as
a new, first-time Employee upon his or her re-employment by the Employer.



     (d) Special Rule for Maternity or Paternity Leave. If a Participant is
considered on Maternity or Paternity Leave hereunder, then, solely for purposes of determining
whether the Participant has a Break in Service under this Section 2.03, the period of time between
the first and second anniversaries of the date the Participant is considered to be absent from
service under Section 2.02(c) shall be considered neither a Period of Severance nor a period of
Service. If a Participant remains on Maternity or Paternity Leave beyond such second anniversary,
the Participant’s Period of Severance shall be deemed to begin on such date for purposes of this
Section 2.03.



     (e) Applicability. The provisions of this Section 2.03 shall not apply to a
Termination of Employment which occurred prior to January 1, 2000, which shall be governed by the
provisions of the Plan as in effect on the date the Employee incurred the Termination of
Employment. Notwithstanding the foregoing, any Employee who: (i) incurred a Termination of
Employment prior to January 1, 2000, and (ii) on December 31, 1999, would not have his or her prior
service disregarded under the Plan’s Break in Service rules in effect on such date if he or she
then returned to employment, shall be covered by the Plan’s Break in Service rules that are
effective for separations on and after January 1, 2000.



     2.04 Authorized Leave of Absence



     (a) General Rule. A Participant who is granted an Authorized Leave of
Absence by his or her Employer, and who returns to employment at the end of such leave, shall
receive credit for Service for the period of time while on such Authorized Leave of Absence;
provided however, a Participant on an Authorized Leave of Absence shall not be credited with more
than a 24-month period of Service hereunder for a period of absence from active employment, except
in accordance with rules that are adopted in writing by the Plan Administrator. A Participant who
is granted an Authorized Leave of Absence but who fails to return (or retire) within the period
specified shall be treated as if he or she was absent from Service under Section 2.02(c) on the
date his or her leave commenced.



23









 





     (b) Military Service. A Participant with service in the Armed Forces of the
United States (“military service”) shall be credited with Service and Credited Service pursuant to
the requirements of section 414(u) of the Code.



     2.05 Transfers



     This subsection shall apply with respect to an Employee of a Commonly Controlled Entity who
transfers from an ineligible classification of employment to an Eligible Employee classification,
or who transfers from an Eligible Employee classification to one that is ineligible.



     (a) Transfers of employment between Employers under this Plan shall not result in a
Break in Service.



     (b) If an Employee becomes eligible to participate in this Plan as a result of a
transfer described in this subsection, he or she shall receive Service credit for employment by an
employer while it is a Commonly Controlled Entity.



     (c) If a Participant in this Plan transfers employment within the Commonly
Controlled Entity and is no longer in an Eligible Employee classification of employment, he or she
shall continue to accrue Service for purposes hereunder, subject to the Break in Service rules of
Section 2.03.



24









 





ARTICLE III




Participant Contributions



     3.01 Pre-Tax Contribution Elections



     (a) A Participant who is an Eligible Employee and who desires to have Pre-Tax
Contributions made on his or her behalf by his or her Employer shall file a Contribution Election,
pursuant to procedures specified by the responsible Named Fiduciary, specifying his or her
Contribution Percentage, which percentage shall be no less than 2% nor more than 50%, or no less
nor more than the percentages authorized in an Appendix which applies to such Eligible Employee,
and authorizing the Compensation otherwise payable to him or her to be reduced in the contribution
periods selected in such Appendix.



     (b) Notwithstanding Subsection (a) hereof, for any Plan Year the Administrator may
determine that the maximum Contribution Percentage shall be greater or lesser than the percentages
set forth in an Appendix. Otherwise, the maximum Contribution Percentage as provided in an
Appendix shall apply.



     (c) A Participant’s Contribution Election shall be effective only with respect to
Compensation not yet paid as of the date the Contribution Election is effective. A Contribution
Election received on or before a Notice Date shall become initially effective with respect to
payroll cycles ended after the applicable Change Date or, if reemployed, on the first day of the
next month. However, the Administrator, in his or her sole discretion, may declare an additional
window period to Participants. Any Contribution Election which has not been properly completed or
which does not contain a properly completed Investment Election will be deemed not to have been
received and be void.



     (d) In addition to the Pre-Tax Contributions made pursuant to the Contributions
Election provided for in this Section 3.01, each Employee who is eligible to participate in the
Plan and who is projected to attain age 50 before the end of a Plan Year is eligible to have his
Compensation reduced by a whole integer percentage and have the amount by which his Compensation is
reduced contributed to the Plan by his Employer on his behalf as a Catch-up Contribution.
Contributions elected pursuant to this paragraph or any similar provision of any other plan
maintained by the Company or a Commonly Controlled Entity may not exceed the applicable dollar
limit described in Section 414(v)(2)(B)(i) of the Code, as adjusted in accordance with Section
414(v)(2)(C) of the Code.



     (e) Effective January 1, 2008, the Employer will make a Pre-Tax Contribution of 3%
from each non-union Participant’s Compensation per payroll period for each non-union Participant
who is hired on or after January 1, 2008. A non-union Participant may elect a different Pre-Tax
Contribution Election, or can elect not to participate as of any Change Date, pursuant to
procedures specified by the Administrator.



25









 





     3.02 Post-Tax Contribution Elections



     (a) A Participant who is an Eligible Employee and who desires to have Post-Tax
Contributions made on his or her behalf by his or her Employer shall file a Contribution Election,
pursuant to procedures adopted by the responsible Named Fiduciary, specifying his or her
Contribution Percentage, which percentage shall be no less nor more than the percentages authorized
in an Appendix which applies to such Eligible Employee, and authorizing the Compensation otherwise
payable to him or her to be reduced in the contribution periods selected in such Appendix.



     (b) Notwithstanding Subsection (a) hereof, for any Plan Year the Administrator may
determine that the maximum Contribution Percentage shall be greater or lesser than the percentages
set forth in an Appendix. Otherwise, the maximum Contribution Percentage as provided in an
Appendix shall apply.



     (c) A Participant’s Contribution Election shall be effective only with respect to
Compensation not yet paid as of the date the Contribution Election is effective. A Contribution
Election received on or before a Notice Date shall become initially effective with respect to
payroll cycles ended after the applicable Change Date or, if reemployed, on the first day of the
next month. However, the Administrator, in its sole discretion, may declare an additional window
period to Participants. Any Contribution Election which has not been properly completed or which
does not contain a properly completed Investment Election will be deemed not to have been received
and be void.



     3.03 Election Procedures



     (a) A Participant’s Contribution Election shall continue in effect (with automatic
adjustment for any change in his or her Compensation) until the earliest of the date: (1) his or
her Contribution Election is changed in accordance with paragraph (b) hereof; (2) he or she ceases
to be paid as an Eligible Employee; or (3) his or her Contribution Election is cancelled in
accordance with paragraph (c) hereof.



     (b) Changing the Election. A Participant may increase or decrease his or her
Contribution Percentage (subject to the percentage limits stated above) only once each Change Date
by making a new Contribution Election, pursuant to procedures specified by the responsible Named
Fiduciary, on which is specified the amount of the Contribution Percentage.




     (1) If such Contribution Election is received by the Notice Date, the change
shall be effective with respect to the first payroll cycle ended after the Change Date.




     (2) However, if the Administrator deems it necessary, the Administrator may
specify an additional window period to Participants.




     (3) The amount of increase or decrease of such Contribution Percentage shall
be effective only with respect to Compensation not yet paid.



26









 






     (4) Any Contribution Election which has not been properly completed will be
deemed not to have been received and be void.



     (c) Canceling the Election. A Participant desiring to cancel his or her
existing Contribution Election and reduce his or her Contribution Percentage to zero must make a
new Contribution Election, pursuant to procedures specified by the responsible Named Fiduciary.
The responsible Named Fiduciary will establish procedures, to be administered in a uniform and
nondiscriminatory manner, for allowing a Participant to cancel his or her Contribution Election.
Any Contribution Election received on or before a Notice Date shall become effective with respect
to the payroll cycle ended after the next Change Date. A Participant who is an Eligible Employee
and who has cancelled his or her Election may again make a Contribution Election at any time. If
such Contribution Election is received by the Notice Date, it shall become effective with respect
to the first payroll cycle ended after the next Change Date, provided at least the number of months
of suspension required in an Appendix applicable to the Employee have elapsed since the effective
date of the cancellation. Any Participant who has improperly completed a Contribution Election
will be deemed not to have made an Election.



27









 





ARTICLE IV




Employer Contributions and Allocations



     4.01 Participant Contributions



     (a) Frequency and Eligibility. Subject to the limits of the Plan and to the
Administrator’s authority to limit Contributions under the terms of this Plan, for each period for
which a Contribution Election is in effect, the Employer shall contribute to the Plan on behalf of
each Participant who is an Eligible Employee an amount equal to the amount designated by the
Participant as a Pre-Tax, Catch-up, or Post-Tax Contribution on his or her Contribution Election.



     (b) Allocation. Any Pre-Tax Contribution shall be allocated to the Pre-Tax
Account of the Participant with respect to whom the amount is paid, any Catch-up Contribution shall
be allocated to the Catch-up Account of the Participant with respect to whom the amount is paid,
and any Post-Tax Contribution shall be allocated to the Post-Tax Account of the Participant with
respect to whom the amount is paid.



     (c) Timing, Medium and Posting. Pre-Tax, Catch-up, and Post-Tax
Contributions shall be paid to the Custodian in cash and posted to each Participant’s Pre-Tax,
Catch-up, or Post-Tax Account, respectively, by the Administrator as soon as such amounts can
reasonably be balanced against the specific amount made on behalf of each Participant. Pre-Tax,
Catch-up, and Post-Tax Contributions shall be paid to the Custodian not later than the fifteenth
(15th) day of the month next following the month in which amounts are deducted from the
Participant’s Compensation.



     4.02 Matching Contributions



     (a) Frequency and Eligibility. Subject to the limits of the Plan and to the
Administrator’s authority to limit Contributions under the Plan, for each period for which
Participants’ Contributions are made, the Employer shall make Matching Contributions as described
in the following Allocation Method paragraph on behalf of each Participant who is an Eligible
Employee and who contributed during the period.



     (b) Allocation Method. The Matching Contributions for each period with
respect to each Participant shall be 50% up to 6% of a Participant’s Compensation, or the amount,
if any, as is described in an Appendix which applies to such Participant. The Employer may change
the matching rate to any other percentages, including zero (0%).



     (c) Timing, Medium and Posting. The Employer shall make each period’s
Matching Contribution in cash as soon as is feasible, and not later than the Employer’s federal tax
filing date, including extensions, for deducting such Contribution.



     (d) Compensation. Compensation from the Employer shall be measured by the
period (not to exceed the Plan Year) for which the Contribution is being made, provided the
Eligible Employee is a Participant during such period.




28











 





     (e) True-Up Contribution. For each Participant who is not represented in collective
bargaining by a union, who is an Employee on the last Business Day of the Plan Year, and who has
elected to contribute an amount of his or her Compensation as a Pre-Tax Contribution for all
periods during such Plan Year in which he or she could make Pre-Tax Contributions which equals at
least the maximum Matching Contribution (stated as a percentage of the Participant’s Compensation),
if any, as described in an Appendix which applies to such Participant, the Employer shall make a
Matching Contribution equal to the least of:




     (1) the maximum Matching Contribution, stated as a percentage of a Participant’s
Compensation for the Plan Year, if any, as described in an Appendix which applies to such
Participant;




     (2) the Participant’s Pre-Tax Contribution for the Plan Year; or




     (3) the amount in (e)(1), times the dollar limit in Section 401(a)(17) of the Code,


minus the aggregate amount of any Matching Contribution already made for the Participant under this
Section 4.02 for the Plan Year.




     4.03 Formula Based Contributions



     (a) Frequency and Eligibility. Subject to the limits of the Plan and to the
Administrator’s authority to limit Contributions under the Plan, for each period the formula is in
effect, the Employer shall make a Formula Based Contribution with respect to each Participant who
is an Eligible Employee in the amount equal to 2% of a Participant’s Compensation, or such other
amount, if any, as is described in an Appendix which applies to such Participant.



     (b) Allocation Method. The Formula Based Contribution for each period shall be
allocated among eligible Participants pro rata based on Compensation, or in the manner provided in
an Appendix which applies to each such Participant.



     (c) Timing, Medium and Posting. The Employer shall make each period’s Formula Based
Contribution in cash as soon as is feasible, and not later than the Employer’s federal tax filing
date, including extensions, for deducting such Contribution.



     (d) Compensation. Compensation from the Employer shall be measured by the period (not
to exceed the Plan Year) for which the Contribution is being made, provided the Eligible Employee
is a Participant during such period.



     4.04 Special Contributions



     (a) Frequency and Eligibility. Subject to the limits of the Plan and to the
Administrator’s authority to limit Contributions under the Plan, for each Plan Year, the Employer
may make a Special Contribution in an amount determined by the



29









 




Administrator on behalf of each Non-Highly Compensated Employee Participant who is an Eligible
Employee at any time during the Plan Year.




     (b) Allocation Method. The Special Contribution for each period shall be allocated
among eligible Participants as determined by the Administrator, subject to a maximum dollar amount
which may be contributed on behalf of any Participant as determined by the Administrator.



     (c) Timing, Medium and Posting. The Employer shall make each period’s Special
Contribution in cash as soon as is feasible, but no later than twelve (12) months after the end of
the Plan Year to which it is allocated. The Administrator shall post such amount to each
Participant’s Special Account once the total Contribution received by the Custodian has been
balanced against the specific amount to be credited to each Participant’s Special Account.



     (d) Compensation. Compensation from the Employer shall be measured by the period (not
to exceed the Plan Year) for which the Contribution is being made, provided the Eligible Employee
is a Participant during such period.



     (e) Safe Harbor Allocation. A Special Contribution cannot be taken into account under
the Actual Contribution Percentage (ACP) test for a Plan Year for a NHCE to the extent such
contributions exceed the product of that NHCE’s Code Section 414(s) compensation and the greater of
five percent (5%) or two (2) times the Plan’s “representative contribution rate.” Any Special
Contribution taken into account under an Actual Deferral Percentage (ADP) test under Regulation
1.401(k)-2(a)(6) (including the determination of the “representative contribution rate” for
purposes of Regulation 1.401(k)-2(a)(b)(iv)(B)) is not permitted to be taken into account for
purposes of this Section. For purposes of this Subsection:




     (1) The Plan’s “representative contribution rate” is the lowest “applicable
contribution rate” of any eligible NHCE among a group of eligible NHCEs that consists of
half of all eligible NHCEs for the Plan Year (or, if greater, the lowest “applicable
contribution rate” of any eligible NHCE who is in the group of all eligible NHCEs for the
Plan Year and who is employed by the Employer on the last day of the Plan Year), and




     (2) The “applicable contribution rate” for an eligible NHCE is the sum of the matching
contributions (as defined in Regulation Section 1.401(m)-1(a)(2)) taken into account in
determining the applicable contribution rate for the eligible NHCE for the Plan Year and the
Special Contribution made for that NHCE for the Plan Year, divided by that NHCE’s Code
Section 414(s) compensation for the Plan Year.



     Notwithstanding the above, Special Contributions that are made in connection with the
Employer’s obligation to pay prevailing wages under the Davis-Bacon Act (46 Stat. 1494), Public Law
71-798, Service Contract Act of 1965 (79 Stat. 1965), Public Law 89-286, or similar legislation can
be taken into account for a Plan Year for an



30









 




NHCE to the extent such contributions do not exceed 10 percent (10%) of that NHCE’s Code
Section 414(s) compensation.




     Special Contributions cannot be taken into account to determine an ADP to the extent such
contributions are taken into account for purposes of satisfying any other ADP test, any ACP test,
or the requirements of Regulation Section 1.401(k)-3, 1.401(m)-3, or 1.401(k)-4.



     Notwithstanding any provision of the Plan to the contrary, Qualified Matching Contributions
shall not be permitted.



     4.05 Miscellaneous



     (a) Deduction Limits. In no event shall the Employer Contributions for a Plan Year
exceed the maximum the Company estimates will be deductible (or which would be deductible if the
Employers had taxable income) by any Employer or Commonly Controlled Entity under Section 404 of
the Code (“Deductible Amount”). Any amount in excess of the Deductible Amount shall not be
contributed in the following order of Contribution type, to the extent needed to eliminate the
excess:




     (1) Each Participant’s allocable share of Pre-Tax Contributions for the Plan Year will
be reduced by an amount equal to the excess of the Participant’s Pre-Tax Contributions over
an amount which bears the same ratio to the amount of Pre-Tax Contributions made to the Plan
on behalf of such Participant during the Plan Year as the Deductible Amount available for
the Plan Year (reduced by the total amount of other types of Employer Contributions for the
Plan Year) bears to the aggregate Pre-Tax Contributions made to the Plan on behalf of all
Participants subject to such Deductible Amount during the Plan Year (before the application
of this provision);




     (2) If the application of Section (a)(1) would result in a reduction of a Participant’s
Pre-Tax Contributions which are matched by Matching Contributions, the rate at which Pre-Tax
Contributions are reduced shall be offset by a reduction for each Matching Contribution not
made as a result; and




     (3) Formula Based Contributions.



     (b) Profit Sharing Plan. Notwithstanding anything herein to the contrary, the Plan
shall constitute a profit sharing plan for all purposes of the Code.



31









 





ARTICLE V




Rollovers



     5.01 Rollovers



     The Administrator may authorize the Custodian to accept a Rollover Contribution in cash from
an Eligible Employee if Rollover Contributions are allowed with respect to such Eligible Employee
in an Appendix which applies to such Eligible Employee. In such case, the Employee shall furnish
satisfactory evidence to the Plan Administrator that the amount is eligible for rollover treatment.
Such amount shall be posted to the Employee’s Rollover Account by the Administrator as of the date
received by the Custodian.



     If it is later determined that an amount transferred pursuant to the above paragraph did not
in fact qualify as a Rollover Contribution, the balance credited to the Employee’s Rollover Account
shall immediately be: (a) segregated from all other Plan assets, (b) treated as a non-qualified
trust established by and for the benefit of the Employee, and (c) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the Plan.



     5.02 Transfers



     The Administrator may authorize the Custodian to accept a Transfer Contribution for an
Eligible Employee. For purposes of this Section 5.02, a Transfer Contribution is an amount that is
transferred from another defined contribution plan sponsored by the Employer or a Commonly
Controlled Entity as a result of a change in employment classification of the Eligible Employee
that causes him to be excluded from active participation in such other defined contribution plan
and also eligible to participate in this Plan.



     Any transfer into this Plan from another defined contribution plan of the Employer or a
Commonly Controlled Entity shall maintain the character it held in the transferor plan and shall be
credited under the appropriate Participant accounting. Transfer Contributions shall not be
considered Rollover Contributions under the Plan.



     5.03 Qualified Hurricane Distribution Recontribution



     The Administrator may authorize the Custodian to accept the recontribution by a Participant of
a distribution that was made under the conditions of Section 10.10, to the extent the distribution
was an Eligible Rollover Distribution, provided the recontribution occurs during the 3-year period
beginning the day after the date of the Qualified Hurricane Distribution.



32









 





ARTICLE VI




Accounting For Participants’

Accounts And For Investment Funds



     6.01 Individual Participant Accounting



     (a) Account Maintenance. The responsible Named Fiduciary will cause the Accounts for
each Participant to reflect transactions involving Contributions and other allocations thereto,
loans, earnings, losses, withdrawals, distributions and expenses to be allocated and posted to the
Accounts in accordance with the terms of this Plan. Financial transactions during or with respect
to an Accounting Period will be accounted for at the individual Account level by allocating and
posting each transaction to the Account as of a Trade Date. At any point in time, the value of a
Participant’s Accrued Benefit will be equal to the sum of the aggregate of the following amounts
determined under (1) and (2) with regard to each Investment Fund:




     (1) the: (A) Unit Values for the portion of his or her Accounts invested in each
Investment Funds; multiplied by (B) the number of full and fractional units for each such
Investment Fund posted to his or her Accounts; and




     (2) the fair market value of any other assets of the Trust Fund (exclusive of assets
described in (1) and (2)) in which a portion of his or her Accounts is invested or held.



     (b) Trade Date Accounting and Investment Cycle. For any transaction to be processed
as of a Trade Date, the responsible Named Fiduciary must receive instructions by the Sweep Time and
such instructions will apply only to amounts held in and posted to the Accounts as of the Trade
Date. Except as otherwise provided herein, all transactions will be effected on the Trade Date
relating to the Sweep Time (or as soon thereafter as is administratively possible).



     (c) Suspension of Transactions. Whenever the Administrator considers such action to
be in the best interest of the Participants, the Administrator in its discretion may suspend from
time to time the Trade Date or reset the Sweep Time.



     (d) Temporary Investment. To the extent practicable, the responsible Named Fiduciary
will direct the Custodian to make temporary investments in a short-term interest fund of assets in
an Account held pending a Trade Date.



     (e) How Fees and Expenses are Charged to Accounts. Account maintenance fees will be
charged to Accounts (to the extent such fees are not paid by the Employer), provided that no fee
will reduce an Account balance below zero. Transaction type fees (such as loan set-up fees, etc.)
will be charged to the Accounts involved in the transaction as determined pursuant to procedures
adopted by the Administrator. Fees and expenses incurred for the management and maintenance of
Investment Funds will be charged at the Investment Fund level and reflected in the net gain or loss
of each Investment Fund.



33









 





     (f) Error Correction. The Administrator may correct any errors or omissions in the
administration of the Plan by crediting or charging any Account with the amount that would have
been allocated, credited or charged to the Account had no error or omission been made. Funds
necessary for any such crediting will be provided through payment made by the responsible Named
Fiduciary, or, if the responsible Named Fiduciary was not responsible for such error or omission,
through payment by the Employer.



     (g) Accounting for Participant Loans. Participant loans will be held in a separate
Fund for investment only by such Participant and accounted for in dollars as an earmarked asset of
the borrowing Participant’s Account.



     6.02 Accounting for Investment Funds



     (a) Unit Accounting. The investments in each Investment Fund designated by the
Administrator as subject to unit accounting will be maintained in full and fractional units. The
responsible Named Fiduciary is responsible for determining the number of full and fractional units
of each such Investment Fund.



     (b) Share Accounting. The investments in each Investment Fund designated by the
Administrator as subject to share accounting will be maintained in full and fractional shares. The
responsible Named Fiduciary is responsible for determining the number of full and fractional shares
of each such Investment Fund.



     (c) Company Stock. The following additional rules shall apply to the Company Stock
Fund:




     (1) Voting Rights. All Company Stock in an Account will be voted by the
Custodian in accordance with directions from the Participant pursuant to the procedures of
the Trust Agreement.




     (2) Tender Offer. If a tender offer is commenced for Company Stock, the
provisions of the Trust Agreement regarding the response to such tender offer, the holding
and investment of proceeds derived from such tender offer and the substitution of new
securities for such proceeds will be followed.




     (3) Dividends and Income. Dividends (whether in cash or in property) and other
income received by the Custodian in respect of Company Stock will be reinvested in Company
Stock and will constitute income and be recognized on an accrual basis for the Accounting
Period in which occurs the record date with respect to such dividend; provided that, with
respect to any dividend which is reflected in the market price of the underlying stock, the
Administrator will direct the Custodian during such trading period to trade such stock the
regular way to reflect the value of the dividend, and all transfers and cash distributions
will be transacted accordingly with no accrual of such dividend, other than as reflected in
such market price.



34









 






     (4) Transaction Costs. Any brokerage commissions, transfer taxes, transaction
charges, and other charges and expenses in connection with the purchase or sale of Company
Stock will be added to the cost thereof in the case of a purchase or deducted from the
proceeds thereof in the case of a sale; provided, however, where the purchase or sale of
Company Stock is with a “disqualified person” as defined in Section 4975(e)(2) of the Code
or a “party in interest” as defined in Section 3(14) of ERISA, no commissions may be charged
with respect thereto.



     6.03 Accounts for Alternate Payees



     A separate Account will be established for an Alternate Payee as of the date, and in
accordance with the directions specified in the QDRO. Such Account will be valued and accounted
for in the same manner as any other Account. An Alternate Payee will be treated as a Participant
to the extent provided as follows:



     (a) Investment Direction. An Alternate Payee may direct or exchange the investment of
such Account in the same manner as a Participant; provided, however, that an Alternate Payee may
not acquire Company Stock.



     (b) Withdrawals and Forms of Payment. An Alternate Payee will receive payment of the
amount specified in the QDRO as soon as administratively possible, regardless of whether the
Participant is an Employee, unless the QDRO specifically provides that payment be delayed,
including at the election of the Alternate Payee. Payment may be made in the same forms as are
available to the Participant with respect to whom the QDRO has been obtained, to the extent
provided in the QDRO.



     (c) Participant Loans. An Alternate Payee will not be entitled to borrow from his or
her Account. If a QDRO specifies that the Alternate Payee is entitled to any portion of the
Account of a Participant who has an outstanding loan balance, all outstanding loans will continue
to be held in the Participant’s Account and will not be divided between the Participant’s and
Alternate Payee’s Accounts.



     (d) Beneficiary. An Alternate Payee may designate a Beneficiary in the same manner as
a Participant, to the extent provided for in the QDRO.



     6.04 Transition Rules



     The Administrator may adopt such procedures, including imposing “transition” periods, as are
necessary to accommodate any plan mergers, Investment Fund or accounting changes or events, or
similar events as it determines are necessary for the proper administration of the Plan.



35









 





ARTICLE VII




Investment Funds and Elections



     7.01 Investment of Contributions



     (a) Investment Election. Each Participant may direct the Custodian to invest
Contributions (and loan repayments) posted to his or her Accounts and other amounts allocated and
posted to the Participant’s Account in one or more Investment Funds; provided, however, that a
separate Investment Election is required for Rollover Contributions. If a Participant does not
have a valid Investment Election on file, his or her Investment Election will be deemed to be a
100% election of the Investment fund designated by the Administer as the default option, as
indicated in Appendix 1.54. If the Participant elects to have any such Contributions made on his
or her behalf invested in more than one Investment Fund, he or she must designate in whole
multiples of one percent (1%) what percentage of the Contribution is to be invested in each such
Investment Fund. Notwithstanding the above, no Investment Election may be made by a Participant or
Beneficiary which directs the investment of any Contributions into the PepsiCo Stock Fund.



     (b) Effective Date of Investment Election; Change of Investment Election. A
Participant’s initial Investment Election will be effective with respect to an Investment Fund on
the Trade Date which relates to the Sweep Time on which or prior to which the Investment Election
is received and not revoked pursuant to procedures specified by the Administrator. A Participant’s
Investment Election will continue in effect, notwithstanding any change in his or her Compensation
or his or her Contribution Percentage, until the earlier of: (1) the effective date of a new
Investment Election; or (2) the date he or she ceases to be a Participant. A change in Investment
Election will be effective with respect to an Investment Fund as soon as administratively possible
after the date the Administrator receives the Participant’s new Investment Election.



     7.02 Investment of Accounts



     (a) Conversion Election. Notwithstanding a Participant’s Investment Election, a
Participant may direct the Custodian to change the investment of his or her Accounts between two or
more Investment Funds, on a pro rata basis with respect to each of the Participant’s Accounts
(exclusive of the Participant’s loans). If a Participant did not make a Conversion Election for
the PepsiCo Stock Fund for any amounts remaining in that Investment Fund on May 20, 2001, the
Participant was deemed to have made a Conversion Election to invest such amount 100% in the Fixed
Income Fund. If the Participant or Beneficiary elects to invest his or her Accrued Benefit in more
than one (1) Investment Fund, he must designate in whole multiples of one percent (1%) what
percentage of his or her Accounts is to be invested in such Investment Fund; provided, however, no
Conversion Election may be made by a Participant or Beneficiary which directs the investment of any
part of his or her Accrued Benefit into the PepsiCo Stock Fund.



36









 





     (b) Effective Date of Conversion Election. A Conversion Election to change a
Participant’s investment of his or her Accounts in one Investment Fund to another Investment Fund
will be effective with respect to such Investment Funds on the Trade Date(s) which relates to the
Sweep Time on which or prior to which the Conversion Election is received and not revoked pursuant
to procedures specified by the Administrator. Notwithstanding the foregoing, a Conversion Election
made with respect to the Account balance of a Participant who dies on or after the Effective Date
will not be valid if it is made after such time that is established by the Administrator following
the date the Administrator is notified of such Participant’s death.



     (c) Delayed Effective Date. Notwithstanding any provision of this Section 7.02 to the
contrary, if the sell portion of a Conversion Election can not be processed due to a problem in the
market, a liquidity shortage in an Investment Fund, or disruption of other sell or buy orders in
another Investment Fund, the buy portion of the Conversion Election will not be processed on a
Trade Date until the sell transaction can be processed.



     7.03 Investment Funds



     The Plan’s Investment Funds are indicated in Appendix 1.54. In addition, the Management
Committee may, from time to time, in its discretion:



     (a) limit or freeze investments in, or transfers from, an Investment Fund;



     (b) add funding vehicles thereunder;



     (c) liquidate, consolidate or otherwise reorganize an existing Investment Fund; or



     (d) add new Investment Funds to, or delete Investment Funds from, an Appendix which applies to
Employees identified therein.



     7.04 Transition Rules



     Effective as of the date designated by the Management Committee on which any Investment Fund
is added under Section 7.03, each Participant will have the opportunity to make new Investment
Elections and Conversion Elections to the Administrator no later than the applicable Sweep Time.
The Administrator may take such action as the Administrator deems appropriate, including, but not
limited to:



     (a) using any reasonable accounting methods in performing his or her duties during the period
of transition;



     (b) designating into which Investment Fund a Participant’s Accounts or Contributions will be
invested;



37









 





     (c) establishing the method for allocating net investment gains or losses and the extent, if
any, to which amounts received by and distributions paid from the Trust during this period share in
such allocation;



     (d) investing all or a portion of the Trust’s assets in a short-term, interest-bearing
Investment Fund during such transition period;



     (e) delaying any Trade Date during a designated transition period or changing any Sweep Time
or Valuation Time during such transition period; or



     (f) designating how and to what extent a Participant’s Investment Election or Conversion
Election will apply to Investment Funds.



     7.05 Risk of Loss



     Neither the Plan nor the Company guarantees that the fair market value of the Investment
Funds, or of any particular Investment Fund, will be equal to or greater than the amounts invested
therein. Neither the Plan nor the Company guarantees that the value of the Accounts will be equal
to or greater than the Contributions allocated thereto. Except as required pursuant to ERISA, each
Participant will have sole responsibility for the investment of his or her Accounts and for
transfers among the available Investment Funds, and no fiduciary or other person will have any
liability for any loss or diminution in value resulting from any Participant’s exercise of, or
failure to exercise, such investment responsibility. Each Participant assumes all risk of any
decrease in the value of the Investment Funds and the Accounts. The Plan is intended to constitute
a plan described in Section 404(c) of ERISA.



     7.06 Interests in the Investment Funds



     No Participant will have any claim, right, title, or interest in or to any specific assets of
any Investment Fund until distribution of such assets is made to such Participant. No Participant
will have any claim, right, title, or interest in or to the Investment Fund, except as and to the
extent expressly provided herein.



     7.07 Sole Source of Benefits



     Participants may only seek payment of benefits under the Plan from the Trust, and, except as
otherwise required by law, the Employer assumes no responsibility or liability therefor.



     7.08 Alternate Payees



     See Sections 6.03 and 6.04 for the treatment of Alternate Payees as Participants for purpose
of this Article VII.



38









 





ARTICLE VIII




Vesting and Forfeitures



     8.01 Fully Vested Contribution Accounts



     An Employee who was a participant in the 401(k) plan sponsored by Central Investment
Corporation (“CIC”) and who had at least three Years of Service as of January 1, 2006, shall be
fully vested and have a nonforfeitable right to the portion of his Accrued Benefit attributable to
the CIC 401(k) Plan at all times. An Employee of Dakota Beverage Group, LLC shall be fully vested
and have a nonforfeitable right to his or her Accrued Benefit at all times. A Participant shall be
fully vested and have a nonforfeitable right to his or her Accrued Benefit in these Accounts at all
times:



	 	 	 	 	 
	Post-Tax Account

	 	Pre-Tax Account
	 	Catch-up Account
	Rollover Account

	 	Special Account	 	 






     8.02 Vesting; Payment of Accrued Benefit On or After Retirement or Disability



     A Participant’s Accrued Benefit shall be fully vested and nonforfeitable upon the occurrence
of any one or more of the following events:



     (a) completion of at least the minimum number of years of Vesting Service in the Vesting
Schedule for a 100% nonforfeitable percentage;



     (b) attainment of Normal Retirement Date;



     (c) Termination of Employment for reason of a Disability; or



     (d) death while an Employee.



     8.03 Vesting Schedule



     A Participant shall be vested and have a nonforfeitable right to his or her Accrued Benefit in
his or her Matching and Formula Based Accounts, determined in accordance with the following vesting
schedule (unless a separate vesting schedule is otherwise provided for in an Appendix which applies
to such Participant):



	 	 	 	 	 	 
	Years of Vesting Service	 	Nonforfeitable Percentage	 
	Less than 1 year
	 	 	0	%	 
	1 year but less than 2 years
	 	 	20	%	 
	2 years but less than 3 years
	 	 	40	%	 
	3 years but less than 4 years
	 	 	60	%	 
	4 years but less than 5 years
	 	 	80	%	 
	5 years or more
	 	 	100	%	 






39









 






     Notwithstanding the preceding sentence, with respect to that portion of a Participant’s
Accounts that is attributable to amounts transferred from the Pepsi-Cola General Bottling Company
of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan or the Lou Gen Ltd. Profit Sharing Plan,
the vested percentage of such Accounts shall be no less than their vested percentage under the
Pepsi-Cola General Bottling Company of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan or the
Lou Gen Ltd. Profit Sharing Plan, respectively, as of the transfer’s effective date.



     8.04 Forfeitures



     (a) Forfeiture Where Payment Commences After a Break in Service. If no Payment Date
of a Participant’s nonforfeitable Accrued Benefit occurs before having incurred a Break in Service,
that portion of the Participant’s Accrued Benefit (which is Employer-derived) which is forfeitable
as of his or her Termination of Employment shall be forfeited as of the completion of a Break in
Service. If the Participant is reemployed as an Employee prior to having incurred a Break in
Service, the Forfeiture shall not occur. If the Participant is reemployed as an Employee after
incurring a Break in Service, the Participant shall be fully vested and have a nonforfeitable
interest in that portion of his or her Accounts accrued prior to the Break in Service and not
forfeited as a result of such Break in Service. A Participant who incurs a Termination of
Employment with a zero vested interest in his or her Accrued Benefit (which is Employer-derived)
shall be deemed to have a Payment Date and a Forfeiture of his or her Accrued Benefit as of such
Termination of Employment.



     (b) Forfeiture Where Payment Commences Prior to a Break in Service. If the Payment
Date of a Participant’s nonforfeitable percentage of his or her Accrued Benefit occurs prior to
having incurred a Break in Service, that portion of his or her Accrued Benefit which is forfeitable
shall be forfeited as of the Payment Date. Thereafter, if such person is rehired as an Employee
prior to incurring a Break in Service, he or she shall be entitled to make repayment to the Plan of
the full amount distributed to him or her on or after the Payment Date no later than: (1) the date
he or she incurs a Break in Service, and (2) the last day of the 5-year period commencing on or
after his or her date of reemployment. Upon making repayment in a single payment of the amount
distributed to him or her, the amount repaid shall be credited to the Participant’s Account from
which paid and the Forfeiture shall be reinstated to his or her Accounts and invested in the same
manner as the Account to which it is posted. The amount required to restore such Participant’s
Accounts shall be charged against the Plan’s Forfeitures, and, if insufficient, be made up from
additional Employer Contributions. Where a Participant has been deemed to have a Payment Date
because he or she had a zero vested interest in his or her Accrued Benefit, he or she will be
deemed to have made the repayment required by this subparagraph on his or her date of hire.



     If the Employee makes the above-described repayment, such repayment shall be considered to be
the “investment in the contract” for purposes of Sections 72(1)(A), 72(f) and 402(e)(4)(D)(i) of
the Code in relation to the amount reinstated in his or her Account on account of the repayment.



40









 





     8.05 Forfeiture Account



     A Forfeiture will be posted, no later than the end of the Plan Year in which the Forfeiture
arises, to the Forfeiture Account on the Settlement Date for the Trade Date on which the Custodian,
at the direction of the Administrator, has converted the Forfeiture to cash. The Forfeiture
Account shall be invested in interest bearing deposits of the Custodian or short-term money market
instruments. No later than the end of such Plan Year, the Forfeiture Account shall be used in the
following order: to reinstate Accrued Benefits and to reduce Employer Contributions, as determined
by the Administrator, and to pay expenses of the Plan.



     8.06 Repayment



     Pre-Tax Contributions are to be taken into account in determining a Participant’s vested
benefits under the Plan and in applying provisions of the Plan that permit the repayment of
distributions to have forfeited amounts restored (if applicable under the terms of the Plan), and
the terms of Code Sections 401(a)(5)(D)(iii) and 411(a)(6)(D)(iii) with respect to disregarding
certain service will apply.



41









 





ARTICLE IX




Participant Loans



     9.01 Participant Loans Permitted



     The Administrator is authorized to establish and administer a loan program for a Participant
who is an Eligible Employee or a former Eligible Employee who is a “party in interest” under ERISA
pursuant to the terms and conditions set forth in this Article. All loan limits are determined as
of the Trade Date the Trustee reserves funds for the loan. The funds will be disbursed to the
Participant as soon as is administratively feasible after the next following Settlement Date.
Loans will be available to a Participant only to the extent provided in the Appendix applicable to
that Participant.



     9.02 Loan Funding Limits



     The loan amount must meet the following limits:



     (a) Plan Minimum Limit. The minimum amount for any loan is $1,000.00.



     (b) Plan Maximum Limit. Subject to the legal limit described in (c) below, the
maximum a Participant may borrow, including the outstanding balance of existing Plan loans, is
fifty percent (50%) of his or her following Accounts which are fully vested:


Pre-Tax Account

Catch-up Account

Special Account

Matching Account

Rollover Account

Post-Tax Account.




     (c) Legal Maximum Limit. The maximum a Participant may borrow, including the
outstanding balance of existing loans, is based upon the value of his or her vested interest in
this Plan and all other qualified plans maintained by a Commonly Controlled Entity (the “Vested
Interest”). The maximum amount is equal to fifty percent (50%) of his or her Vested Interest, not
to exceed $50,000. However, the $50,000 amount is reduced by the Participant’s highest outstanding
balance of all loans from any Commonly Controlled Entity’s qualified plans during the 12-month
period ending on the day before the Trade Date on which the loan is made.



     9.03 Maximum Number of Loans



     A Participant may have only one loan outstanding at any given time, and any prior existing
loan must be fully repaid for fifteen (15) days before a new loan may be secured.



42









 





     9.04 Source of Loan Funding



     A loan to a Participant shall be made solely from the assets of his or her following Accounts
which are fully vested:


Pre-Tax Account

Catch-up Account

Special Account

Matching Account

Rollover Account

Post-Tax Account.




     The available assets shall be determined first by Contribution Account and then by investment
type within each type of Contribution Account. The hierarchy for loan funding by type of
Contribution Account shall be the order listed in the preceding Plan Maximum Limit paragraph.
Within each Account used for funding, amounts shall first be taken from the available cash in the
Account and then taken by type of investment in direct proportion to the market value of the
Participant’s interest in each Investment Fund as of the Sweep Date on which the loan is made.



     9.05 Interest Rate



     The interest rate charged on Participant loans shall be fixed as the prime rate of interest on
the last day of the calendar quarter as published in the Wall Street Journal, prior to the
date the loan is issued.



     9.06 Repayment



     Substantially level amortization shall be required of each loan with payments made at least
monthly, through payroll deduction, provided that payment can be made by check for advance loan
payments, or when a Participant is on an Authorized Leave of Absence, Disabled or transferred to
the employ of a Commonly Controlled Entity which is not participating in the Plan. Loans may be
prepaid in full or in part at any time. The loan repayment period shall be as mutually agreed upon
by the Participant and Administrator, not to exceed five (5) years.



     9.07 Repayment Hierarchy



     Loan principal repayments shall be credited to the Participant’s Contribution Accounts in the
inverse of the order used to fund the loan. Loan interest shall be credited to the Contribution
Account in direct proportion to the principal repayment. Loan payments are credited by investment
type based upon the Participant’s current Conversion Election for that Account.



     9.08 Loan Application, Note and Security



     A Participant shall apply for any loan in accordance with a procedure established by the
responsible Named Fiduciary. The responsible Named Fiduciary shall administer



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Participant loans and shall specify the time frame for approving loan applications. All loans
shall be evidenced by a promissory note and security agreement and secured only by a Participant’s
vested Account balance. The Plan shall have a lien on a Participant’s Account to the extent of any
outstanding loan balance.




     9.09 Default, Suspension and Acceleration Feature



     (a) Default. A loan is treated as a default on the earlier of: (i) the date any
scheduled loan payment is more than ninety (90) days late, provided that the Administrator may
agree to a suspension of loan payments for up to twelve (12) months for a Participant who is on an
Authorized Leave of Absence; or (ii) thirty (30) days from the time the Participant receives
written notice of the note being due and payable and a demand for past due amounts.



     (b) Actions Upon Default. In the event of default, the Administrator will direct the
Trustee to report the default as a taxable distribution. As soon as a Plan withdrawal or
distribution to such Participant would otherwise be permitted, the Administrator will direct the
Trustee to execute upon its security interest in the Participant’s Account by segregating the
unpaid loan balance from the Account, including interest to the date of default, and to distribute
the note to the Participant.



     (c) Acceleration. A loan shall become due and payable in full once the Participant
incurs a Termination of Employment.



44









 





ARTICLE X




In-Service Withdrawals



     10.01 Withdrawals for General Hardship



     (a) Requirements. To the extent permitted by an Appendix, a Participant may request
the withdrawal of any amount from the vested portion of his or her Accounts needed to satisfy a
general hardship by submitting a completed withdrawal request to the Administrator.



     (b) General Hardship. General hardship will mean circumstances of sufficient severity
that a Participant is confronted by present or impending financial ruin or his or her family is
clearly endangered by present or impending want or privation.



     (c) Contribution Account Sources for Withdrawal. All available amounts must first be
withdrawn from his or her Accounts under Sections 10.02 or 10.03 to the extent either such Section
applies to such Participant (as specified in an applicable Appendix). The remaining withdrawal
amount shall come only from his or her Accounts, in the following priority order of Post-Tax
Accounts:


Post-Tax Account

Rollover Account

Matching Account




     10.02 Withdrawals for 401(k) Hardship




     (a) Requirements. To the extent permitted in an Appendix which applies to a
Participant, each such Participant may request the withdrawal of any amount from the portion of his
or her Accounts to the extent vested needed to satisfy a financial need by making a withdrawal
request in accordance with a procedure established by the Administrator. The Administrator shall
only approve those requests for withdrawals: (1) on account of a Participant’s “Deemed Financial
Need,” and (2) which are “Deemed Necessary” to satisfy the financial need.



     (b) “Deemed Financial Need.” Financial commitments relating to:




     (1) costs directly related to the purchase or construction (excluding mortgage payments
or balloon payments) of a Participant’s principal residence;




     (2) the payment of expenses for medical care described in Section 213(d) of the Code
previously incurred by the Participant, the Participant’s Spouse, or any dependents of the
Participant (as defined in Section 152 of the Code) or necessary for those persons to obtain
medical care described in Section 213(d) of the Code;




     (3) payment of tuition and related educational fees and room and board expenses for the
next twelve (12) months of post-secondary education for



45









 






the Participant, his or her Spouse, children or dependents (as defined in Section 152
of the Code);




     (4) necessary payments to prevent the eviction of the Participant from his or her
principal residence or the foreclosure on the mortgage of the Participant’s principal
residence;




     (5) payments for burial or funeral expenses for the Participant’s deceased parent,
Spouse, children or dependents (as defined in section 152 of the Code, without regard to
section 152(d)(1)(B); or




     (6) expenses for the repair of damage to the Participant’s principal residence that
would qualify for the casualty deduction under Code section 165 (determined without regard
to whether the loss exceeds 10% of adjusted gross income).



     (c) “Deemed Necessary”. A withdrawal is “deemed necessary” to satisfy the financial
need only if all of these conditions are met:




     (1) the withdrawal may not exceed the dollar amount needed to satisfy the Participant’s
documented financial hardship, plus an amount necessary to pay federal, state, or local
income taxes or penalties reasonably anticipated to result from such withdrawal;




     (2) the Participant must have obtained all distributions, other than financial hardship
distributions, and all nontaxable loans under all plans maintained by the Company or any
Commonly Controlled Entity;




     (3) the Participant will be suspended from making Pre-Tax Contributions and Post-Tax
Contributions (or similar contributions under any other qualified or nonqualified plan of
deferred compensation maintained by a Commonly Controlled Entity) for at six (6) months from
the date the withdrawal is received.



     (d) Account Sources for Withdrawal. All available amounts must first be withdrawn
from his or her Accounts under Section 10.02 or 10.03 to the extent either such Section applies to
such Participant (as specified in an applicable Appendix). The remaining withdrawal amount shall
come only from his or her Accounts, to the extent vested, in the following priority order of
Accounts:


Post-Tax Account

Rollover Account

Matching Account

Catch-up Account

Pre-Tax Account

Special Account







46









 








     The amount that may be withdrawn from a Participant’s Pre-Tax Account shall not include
earnings and Special Contributions posted to his or her Pre-Tax Account after the end of the Plan
Year which ends before July 1, 1989.



     10.03 Withdrawals for Participants over age 591/2 or who are Disabled



     (a) Requirements. To the extent permitted in an Appendix which applies to a
Participant, each such Participant who is over age 591/2 or who is Disabled may withdraw from the
portion of his or her Accounts to the extent vested listed in paragraph (b) below.



     (b) Account Sources for Withdrawal. When requesting a withdrawal, any withdrawal
amount shall come only from his or her Accounts, to the extent vested, in the following priority
order of Accounts:


Post-Tax Account

Rollover Account

Matching Account

Catch-up Account

Pre-Tax Account

Special Account.




     10.04 Unrestricted Withdrawals



     (a) Requirements. To the extent permitted in an Appendix, withdrawal is permitted
from an amount credited to any of the Accounts listed in paragraph (b) below.



     (b) Contribution Account Sources for Withdrawal. When requesting a withdrawal, any
withdrawal amount shall come only from his or her Accounts, in the following priority order of
Accounts:


Post-Tax Account

Rollover Account




     10.05 Withdrawal Processing



     (a) Ordering of Post-Tax Account Withdrawals. To the extent of the outstanding
principal amount (excluding earnings) as of December 31, 1986, attributable to his or her Post-Tax
Account, any withdrawal hereunder shall be deemed first to be made therefrom, second from Post-Tax
Contributions, if any, made after December 31, 1986, plus earnings thereon in the same pro rata
manner as required by Section 72(e) of the Code, and, thirdly, from earnings on such principal
amount as of December 31, 1986.



     (b) Minimum Amount. There is no minimum payment for any type of withdrawal.



47









 





     (c) Permitted Frequency. The maximum number of withdrawals permitted in any Plan Year
(other than for 401(k) Hardship) is two. For this purpose, two types of withdrawals distributed in
one payment shall constitute one withdrawal.



     (d) Application by Participant. A Participant must submit a withdrawal request in
accordance with a procedure established by the responsible Named Fiduciary to the responsible Named
Fiduciary to apply for any type of withdrawal. Only a Participant who is an Employee may make a
withdrawal request.



     (e) Approval by Responsible Named Fiduciary. The responsible Named Fiduciary is
responsible for determining that a withdrawal request conforms to the requirements described in
this Section and notifying the Custodian of any payments to be made in a timely manner.



     (f) Time of Processing. The Custodian shall process all withdrawal requests which it
receives by a Sweep Date, based on the value as of the Trade Date to which it relates, and fund
them on the next Settlement Date. The Custodian shall then make payment to the Participant as soon
thereafter as is administratively feasible.



     (g) Medium and Form of Payment. The medium of payment for withdrawals is either cash
or direct deposit; provided, however, a withdrawal under either Section 10.03 or 10.04 may be paid,
as directed by the Participant, in whole shares of Company Stock to the extent the withdrawal is
funded from the Company Stock Fund. The form of payment for withdrawals shall be a single
installment.



     (h) Investment Fund Sources. Within each Account used for funding a withdrawal,
amounts shall be taken by type of investment in direct proportion to the market value of the
Participant’s interest in each Investment Fund (which excludes the Participant’s loans) at the time
the withdrawal is made.



     (i) Direct Rollover. With respect to any cash payment hereunder in excess of $200
which constitutes an Eligible Rollover Distribution, a Distributee may direct the responsible Named
Fiduciary to have all or some portion of such payment (other than from a Post-Tax Account) paid in
the form of a Trustee Transfer, in accordance with procedures established by the responsible Named
Fiduciary, provided the responsible Named Fiduciary receives written notice of such direction with
specific instructions as to the Eligible Retirement Plan on or prior to the applicable Sweep Date
for payment. If the Participant does not transfer all of such payment, the minimum amount which
can be transferred is $500.



     10.06 Outstanding Loan



     Notwithstanding any other provision of this Article X, the portion of a Participant’s Account
that secures a loan to such Participant under Article IX may not be taken as a withdrawal.



48









 





     10.07 Spousal Consent



     Spousal Consent will not be required for any withdrawal.



     10.08 Required Withdrawals



     Notwithstanding any provision of the Plan to the contrary, the Payment Date of the Accrued
Benefit of a Participant who is a 5-percent owner (as defined in Section 416 of the Code), will not
be later than April 1 following the calendar year in which the Participant attains age 70-1/2 (with
required withdrawals to be made by each December 31 thereafter) and will comply with the
requirements of Section 401(a)(9) of the Code and the Treasury Regulations promulgated thereunder.



     10.09 Transfer of Accounts



     If a Participant transfers to an employment classification that causes him to be excluded from
active participation in this Plan and also eligible to participate in another defined contribution
plan maintained by the Employer or a Commonly Controlled Entity, the Administrator may cause the
Participant’s Accounts to be transferred to such other plan as of any Valuation Date. A transfer
of accounts under this Section 10.09 shall not be an Eligible Rollover Distribution.



     10.10 Withdrawals for Hurricane Victims



     (a) Hurricane Katrina. A Participant whose principal place of abode on August 28,
2005, was located in Louisiana, Mississippi, Alabama or Florida, and who sustained an economic loss
by reason of Hurricane Katrina, may withdraw up to $100,000 from his Account prior to January 1,
2007.



     (b) Hurricane Rita. A Participant whose principal place of abode on September 23,
2005, was located in Louisiana or Texas, and who sustained an economic loss by reason of Hurricane
Rita, may withdraw up to $100,000 from his Account prior to January 1, 2007.



     (c) Hurricane Wilma. A Participant whose principal place of abode on October 23, 2005
was located in Florida, and who sustained an economic loss by reason of Hurricane Wilma, may
withdraw up to $100,000 from his Account prior to January 1, 2007.



49









 





ARTICLE XI




Distributions On And After Termination of Employment



     11.01 Request for Distribution of Benefits



     (a) Request for Distribution. Subject to the other requirements of this Article, a
Participant may elect to have his or her vested Accrued Benefit paid to him or her beginning upon
any Settlement Date following his or her Termination of Employment by submitting a completed
distribution election in accordance with a procedure established by the responsible Named
Fiduciary. Such election form shall include or be accompanied by a notice which provides the
Participant with information regarding all optional times and forms of payment available. The
election must be submitted to the responsible Named Fiduciary by the Sweep Date that relates to the
Payment Date.



     (b) Failure to Request Distribution. If a Participant has a Termination of Employment
and fails to submit a distribution request in accordance with a procedure established by the
responsible Named Fiduciary by the last Payment Date permitted under this Article, his or her
vested Accrued Benefit shall be valued as of the Valuation Date which immediately precedes such
latest date of distribution (called the “Default Valuation Date”) and a notice of such deemed
distribution shall be issued to his or her last known address as soon as administratively possible.
If the Participant does not respond to the notice or cannot be located, his or her vested Accrued
Benefit determined on the Default Valuation Date shall be treated as a Forfeiture. If the
Participant subsequently files a claim, the amount forfeited (unadjusted for gains and losses)
shall be reinstated to his or her Accounts and distributed as soon as administratively feasible,
and such payment shall be accounted for by charging it against the Forfeiture Account or by a
contribution from the Employer of the affected Participant.



     11.02 Deadline for Distribution



     In addition to any other Plan requirements and unless the Participant elects otherwise, or
cannot be located, the Payment Date of a Participant’s vested Accrued Benefit shall be not later
than sixty (60) days after the latest of the close of the Plan Year in which: (i) the Participant
attains the earlier of age sixty-five (65) or his or her Normal Retirement Date; (ii) occurs the
tenth (10th) anniversary of the Plan Year in which the Participant commenced
participation; or (iii) the Participant had a Termination of Employment. However, if the amount of
the payment or the location of the Participant (after a reasonable search) cannot be ascertained by
that deadline, payment shall be made no later than sixty (60) days after the earliest date on which
such amount or location is ascertained. In any case, the Payment Date of the Accrued Benefit of a
Participant: (i) who is not an Employee; or (ii) who is an Employee and who is a 5-percent owner
(as defined in Section 416 of the Code), shall not be later than April 1 following the calendar
year in which the Participant attains age seventy and one-half (701/2) and each December 31
thereafter and shall comply with the requirements of Section 401(a)(9) of the Code and the Treasury
Regulations promulgated thereunder.



50









 





     11.03 Payment Form and Medium



     (a) General. A Participant’s vested Accrued Benefit shall be paid in the form of:




     (1) a single sum,




     (2) periodic installments as selected by the Participant, not to exceed 15 years, or




     (3) periodic distributions of at least $500.00, each in an amount designated by the
Participant but not to exceed two distributions per Plan Year.



     Within each Account used for funding a distribution, amounts shall be taken by type of
investment in direct proportion to the market value of the Participant’s interest in each
Investment Fund at the Trade Date for which the distribution is made.



     (b) Medium of Payment. Payments will generally be made in cash (generally by check);
alternatively, if the Participant elects a single sum distribution, a single sum payment will be
made, as directed by the Participant, in whole shares of Company Stock (to the extent his or her
distribution is funded from the Company Stock Fund).



     11.04 Small Amounts Paid Immediately



     If a Participant incurs a Termination of Employment and the Participant’s vested Accrued
Benefit is $1,000 or less, the Participant’s Accrued Benefit will be paid as a single sum as soon
as administratively possible, pursuant to such procedures as may be established by the
Administrator.



     11.05 Payment Within Life Expectancy



     The Participant’s payment election must be consistent with the requirement of Section
401(a)(9) of the Code that all payments are to be completed within a period not to exceed the lives
or the joint and last survivor life expectancy of the Participant and his or her Beneficiary.



     11.06 Continued Payment of Amounts in Payment Status on the Effective Date



     Any person who became a Participant prior to the Effective Date only because he or she had an
Accrued Benefit and who had commenced to receive payments prior to the Effective Date shall
continue to receive such payments in the same form and payment schedule under this Plan.



51









 





     11.07 TEFRA Transitional Rule



     Notwithstanding any other provisions of this Plan, distribution on behalf of any Participant
may be made in accordance with the following requirements (regardless of when such distribution
commences):



     (a) The distribution must have been one provided for in the Plan.



     (b) The distribution by the Plan is one which would not have disqualified the Plan under
Section 401(a)(9) of the Code as in effect prior to amendment by the Tax Equity and Fiscal
Responsibility Act of 1982 (“TEFRA”).



     (c) The distribution is in accordance with a method of distribution designated by the
Participant whose interest is being distributed or, if the Participant is deceased, by a
Beneficiary of such Participant.



     (d) Such designation was in writing, was signed by the Participant or the Beneficiary, and was
made before January 1, 1984.



     (e) The Participant had accrued a benefit under the Plan as of December 31, 1983.



     (f) The method of distribution designated by the Participant or the Beneficiary specifies the
time at which distribution will commence, the period over which distribution will be made, and in
the case of any distribution upon the Participant’s death, the Beneficiaries of the Participant
listed in order of priority.



     11.08 Direct Rollover



     With respect to any payment in excess of $200 hereunder which constitutes an Eligible Rollover
Distribution, a Distributee may direct the Administrator to have such payment (other than from a
Post-Tax Account) paid in the form of a Trustee Transfer, in accordance with procedures established
by the Administrator, provided the responsible Named Fiduciary receives written notice of such
direction with specific instructions as to the Eligible Retirement Plan on or prior to the
applicable Sweep Date for payment. If the Participant does not transfer all of such payment, the
minimum amount which can be transferred is $500.



     11.09 Delay



     Notwithstanding any other provision of the Plan, a payment will not be considered to be made
after the applicable Payment Date merely because actual payment is reasonably delayed for the
calculation and/or distribution of the benefit amount, or to ascertain the location of the payee,
if all payments due are actually made.



52









 





ARTICLE XII




Distribution of Accrued Benefits on Death



     12.01 Payment to Beneficiary



     On the death of a Participant prior to his or her Payment Date, his or her vested Accrued
Benefit shall be paid to the Beneficiary or Beneficiaries designated by the Participant in
accordance with the procedure established by the responsible Named Fiduciary. Death of a
Participant on or after his or her Payment Date shall result in payment to his or her Beneficiary
of whatever death benefit is provided by the form of payment in effect on his or her Payment Date.



     12.02 Beneficiary Designation



     (a) Each Participant may designate the Beneficiary who is to receive the Participant’s
remaining Accrued Benefit at his or her death. The Participant may change his or her designation
of Beneficiary by filing a new designation with the Administrator. Notwithstanding any designation
to the contrary, the Participant’s Beneficiary will be the Participant’s surviving Spouse, unless
such designation includes Spousal Consent. In the absence of Spousal Consent, a Participant will
be deemed to have designated his or her surviving Spouse as the Participant’s Beneficiary unless
and to the extent that such designation is inconsistent with a QDRO. If the Participant dies
leaving no Spouse and either: (1) the Participant failed to file a valid Beneficiary designation,
or (2) all persons designated as Beneficiary have predeceased the Participant, the Administrator
will direct the Trustee to distribute such Participant’s Accrued Benefit in a single sum to his or
her estate as soon as practicable following the Participant’s death.



     (b) Subject to the provisions of this Section, a Participant may designate a Beneficiary under
the Plan at any time by making the designation in the form and manner and at the time determined by
the Administrator. No such designation will be effective until and unless it is received by the
Administrator.



     (c) Subject to the provisions of this Section, a Participant may revoke a prior designation of
a Beneficiary at any time by making the revocation in the form and manner and at the time
determined by the Administrator. No such revocation will be effective until and unless it is
received by the Administrator.



     (d) Subject to the provisions of this Section, if a Participant designates his or her Spouse
as the Participant’s Beneficiary, except to the extent required by applicable law, that designation
will not be revoked or otherwise altered or affected by any:




     (1) change in the marital status of the Participant and such Spouse,




     (2) agreement between the Participant and such Spouse.



53









 





     (e) If a Participant designates his or her Spouse as the Participant’s Beneficiary, and the
Administrator receives a QDRO with respect to the marriage, separation or divorce of the
Participant and such Spouse, such Spouse will cease to be the Participant’s Beneficiary unless and
until the Participant again designates his or her Spouse as the Participant’s Beneficiary in
accordance with the provisions of this Section, except to the extent otherwise provided in the
QDRO.



     (f) A Participant’s Beneficiary may not be changed following the Participant’s death,
including, but not limited to, by a disclaimer otherwise valid under applicable law.



     (g) After a Participant’s death which occurs on or after the Effective Date, the Participant’s
Beneficiary will have the rights and options otherwise available under the Plan to Participants.
For example, a Beneficiary will have the right to exchange an Account among the Investment Funds.



     12.03 Benefit Election



     (a) Request for Distribution. In the event of a Participant’s death prior to his or
her Payment Date, a Beneficiary may elect to have the vested Accrued Benefit of a deceased
Participant paid to him or her beginning upon any Settlement Date following the Participant’s date
of death by submitting a completed distribution election in accordance with the procedure
established by the responsible Named Fiduciary. The election must be submitted to the responsible
Named Fiduciary by the Sweep Date that relates to the Settlement Date upon which payments are to
begin.



     (b) Failure to Request Distribution. In the event a Beneficiary fails to submit a
timely distribution request, his or her vested Accrued Benefit shall be valued as of the Valuation
Date which immediately precedes such latest date of distribution (called the “Default Valuation
Date”) and a notice of such deemed distribution shall be issued to his or her last known address as
soon as administratively possible. If the Beneficiary does not respond to the notice or cannot be
located, his or her vested Accrued Benefit determined on the Default Valuation Date shall be
treated as a Forfeiture. If the Beneficiary subsequently files a claim, the amount forfeited
(unadjusted for gains and losses) shall be reinstated to his or her Accounts and distributed as
soon as administratively feasible, and such payment shall be accounted for by charging it against
the Forfeiture or by a Contribution from the Employer of the affected Beneficiary.



     12.04 Payment Form



     In the event of a Participant’s death after his or her Payment Date, payment shall be made in
the form selected by the Participant. Otherwise, a Beneficiary shall be limited to the same form
and medium of payment to which the Participant was limited. Payments will generally be made in
cash (by check). Alternatively, if the Beneficiary elects an in-kind distribution, a single sum
payment will be made in a combination of cash and whole shares.



54









 





     12.05 Required Commencement of Distribution



     (a) General Rules. The provisions of this Section 12.05 will apply for purposes of
determining required minimum distributions for calendar years beginning with the 2003 calendar
year.




     (1) Precedence. The requirements of this Section 12.05 will take precedence over any
inconsistent provisions of the Plan.




     (2) Requirements of Treasury Regulations Incorporated. All distributions required
under this Section 12.05 will be determined and made in accordance with the Treasury
regulations under Section 401(a)(9) of the Internal Revenue Code.




     (3) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this
Section 12.05, distributions may be made under a designation made before January 1, 1984, in
accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA)
and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA.



     (b) Time and Manner of Distribution.




     (1) Required Beginning Date. The Participant’s entire interest will be distributed, or
begin to be distributed, to the Participant no later than the Participant’s required
beginning date.




     (2) Death of Participant Before Distributions Begin. If the Participant dies before
distributions begin, the Participant’s entire interest will be distributed, or begin to be
distributed, no later than as follows:




     (A) If the Participant’s surviving Spouse is the Participant’s sole designated
beneficiary, then, unless the Beneficiary makes an election pursuant to subsection
(E) below, distributions to the surviving Spouse will begin by December 31 of the
calendar year immediately following the calendar year in which the Participant died,
or by December 31 of the calendar year in which the Participant would have attained
age 70 1/2, if later.




     (B) If the Participant’s surviving Spouse is not the Participant’s sole
designated beneficiary, then, unless the Beneficiary makes an election pursuant to
subsection (E) below, the Participant’s entire interest will be distributed to the
designated beneficiary by December 31 of the calendar year containing the fifth
anniversary of the Participant’s death.




     (C) If there is no designated beneficiary as of September 30 of the year
following the year of the Participant’s death, the Participant’s entire interest
will be distributed by December 31 of the calendar year containing the fifth
anniversary of the Participant’s death.



55









 






     (D) If the Participant’s surviving Spouse is the Participant’s sole designated
beneficiary and the surviving Spouse dies after the Participant but before
distributions to the surviving Spouse begin, this Section 12.05(b)(2), other than
Section 12.05(b)(2)(A), will apply as if the surviving Spouse were the Participant.




     (E) Notwithstanding the provisions of subsections (A) and (B) above,
Beneficiaries may elect on an individual basis whether the life expectancy rule or
the 5-year rule in subsections (A) or (B) above applies to distributions after the
death of a Participant. The election must be made no later than the earlier of
September 30 of the calendar year in which distribution would be required to begin
under subsections (A) or (B) above, or by September 30 of the calendar year which
contains the fifth anniversary of the Participant’s (or, if applicable, surviving
Spouse’s) death. If the Beneficiary does not make an election under this subsection
(E), distributions will be made in accordance with subsections (A) or (B) above,
whichever is applicable.



     For purposes of this Section 12.05(b)(2) and Section 12.05(d), unless Section 12.05(b)(2)(D)
applies, distributions are considered to begin on the Participant’s required beginning date. If
Section 12.05(b)(2)(D) applies, distributions are considered to begin on the date distributions are
required to begin to the surviving Spouse under Section 12.05(b)(2)(A).



     If distributions under an annuity purchased from an insurance company irrevocably commence to
the Participant before the Participant’s required beginning date (or to the Participant’s surviving
Spouse before the date distributions are required to begin to the surviving Spouse under Section
12.05(b)(2)(A)), the date distributions are considered to begin is the date distributions actually
commence.




     (3) Forms of Distribution. Unless the Participant’s interest is distributed in the
form of an annuity purchased from an insurance company or in a single sum on or before the
required beginning date, as of the first distribution calendar year distributions will be
made in accordance with Sections 12.05 and 12.05(d). If the Participant’s interest is
distributed in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code
and the Treasury regulations.



     (c) Required Minimum Distributions During Participant’s Lifetime.




     (1) Amount of Required Minimum Distribution For Each Distribution Calendar Year.
During the Participant’s lifetime, the minimum amount that will be distributed for each
distribution calendar year is the lesser of:




     (A) the quotient obtained by dividing the Participant’s Account balance by the
distribution period in the Uniform Lifetime Table set forth in



56









 






Section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s age
as of the Participant’s birthday in the distribution calendar year; or




     (B) if the Participant’s sole designated beneficiary for the distribution
calendar year is the Participant’s Spouse, the quotient obtained by dividing the
Participant’s Account balance by the number in the Joint and Last Survivor Table set
forth in Section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s
and Spouse’s attained ages as of the Participant’s and Spouse’s birthdays in the
distribution calendar year.




     (2) Lifetime Required Minimum Distributions Continue Through Year of Participant’s
Death. Required minimum distributions will be determined under this Section 12.05 beginning
with the first distribution calendar year and up to and including the distribution calendar
year that includes the Participant’s date of death.



     (d) Required Minimum Distributions After Participant’s Death.




     (1) Death On or After Date Distributions Begin.




     (A) Participant Survived by Designated Beneficiary. If the Participant dies on
or after the date distributions begin and there is a designated beneficiary, the
minimum amount that will be distributed for each distribution calendar year after
the year of the Participant’s death is the quotient obtained by dividing the
Participant’s Account balance by the longer of the remaining life expectancy of the
Participant or the remaining life expectancy of the Participant’s designated
beneficiary, determined as follows:




     (i) The Participant’s remaining life expectancy is calculated using the
age of the Participant in the year of death, reduced by one for each
subsequent year.




     (ii) If the Participant’s surviving Spouse is the Participant’s sole
designated beneficiary, the remaining life expectancy of the surviving
Spouse is calculated for each distribution calendar year after the year of
the Participant’s death using the surviving Spouse’s age as of the Spouse’s
birthday in that year. For distribution calendar years after the year of
the surviving Spouse’s death, the remaining life expectancy of the surviving
Spouse is calculated using the age of the surviving Spouse as of the
Spouse’s birthday in the calendar year of the Spouse’s death, reduced by one
for each subsequent calendar year.




     (iii) If the Participant’s surviving Spouse is not the Participant’s
sole designated beneficiary, the designated beneficiary’s remaining life
expectancy is calculated using the age



57









 






 of the beneficiary in the year following the year of the Participant’s
death, reduced by one for each subsequent year.




     (B) No Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no designated beneficiary as of September 30 of the
year after the year of the Participant’s death, the minimum amount that will be
distributed for each distribution calendar year after the year of the Participant’s
death is the quotient obtained by dividing the Participant’s Account balance by the
Participant’s remaining life expectancy calculated using the age of the Participant
in the year of death, reduced by one for each subsequent year.




     (2) Death Before Date Distributions Begin.




     (A) Participant Survived by Designated Beneficiary. If the Participant dies
before the date distributions begin and there is a designated beneficiary, the
minimum amount that will be distributed for each distribution calendar year after
the year of the Participant’s death is the quotient obtained by dividing the
Participant’s Account balance by the remaining life expectancy of the Participant’s
designated beneficiary, determined as provided in Section 12.05(d)(1).




     (B) No Designated Beneficiary. If the Participant dies before the date
distributions begin and there is no designated beneficiary as of September 30 of the
year following the year of the Participant’s death, distribution of the
Participant’s entire interest will be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death.




     (C) Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin. If the Participant dies before the date distributions begin, the
Participant’s surviving Spouse is the Participant’s sole designated beneficiary, and
the surviving Spouse dies before distributions are required to begin to the
surviving Spouse under Section 12.05(b)(2)(A), this Section 12.05(d)(2) will apply
as if the surviving Spouse were the Participant.



     (e) Definitions.




     (1) Designated beneficiary. The individual who is designated as the
beneficiary under Section 12.02 of the Plan and is the designated beneficiary under Section
401(a)(9) of the Internal Revenue Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury
regulations.




     (2) Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the Participant’s death, the
first distribution calendar year is the calendar year immediately preceding the calendar
year which contains the Participant’s required beginning date. For



58









 






distributions beginning after the Participant’s death, the first distribution calendar
year is the calendar year in which distributions are required to begin under Section
12.05(b)(2). The required minimum distribution for the Participant’s first distribution
calendar year will be made on or before the Participant’s required beginning date. The
required minimum distribution for other distribution calendar years, including the required
minimum distribution for the distribution calendar year in which the Participant’s required
beginning date occurs, will be made on or before December 31 of that distribution calendar
year.




     (3) Life expectancy. Life expectancy as computed by use of the Single Life
Table in Section 1.401(a)(9)-9 of the Treasury regulations.




     (4) Participant’s Account balance. The Account balance as of the last
valuation date in the calendar year immediately preceding the distribution calendar year
(valuation calendar year) increased by the amount of any contributions made and allocated or
forfeitures allocated to the Account balance as of dates in the valuation calendar year
after the valuation date and decreased by distributions made in the valuation calendar year
after the valuation date. The Account balance for the valuation calendar year includes any
amounts rolled over or transferred to the Plan either in the valuation calendar year or in
the distribution calendar year if distributed or transferred in the valuation calendar year.




     (5) Required beginning date. The date specified in Section 11.02 of the Plan.



     12.06 Direct Rollover



     With respect to any cash payment in excess of $200 hereunder which constitutes an Eligible
Rollover Distribution, a Distributee may direct the Administrator to have such payment (other than
from a Post-Tax Account) paid in the form of a Trustee Transfer, in accordance with the procedure
established by the responsible Named Fiduciary, provided the responsible Named Fiduciary receives
written Notice of such direction with specific instructions as to the Eligible Retirement Plan on
or prior to the applicable Sweep Date for payment. If the Participant does not transfer all of
such payment, the minimum amount which can be transferred is $500.



59









 





ARTICLE XIII




Maximum Contributions



     13.01 Limit on Pre-Tax Contributions



     The aggregate elective deferrals (as defined in Section 402(g)(3) of the Code) made on behalf
of each Participant under the Plan for any Plan Year will not exceed:



     (a) the Contribution Dollar Limit, reduced by:



     (b) the sum of any of the following amounts that were contributed on behalf of the Participant
for the Plan Year under a plan, contract, or arrangement other than this Plan:




     (1) any employer contribution under a qualified cash or deferred arrangement (as
defined in Section 401(k) of the Code) to the extent not includable in the Participant’s
gross income for the taxable year under Section 402(e)(3) of the Code (determined without
regard to Section 402(g) of the Code);




     (2) any employer contribution to the extent not includable in the Participant’s gross
income for the taxable year under Section 402(h)(1)(B) of the Code (determined without
regard to Section 402(g) of the Code);




     (3) any employer contribution to purchase an annuity contract under Section 403(b) of
the Code under a salary reduction agreement (within the meaning of Section 3121(a)(5)(D) of
the Code); and




     (4) any elective employer contribution under Section 408(p)(2)(A)(i) of the Code;


provided that no contribution described in this subsection (b) will be taken into account for the
purpose of reducing the dollar limit in subsection (a), above, if the plan, contract, or
arrangement is not maintained by a Commonly Controlled Entity unless the Participant has filed a
notice with the Administrator not later than March 15 of the next Plan Year regarding such
contribution.




     13.02 Actual Deferral Percentage Test



     (a) The Plan will satisfy the actual deferral percentage test set forth in Section 401(k)(3)
of the Code and Treasury Regulation Section 1.401(k)-1(b), the provisions of which (and any
subsequent Internal Revenue Service guidance issued thereunder) are incorporated herein by
reference, each as modified by subsection (b), below. In accordance with Section 401(k)(3) of the
Code and Treasury Regulation Section 1.401(k)-1(b), as modified by subsection (b), below, the
actual deferral percentage for HCEs for any Plan Year will not exceed the greater of:




60











 






     (1) the actual deferral percentage for NHCEs for the current Plan Year multiplied by
1.25, or




     (2) the lesser of: (i) the actual deferral percentage for NHCEs for the current Plan
Year multiplied by 2; and (ii) the actual deferral percentage for NHCEs for the current Plan
Year plus 2%.



     (b) In performing the actual deferral percentage test described in subsection (a), above, the
following special rules will apply:




     (1) the deferral percentages of Participants who are covered by an agreement that the
Secretary of Labor finds to be a collective bargaining agreement between employee
representatives and an Employer will be disaggregated from the deferral percentages of other
Participants and the provisions of this Section 13.02 will be applied separately with
respect to each group.




     (2) Employees who have not become eligible to become Participants will be disregarded
in applying this Section 13.02.




     (3) The Administrator may permissively aggregate the Plan with other plans to the
extent permitted under Treasury Regulation Section 1.401(k)-1.



     13.03 Actual Contribution Percentage Test




     (a) The Plan will satisfy the actual contribution percentage test set forth in Section
401(m)(2) of the Code and Treasury Regulation Section 1.401(m)-1(b), the provisions of which (and
any subsequent Internal Revenue Service guidance issued thereunder) are incorporated herein by
reference, each as modified by subsection (b), below. In accordance with Section 401(m)(2) of the
Code and Treasury Regulation Section 1.401(m)-1(b), as modified by subsection (b), below, the
actual contribution percentage for HCEs for any Plan Year will not exceed the greater of:




     (1) the actual contribution percentage for NHCEs for the current Plan Year multiplied
by 1.25, or




     (2) the lesser of: (i) the actual contribution percentage for NHCEs for the current
Plan Year multiplied by 2; and (ii) the actual contribution percentage for NHCEs for the
current Plan Year plus 2%.



     (b) In performing the actual contribution percentage test described in subsection (a), above,
the following special rules will apply:




     (1) the limit imposed by the actual contribution percentage test will apply only to
HCEs and NHCEs who are not covered by an agreement that the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and an Employer;



61









 







     (2) Employees who have not become eligible to become Participants will be disregarded
in applying this Section 13.03.




     (3) The Administrator may permissively aggregate the Plan with other plans to the
extent permitted under Treasury Regulation Section 1.401(m)-1.



     13.04 Maximum Prohibition




     (a) In addition to any other limitation set forth in the Plan and notwithstanding any other
provision of the Plan, in no event will the annual additions allocated to a Participant’s Account
under the Plan, together with the aggregate annual additions allocated to the Participant’s
accounts under all other defined contribution plans required to be aggregated with the Plan under
the provisions of Section 415 of the Code, exceed the maximum amount permitted under Section 415 of
the Code, the provisions of which are incorporated herein by reference.



     (b) If the limitations imposed by this Section 13.04 apply to a Participant who is entitled to
annual additions under one or more tax-qualified plans with which the Plan is aggregated for
purposes of Section 415 of the Code, the annual additions under the Plan and such other plan or
plans will be reduced in the following order, to the extent necessary to prevent the Participant’s
benefits and/or annual additions from exceeding the limitations imposed by this Section:




     (1) All other defined contribution plans in which the Participant participated and with
which the Plan is aggregated for purposes of Section 415 of the Code, in an order based on
the reverse chronology of the annual additions to the plans, beginning with the last annual
addition and ending with the first annual addition; and




     (2) the Plan.



     (c) Effective for Limitations Years beginning on or after July 1, 2007, for purposes of
applying the limitations of Code Section 415, all defined contribution plans (without regard to
whether a plan has been terminated) ever maintained by the Employer (or a predecessor employer)
under which the Participant receives annual additions are treated as one defined contribution plan.
For purposes of this subsection, “Employer” means the Employer that adopts this Plan and all
members of a controlled group or an affiliated service group that includes the Employer (within the
meaning of Code Sections 414(b), (c), (m) or (o)), except that the determination shall be made by
applying Code Section 415(h), and shall take into account tax exempt organizations under Treasury
Regulation Section 1.414(c) 5, as modified by Treasury Regulation Section 1.415(a)-1(f)(1).



     Two or more defined contribution plans that are not required to be aggregated pursuant to Code
Section 415(f) and the Regulations thereunder as of the first day of a Limitation Year do not fail
to satisfy the requirements of Code Section 415 with respect to a Participant for the Limitation
Year merely because they are aggregated later in that



62









 




Limitation Year, provided that no Annual Additions are credited to the Participant’s Account
after the date on which the plans are required to be aggregated.




     (d) Effective for Limitation Years beginning on or after July 1, 2007, annual additions for
purposes of Code Section 415 shall not include: (1) restorative payments, (2) the direct transfer
of a benefit or employee contributions from a qualified plan to this Plan; (3) rollover
contributions (as described in Code Sections 401(a)(31), 402(c)(1), 403(a)(4), 403(b)(8),
408(d)(3), and 457(e)(16)); (4) repayments of loans made to a Participant from the Plan; and (5)
repayments of distribution amounts described in Code Section 411(a)(7)(B) and Code Section
411(a)(3)(D) or repayment of contributions to a governmental plan (as defined in Code Section
414(d)) as described in Code Section 415(k)(3), as well as Employer restorations of benefits that
are required pursuant to such repayments.



     13.05 Imposition of Limitations




     Notwithstanding anything contained in the Plan to the contrary, the Administrator may, in his
or her sole discretion, limit the amount of a Participant’s Pre-Tax Contributions during a Plan
Year to the extent that he or she determines that the imposition of such a limit is necessary or
appropriate to ensure that the Plan will satisfy the requirements of this Article. Any such
limitation may be imposed on a Participant at any time and without advance notice to the
Participant, and regardless of whether the Participant is covered by a collective bargaining
agreement between employee representatives and an Employer. The Administrator can impose
limitations beyond those that are absolutely necessary to satisfy the requirements of this Article
and may, in his or her sole discretion, impose more restrictive limitations that are designed to
enable the Plan to satisfy those requirements by a reasonable margin. Notwithstanding anything
contained in the Plan to the contrary, in the event that the Contributions to be allocated to a
Participant for a particular payroll period would cause the limitations of Section 13.04 to be
exceeded with respect to a Participant, the Matching Contributions which otherwise would be made
with respect to such Participant for such period will be first reduced or eliminated so that the
limitations of Section 13.04 are not exceeded.



     13.06 Return of Excess Annual Additions, Deferrals and Contributions




     (a) If a Participant’s Pre-Tax Contributions cause the annual additions allocated to a
Participant’s Account to exceed the limit imposed by Section 13.04, such excess contributions (plus
or minus any gains or losses thereon) will be returned to the Participant in the following order:
(i) Pre-Tax Contributions for which no Matching Contributions were made; and (ii) Pre-Tax
Contributions for which Matching Contributions were made. Contributions returned pursuant to this
subsection (a) will be disregarded in applying the limits imposed by Sections 13.01 through 13.03.



     (b) After any excess annual additions (plus or minus any gains or losses thereon) with respect
to a Plan Year have been distributed as provided in subsection (a), above, if a Participant’s
aggregate elective deferrals (as defined in Section 402(g)(3)



63









 




of the Code) with respect to a Plan Year exceed the Contribution Dollar Limit, the following
rules will apply to such excess (the Participant’s “excess deferrals”):





     (1) Not later than the first January 31 following the close of the Plan Year, the
Participant may allocate to the Plan all or any portion of the Participant’s excess
deferrals for the Plan Year (provided that the amount of the excess deferrals allocated to
the Plan will not exceed the amount of the Participant’s Pre-Tax Contributions to the Plan
for the Plan Year that have not been withdrawn or distributed) and will notify the
Administrator of any amount allocated to the Plan.




     (2) If excess deferrals have been made to the Plan on behalf of a Participant for a
Plan Year, the Participant will be deemed to have allocated such excess deferrals to the
Plan pursuant to subsection (b)(1), above, and the Plan will distribute such excess
deferrals pursuant to subsection (b)(3), below.




     (3) As soon as practicable, but in no event later than the first April 15th
following the close of the Plan Year, the Plan will distribute to the Participant the amount
allocated or deemed allocated to the Plan under subsection (b)(1) or (b)(2), above (plus or
minus any gains or losses thereon). The distribution described in this subsection (b)(3)
will be made notwithstanding any other provision of the Plan.



     (c) After any excess annual additions (plus or minus any gains or losses thereon) with respect
to a Plan Year have been distributed as provided in subsection (a), above, after any excess
deferrals (plus or minus any gains or losses thereon) with respect to a Plan Year have been
distributed as provided in subsection (b), above, and after any action pursuant to Section 13.05
with respect to the Plan Year has been taken, if the actual deferral percentage for a Plan Year
beginning prior to January 1, 1999 of HCEs exceeds the limit imposed by Section 13.02, the
following rules apply:




     (1) The amount of the excess contributions (determined in accordance with Section
401(k)(8)(B) of the Code and subparagraph (2), below), plus or minus any gains or losses
thereon (including, in the discretion of the Administrator, gains or losses attributable to
the “gap period” within the meaning of Treasury Regulation Section 1.401(k)-1(f)(4)), will
be distributed to HCEs, beginning with the HCE with the highest dollar amount of Pre-Tax
Contributions for the Plan Year in an amount required to cause that HCE’s Pre-Tax
Contributions to equal the dollar amount of the Pre-Tax Contributions of the HCE with the
next highest dollar amount of Pre-Tax Contributions (or in such lesser amount that is equal
to the total amount of excess contributions). The process described in the preceding
sentence will continue until the reduction equals the total excess contributions made to the
Plan.




     (2) The distribution described in subparagraph (A), above, will be made as soon as
practicable, but in no event later than the close of the Plan Year



64









 







     following the close of the Plan Year with respect to which the excess contributions
were made.




     (3) The gains or losses on excess contributions will be determined by multiplying the
total annual earnings (positive or negative) for the Plan Year in the Participant’s Pre-Tax
Account by the following fraction:




     (A) The numerator of the fraction will be the amount of the excess
contributions.




     (B) The denominator of the fraction will be the value of the Participant’s
Pre-Tax Account as of the last day of the Plan Year (or at the end of the gap
period, if elected by the Company), reduced by any positive earnings (or increased
by any negative earnings) credited to the Participant’s Pre-Tax Account for the Plan
Year (and for the gap period, if elected by the Company).




     (C) Notwithstanding the preceding provisions of this subparagraph , in the
discretion of the Administrator, the gains and losses on excess contributions will
be determined in accordance with any method permitted under the Code and the
applicable Treasury Regulations.




     (4) The excess contributions to the Plan will be determined in accordance with Section
401(k)(8)(B) of the Code by performing the hypothetical calculation described in this
subparagraph (2). The actual deferral percentage of the HCE with the highest individual
actual deferral percentage will be reduced to the extent necessary to cause his or her
actual deferral percentage to equal the actual deferral percentage of the HCE with the
second highest individual actual deferral percentage (or, if it would result in a lesser
reduction, to the extent necessary to cause the Plan to satisfy the actual deferral
percentage test under Section 13.02). The excess contribution to the Plan is the amount by
which the Pre-Tax Contributions of the HCE with the highest individual actual deferral
percentage would have been reduced after the hypothetical reduction in actual deferral
percentage described in the preceding sentence. This process will continue until no excess
contributions remain.




The distribution described in subparagraph (1), above, will be made notwithstanding any
other provision of the Plan. The amount distributed pursuant to subparagraph (1), above,
for a Plan Year with respect to a Participant will be reduced by any excess deferral
previously distributed from the Plan to such Participant for the Participant’s taxable year
ending with or within such Plan Year.



     (d) If a Participant’s Pre-Tax Contributions (plus or minus any gains or losses thereon) are
returned to him pursuant to the provisions of this Section 13.06, any Matching Contributions (plus
or minus any gains or losses thereon) with respect to such returned Pre-Tax Contributions will be
immediately forfeited. Notwithstanding the preceding sentence, if a Participant’s Pre-Tax
Contributions are treated as Catch-up



65









 




Contributions, any Matching Contributions (plus or minus any gains or losses thereon) with
respect to such Pre-Tax Contributions will (1) be forfeited if such Pre-Tax Contributions are
treated as Catch-up Contributions because of the limit imposed by Section 13.04, or (2) not be
forfeited if such Pre-Tax Contributions are treated as Catch-up Contributions because of the
Contribution Dollar Limit. Any such forfeitures will be applied to reduce the Company’s obligation
to make Matching Contributions pursuant to Article IV.




     (e) After any excess deferrals (plus or minus any gains or losses thereon), and any excess
contributions (plus or minus any gains or losses thereon), with respect to a Plan Year have been
distributed and/or re-characterized, in accordance with subsections (a), (b), (c), and (d), above,
and after any action pursuant to Section 13.05 with respect to the Plan Year has been taken, if the
contribution percentage for a Plan Year beginning prior to January 1, 1999, of HCEs exceeds the
actual contribution percentage limit imposed by Section 13.03, the following rules will apply:




     (1) The amount of the excess aggregate contributions for the Plan Year (determined in
accordance with Section 401(m)(6)(B) of the Code and subparagraph (3), below), plus or minus
any gains or losses thereon (including, in the discretion of the Company, gains or losses
attributable to the “gap period” within the meaning of Treasury Regulation Section
1.401(m)-1(e)(3)), will be distributed (or, if forfeitable, will be forfeited) as soon as
practicable and in any event before the close of the Plan Year following the close of the
Plan Year with respect to which the excess aggregate contributions were made.




     (2) The gains or losses on excess aggregate contributions will be determined by
multiplying the total annual earnings (positive or negative) for the Plan Year in the
Participant’s Matching Account by the following fraction:




     (A) The numerator of the fraction will be the amount of the excess aggregate
contributions.




     (B) The denominator of the fraction will be the value of the Participant’s
Matching Account as of the last day of the Plan Year (or at the end of the gap
period, if elected by the Company), reduced by any positive earnings (or increased
by any negative earnings) credited to the Participant’s Matching Account for the
Plan Year (and for the gap period, if elected by the Company).




Notwithstanding the preceding provisions of this subparagraph (B), in the discretion
of the Administrator, the gains and losses on excess contributions will be
determined in accordance with any method permitted under the Code and the applicable
Treasury Regulations.




     (3) Any distribution in accordance with subparagraph (1), above, will be made to HCEs,
beginning with the HCE with the highest dollar amount of Matching Contributions for the Plan
Year in an amount required to cause that



66









 






HCE’s Matching Contributions to equal the dollar amount of the Matching Contributions
of the HCE with the next highest dollar amount of Matching Contributions (or in such lesser
amount that is equal to the total amount of excess aggregate contributions). This process
will continue until the reduction equals the total excess aggregate contributions made to
the Plan. Such distributions will be made notwithstanding any other provision of the Plan.




     (4) The excess aggregate contributions to the Plan will be determined in accordance
with Section 401(m)(6)(B) of the Code by performing the hypothetical calculation described
in this subparagraph (4). The actual contribution percentage of the HCE with the highest
individual actual contribution percentage will be reduced to the extent necessary to cause
his or her actual contribution percentage to equal the actual contribution percentage of the
HCE with the second highest individual actual contribution percentage (or, if it would
result in a lesser reduction, to the extent necessary to cause the Plan to satisfy the
actual contribution percentage under Section 13.03). The excess aggregate contribution to
the Plan is the amount by which the Matching Contributions on behalf of the HCE with the
highest individual actual contribution percentage would have been reduced after the
hypothetical reduction in actual contribution percentage described in the preceding
sentence. This process will continue until no excess aggregate contributions remain.




The determination of the excess aggregate contributions under this subsection (e) for
any Plan Year will be made after taking the measures called for by the preceding subsections
of this Section 13.06.



     (f) Notwithstanding anything in this Section 13.06 to the contrary, the Company shall
distribute or forfeit gains or losses attributable to the “gap period.” However, the distribution
of excess contributions or excess aggregate contributions is not required to include the income
allocable thereto for a period that is more than 7 days before the distribution.



     (g) Effective for Limitation Years beginning on or after July 1, 2007, if the annual additions
are exceeded for any Participant, then the Plan shall correct such excess in accordance with the
Employee Plans Compliance Resolution System (EPCRS) as set forth in Revenue Procedure 2008-50 or
any superseding IRS guidance.



     13.07 Incorporation by Reference




     Each incorporation by reference in this Article XIII of the provisions of Sections 401(k)(3),
(m)(2), (m)(9) and 415 of the Code, and the specific underlying regulations thereunder, includes
this incorporation by reference to any subsequent Internal Revenue Service guidance issued
thereunder.



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ARTICLE XIV




Custodial Arrangements



     14.01 Custodial Agreement




     The Senior Vice President may enter into one or more Custodial Agreements to provide for the
holding, investment and payment of Plan assets, or direct by execution of an insurance contract
that all or a specified portion of the Plan’s assets be held, invested and paid under such a
contract. All Custodial Agreements, as from time to time amended, shall continue in force and
shall be deemed to form a part of the Plan. Subject to the requirements of the Code and ERISA, the
Senior Vice President may cause assets of the Plan which are securities to be held in the name of a
nominee or in street name provided such securities are held on behalf of the Plan by:



     (a) a bank or trust company that is subject to supervision by the United States or a State, or
a nominee of such bank or trust company;



     (b) a broker or dealer registered under the Securities Exchange Act of 1934, or a nominee of
such broker or dealer; or



     (c) a “clearing agency” as defined in Section 3(a)(23) of the Securities Exchange Act of 1934,
or its nominee.



     14.02 Selection of Custodian




     The Management Committee shall select, remove or replace the Custodian in accordance with the
Custodial Agreement. The subsequent resignation or removal of a Custodian and the approval of its
accounts shall all be accomplished in the manner provided in the Custodial Agreement.



     14.03 Custodian’s Duties




     Except as provided in ERISA, the powers, duties and responsibilities of the Custodian shall be
as stated in the Custodial Agreement, and unless expressly stated or delegated to the Custodian
(with the Custodian’s acceptance), nothing contained in this Plan shall be deemed by implication to
impose any additional powers, duties or responsibilities upon the Custodian. All Employer
Contributions and Rollover Contributions shall be paid into the Trust, and all benefits payable
under the Plan shall be paid from the Trust, except to the extent such amounts are paid to a
Custodian other than the Trustee. An Employer shall have no rights or claims of any nature in or
to the assets of the Plan except the right to require the Custodian to hold, use, apply and pay
such assets in its hands, in accordance with the directions of the Management Committee, for the
exclusive benefit of the Participants and their Beneficiaries, except as hereinafter provided.



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     14.04 Separate Entity




     The Custodial Agreement under this Plan from its inception shall be a separate entity aside
and apart from Employers or their assets, and the corpus and income thereof shall in no event and
in no manner whatsoever be subject to the rights or claims of any creditor of any Employer.



     14.05 Plan Asset Valuation




     As of each Valuation Date, the Unit Value of the Plan’s assets held or posted to an Investment
Fund shall be determined by the Management Committee or the Custodian, as appropriate.



     14.06 Right of Employers to Plan Assets




     The Employers shall have no right or claim of any nature in or to the assets of the Plan
except the right to require the Custodian to hold, use, apply, and pay such assets in its
possession in accordance with the Plan for the exclusive benefit of the Participants or their
Beneficiaries and for defraying the reasonable expenses of administering the Plan; provided, that:



     (a) if the Plan receives an adverse determination with respect to its initial qualification
under Sections 401(a), 401(k) and 401(m) of the Code, Contributions conditioned upon the
qualification of the Plan shall be returned to the appropriate Employer within one (1) year of such
denial of qualification; provided, that the application for determination of initial qualification
is made by the time prescribed by law for filing the respective Employer’s return for the taxable
year in which the Plan is adopted, or by such later date as is prescribed by the Secretary of the
Treasury under Section 403(c)(2)(B) of ERISA;



     (b) if, and to the extent that, deduction for a Contribution under Section 404 of the Code is
disallowed, Contributions conditioned upon deductibility shall be returned to the appropriate
Employer within one (1) year after the disallowance of the deduction;



     (c) if, and to the extent that, a Contribution is made through mistake of fact, such
Contribution shall be returned to the appropriate Employer within one year of the payment of the
Contribution; and



     (d) any amounts held suspended pursuant to the limitations of Section 415 of the Code shall be
returned to the Employers upon termination of the Plan.



     All Contributions made hereunder are conditioned upon the Plan being qualified under Sections
401(a) or 401(k) and 401(m) of the Code and a deduction being allowed for such contributions under
Section 404 of the Code. Pre-Tax and Post-Tax Contributions returned to an Employer pursuant to
this Section shall be paid to the Participant for whom contributed as soon as administratively
convenient. If these provisions result in the return of Contributions after such amounts have been
allocated



69









 




to Accounts, such Accounts shall be reduced by the amount of the allocation attributable to
such amount, adjusted for any losses or expenses.





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ARTICLE XV




Administration and Investment Management



     15.01 General




     The Company, through the authority vested in the Board of Directors, has appointed the
Management Resources and Compensation Committee of the Board of Directors to act on behalf of the
whole Board of Directors of the Company, and the Board of Directors has appointed, by separate
documentation, the Senior Vice President, and has enabled him or her to have the power and
authority to act, to the extent delegated to such person, on behalf of the Company (and therefore
all Employers), with respect to matters which relate to the Plan and Trust, but not on behalf of
the Plan and Trust. Furthermore, the Company has adopted the Plan and Trust, thereby:



     (a) appointing an Administrator and enabling it to have the power and authority to act, to the
extent provided in the Plan or Trust, on behalf of the Plan or Trust, but not on behalf of the
Company;



     (b) appointing a Management Committee, and enabling it to have the power and authority to act,
to the extent provided in the Plan or Trust, on behalf of the Plan or Trust with respect to the
management of the Plan’s assets, but not on behalf of the Company;



     (c) enabling the Senior Vice President acting in his/her capacity as an Officer of the Company
to have the power and authority to act, to the extent provided in and the manner provided in the
Plan or Trust, on behalf of the Company, but not on behalf of the Plan or Trust; and



     (d) delegating to the Management Resources and Compensation Committee of the Board of
Directors (the “Compensation Committee”), acting on behalf of the full Board of Directors of the
Company, the power and authority to act, to the extent provided in and the manner provided in the
Plan or Trust, on behalf of the Company, but not on behalf of the Plan or Trust.



     15.02 Senior Vice President Authority to Act as Employer with Respect to the Plan and Trust




     The Senior Vice President has the following authority and control and such other authority and
control as shall be granted to it, from time to time, to act on behalf of the Company:



     (a) amend the Plan and/or Trust to the extent permitted and under the limitations described in
18.01(c). This authority to amend the Plan is granted to the Senior Vice President in the
following situations:



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     (1) any change to the Plan or Trust required by a change in the law or regulations
governing the Plan and Trust in order to maintain the continued tax exempt status of the
Plan and Trust or to maintain compliance with applicable laws and regulations;




     (2) any changes which would serve to ease the administrative convenience of the Plan
for the Administrator, provided that such amendment would not result in a substantial
increase in the cost of the Plan to the Company or a substantial increase in the potential
liability to the Company with respect to the Plan or the Trust; or




     (3) any amendment needed to facilitate the transition of employees following an
acquisition or other corporate transaction in which it is necessary to designate which
employee groups are eligible to participate in the Plan and/or any issues with respect to
the granting of service credit for prior employment to the extent permitted in the Plan;



     (b) select, monitor and remove, as necessary, consultants, actuaries, underwriters, insurance
companies, third party administrators, or other service providers, and to appoint and remove any
such person as a Named Fiduciary, and determine and delegate to them their duties and
responsibilities, either directly or by the adoption of Plan provisions which specify such duties
and responsibilities (the provisions of the Plan documents will control in the case of a conflict);



     (c) appoint and consult with legal counsel, investment advisors, independent consulting or
evaluation firms, accountants, actuaries, or other advisors, as necessary, to perform its
functions;



     (d) determine what expenses, if any, related to the operation and administration of the Plan
and the investment of Plan assets, may be paid from Plan assets, subject to applicable law;



     (e) report to the CEO any Plan funding or investment policies of significance to the Company;



     (f) review with the CEO any proposals which would be submitted to the Board of Directors; and



     (g) take any other actions necessary or incidental to the performance of the above-stated
powers and duties.



     The Senior Vice President shall not be a Named Fiduciary whenever he or she acts on behalf of
the Company.



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     15.03 Management Resources and Compensation Committee of the Board of Directors Authority to
Act as Employer with Respect to the Plan and Trust.



     The Management Resources and Compensation Committee of the Board of Directors of the Company
(the “Compensation Committee”), acting on behalf of the whole Board of Directors of the Company,
has the following authority and control and such other authority and control as shall be granted to
it, from time to time, to act on behalf of the Company:



     (a) amend or terminate the Plan and/or Trust, in part or completely to the extent permitted
under the terms the Plan and the Trust;



     (b) establish such policies and make such other delegations or designations necessary or
incidental to the Company’s sponsorship of the Plan or to facilitate administration of the Plan;



     (c) determine the funding policies of the Plan and related matters;



     (d) appoint the Plan Administrator to act within the duties and responsibilities set forth in
Section 15.21; and



     (e) take any other actions necessary or incidental to the performance of the above-stated
powers and duties.



     The Compensation Committee shall not be a Named Fiduciary whenever it acts on behalf of the
Company.



     15.04 Management Committee and Administrator as Named Fiduciaries for the Plan.



     (a) The Management Committee, acting on behalf of the Plan or Trust and subject to subsection
(b) hereof, shall be a Named Fiduciary with respect to the authority to manage and control the
administration and operation of the Plan, including without limitation, the management and control
with respect to the operation and administration of the Plan contained in an agreement with a Named
Fiduciary but only to the extent it has been specifically designated in such agreement as being the
responsibility of the Administrator, an Employer, the Company, or any employee, member or delegate
of any of them.



     (b) Notwithstanding any other term or provision of the Plan, Trust, or an agreement with a
Named Fiduciary, the Management Committee shall cease to be a Named Fiduciary with respect to some
specified portion of the operation and administration of the Plan or Trust, to the extent that a
Named Fiduciary is designated pursuant to the procedure in the Plan or Trust to severally have
authority to manage and control such portion of the operation and administration of the Plan or
Trust.



     (c) To the extent that administrative functions with respect to the Plan are delegated to the
Administrator pursuant to Section 15.10 of the Plan (and pursuant to



73









 




Sections 15.20 and 15.21, if a separate Plan Administrator apart from the Administrator is not
delegated the responsibilities under Section 15.21), the Administrator shall be the Named Fiduciary
with respect to those responsibilities under the Plan, and the Management Committee shall cease to
be a Named Fiduciary with respect to the responsibilities so delegated.




     15.05 Management Committee as Named Fiduciary for the Trust




     The Management Committee, acting on behalf of the Plan or Trust shall be a Named Fiduciary
with respect to its authority to manage and control the Plan’s assets, but only to the extent not
inconsistent with the Plan or Trust.



     15.06 Actions




     (a) Any action by the Administrator on behalf of this Plan or Trust involving its authority to
manage and control the operation and administration of the Plan or Trust shall be treated as an
action of a Named Fiduciary under this Plan.



     (b) Any action by the Management Committee on behalf of this Plan or Trust involving its
authority to manage and control the Plan’s assets shall be treated as an action of a Named
Fiduciary under this Plan.



     (c) Where reference is made in this Plan (or where the Senior Vice President designates in
writing) that its action is on behalf of the Company, the Senior Vice President shall be acting
only on behalf of the Company and not as a Named Fiduciary.



     (d) The Compensation Committee, in exercising the duties it is delegated pursuant to Section
15.03 of the Plan, is acting on behalf of the Company and not as a Named Fiduciary.



     (e) Except as provided in Section 15.23, the Administrator or the Management Committee may, in
writing delivered to the Trustee, empower 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
Administrator or the Management Committee could have acted.



     15.07 Procedures for Designation of a Named Fiduciary




     The Compensation Committee, acting on behalf of the Company, may from time to time, designate
a person to be a Named Fiduciary with respect to management and control of the operation and
administration of the Plan or the management and control of the Plan’s assets. Such designation
shall specify the person designated by name and either: (a) specify the management and control
authority with respect to which the person will be a Named Fiduciary; or (b) incorporate by
reference an agreement with such person to provide services to or on behalf of the Plan or Trust
and use such agreement as a means for specifying the management and control authority with respect
to which such person will be a Named Fiduciary. No person who is designated as a Named Fiduciary
hereunder must consent to such designation, nor shall it be



74









 




necessary for the Compensation Committee to seek such person’s acquiescence. The authority to
manage and control, which any person who is designated to be a Named Fiduciary hereunder may have,
shall be several and not joint with the Administrator or the Management Committee, and shall result
in the Administrator or the Management Committee no longer being a Named Fiduciary with respect to,
nor having any longer, such authority to manage and control. On and after the designation of a
person as a Named Fiduciary, the Employer, the Compensation Committee, the Administrator, the
Management Committee, and any other Named Fiduciary with respect to the Plan or Trust, shall have
no liability for the acts (or failure to act) of any such Named Fiduciary except to the extent of
its co-Fiduciary duty under ERISA.




     15.08 Compensation




     The Administrator and the Management Committee, acting on behalf of the Plan or Trust, shall
serve without compensation for its services as such.



     15.09 Discretionary Authority of each Named Fiduciary




     Each Named Fiduciary on behalf of the Plan and Trust will enforce the Plan and Trust in
accordance with their terms. Each Named Fiduciary shall have full and complete authority,
responsibility and control (unless an allocation has been made to another Named Fiduciary in which
case such Named Fiduciary shall have such authority, responsibility and control) over that portion
of the management, administration, and operation of the Plan or Trust allocated to such Named
Fiduciary, including, but not limited to, the authority and discretion to do the following. In the
absence of a delegation pursuant to the terms of the Plan (including the delegation to the
Administrator in Section 15.10 and the delegation to the Plan Administrator in Section 15.21), the
Senior Vice President shall exercise this authority on behalf of the Plan and/or Trust:



     (a) formulate, adopt, issue and apply procedures and rules and change, alter or amend such
procedures and rules in accordance with law and as may be consistent with the terms of the Plan or
Trust;



     (b) specify the basis upon which payments are to be made under the Plan and, as the final
appeals Fiduciary under Section 503 of ERISA, to make a final determination, based upon the
information known to the Named Fiduciary within the scope of its authority and control as a Named
Fiduciary, based upon determinations made and such other information made available from an
Employer plus such final determinations made by each other Named Fiduciary within the scope of its
authority and control, as are determined to be relevant to the final appeals Fiduciary;



     (c) exercise such discretion as may be required to construe and apply the provisions of the
Plan or Trust, subject only to the terms and conditions of the Plan or Trust;



     (d) interpret and construe the provisions of the Plan, to make regulations and settle disputes
described above which are not inconsistent with the terms thereof;



75









 





     (e) settle or compromise any litigation against the Plan or a Fiduciary with respect to which
the Plan has an indemnity obligation;



     (f) create a legal remedy to the Plan with respect to a Participant or Beneficiary, or to a
Participant or Beneficiary, for any loss incurred (whether restitution or opportunity losses) by
the Plan on behalf of such Participant or Beneficiary, or by such Participant or Beneficiary, due
to a breach of Fiduciary duty to the Plan by a Named Fiduciary or other error (whether negligent or
willful) which the Management Committee determines is a substantial contributing factor to such
loss (or a portion of such loss); and



     (g) take all necessary and proper acts as are required for such Named Fiduciary to fulfill its
duties and obligations under the Plan or Trust.



     15.10
Responsibility and Powers of the Administrator Regarding Administration of the
Plan


     The Administrator shall have full and complete authority, responsibility and control (unless
an allocation has been made to another Named Fiduciary in which case such Named Fiduciary shall
have such authority, responsibility and control only if specifically provided) over that portion of
the management, administration, and operation of the Plan or Trust allocated to the Administrator
and the power to act on behalf of the Plan or Trust, including, but not limited to, the authority
and discretion to:



     (a) appoint and compensate such specialists (including attorneys, actuaries and accountants)
to aid it in the administration of the Plan, and arrange for such other services, as the
Administrator considers necessary or appropriate in carrying out the provisions of the Plan;



     (b) appoint and compensate an independent outside accountant to conduct such audits of the
financial statements of the Trust as the Administrator considers necessary or appropriate;



     (c) assure that the Plan does not violate any provisions of ERISA limiting the acquisition or
holding of Company Stock;



     (d) act as the Fiduciary responsible for monitoring the confidentiality and independent
Fiduciary requirements associated with Company Stock in order for the Plan to qualify as a Section
404 plan under Department of Labor Regulations; and



     (e) take all necessary and proper acts as are required for the Administrator to fulfill its
duties and obligations under the Plan or Trust.



     15.11 Allocations and Delegations of Responsibility




     (a) Delegations. Each Named Fiduciary may designate persons (other than a Named
Fiduciary) to carry out Fiduciary responsibilities (other than trustee responsibilities as
described in Section 405(c)(3) of ERISA) it may have with respect to



76









 




the Plan or Trust and make a change of delegated responsibilities. Such delegation shall
specify the delegated person by name and either: (a) specify the discretionary authority with
respect to which the person will be a Fiduciary; or (b) incorporate by reference an agreement with
such Named Fiduciary to provide services to the Plan or Trust on behalf of the delegating Named
Fiduciary as a means of specifying the discretionary authority with respect to which such person
will be a Fiduciary. No person (other than an investment manager (as defined in Section 3(38) of
ERISA) to whom Fiduciary responsibility has been delegated must consent to being a Fiduciary nor
shall it be necessary for the Named Fiduciary to seek such person’s acquiescence; however, where
such person has not contractually accepted the responsibility delegated, he or she must be given
notification of the services to be performed and, in either case, will be deemed to have accepted
such Fiduciary responsibility if he or she performs the services described for thirty (30) days or
more without specific objection thereto. The discretionary authority any person who is delegated
Fiduciary responsibilities hereunder may have shall be several and not joint with the Named
Fiduciary delegating and each other Named Fiduciaries. A delegation of Fiduciary responsibility to
a person which is not implemented in the manner set forth herein shall not be void; however,
whether the delegating Named Fiduciary shall have joint liability for acts of such person shall be
determined by applicable law.




     (b) Allocations. The Compensation Committee, acting on behalf of the Company, may
allocate Fiduciary responsibilities (other than trustee responsibilities described in Section
405(c)(3) of ERISA) among Named Fiduciaries when it designates a Named Fiduciary in the manner
described in Section 15.07, or may reallocate Fiduciary responsibilities among existing Named
Fiduciaries by action of the Compensation Committee in accordance with Sections 15.06 and 15.07;
provided each such Named Fiduciary is given notice of the services, management and control
authority allocated to it either by way of an amendment to the Plan, Trust or a contract with such
person, or by way of correspondence from the Compensation Committee, whichever is applicable. Each
Named Fiduciary, by signing its contract or by accepting such amendment or correspondence and
rendering the services requested without objection for thirty (30) days, shall be conclusively
bound to have assumed such Fiduciary responsibility as a Named Fiduciary. An allocation of
Fiduciary responsibility to a person which is not implemented in the manner set forth herein shall
not be void; however, such person may not be a Named Fiduciary with respect to the Plan and Trust.



     (c) Limit on Liability. Fiduciary duties and responsibilities which have been
allocated or delegated pursuant to the terms of the Plan or the Trust, are intended to limit the
liability of the Company, the Compensation Committee, the Senior Vice President, the Administrator,
the Management Committee, and each Named Fiduciary, as appropriate, in accordance with the
provisions of Section 405 of ERISA..



     15.12 Bonding




     The Administrator, acting on behalf of the Plan and Trust, shall serve without bond (except as
otherwise required by federal law).



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     15.13 Information to be Supplied by Employer




     Each Employer shall supply to the Administrator, acting on behalf of the Plan and Trust, or a
designated Named Fiduciary, within a reasonable time of its request, the names of all Employees,
their age, their date of hire, the names and dates of all Employees who incurred a Termination of
Employment during the Plan Year, Compensation and such other information in the Employer’s
possession as the Administrator shall from time to time need in the discharge of its duties. The
Administrator and each Named Fiduciary may rely conclusively on the information certified to it by
an Employer.



     15.14 Information to be Supplied by Named Fiduciary




     Whenever a term, definition, standard, protocol, policy, interpretation, rule, practice or
procedure under an Administrative Services Agreement, or other basis for determining whether a
Participant’s or Beneficiary’s accrued benefit, optional form of benefit, right or feature is
required or used, the Named Fiduciary who has the authority to manage and control the
administration and operation of the Plan with respect to such accrued benefit, optional form of
payment, right or feature shall be solely responsible for establishing and maintaining such
framework of definitions, standards, protocols, policies, interpretations, rules, practices and
procedures under such Administrative Services Agreement and shall provide a copy thereof either:
(1) to the Senior Vice President, upon its request, on behalf of the Company, (2) to the
Compensation Committee, upon its request, on behalf of the Company, (3) to a Participant or
Beneficiary but only to the extent required by law, or (4) to the extent required in any proceeding
involving the Plan or any Named Fiduciary with respect to the Plan.



     15.15 Misrepresentations




     The Management Committee and the Administrator, acting on behalf of the Plan and Trust, may,
but shall not be required to, rely upon any certificate, statement or other representation made to
it by an Employee, Participant, other Named Fiduciary, or other individual with respect to any fact
regarding any of the provisions of the Plan. If relied upon, any such certificate, statement or
other representation shall be conclusively binding upon such Employee, Participant, other Named
Fiduciary, or other individual or personal representative thereof, heir, or assignee (but not upon
the Management Committee or the Administrator), and any such person shall thereafter be stopped
from disputing the truth of any such certificate, statement or other representation.



     15.16 Records




     The regularly kept records of the designated Named Fiduciary (or, where applicable, the
Trustee) and any Employer shall be conclusive evidence of a person’s age, his or her status as an
Eligible Employee, and all other matters contained therein applicable to this Plan; provided that a
Participant may request a correction in the record of his or her age at any time prior to
retirement, and such correction shall be made if within ninety (90) days after such request he or
she furnishes in support thereof



78









 




a birth certificate, baptismal certificate, or other documentary proof of age satisfactory to
the Administrator.




     15.17 Plan Expenses




     All expenses of the Plan which have been approved by the Administrator, acting on behalf of
the Plan and Trust, respectively, shall be paid by the Trust except to the extent paid by the
Employers; and if paid by the Employers, such Employers may, if authorized by the Senior Vice
President acting on behalf of the Company, seek reimbursement of such expenses from the Trust and
the Trust shall reimburse the Employers. If borne by the Employers, expenses of administering the
Plan shall be borne by the Employers in such proportions as the Senior Vice President, acting on
behalf of the Company, shall determine.



     15.18 Fiduciary Capacity




     Any person or group of persons may serve in more than one Fiduciary capacity with respect to
the Plan.



     15.19 Employer’s Agent




     The Senior Vice President shall act as agent for the Company when acting on behalf of the
Company and the Company shall act as agent for each Employer.



     15.20 Plan Administrator




     The Plan Administrator (within the meaning of Section 3(16)(A) of ERISA) shall be appointed by
the Compensation Committee, acting on behalf of the Company, and may (but need not) be the
Administrator; and in the absence of such appointment, the Administrator, acting on behalf of the
Plan and Trust, shall be the Plan Administrator.



     15.21 Plan Administrator Duties and Power




     The Plan Administrator will have full and complete authority, responsibility and control over
the management, administration and operation of the Plan with respect to the following:



     (a) satisfy all reporting and disclosure requirements applicable to the Plan, Trust or Plan
Administrator under ERISA, the Code or other applicable law;



     (b) make appropriate determinations as to whether Rollover Contributions constitute such;



     (c) provide and deliver all written forms used by Participants and Beneficiaries, give notices
required by law, and seek a favorable determination letter for the Plan and Trust;



79









 





     (d) withhold any amounts required by the Code to be withheld at the source and to transmit
funds withheld and any and all necessary reports with respect to such withholding to the Internal
Revenue Service;



     (e) certify to the Trustee the amount and kind of benefits payable to or withdrawn from
Participants and Beneficiaries and the date of payment, including withdrawals;



     (f) respond to a QDRO;



     (g) make available for inspection and to provide upon request at such charge as may be
permitted and determined by it, documents and instruments required to be disclosed by ERISA;



     (h) make a determination of whether a Participant is suffering a deemed or demonstrated
financial need and whether a withdrawal from this Plan is deemed or demonstrated necessary to
satisfy such financial need; provided however, in making such determination, the Plan Administrator
may rely, if reasonable to do so, upon representations made by such Participant in connection with
his or her request for a withdrawal;



     (i) take such actions as are necessary to establish and maintain the Plan in full and timely
compliance with any law or regulation having pertinence to this Plan;



     (j) perform whatever responsibilities are delegated to the Plan Administrator by the
Administrator; and



     15.22 Named Fiduciary Decisions Final




     The decision of the Administrator, the Management Committee, or a Named Fiduciary in matters
within its jurisdiction shall be final, binding, and conclusive upon the Employers and the Trustee
and upon each Employee, Participant, Spouse, Beneficiary, and every other person or party
interested or concerned.



     15.23 No Agency




     Each Named Fiduciary shall perform (or fail to perform) its responsibilities and duties or
discretionary authority with respect to the Plan and Trust as an independent contractor and not as
an agent of the Company, any Employer, the Senior Vice President, the Compensation Committee, the
Administrator or the Management Committee. No agency is intended to be created nor is the
Administrator or the Management Committee empowered to create an agency relationship with a Named
Fiduciary.



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ARTICLE XVI




Claims Procedure



     16.01 Claims Procedure




     (a) Definitions. For purposes of this Section 16.01, 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 16.01.




     (3) “Claimant” is defined in Section 16.01(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 Administrator in making the benefit determination;




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



81









 






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




     (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 Administrator 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
Administrator, with or without the presence of the Claimant, as determined by the Administrator in
its discretion. The Administrator 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 Administrator 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 Administrator will notify the Claimant of the Administrator’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 Administrator.




     (2) The Administrator 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
Administrator expects to render a decision.



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




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




     (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;



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     (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
Administrator 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 Administrator (or in such other manner
acceptable to the Administrator); provided, however, that if the Administrator does not
provide the appropriate form, no particular form is required to be utilized by the
Participant. The appeal must be filed with the Administrator 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 Administrator 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.



     (h) Timing and Notification of Benefit Determination on Review. The Administrator
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 Administrator determines that special circumstances
require an extension of time for processing the review of the Adverse Benefit Determination. If
the Administrator 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



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time and the date by which the Administrator 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 Administrator 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 Administrator 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) Collectively Bargained Benefits.




     (A) Where benefits are provided pursuant to a collective bargaining agreement
and such collective bargaining agreement maintains or incorporates by specific
reference: (i) provisions concerning the filing of a Claim for a benefit and the
initial disposition of a Claim; and (ii) a grievance and arbitration procedure to
which Adverse Benefit Determinations are subject, then Section 16.01 through and
including Section 16.01(i) will not apply to such Claim.




     (B) Where benefits are provided pursuant to a collective bargaining agreement
and such collective bargaining agreement maintains or incorporates by specific
reference a grievance and arbitration procedure to which Adverse Benefit
Determinations are subject, then Sections 16.01(f) through and including Section
16.01(i) will not apply to such Claim.



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     (k) 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.



     16.02 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 Administrator or the responsible Named Fiduciary, whichever is
applicable. 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 Administrator.



     16.03 No Administrator




     Any written direction, notice or other communication from Participants or any other person
entitled to or claiming benefits under the Plan to the Administrator 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 Administrator for the giving of such direction, notice or other
communication or when otherwise received by the Administrator.



     16.04 Administrator’s Discretion




     Benefits under this Plan will be paid only if the Administrator decides, in his or her
discretion, that the Claimant is entitled to them.




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ARTICLE XVII




Adoption and Withdrawal from Plan




     17.01 Procedure for Adoption



     Any Commonly Controlled Entity may adopt the Plan for the benefit of its Eligible Employees by
resolution of such Commonly Controlled Entity’s board of directors and by completing (or the Senior
Vice President completing pursuant to its authority to amend this Plan) one or more Appendices with
respect to such Employees, which adoption shall be effective as of the date specified in the board
resolution. No such adoption shall be effective until such adoption and any Appendix to be used in
connection therewith has been approved by the Senior Vice President.



     17.02 Procedure for Withdrawal



     Any Employer (other than the Company) may, by resolution of the board of directors of such
Employer, with the consent of the Senior Vice President and subject to such conditions as may be
imposed by the Senior Vice President (or the Senior Vice President acting on behalf of the Company
pursuant to its authority to amend this Plan), terminate its adoption of the Plan. Notwithstanding
the foregoing, an Employer will be deemed to have terminated its adoption of the Plan when it
ceases to be a Commonly Controlled Entity.



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ARTICLE XVIII




Amendment, Termination and Merger




     18.01 Amendments



     (a) Power to Amend. The Company, by action of its Board of Directors on behalf of all
Employers, the Management Resources and Compensation Committee of the Board of Directors (the
“Compensation Committee”) on behalf of the Board of Directors, the Senior Vice President as
provided in Subsection (c) below, or the Administrator as provided in Subsection (d) below, may
amend, modify, change, revise or discontinue this Plan or any Appendix, in whole or in part, or
with respect to all persons or a designated group of persons, by amendment at any time; provided,
however, that no amendment shall:




     (1) increase the duties or liabilities of the Custodian, the Administrator or the
Management Committee without its written consent;




     (2) have the effect of vesting in any Employer any interest in any funds, securities or
other property, subject to the terms of this Plan and the Custodial Agreement;




     (3) authorize or permit at any time any part of the corpus or income of the Plan’s
assets to be used or diverted to purposes other than for the exclusive benefit of
Participants and Beneficiaries;




     (4) except to the extent permissible under ERISA and the Code, make it possible for any
portion of the Trust assets to revert to an Employer to be used for, or diverted to, any
purpose other than for the exclusive benefit of Participants and Beneficiaries entitled to
Plan benefits and to defray reasonable expenses of administering the Plan;




     (5) permit an Employee to be paid the balance of his or her Pre-Tax Account unless the
payment would otherwise be permitted under Section 401(k) of the Code; and




     (6) have any retroactive effect as to deprive any such person of any benefit already
accrued, except that no amendment made in order to conform the Plan as a plan described in
Section 401(a) of the Code of which amendments are permitted by the Code or are required or
permitted by any other statute relating to employees’ trusts, or any official regulations or
rulings issued pursuant thereto, shall be considered prejudicial to the rights of any such
person.



     (b) Restriction on Amendment. No amendment to the Plan shall deprive a Participant of
his or her nonforfeitable rights to benefits accrued to the date of the amendment. Further, if the
vesting schedule of the plan is amended, each Participant with at least three (3) years of service
for vesting with the Employer may elect, within a reasonable period after the adoption of the
amendment, to have his or her



87









 




nonforfeitable percentage computed under the Plan without regard to such amendment. The
period during which the election may be made shall commence with the date the amendment is adopted
and shall end on the latest of:





     (1) sixty (60) days after the amendment is adopted;




     (2) sixty (60) days after the amendment becomes effective; or




     (3) sixty (60) days after the Participant is issued written notice of the amendment by
the Employer, the Senior Vice President or the Administrator.



     The preceding language concerning an amendment to the Plan’s vesting schedule shall also apply
when a Plan with a different vesting schedule is merged into this Plan. In addition to the
foregoing, the Plan shall not be amended so as to eliminate an optional form of payment of an
Accrued Benefit attributable to employment prior to the date of the amendment. The foregoing
limitations do not apply to benefit accrual occurring after the date of the amendment.



     (c) The Senior Vice President. The Senior Vice President, acting on behalf of the
Company, may amend, modify, change or revise the Plan or any Appendix, in whole or in part, or with
respect to all persons or a designated group of persons; provided, however: (i) no such action may
be taken if it could not have been adopted under this Section by the Board of Directors; (ii) no
such action may be taken if it causes a change in the level or type of contributions to be made to
the Plan or otherwise materially increase the duties and obligations of any or all Employers with
respect to the Plans; and (iii) no such action may amend Articles XV and XVIII.



     (d) The Administrator. The Administrator, acting on behalf of the Plan, may amend,
modify, change or revise the Plan or any Appendix, in whole or in part, provided, however, such
amendment may only: (1) implement other amendments either adopted by the Senior Vice President on
behalf of the Company or pursuant to subparagraph (a) hereof, and, further, the Administrator will
have no discretionary authority when causing such implementing amendments to be drafted and
adopted, except where required by law; (2) be drafted and adopted to cause the Plan to be
tax-exempt under the Code; or (3) be drafted and adopted to comply with other applicable law. All
expenses incurred in connection with the preparation and adoption of amendments by the
Administrator will be charged to the Plan and Trust.



     18.02 Plan Termination



     It is the expectation of the Company that it will continue the Plan and the payment of
Contributions hereunder indefinitely, but the continuation of the Plan and the payment of
Contributions hereunder is not assumed as a contractual obligation of the Company or any other
Employer. The right is reserved by the Company to terminate the Plan at any time, and the right is
reserved by the Company by action of its Board of Directors or the Compensation Committee. The
Senior Vice President, acting on behalf of the Company, has the authority pursuant to its power to
amend the Plan at any time to reduce, suspend or discontinue its or any other Employer’s
Contributions hereunder



88









 




(but not to terminate the Plan or Trust); provided, however, that the Contributions for any
Plan Year accrued or determined prior to the end of said year shall not after the end of said year
be retroactively reduced, suspended or discontinued, except as may be permitted by law. Upon
termination of the Plan or complete discontinuance of Contributions hereunder (other than for the
reason that the Employer has had no net profits or accumulated net profits), each Participant’s
Accrued Benefit shall be fully vested. Upon termination of the Plan or a complete discontinuance
of Contributions, unclaimed amounts shall be applied as forfeitures and any unallocated amounts
shall be allocated to Participants who are Eligible Employees as of the date of such termination or
discontinuance on the basis of Compensation for the Plan Year (or short Plan Year). Upon a partial
termination of the Plan, the Accrued Benefit of each affected Participant shall be fully vested.
In the event of termination of the Plan, the Administrator shall direct the Custodian to distribute
to each Participant the entire amount of his or her Accrued Benefit as soon as administratively
possible, but not earlier than would be permitted in order to retain the Plan’s qualified status
under Sections 401(a), (k) and (m) of the Code, as if all Participants who are Employees had
incurred a Termination of Employment on the Plan’s termination date. Should a Participant or a
Beneficiary not elect immediate payment of a nonforfeitable Accrued Benefit in excess of one
thousand dollars ($1,000), the Administrator shall direct the Custodian to continue the Plan and
Custodial Agreement for the sole purpose of paying to such Participant his or her Accrued Benefit
or death benefit, respectively, unless, in the opinion of the Administrator, to make immediate
single sum payments to such Participant or Beneficiary would not adversely affect the tax qualified
status of the Plan upon termination and would not impose additional liability upon any Employer or
the Custodian.




     18.03 Plan Merger



     (a) General. The Plan shall not merge or consolidate with, or transfer any assets or
liabilities to any other plan, unless each person entitled to benefits would receive a benefit
immediately after the merger, consolidation or transfer (if the Plan were then terminated) which is
equal to or greater than the benefit he or she would have been entitled to immediately before the
merger, consolidation or transfer (if the Plan were then terminated). Pursuant to Section
15.02(a)(3) of the Plan, the Senior Vice President shall amend or take such other action as is
necessary to amend the Plan in order to satisfy the requirements applicable to any merger,
consolidation or transfer of assets and liabilities.



     (b) Hussmann. Effective January 1, 1998, or, if later, the date a Participant becomes
a Hussmann Participant, the assets and liabilities for each Hussmann Participant shall be
transferred to the Hussmann Plan based upon the Unit Value thereof as of the close of the last
Business Day in 1997, or, if later, the Business Day immediately preceding the date a Participant
becomes a Hussmann Participant.



     (c) Midas. Effective January 1, 1998, or, if later, the date a Participant becomes a
Midas Participant, the assets and liabilities for each Midas Participant shall be transferred to
the Midas Plan based upon the Unit Value thereof as of the close of



89









 




the last Business Day in 1997, or, if later, the Business Day immediately preceding the date a
Participant becomes a Midas Participant.




     (d) Pepsi-Cola General Bottlers of Princeton, Inc. (“Princetonco”). Effective upon
the transfer of Princetonco to White Co., Inc., a subsidiary of The Pepsi Bottling Group, Inc.,
Princetonco shall cease to be an Employer for purposes of the Plan, as follows:




     (1) All benefit accruals with respect to each employee of Princetonco who is a
Participant shall cease.




     (2) Notwithstanding any term or provision of the Plan to the contrary: (A) the transfer
of Princetonco to White Co., Inc. shall not result in a Termination of Employment for an
Employee of Princetonco, nor shall it constitute an event resulting in a distribution from
the Plan; and (B) a Termination of Employment shall be deemed to occur when such individual
ceases to be an employee of The Pepsi Bottling Group, Inc. and its commonly controlled
entities (within the meaning of Section 414(b) of the Code).




     (3) Pursuant to the terms of the Whitman Transfers Employee Benefits Agreement between
Whitman Corporation and White Co., Inc. dated as of March 19, 1999 (the “Agreement”), the
Accrued Benefit of each “Transferred Individual” (as defined in the Agreement) shall be
transferred, as provided in such Agreement, to the “PepsiCo Savings Plan” (as defined in the
Agreement) and assets equal to such Accrued Benefit as of the same date (“Transfer Date”)
shall be transferred in cash from the Whitman Corporation Defined Contribution Master Trust
to the related trust for such PepsiCo Savings Plan; provided, however, if a Participant has
outstanding a promissory note payable to the Plan, such note shall be substituted for cash
in an amount equal to principal and accrued interest on such Transfer Date.




     (4) Notwithstanding any term or provision of the Plan to the contrary, prior to the
Transfer Date, each Transferred Individual (or their Alternate Payees pursuant to a QDRO)
shall be treated as an Employee for purposes of: (A) eligibility for, or repayment of, a
loan described in Article IX; or (B) making a withdrawal from the Plan described in Article
X.



     (e) Pepsi-Cola General Bottlers of Virginia, Inc. (“Marionco”). Effective upon the
transfer of Marionco to White Co., Inc., a subsidiary of The Pepsi Bottling Group, Inc., Marionco
shall cease to be an Employer for purposes of the Plan, as follows:




     (1) All benefit accruals with respect to each employee of Marionco who is a Participant
shall cease.




     (2) Notwithstanding any term or provision of the Plan to the contrary: (A) the transfer
of Marionco to White Co., Inc. shall not result in a Termination of Employment for an
Employee of Marionco, nor shall it constitute an event resulting in a distribution from the
Plan; and (B) a Termination of Employment



90









 






shall be deemed to occur when such individual ceases to be an employee of The Pepsi
Bottling Group, Inc. and its commonly controlled entities (within the meaning of Section
414(b) of the Code).




     (3) Pursuant to the terms of the Whitman Transfers Employee Benefits Agreement between
Whitman Corporation and White Co., Inc. dated as of March 19, 1999 (the “Agreement”), the
Accrued Benefit of each “Transferred Individual” (as defined in the Agreement) shall be
transferred, as provided in such Agreement, to the “PepsiCo Savings Plan” (as defined in the
Agreement) and assets equal to such Accrued Benefit as of the same date (“Transfer Date”)
shall be transferred in cash from the Whitman Corporation Defined Contribution Master Trust
to the related trust for such PepsiCo Savings Plan; provided, however, if a Participant has
outstanding a promissory note payable to the Plan, such note shall be substituted for cash
in an amount equal to principal and accrued interest on such Transfer Date.




     (4) Notwithstanding any term or provision of the Plan to the contrary, prior to the
Transfer Date, each Transferred Individual (or their Alternate Payees pursuant to a QDRO)
shall be treated as an Employee for purposes of: (A) eligibility for, or repayment of, a
loan described in Article IX; or (B) making a withdrawal from the Plan described in Article
X.



     (f) Delta Beverage Group, Inc. Retirement Plan. Effective as of July 1, 2001, the
assets and liabilities representing the accrued benefits of an Employee or former Employee who is a
Participant in the Delta Beverage Group, Inc. Retirement Plan (the “Delta Plan”) immediately prior
to July 1, 2001 and who, on and after July 1, 2001 will not be eligible to participate in the Delta
Plan (or, if a former Employee, would not be eligible to participate in the Delta Plan if such
person were an Employee) because such individual will not be an Eligible Employee, shall be
transferred to the Plan.



     (g) PepsiAmericas, Inc. Employees Retirement Plan. Effective as of October 1, 2001,
the assets and liabilities representing the accrued benefits of an Employee or former Employee who
is a Participant in the PepsiAmericas, Inc. Employees Retirement Plan (the “Dakota Plan”)
immediately prior to October 1, 2001 and who, on and after October 1, 2001 will not be eligible to
participate in the Dakota Plan (or, if a former Employee, would not be eligible to participate in
the Dakota Plan if such person were an Employee) because such individual will not be an Eligible
Employee, shall be transferred to the Plan.



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ARTICLE XIX




Special Top-Heavy Rules




     19.01 Application of Article XIX



     This Article XIX will apply only if the Plan is Top-Heavy, as defined below. If, as of any
Top-Heavy Determination Date, as defined below, the Plan is Top-Heavy, the provisions of Section
19.04 will take effect as of the first day of the Plan Year next following the Top-Heavy
Determination Date and will continue to be in effect until the first day of any subsequent Plan
Year following a Top-Heavy Determination Date as of which it is determined that the Plan is no
longer Top-Heavy.



     19.02 Definitions Concerning Top-Heavy Status



     In addition to the definitions set forth in Article I, the following definitions will apply
for purposes of this Article XIX, and will be interpreted in accordance with the provisions of
Section 416 of the Code:



     (a) Aggregation Group — a group of Company Plans consisting of each Company Plan in
the Required Aggregation Group and each other Company Plan selected by the Company for inclusion in
the Aggregation Group that would not, by its inclusion, prevent the group of Company Plans included
in the Aggregation Group from continuing to meet the requirements of Sections 401(a)(4) and 410 of
the Code.



     (b) Annual Compensation — compensation for a calendar year within the meaning of
Treasury Regulation Section 1.415-2(d)(11)(ii) to the extent that such compensation does not exceed
the annual compensation limit in effect for the calendar year under Section 401(a)(17) of the Code.



     (c) Company Plan — any plan of any Commonly Controlled Entity that is, or that has
been determined by the Internal Revenue Service to be, qualified under Section 401(a) or 403(a) of
the Code.



     (d) Key Employee — any employee of any Commonly Controlled Entity who satisfies the
criteria set forth in Section 416(i)(1) of the Code.



     (e) Required Aggregation Group — one or more Company Plans comprising each Company
Plan in which a Key Employee is a participant and each Company Plan that enables any Company Plan
in which a Key Employee is a participant to meet the requirements of Section 401(a)(4) or 410 of
the Code.



     (f) Top-Heavy — the Plan is included in an Aggregation Group under which, as of the
Top-Heavy Determination Date, the sum of the actuarial present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans in the Aggregation Group and the
aggregate of the accounts of Key Employees under all defined contribution plans in the Aggregation
Group exceeds sixty percent (60%) of the



92









 




analogous sum determined for all employees. The determination of whether the Plan is
Top-Heavy will be made in accordance with Section 416(g)(2)(B) of the Code.




     (g) Top-Heavy Determination Date — the December 31 immediately preceding the Plan Year
for which the determination is made.



     (h) Top-Heavy Ratio — the percentage calculated in accordance with subparagraph (f),
above, and Section 416(g)(2) of the Code.



     (i) Top-Heavy Year — a Plan Year for which the Plan is Top-Heavy.



     19.03 Calculation of Top-Heavy Ratio



     The Top-Heavy Ratio with respect to any Plan Year will be determined in accordance with the
following rules:



     (a) Determination of Accrued Benefits. The accrued benefit of any current Participant
will be calculated, as of the most recent valuation date that is within a 12-month period ending on
the Top-Heavy Determination Date, as if the Participant had voluntarily terminated employment as of
such valuation date. Such valuation date will be the same valuation date used for computing Plan
costs for purposes of the minimum funding provisions of Section 412 of the Code. Unless, as of the
valuation date, the Plan provides for a nonproportional subsidy, the actuarial present value of the
accrued benefit will reflect a retirement income commencing at age 65 (or attained age, if later).
If, as of the valuation date, the Plan provides for a nonproportional subsidy, the benefit will be
assumed to commence at the age at which the benefit is most valuable. The present values of
accrued benefits and the amounts of account balances of an employee as of the Top-Heavy
Determination Date will be increased by the distributions made with respect to the employee under
the Plan and any plan aggregated with the plan under Section 416(g)(2) of the Code during the
1-year period ending on the Top-Heavy Determination Date. The preceding sentence will also apply
to distributions under a terminated plan which, had it not been terminated, would have been
aggregated with the plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution
made for a reason other than severance from service, death, or disability, this provision will be
applied by substituting “5-year period” for “1-year period”. The accrued benefits and accounts of
any individual who has not performed services for the employer during the 1-year period ending on
the determination date will not be taken into account. The accrued benefit of a Participant other
than a Key Employee shall be determined under (A) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by the Employer, or (B) if there is no
such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted
under the fractional rule of Section 411(b)(1)(C) of the Code.



     (b) Aggregation. The Plan will be aggregated with all Company Plans included in the
Aggregation Group.



93









 





     19.04 Effect of Top-Heavy Status



     (a) Minimum Contribution. Notwithstanding Article IV, as of the last day of each
Top-Heavy Year, the Employer will make, for each Participant: (i) the contributions it otherwise
would have made under the Plan for such Top-Heavy Year; or, if greater, (ii) contributions for such
Top-Heavy Year that, when added to the contributions made by the Employer for such Participant (and
any forfeitures allocated to his or her Accounts) for such Top-Heavy Year under all other defined
contribution plans of any Commonly Controlled Entity, aggregate three percent (3%) of his or her
Annual Compensation; provided, that the Plan will meet the requirements of this subsection (a)
without taking into account Pre-Tax Contributions or other employer contributions attributable to a
salary reduction or similar arrangements. Employer matching contributions shall be taken into
account for purposes of satisfying the minimum contribution requirements of Section 416(c)(2) of
the Code and the Plan. The preceding sentence shall apply with respect to matching contributions
under the Plan or, if the Plan provides that the minimum contribution requirement shall be met in
another plan, such other plan. Employer matching contributions that are used to satisfy the
minimum contribution requirements shall be treated as matching contributions for purposes of the
actual contribution percentage test and other requirements of Section 401(m) of the Code, with
respect to Employees other than Key Employees.



     (b) Inapplicability to Union Employees. The preceding provisions of this Section
19.04 will not apply with respect to any employee included in a unit of employees covered by an
agreement that the Secretary of Labor finds to be a collective bargaining agreement between
employee representatives and the Employer, if there is evidence that retirement benefits were the
subject of good faith bargaining between such employee representatives and the Employer.



     19.05 Effect of Discontinuance of Top-Heavy Status



     If, for any Plan Year after a Top-Heavy Year, the Plan is no longer Top-Heavy, the provisions
of Section 19.04 will not apply with respect to such Plan Year.



     19.06 Intent of Article XIX



     This Article XIX is intended to satisfy the requirements imposed by Section 416 of the Code
and will be construed in a manner that will effectuate this intent. This Article XIX will not be
construed in a manner that would impose requirements on the Plan that are more stringent than those
imposed by Section 416 of the Code.



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ARTICLE XX




Miscellaneous Provisions




     20.01 Assignment and Alienation



     As provided by Section 401(a)(13) of the Code and to the extent not otherwise required by law,
no benefit provided by the Plan may be anticipated, assigned or alienated, except:



     (a) to create, assign or recognize a right to any benefit with respect to a Participant
pursuant to a QDRO, or



     (b) to use a Participant’s vested Account balance as security for a loan from the Plan which
is permitted pursuant to Section 4975 of the Code.



     20.02 Protected Benefits



     All benefits which are protected by the terms of Section 411(d)(6) of the Code and Section
204(g) of ERISA which cannot be eliminated without adversely affecting the qualified status of the
Plan on and after the Effective Date, shall be provided under this Plan to Participants for whom
such benefits are protected. The Administrator shall cause such benefits to be determined and the
terms and provisions of the Plan immediately prior to the Effective Date are incorporated herein by
reference and made a part hereof, but only to the extent such terms and provisions are so
protected. Otherwise, they shall operate within the terms and provisions of this Plan, as
determined by the Administrator.



     20.03 Plan Does Not Affect Employment Rights



     The Plan does not provide any employment rights to any Employee. The Employer expressly
reserves the right to discharge an Employee at any time, with or without cause, without regard to
the effect such discharge would have upon the Employee’s interest in the Plan.



     20.04 Deduction of Taxes from Amounts Payable



     The Custodian shall deduct from the amount to be distributed such amount as the Custodian, in
its sole discretion, deems proper to protect the Custodian and the Plan’s assets held under the
Custodial Agreement against liability for the payment of death, succession, inheritance, income, or
other taxes, and out of money so deducted, the Custodian 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.



     20.05 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



95









 




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 Administrator in such matters shall be final, binding, and conclusive upon the Employer and
the Custodian and upon each Employee, Participant, Beneficiary, and every other person or party
interested or concerned. An Employer, the Custodian and the Administrator shall not be under any
duty to see to the proper application of such payments.




     20.06 Source of Benefits



     All benefits payable under the Plan shall be paid or provided for solely from the Plan’s
assets held under the Custodial Agreement and the Employers assume no liability or responsibility
therefor.



     20.07 Indemnification



     To the extent permitted by law, each Employer shall indemnify and hold harmless each member
(and former member) of the Board of Directors, the Senior Vice President, the Administrator (and
each former Administrator), the Management Committee (and each former member of the Management
Committee), and each officer and employee (and each former officer and employee) of an Employer to
whom are (or were) delegated duties, responsibilities, and authority with respect to the Plan
against all claims, liabilities, fines and penalties, and all expenses reasonably incurred by or
imposed upon him or her (including but not limited to reasonable attorney fees and amounts paid in
any settlement relating to the Plan) by reason of his or her service under the Plan if he or she
did not act dishonestly, with gross negligence, or otherwise in knowing violation of the law under
which such liability, loss, cost or expense arises. This indemnity shall not preclude such other
indemnities as may be available under insurance purchased or provided by an Employer under any
by-law, agreement, or otherwise, to the extent permitted by law. Payments of any indemnity,
expenses or fees under this Section shall be made solely from assets of the Employer and shall not
be made directly or indirectly from the assets of the Plan.



     20.08 Reduction for Overpayment



     The Administrator shall, whenever it determines that a person has received benefit payments
under this Plan in excess of the amount to which the person is entitled under the terms of the
Plan, make two reasonable attempts to collect such overpayment from the person.



     20.09 Limitation on Liability



     No Employer nor any agent or representative of any Employer who is an employee, officer, or
director of an Employer in any manner guarantees the assets of the Plan against loss or
depreciation, and to the extent not prohibited by federal law, none of them shall be liable (except
for his or her own gross negligence or willful misconduct), for any act or failure to act, done or
omitted in good faith, with respect to



96









 




the Plan. No Employer shall be responsible for any act or failure to act of any Custodian
appointed to administer the assets of the Plan.




     20.10 Company Merger



     In the event any successor corporation to the Company, by merger, consolidation, purchase or
otherwise, shall elect to adopt the Plan, such successor corporation shall be substituted hereunder
for the Company upon filing in writing with the Custodian its election so to do.



     20.11 Employees’ Trust



     The Plan and Custodial Agreement are created for the exclusive purpose of providing benefits
to the Participants in the Plan and their Beneficiaries and defraying reasonable expenses of
administering the Plan, and the Plan and Custodial Agreement shall be interpreted in a manner
consistent with their being, respectively, a Plan described in Sections 401(a), 401(k) and 401(m)
of the Code and Custodial Agreements exempt under Section 501(a) of the Code. At no time shall the
assets of the Plan be diverted from the above purpose.



     20.12 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.



     20.13 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 the Plan shall be construed and
enforced as if such provisions, to the extent invalid or unenforceable, had not been included.



     20.14 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.



     20.15 Uniform and Nondiscriminatory Treatment



     Any discretion exercisable hereunder by an Employer, the Senior Vice President, the
Administrator, or the Management Committee shall be exercised in a uniform and nondiscriminatory
manner.



     20.16 Notice and Information Requirements



     Except as otherwise provided in this Plan or in the Custodial Agreement or as otherwise
required by law, the Employer shall have no duty or obligation to affirmatively



97









 




disclose to any Participant or Beneficiary, nor shall any Participant or Beneficiary have any
right to be advised of, any material information regarding the Employer, at any time prior to, upon
or in connection with the Employer’s purchase, or any other distribution or transfer (or decision
to defer any such distribution) of any Company Stock or any other stock held under the Plan.




     20.17 Military Service



     Notwithstanding any provision of this Plan to the contrary, contributions, benefits and
service credit with respect to qualified military service will be provided in accordance with
Section 414(u) of the Code.



     20.18 Law Governing



     The Plan shall be construed and enforced according to the laws of the state in which the Trust
is located, to the extent not preempted by ERISA.


Executed this 29th day of December 2008.




	 	 	 	 	 
	 	PepsiAmericas, Inc.



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



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AMENDMENT NO. 1

TO THE

PEPSIAMERICAS, INC. HOURLY 401(K) PLAN



AS AMENDED AND
RESTATED

EFFECTIVE AS OF JANUARY 1, 2008





     Pursuant to the authority retained by PepsiAmericas, Inc. (the “Company”) under Section 18.01
of the PepsiAmericas, Inc. Hourly 401(k) Plan (the “Plan”), the Company hereby amends the Plan
effective on the date written below in the following manner:



     1. Section 9.06 Repayment shall be deleted and replaced with the following language:




     9.06 Repayment. Substantially level amortization shall be required of
each loan with payments made at least monthly. Loan repayment shall be made through
payroll deduction while a Participant is in the employ of the Company, but repayment
can be made by check for advance loan payments or when a Participant is on an
Authorized Leave of Absence, Disabled, transferred to the employ of a Commonly
Controlled Entity which is not participating in the Plan, or no longer in the employ
of the Company. Loans may be prepaid in full or in part at any time. The loan
repayment period shall be as mutually agreed upon by the Participant and
Administrator, not to exceed five (5) years.



     2. Section 9.09 Default, Suspension and Acceleration Feature shall be amended by
deleting subsection (c) in its entirety.



     3. This Amendment No. 1 shall be effective on the date written below.


Dated and effective this 1st day of August 2009.




	 	 	 	 	 
	 	PEPSIAMERICAS, INC.



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



 









 






	 	 	 	 	 



AMENDMENT NO. 2

TO THE

PEPSIAMERICAS, INC. HOURLY 401(K) PLAN



AS AMENDED AND
RESTATED

EFFECTIVE AS OF JANUARY 1, 2008





     Pursuant to the authority retained by PepsiAmericas, Inc. (the “Company”) under Section 18.01
of the PepsiAmericas, Inc. Hourly 401(k) Plan (the “Plan”), the Company hereby amends the Plan
effective January 1, 2009, (unless otherwise provided herein) in the following manner:


1. The following new Section 10.11 HEART Act Withdrawals shall be added at the end of
Article X, effective for distributions occurring on or after January 14, 2009:





     (a) “10.11 HEART Act Withdrawals. Effective January 14, 2009:




     (a) Severance from employment. For purposes of Code Section
401(k)(2)(B)(i)(I), an individual is treated as having been severed from employment
during any period the individual is performing service in the uniformed services
described in Code Section 3401(h)(2)(A).




     (b) Suspension of deferrals. If an individual elects to receive a
distribution by reason of severance from employment as described in subsection (a)
above, the individual may not make an elective deferral or employee contribution
during the 6-month period beginning on the date of the distribution.”


2. Section 11.08 Direct Rollover shall be amended by adding the following new
language at the end of the Section:





     “For taxable years beginning after December 31, 2006, a Participant may elect
to transfer amounts from his or her Post-Tax Account by means of a direct rollover
to a qualified plan or to a 403(b) plan that agrees to account separately for
amounts so transferred, including accounting separately for the portion of such
distribution which is includible in gross income and the portion of such
distribution which is not includible in gross income.




     For distributions made after December 31, 2007, a Participant may elect to
roll over directly an Eligible Rollover Distribution to a Roth IRA described in
Code Section 408A(b).”


3. Section 12.01 Payment to Beneficiary shall be amended by adding the following language
at the end of the Section:







 









 









     “In the case of a death occurring on or after January 1, 2007, if a Participant
dies while performing qualified military service (as defined in Code Section
414(u)), the survivors of the Participant are entitled to any additional benefits
(other than benefit accruals relating to the period of qualified military service)
provided under the Plan as if the Participant had resumed and then terminated
employment on account of death.”


4. Section 12.05 
Required Commencement of Distributions shall be amended by adding the
following language at the end of the Section:





     “For the 2009 Plan Year, a Participant may elect, or be deemed to elect, to
forego his or her required minimum distribution, pursuant to the Worker, Retiree,
and Employer Recovery Act of 2008. In the event a 2009 distribution is made, which
would otherwise have been considered a required minimum distribution, such
distribution shall constitute an Eligible Rollover Distribution, but shall not be
subject to the mandatory withholding requirements of an Eligible Rollover
Distribution.”


5. Section 12.06 Direct Rollover shall be amended by adding the following new language at
the end of the Section:





     “For distributions after December 31, 2009, a non-spouse Beneficiary
(including a trust) who is a designated beneficiary under Code Section 401(a)(9)(E)
may roll over all or any portion of an Eligible Rollover Distribution to an
individual retirement account.”


6. Section 13.06 Return of Excess Annual Additions, Deferrals and Contributions, shall be
amended by adding the following language at the end of subsection (f):





     “For Plan Years beginning on or after January 1, 2008, there will be no
calculation or distribution of income for the gap period.”


7. Appendix 17.1 ADOPTION AGREEMENTS shall be amended by replacing the following
Adoption Agreements (attached):





	 	•	 	Bloomington, Indiana, Union Local No. 135;
	 
	 	•	 	Carroll, Iowa, Union Local No. 440; and
	 
	 	•	 	Cincinnati, Ohio (Inside), Union Local No. 1199;
	 
	 	•	 	Cincinnati, Ohio (Sales), Union Local No. 1199;
	 
	 	•	 	Farmington, Missouri, Union Local No. 245;
	 
	 	•	 	Indianapolis, Indiana, Union Local No. 135;
	 
	 	•	 	Muncie, Indiana (Clerical), Union Local No. 135;
	 
	 	•	 	Muncie, Indiana (Inside), Union Local No. 135;
	 
	 	•	 	Muncie, Indiana (Outside), Union Local No. 135;
	 
	 	•	 	South Bend, Indiana, Union Local No. 364;
	 
	 	•	 	Vincennes, Indiana, Union Local No. 135.




2









 










Dated this 30th day of December 2009.




	 	 	 	 	 
	 	PEPSIAMERICAS, INC.



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




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