exv4w7






EXHIBIT 4.7




PepsiAmericas, Inc.

Salaried 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”
	 	 	4	 
	1.08 “Appendix”
	 	 	4	 
	1.09 “Authorized Leave of Absence”
	 	 	4	 
	1.10 “Beneficiary”
	 	 	4	 
	1.11 “Board of Directors”
	 	 	4	 
	1.12 “Business Day”
	 	 	4	 
	1.13 “CEO”
	 	 	4	 
	1.14 “Change Date”
	 	 	4	 
	1.15 “Commonly Controlled Entity”
	 	 	4	 
	1.16 “Company”
	 	 	5	 
	1.17 “Company Stock”
	 	 	5	 
	1.18 “Compensation”
	 	 	5	 
	1.19 “Computation Period”
	 	 	6	 
	1.20 “Contract Administrator”
	 	 	6	 
	1.21 “Contributions”
	 	 	7	 
	1.22 “Contribution Dollar Limit”
	 	 	7	 
	1.23 “Contribution Election” or “Election”
	 	 	7	 
	1.24 “Contribution Percentage”
	 	 	8	 
	1.25 “Conversion Election”
	 	 	8	 
	1.26 “Custodial Agreement”
	 	 	8	 
	1.27 “Custodian”
	 	 	8	 
	1.28 “Direct Rollover”
	 	 	8	 
	1.29 “Disability” or “Disabled”
	 	 	8	 
	1.30 “Distributee”
	 	 	8	 






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	 	 	 	Page
	1.31 “Effective Date”
	 	 	8	 
	1.32 “Elective Deferral”
	 	 	8	 
	1.33 “Eligible Employee”
	 	 	8	 
	1.34 “Eligibility Service”
	 	 	10	 
	1.35 “Eligible Retirement Plan”
	 	 	10	 
	1.36 “Eligible Rollover Distribution”
	 	 	10	 
	1.37 “Employee”
	 	 	10	 
	1.38 “Employer”
	 	 	11	 
	1.39 “Employment Date”
	 	 	11	 
	1.40 “ERISA”
	 	 	11	 
	1.41 “Fiduciary”
	 	 	11	 
	1.42 “Highly Compensated Eligible Employee” or “HCE”
	 	 	11	 
	1.43 “Hour of Service”
	 	 	11	 
	1.44 “Hussmann”
	 	 	12	 
	1.45 “Hussmann Participant”
	 	 	12	 
	1.46 “Hussmann Plan”
	 	 	12	 
	1.47 “Insurance Contract Arrangement”
	 	 	12	 
	1.48 “Internal Revenue Code” or “Code”
	 	 	12	 
	1.49 “Investment Election”
	 	 	12	 
	1.50 “Investment Fund” or “Fund”
	 	 	12	 
	1.51 “Limitation Year”
	 	 	13	 
	1.52 “Limited Deferrals”
	 	 	13	 
	1.53 “Management Committee”
	 	 	13	 
	1.54 “Midas”
	 	 	13	 
	1.55 “Midas Participant”
	 	 	13	 
	1.56 “Midas Plan”
	 	 	13	 
	1.57 “Named Fiduciary”
	 	 	13	 
	1.58 “Non-Highly Compensated Employee” or “NHCE”
	 	 	13	 
	1.59 “Normal Retirement Date”
	 	 	13	 
	1.60 “Notice Date”
	 	 	13	 






ii









 





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	 	 	 	Page
	1.61 “Participant”
	 	 	14	 
	1.62 “Payment Date”
	 	 	14	 
	1.63 “Plan”
	 	 	14	 
	1.64 “Plan Administrator”
	 	 	14	 
	1.65 “Plan Year”
	 	 	14	 
	1.66 “QDRO”
	 	 	14	 
	1.67 “Related Plan”
	 	 	14	 
	1.68 “Rollover Contribution”
	 	 	15	 
	1.69 “Senior Vice President”
	 	 	15	 
	1.70 “Settlement Date”
	 	 	15	 
	1.71 “Spousal Consent”
	 	 	15	 
	1.72 “Spouse”
	 	 	15	 
	1.73 “Sweep Date”
	 	 	16	 
	1.74 “Termination of Employment”
	 	 	16	 
	1.75 “Trade Date”
	 	 	16	 
	1.76 “Trust”
	 	 	16	 
	1.77 “Trust Agreement”
	 	 	16	 
	1.78 “Trust Fund”
	 	 	16	 
	1.79 “Trustee”
	 	 	16	 
	1.80 “Trustee Transfer”
	 	 	16	 
	1.81 “Unit Value”
	 	 	17	 
	1.82 “Valuation Date”
	 	 	17	 
	1.83 “Year of Service”
	 	 	17	 
	 
	ARTICLE II Participation
	 	 	19	 
	2.01 Eligibility
	 	 	19	 
	2.02 Reemployment
	 	 	19	 
	2.03 Participation Upon Change of Job Status
	 	 	20	 
	 
	ARTICLE III Participant Contributions
	 	 	21	 
	3.01 Pre-Tax Contribution Election
	 	 	21	 
	3.02 Election Procedures
	 	 	21	 






iii









 





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	 	 	 	Page
	ARTICLE IV Employer Contributions and Allocations
	 	 	23	 
	4.01 Pre-Tax Contributions
	 	 	23	 
	4.02 Matching Contributions
	 	 	23	 
	4.03 Pay Based Contributions
	 	 	24	 
	4.04 Special Contributions or QNEC Contributions
	 	 	25	 
	4.05 Miscellaneous
	 	 	26	 
	 
	ARTICLE V Rollovers
	 	 	27	 
	5.01 Rollovers
	 	 	27	 
	5.02 Transfers
	 	 	27	 
	5.03 Qualified Hurricane Distribution Recontribution
	 	 	27	 
	 
	ARTICLE VI Accounting for Participants’ Accounts and for Investment Funds
	 	 	28	 
	6.01 Individual Participant Accounting
	 	 	28	 
	6.02 Accounting for Investment Funds
	 	 	29	 
	6.03 Accounts for Alternate Payees
	 	 	30	 
	6.04 Transition Rules
	 	 	30	 
	 
	ARTICLE VII Investment Funds and Elections
	 	 	31	 
	7.01 Investment of Contributions
	 	 	31	 
	7.02 Investment of Accounts
	 	 	31	 
	7.03 Investment Funds
	 	 	32	 
	7.04 Transition Rules
	 	 	32	 
	7.05 Restricted Investment Funds
	 	 	33	 
	7.06 Risk of Loss
	 	 	33	 
	7.07 Interests in the Investment Funds
	 	 	33	 
	7.08 Sole Source of Benefits
	 	 	33	 
	7.09 Alternate Payees
	 	 	33	 
	 
	ARTICLE VIII Vesting and Forfeitures
	 	 	34	 
	8.01 Fully Vested Contribution Accounts
	 	 	34	 
	8.02 Vesting; Payment of Accrued Benefit On or After Retirement or Disability
	 	 	34	 
	8.03 Vesting Schedule
	 	 	34	 






iv









 






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	 	 	 	Page
	8.04 Forfeitures
	 	 	35	 
	8.05 Forfeiture Account
	 	 	35	 
	8.06 Break in Service
	 	 	36	 
	8.07 Authorized Leave of Absence
	 	 	36	 
	8.08 Transfers
	 	 	37	 
	8.09 Reemployment.Effective as of January 1, 2004, and upon incurring a
Break in Service as defined in Section 8.06, the provisions of
this Section 8.09 shall apply in determining an employee’s Years of Vesting Service under
the Plan
	 	 	37	 
	8.10 Repayment
	 	 	37	 
	 
	ARTICLE IX Participant Loans
	 	 	38	 
	9.01 Participant Loans Permitted
	 	 	38	 
	9.02 Loan Funding Limits
	 	 	38	 
	9.03 Maximum Number of Loans
	 	 	38	 
	9.04 Source of Loan Funding
	 	 	38	 
	9.05 Interest Rate
	 	 	39	 
	9.06 Repayment
	 	 	39	 
	9.07 Repayment Hierarchy
	 	 	39	 
	9.08 Loan Application, Note and Security
	 	 	39	 
	9.09 Default, Suspension and Acceleration Feature
	 	 	39	 
	 
	ARTICLE X In-Service Withdrawals
	 	 	41	 
	10.01 Withdrawals for 401(k) Hardship
	 	 	41	 
	10.02 Withdrawals for Participants over age 591/2 or who are Disabled
	 	 	43	 
	10.03 Withdrawals of Mature Amounts
	 	 	43	 
	10.04 Withdrawal Processing
	 	 	43	 
	10.05 Transfer of Accounts
	 	 	45	 
	10.06 Withdrawals for Hurricane Victims
	 	 	45	 
	 
	ARTICLE XI Distributions On and After Termination of Employment
	 	 	46	 
	11.01 Request for Distribution of Benefits
	 	 	46	 
	11.02 Deadline for Distribution
	 	 	46	 
	11.03 Payment Form and Medium
	 	 	47	 






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	 	 	 	Page
	11.04 Small Amounts Paid Immediately
	 	 	47	 
	11.05 Payment Within Life Expectancy
	 	 	47	 
	11.06 Incidental Benefit Rule
	 	 	47	 
	11.07 Continued Payment of Amounts in Payment Status on the Effective Date
	 	 	48	 
	11.08 TEFRA Transitional Rule
	 	 	48	 
	11.09 Direct Rollover
	 	 	48	 
	11.10 Delay
	 	 	48	 
	 
	ARTICLE XII Distribution of Accrued Benefits On Death
	 	 	49	 
	12.01 Payment to Beneficiary
	 	 	49	 
	12.02 Beneficiary Designation
	 	 	49	 
	12.03 Benefit Election
	 	 	50	 
	12.04 Payment Form
	 	 	50	 
	12.05 Required Commencement of Distribution
	 	 	50	 
	12.06 Direct Rollover
	 	 	55	 
	 
	ARTICLE XIII Maximum Contributions
	 	 	56	 
	13.01 Limit on Pre-Tax Contributions
	 	 	56	 
	13.02 Actual Deferral Percentage Test
	 	 	56	 
	13.03 Actual Contribution Percentage Test
	 	 	57	 
	13.04 Maximum Contributions
	 	 	58	 
	13.05 Imposition of Limitations
	 	 	59	 
	13.06 Return of Excess Annual Additions, Deferrals and Contributions
	 	 	59	 
	13.07 Incorporation by Reference
	 	 	63	 
	13.08 Additional Special Contributions
	 	 	64	 
	 
	ARTICLE XIV Custodial Arrangements
	 	 	65	 
	14.01 Custodial Agreement
	 	 	65	 
	14.02 Selection of Custodian
	 	 	65	 
	14.03 Custodian’s Duties
	 	 	65	 
	14.04 Separate Entity
	 	 	65	 
	14.05 Plan Asset Valuation
	 	 	66	 






vi









 






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	 	 	 	Page
	14.06 Right of Employers to Plan Assets
	 	 	66	 
	 
	ARTICLE XV Administration and Investment Management
	 	 	67	 
	15.01 General
	 	 	67	 
	15.02 Senior Vice President Authority to Act as Employer with Respect to the
Plan and Trust
	 	 	67	 
	15.03 Management Resources and Compensation Committee of the Board of
Directors Authority to Act as Employer with Respect to the Plan and Trust
	 	 	68	 
	15.04 Management Committee and Administrator as Named Fiduciaries for the
Plan
	 	 	69	 
	15.05 Management Committee as Named Fiduciary for the Trust
	 	 	70	 
	15.06 Actions
	 	 	70	 
	15.07 Procedures for Designation of a Named Fiduciary
	 	 	70	 
	15.08 Compensation
	 	 	71	 
	15.09 Discretionary Authority of each Named Fiduciary
	 	 	71	 
	15.10 Responsibility and Powers of the Administrator Regarding
Administration of the Plan
	 	 	72	 
	15.11 Allocations and Delegations of Responsibility
	 	 	72	 
	15.12 Bonding
	 	 	73	 
	15.13 Information to be Supplied by Employer
	 	 	73	 
	15.14 Information to be Supplied by Named Fiduciary
	 	 	74	 
	15.15 Misrepresentations
	 	 	74	 
	15.16 Records
	 	 	74	 
	15.17 Plan Expenses
	 	 	74	 
	15.18 Fiduciary Capacity
	 	 	74	 
	15.19 Employer’s Agent
	 	 	75	 
	15.20 Plan Administrator
	 	 	75	 
	15.21 Plan Administrator Duties and Power
	 	 	75	 
	15.22 Named Fiduciary Decisions Final
	 	 	76	 
	15.23 No Agency
	 	 	76	 
	 
	ARTICLE XVI Claims Procedure
	 	 	77	 
	16.01 Claims Procedure
	 	 	77	 






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	 	 	 	Page
	16.02 Notices to Participants, Etc
	 	 	81	 
	16.03 Notices to Administrator
	 	 	81	 
	16.04 Administrator’s Discretion
	 	 	81	 
	 
	ARTICLE XVII Adoption and Withdrawal from Plan
	 	 	82	 
	17.01 Procedure for Adoption
	 	 	82	 
	17.02 Procedure for Withdrawal
	 	 	82	 
	 
	ARTICLE XVIII Amendment, Termination and Merger
	 	 	83	 
	18.01 Amendments
	 	 	83	 
	18.02 Plan Termination
	 	 	84	 
	18.03 Plan Merger
	 	 	85	 
	 
	ARTICLE XIX Special Top-Heavy Rules
	 	 	88	 
	19.01 Application of Article XIX
	 	 	88	 
	19.02 Definitions Concerning Top-Heavy Status
	 	 	88	 
	19.03 Calculation of Top-Heavy Ratio
	 	 	89	 
	19.04 Effect of Top-Heavy Status
	 	 	90	 
	19.05 Effect of Discontinuance of Top-Heavy Status
	 	 	90	 
	19.06 Intent of Article XIX
	 	 	90	 
	 
	ARTICLE XX Miscellaneous Provisions
	 	 	91	 
	20.01 Assignment and Alienation
	 	 	91	 
	20.02 Protected Benefits
	 	 	91	 
	20.03 Plan Does Not Affect Employment Rights
	 	 	91	 
	20.04 Deduction of Taxes from Amounts Payable
	 	 	91	 
	20.05 Facility of Payment
	 	 	91	 
	20.06 Source of Benefits
	 	 	92	 
	20.07 Indemnification
	 	 	92	 
	20.08 Reduction for Overpayment
	 	 	92	 
	20.09 Limitation on Liability
	 	 	92	 
	20.10 Company Merger
	 	 	92	 
	20.11 Employees’ Trust
	 	 	92	 
	20.12 Gender and Number
	 	 	93	 






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	 	 	 	Page
	20.13 Invalidity of Certain Provisions
	 	 	93	 
	20.14 Headings
	 	 	93	 
	20.15 Uniform and Nondiscriminatory Treatment
	 	 	93	 
	20.16 Law Governing
	 	 	93	 
	20.17 Military Service
	 	 	93	 
	20.18 Notice and Information Requirements
	 	 	93	 
	1. Section 8.11 Vesting Upon a Change in Control shall be added as a new
Section, to read as follows:
	 	 	1	 
	2. This Amendment No. 1 shall be effective on the date written below
	 	 	2	 
	3. Section 9.06 Repayment shall be deleted and replaced with the following
language:
	 	 	1	 
	4. Section 9.09 Default, Suspension and Acceleration Feature shall be amended by deleting subsection (c) in its entirety 
	 	 	1	 
	5. This Amendment No. 2 shall be effective on the date written below
	 	 	1	 






ix









 





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,
the terms shall be deemed to have the following meanings:



     1.01 “Accounting Period” means the periods 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) “ESOP Account” which means a Participant’s interest in the Plan’s assets composed of the
amount allocated under the Plan, as of the Effective Date, if any (as identified by the
Administrator), including amounts allocated from the Whitman Employee Stock Ownership Plan, if any,
which continue to be accounted for under the Plan consistent with the former provisions of 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) “Former Matching Contribution Account” which means a Participant’s interest in the Plan’s
assets composed of the amount allocated under the Plan prior to January 1, 1994, 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.



     (d) “Matching Account” which means a Participant’s interest in the Plan’s assets composed of
Matching Contributions allocated on or after January 1, 1994, and Pay Based Contributions allocated
on and after January 1, 2002, to the Participant under the Plan, the amount allocated under the
Plan as of the Effective Date, 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), plus all income and gains credited to, and
minus all losses, expenses, withdrawals and distributions charged to, such Account.



     (e) “Pay Based Account” which means a Participant’s interest in the Plan’s assets composed of
Pay Based Contributions allocated on or after the Effective Date to the Participant under the Plan,
the amount allocated under the Plan as of the Effective Date, 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



1









 




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.




     (f) “Post-Tax Account” which means a Participant’s interest in the Plan’s assets composed of
post-tax contributions made prior to the Effective Date, 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.



     (g) “Pre-Tax Account” which means a Participant’s interest in the Plan’s assets composed of
Pre-Tax Contributions allocated on or after the Effective Date to the Participant under the Plan,
the amount allocated under the Plan as of the Effective Date, 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, including an amount allocated from
the Lou Gen Ltd. Profit Sharing Plan, if any, and an amount allocated from the Pepsi-Co Long Term
Savings Program, 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.



     (h) “QVEC Account” which means a Participant’s interest in the Plan’s assets composed of the
amount allocated under the Plan as of the Effective Date, 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), plus all
income and gains credited to, and minus all losses, expenses, withdrawals and distributions charged
to, such Account.



     (i) “Rollover Account” which means a Participant’s interest in the Plan’s assets composed of
Rollover Contributions allocated on or after the Effective Date to the Participant under the Plan,
the amount allocated under the Plan as of the Effective Date, 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), plus all
income and gains credited to, and minus all losses, expenses, withdrawals and distributions charged
to, such Account.



     (j) “Special Account” which means a Participant’s interest in the Plan’s assets composed of
Special Contributions allocated on or after the Effective Date to the Participant under the Plan,
the amount allocated under the Plan as of the Effective Date, 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), plus all
income and gains credited to, and minus all losses, expenses, withdrawals and distributions charged
to, such Account.



     (k) “TRASOP Account” which means a Participant’s interest in the Plan’s assets composed of the
amount allocated under the Plan as of the Effective Date, if any (as identified by the
Administrator), including amounts allocated from the Whitman



2









 




Corporation Tax Reduction Act Stock Ownership Plan, if any, which continue to be accounted for
under the Plan consistent with the former provisions of 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.




     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 Catch-up Account, ESOP Account, Former
Matching Contribution Account, Matching Account, Pay Based Account, Post-Tax Account, Pre-Tax
Account, QVEC Account, Rollover Account, Special Account and TRASOP 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.



     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.



     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 shares or 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. 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. The Management Committee has 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.



3









 





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



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



     1.14 “Change Date” means the one or more dates during the Plan Year designated by the
Administrator as the dates available for implementing or changing a Participant’s Contribution
Election.



     1.15 “Commonly Controlled Entity” means: (1) 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 Senior Vice President.



4









 





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



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



     1.18 “Compensation” means:



     (a) for purposes of allocating Contributions and for purposes of applying Section 415 of the
Code to the Plan and its Participants for any Limitation Year, such compensation, as determined by
the Administrator and satisfying the definition of compensation under Section 415 of the Code
(within the meaning of Treasury Regulation 1.415-2(d)(2) and (3)); provided however, for purposes
of allocating Contributions, a car allowance paid to an HCE shall be excluded;



     (b) 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; and



     (c) For purposes of the definition of “Compensation” 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 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 1.18 (as modified by subsection (c)(1), above), but that was mistakenly paid
in a different manner, will be treated as meeting the requirements imposed by this Section
1.18;




     (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 (c)(2) or (c)(3), above, the Administrator, in his or her sole discretion,
will determine whether the item meets the requirements of such subsection (c)(2) or (c)(3),
above.



     (d) 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



5









 




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.




     For purposes of the definition of Compensation under this Section 1.18, amounts under Section
125 of the Code include 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.



     (e) 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:




     (i) 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




     (ii) 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.




     (i) 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.



     1.19 “Computation Period” means the twelve (12) consecutive month period commencing
with an Employee’s Employment Date and the Plan Year which includes the first anniversary of the
Employment Date and each subsequent Plan Year.



     1.20 “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.



6









 





     1.21 “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 1.21(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
such 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) “Matching.” An amount contributed by the Employer based upon the amount contributed by
the eligible Participant.



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



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



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



     (f) “Special.” An amount contributed by the Employer to avoid prohibited discrimination under
Section 401(a)(4) of the Code. Also known as QNEC Contributions.



     1.22 “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).



     1.23 “Contribution Election” or “Election” means the election made by a Participant to
reduce his or her Compensation by an amount equal to the product of his



7









 




or her Contribution Percentage and such Compensation from the Employer subject to the Contribution Election.




     1.24 “Contribution Percentage” means the whole integer percentage of a Participant’s
Compensation which is to be contributed to the Plan by his or her Employer as a Contribution.



     1.25 “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 established
by the 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.



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



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



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



     1.29 “Disability” or “Disabled” means the Participant is disabled for purposes of the
Employer’s long term disability plan.



     1.30 “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.



     1.31 “Effective Date” means January 1, 2008, the date upon which the provisions of
this document become effective. In general, the provisions of this document only apply to
Participants who are Employees on or after the Effective Date. However, investment and
distribution provisions apply to all Participants with Account balances to be invested or
distributed after the Effective Date.



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



     1.33 “Eligible Employee” means, an Employee of the Employer who meets the eligibility
requirements of Section 2.01 (including an Employee on an Authorized Leave of Absence) and who is
paid on the basis of an annual salary and is exempt from overtime, or is a clerical or other office
employee paid on an hourly basis, excluding the following:



8









 





     (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) effective January 1, 1992, any Employee who is eligible to participate in the Whitman
Management Incentive Compensation Plan (“MIC Plan”) at any time during the Plan Year which begins
on or after the date such Employee is designated by an Employer as being eligible for such MIC
Plan; except that, effective as of May 21, 1999: (1) a person who becomes an Employee as the result
of the merger of Whitman Corporation and Heartland Territories Holdings, Inc. shall not be subject
to this restriction and shall not, therefore, fail to be an Eligible Employee as a consequence of
being eligible for the MIC Plan, and (2) with respect to an Employee of Pepsi-Cola General
Bottlers, Inc. (or any subsidiary thereof), this restriction shall lapse in its entirety on the
last day of 1999 so that, as of January 1, 2000, no Employee of Pepsi-Cola General Bottlers, Inc.
(or any subsidiary thereof) shall fail to be an Eligible Employee as a consequence of being
eligible for the MIC Plan.;



     (e) temporary employees;



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



     (g) 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;



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



     (i) 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









 





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



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



     1.34 “Eligibility Service” means the sum of an Employee’s Years of Service.



     1.35 “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 to 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.



     1.36 “Eligible Rollover Distribution” means any distribution of all or any portion of
the balance to the credit of a 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 10 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.



     1.37 “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.




     1.38 “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.



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



     1.40 “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.



     1.41 “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.



     1.42 “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 provisions
of which are incorporated herein by reference.



     1.43 “Hour of Service” means, as it applies to Computation Periods, 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;



     (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



11









 





     (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. An equivalent number of hours shall be credited for each payroll
period in which the full-time Employee would be credited with at least 1 hour. The payroll period
equivalency is 190 hours monthly.



     With respect to a person who becomes an Employee as the result of the merger of Whitman
Corporation and Heartland Territories Holdings, Inc., Hours of Service shall include each hour
which would have been an Hour of Service prior to May 21, 1999, if Commonly Controlled Entity was
determined by reference to include Heartland Territories Holdings, Inc. rather than the Company.



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



     1.45 “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.



     1.46 “Hussmann Plan” means the Hussmann Corporation Retirement Savings Plan for
Salaried Employees.



     1.47 “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.



     1.48 “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.



     1.49 “Investment Election” means an election by which a Participant directs the
investment of his or her Contributions pursuant to procedures established by the 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.



     1.50 “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 authorized by the Administrator are listed in Appendix 1.50.




     1.51 “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.



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



     1.53 “Management 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.



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



     1.55 “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.



     1.56 “Midas Plan” means the Midas International Corporation Retirement Savings Plan
for Salaried Employees.



     1.57 “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



     (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 person who may be designated to be a Named Fiduciary pursuant to Article XV.



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



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



     1.60 “Notice Date” means the date established by the responsible Named Fiduciary as
the deadline for it to receive notification with respect to an administrative



13









 




matter in order to be processed as of a Change Date designated by the responsible Named Fiduciary.




     1.61 “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.



     1.62 “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 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.



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



     1.64 “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.



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



     1.66 “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.



     1.67 “Related Plan” means:



     (a) with respect to Sections 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



14









 




a Commonly Controlled Entity, respectively called a “Related Defined Contribution Plan” and a “Related Defined Benefit Plan.”




     1.68 “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.



     1.69 “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.



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



     1.71 “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.



     1.72 “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



15









 




Participant’s death shall still be the Spouse at the date of the Participant’s death, except as otherwise provided in a QDRO.




     1.73 “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.



     1.74 “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.



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



     1.76 “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.



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



     1.78 “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.



     1.79 “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.



     1.80 “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



16









 





     (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.



     1.81 “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.



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



     1.83 “Year of Service” means, as it applies to Eligibility Service, each
Computation Period in which an Employee is credited with at least 1,000 Hours of Service.



     As it applies to Vesting under Article VIII, Years of Service means each twelve (12)
consecutive month period of employment, commencing on the date an Employee is credited with an Hour
of Service (“Employment Year”) and extending to the employee’s Severance from Service Date. For an
Employee’s Employment Year that includes January 1, 2007, an Employee shall be credited for a Year
of Service for Vesting if the Employee was credited with 1,000 Hours of Service for the Plan Year
commencing January 1, 2007, even if the Employee’s Severance from Service Date occurred during such
Employment Year. An Employee’s Severance from Service Date shall be the earlier of:



     (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.



     In the event an Employee incurs a Period of Severance of less than twelve (12) months, the
Employee’s Period of Severance shall be counted as part of such Employee’s Years of Service for
Vesting. A Period of Severance is the period commencing on the date the Employee quits, is
discharged, retires, or the date the Employee’s absence from service began, until the date the
Employee is credited with an Hour of Service.



     An Employee’s service with a company, which is acquired by a Commonly Controlled Entity, shall
only be counted as employment with such Commonly Controlled Entity in the determination of his or
her Years of Service if: (1) the Senior Vice President directs that credit for such service be
granted in Appendix 1.83, or (2) a qualified plan of the acquired company is subsequently maintained by any Employer or Commonly Controlled Entity.



     For purposes of Eligibility Service and Vesting under Article VIII, the Employer, as directed
by the Senior Vice President, shall credit an Employee with Years of Service or months of service
with the Employer for a period of employment immediately prior to becoming an Employee
(“Pre-Participation Service”), if: (i) the prior period of



17









 




employment was with an unrelated Pepsi-Cola company, and (ii) the Employee terminated employment with the prior company and
commenced employment as an Employee upon the request of the prior company and the Employer.




18









 





ARTICLE II




PARTICIPATION



     2.01 Eligibility.



     An Employee shall become a Participant in this Plan as follows:



     (a) 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.



     (b) Any other Eligible Employee who is a regular, full-time Employee or a regular, part-time
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:




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




     (2) In the portion of the Plan described in Sections 4.02, 4.03 and 4.04 relating to
Matching Contributions, Pay 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.



     (c) 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.



     2.02 Reemployment. Upon incurring a Break in Service, as defined in Section 8.06, the
provisions of this Section 2.02 shall apply in determining an Employee’s eligibility for
participation and period of service under the Plan.



     (a) A Participant who has completed at least one Year of Service 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) Participant who has not completed at least one Year of Service 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. His or her years of
pre-break service shall be restored, but only if the number of his or her consecutive 1-year Breaks
in Service is less than five. A former Participant who has not had his or her pre-break service
restored under the preceding sentence



19









 




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.




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



20









 





ARTICLE III




PARTICIPANT CONTRIBUTIONS



     3.01 Pre-Tax Contribution Election.



     (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 of not more than 50% and authorizing the Compensation otherwise payable to him or her to
be reduced.



     (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 Subsection (a) hereof. Otherwise, the maximum Contribution Percentage as provided in Subsection
(a) hereof 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 Contribution 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, 2006, the Employer will make a Pre-Tax Contribution of 3% of each
Participant’s Compensation per payroll period for each Participant who is hired on or after January
1, 2006. An Employee 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 responsible Named
Fiduciary.



     3.02 Election Procedures. 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: (i) his or her Contribution Election is changed in accordance with



21









 




paragraph (a) hereof; (ii) he or she ceases to be paid as an Eligible Employee; or (iii) his
or her Contribution Election is cancelled in accordance with paragraph (b) hereof.




     (a) 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.




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



     (b) 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. Any Participant who has improperly completed
a Contribution Election will be deemed not to have made an Election.



22









 





ARTICLE IV




EMPLOYER CONTRIBUTIONS AND ALLOCATIONS



     4.01 Pre-Tax 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 an amount equal to the amount designated by the Participant as a Pre-Tax Contribution
on his or her Contribution Election.



     (b) Allocation. The Pre-Tax Contribution shall be allocated to the Pre-Tax Account of the
Participant with respect to whom the amount is paid.



     (c) Timing, Medium and Posting. Pre-Tax Contributions shall be paid to the Custodian in cash
and posted to each Participant’s Pre-Tax Account by the Administrator as soon as such amounts can
reasonably be balanced against the specific amount made on behalf of each Participant. Pre-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 contributed during the
period and was an Eligible Employee at any time during each payroll period.



     (b) Allocation Method. The Matching Contributions for each period shall total one hundred
percent (100%) of each eligible Participant’s Pre-Tax Contributions for the period, provided that
no Matching Contributions shall be made based upon a Participant’s Contributions in excess of six
percent (6%) of his or her Compensation. The Employer may change the one hundred percent (100%)
matching rate or the six percent (6%) of considered Compensation 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. The Administrator shall post such amount to
each Participant’s Matching Account once the total Contribution received by the Custodian has been
balanced against the specific amount to be credited to each Participant’s Matching Account.



23









 





     (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) True-Up Contribution. For each Participant who is an Employee on the last Business Day of
the Plan Year and who has elected to contribute at least six percent (6%) 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, the Employer shall make a Matching Contribution equal to the
least of:




     (1) six percent (6%) of the Participant’s Compensation for the Plan Year;




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




     (3) six percent (6%) of 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
Section 4.02 hereof for the Plan Year.




     4.03 Pay 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 Plan Year the Employer may make a Pay
Based Contribution in an amount determined by the Employer on behalf of each Participant.



     (b) Allocation Method. The Pay Based Contribution for each period shall be allocated among
eligible Participants in direct proportion to their Compensation from the Employer; provided
however, effective on and after January 1, 2002, the Pay Based Contribution will be equal to two
percent (2%) of the Participant’s Compensation for the period with respect to which the Pay Based
Contribution is made.



     (c) Timing, Medium and Posting. The Employer shall make each period’s Pay 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. The Administrator shall post such amount to each
Participant’s Matching Account once the total Contribution received by the Custodian has been
balanced against the specific amount to be credited to each Participant’s Pay Based 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.



24









 





     4.04 Special Contributions or QNEC 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 Administrator on behalf of each Non-Highly Compensated
Employee Participant who was 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 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 QNEC 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 QNEC 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
QNEC 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, QNEC Contributions that are made in connection



25









 




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




     QNECs 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) Pay 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.



26









 





ARTICLE V




ROLLOVERS



     5.01 Rollovers. The Administrator may authorize the Custodian to accept a Rollover
Contribution from an Eligible Employee in cash, even if he or she is not yet a Participant. 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 non-qualifying 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 10.06, 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.



27









 





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



28









 




Investment Funds will be charged at the Investment Fund level and reflected in the net gain or
loss of each Investment Fund.




     (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



29









 







transacted accordingly with no accrual of such dividend, other than as reflected in
such market price.




     (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.



30









 





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 Administrator as the default option, as indicated in Appendix
1.50. 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 does not have a valid Conversation Election on file,
his or her Conversion Election will be deemed to be a 100% election of the Investment Fund
designated by the Administrator as the default option, as indicated in Appendix 1.50. If the
Participant or Beneficiary elects to invest his or her Accrued Benefit in more than one (1)
Investment Fund, he or she 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.



31









 





     (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 1.50.
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, Appendix 1.50.



     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;



     (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;



32









 





     (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 Restricted Investment Funds. Notwithstanding anything contained herein to the
contrary: (a) purchases and sales in the Company Stock Fund will be restricted for Participants
subject to applicable statutory, stock exchange or Company trading restrictions; and (b) amounts
invested hereunder will be subject to such restrictions as may be imposed by: (i) the issuer of
securities to an Investment Fund, or (ii) the investment manager or advisor of such Investment
Fund.



     7.06 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.



     7.07 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.



     7.08 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.



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



33









 





ARTICLE VIII




VESTING AND FORFEITURES



     8.01 Fully Vested Contribution Accounts



     A Participant who first performed an Hour of Service prior to January 1, 2004, shall be fully
vested and have a nonforfeitable right to his or her Accrued Benefit in all Accounts at all times.
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.



     A Participant who first performs an Hour of Service on or after January 1, 2004, 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



     If a Participant who first performs an Hour of Service on or after January 1, 2004, has a
Termination of Employment, the 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:



	 	 	 	 	 
	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	%







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     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(c)(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.



     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



35









 




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 Break in Service. For purposes of this Article VIII, Break in Service means a
12-consecutive month computation period during which he or she is credited with 500 or less Hours
of Service. The applicable computation period shall be the Plan Year.



     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 Article VIII, the
period of time between the first and second anniversaries of the date the Participant is considered
to be absent from service 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.



     A Maternity/Paternity Leave means a paid or unpaid and unapproved absence from employment with
a Commonly Controlled Entity: (1) by reason of the pregnancy of the Employee; (2) by reason of the
birth of a child of the Employee; (3) by reason of the placement of a child under age 18 in
connection with the adoption of such child by the Employee (including a trial period prior to
adoption); and (4) 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.



     8.07 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 on the date his or her leave commenced.



     (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.



36









 





     8.08 Transfers. This Section 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 this Article VIII.



     8.09 Reemployment.Effective as of January 1, 2004, and upon incurring a Break in
Service as defined in Section 8.06, the provisions of this Section 8.09 shall apply in determining
an employee’s Years of Vesting Service under the Plan.



     (a) A Participant who has completed at least one Year of Service at the time he or she incurs
a Break in Service and who is again employed as an Eligible Employee shall have his or her
pre-break service restored in determining his or her rights and benefits under the Plan.



     (b) A Participant who has not completed at least one Year of Service at the time he or she
incurs a Break in Service and who is again employed as an Eligible Employee shall have his or her
years of pre-break service restored, but only if the number of his or her consecutive 1-year Breaks
in Service is less than five. 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.



     8.10 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.



37









 





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.



     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 vested balance of the following Accounts:


Pre-Tax Account

Catch-up Account

Special Account

Matching Account

Former Matching Contribution Account

ESOP Account

TRASOP Account

Rollover Account and

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



     9.04 Source of Loan Funding. A loan to a Participant shall be made solely from the
assets of his or her own Accounts. The available assets shall be determined first by Contribution
Account and then by investment type within each type of



38









 




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. (Effective October 1, 2006) 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 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 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



39









 




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.




40











 





ARTICLE X




IN-SERVICE WITHDRAWALS



     10.01 Withdrawals for 401(k) Hardship.



     (a) Requirements. A Participant may request the withdrawal of any amount from the portion of
his or her Accounts 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 Code Section 152) 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 the Participant, his or her Spouse,
children or dependents (as defined in Code Section 152);




     (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 Code Section 152, without regard to Code
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:



41









 






     (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, post-tax
contributions, (or similar contributions under any other qualified or nonqualified plan of
deferred compensation maintained by a Commonly Controlled Entity) for at least six (6)
months from the date the withdrawal is received; and




     (4) the Contribution Dollar Limit for the taxable year immediately following the
taxable year in which the financial hardship withdrawal is received shall be reduced by the
Elective Deferrals for the taxable year in which the financial hardship withdrawal is
received; provided, however, that the provisions set forth in this sentence will not apply
effective for calendar years beginning after December 31, 2001, to Participants who withdrew
all or part of their Pre-Tax Account after December 31, 2000.



     (d) Account Sources for Withdrawal. All available amounts must first be withdrawn from his or
her Accounts under Section 10.02 or 10.03. The remaining withdrawal amount shall come only from
his or her Accounts, in the following priority order of Accounts:


Post-Tax Account

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account

Matching Account (this is an account source prior to January 1, 1999)

Catch-up Account

Pre-Tax Account

Special Account




     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.



42









 








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


 







     (a) Requirements. A Participant who is over age 591/2 or who is Disabled may withdraw from the
portion of his or her Accounts 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, in the following priority order of Accounts:


Post-Tax Account

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account

Matching Account

Catch-up Account

Pre-Tax Account

Special Account.




     10.03 Withdrawals of Mature Amounts.



     (a) Requirements. 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

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account.




     10.04 Withdrawal Processing.



     (a) Ordering. 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.



43









 





     (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 10.02 or 10.03 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.



     (j) 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.



     (k) Spousal Consent. Spousal Consent will not be required for any withdrawal.



44









 





     (l) 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.



     10.05 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
10.05 shall not be an Eligible Rollover Distribution.



     10.06 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.



45









 





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 forfeitures 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



46









 




comply with the requirements of Section 401(a)(9) of the Code and the Treasury Regulations
promulgated thereunder.




     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 a combination of cash and whole shares of Company Stock to
the extent the 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 at any time, including
after withdrawals have commenced, 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 Incidental Benefit Rule. For Plan Years beginning prior to January 1, 2003, the
Participant’s payment election must be consistent with the requirement that, if the Participant’s
Spouse is not his or her sole primary Beneficiary, the minimum annual distribution for each
calendar year, beginning with the year in which he or she attains age seventy and one-half (701/2),
shall not be less than the quotient obtained by dividing: (a) the Participant’s vested Accrued
Benefit as of the last Trade Date of the preceding year by (b) the applicable divisor as determined
under the incidental benefit requirements of Section 401(a)(9) of the Code. For Plan Years
beginning on or after January 1,2003, the Incidental Benefit Rule shall no longer apply.



47









 





     11.07 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.



     11.08 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.



     11.09 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 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.



     11.10 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.



48









 





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 his or her 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 have the
Trustee 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 his or her 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.



     (e) If a Participant designates his or her Spouse as his or her Beneficiary, and the
Administrator receives a QDRO with respect to the marriage, separation or divorce



49









 




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 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
forfeitures, 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.



     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.



50









 






     (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.




     (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.



51









 






     (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(c) 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 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



52









 






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








53









 












     (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 distributions beginning
after the Participant’s death, the first distribution calendar year is the calendar year in
which distributions are required to begin under



54









 







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.



55









 





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. The following will apply for Plan Years in
which the Plan does not meet the requirements under Code Section 401(k)(12):



     (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



56









 




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:





     (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. The following will apply for Plan Years in
which the Plan does not meet the requirements under Code Section 401(m)(11):



     (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:



57









 






     (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;




     (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 Contributions.



     (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).



58









 




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 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.



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     (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)
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.



     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 of HCEs exceeds the
limit imposed by Section 13.02, the following rules apply:




     (4) (A)The amount of the excess contributions (determined in accordance with Section
401(k)(8)(B) of the Code and subparagraph (3), 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.



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




     (C) 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:




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




     (ii) 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).




     Notwithstanding the preceding provisions of this subparagraph (C), 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.




     (5) 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.



     (c) If a Participant’s Pre-Tax Contributions (plus or minus any gains or losses thereon) are
returned to him or her pursuant to the provisions of this Section 13.06, any



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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
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.




     (d) 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 13.06 with respect to the Plan Year has been taken, if the
contribution percentage for a Plan Year 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.




     (A) 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:




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




     (ii) 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



62









 






method permitted
under the Code and the applicable Treasury Regulations.




     (2) 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 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.




     (3) 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 (3). 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.



     (e) 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.



     (f) 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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     13.08 Additional Special Contributions. Notwithstanding anything in this Plan to the
contrary, in lieu of distributing excess contributions and/or excess aggregate
contributions, as provided in Section 13.06(b)(4) and/or 13.06(d) above, the Company may make
and allocate a Special Contribution to NHCEs in the Plan in an amount and manner which will cause
the Plan to meet the Actual Deferral Percentage and/or Actual Contribution Percentage tests for the
Plan Year.



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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.



     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.



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     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 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 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:



67









 






     (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.



     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



68









 






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 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.



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     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 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 Management



70









 




Committee, the Administrator, 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;



     (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



71









 




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(c) 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 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,



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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(c) 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).



     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.



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     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 estopped 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 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.



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     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;



     (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; and



75









 





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



     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.








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




     (1) Any Claim submitted by a Claimant must be in writing on the appropriate Claim form
(or in such other manner acceptable to the 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.



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




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




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




     (iii) Description of any additional material or information necessary
for the Claimant to perfect the Claim and an explanation of why such
material or information is necessary; and




     (iv) 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.








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     (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 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:




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




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




     (iii) 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




     (iv) 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.




     (1) 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(c) through and including Section 16.01(i)
will not apply to such Claim.



80









 






     (2) 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.



     (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 Notices to 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 the 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 such 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



83









 




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 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



84









 




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 (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.



85









 





     (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 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.



86









 






     (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 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.



87









 





ARTICLE XIX




SPECIAL TOP-HEAVY RULES



     The top-heavy requirements of Section 416 of the Code and this Article XIX will not apply in
any Plan Year beginning after December 31, 2001, in which contributions to the Plan consist solely
of contributions under a cash or deferred arrangement which meets the requirements of Section
401(k)(12) of the Code and matching contributions with respect to which the requirements of Section
401(m)(11) of the Code are met.



     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.



88









 





     (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 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.



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



89









 





     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.



     (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.




90











 




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 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.



91









 





     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 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.



92









 





     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 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.



     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 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 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.



     Executed this 29th day of December 2008.



	 	 	 	 	 
	 	PepsiAmericas, Inc.

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



93









 






	 	 	 	 	 



AMENDMENT NO. 1

TO THE

PEPSIAMERICAS, INC. SALARIED 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. Salaried 401(k) Plan (the “Plan”), the Company hereby amends the
Plan effective on the date written below in the following manner:



     1. Section 8.11 Vesting Upon a Change in Control shall be added as a new Section, to
read as follows:




     8.11 Vesting Upon a Change in Control. Notwithstanding any provision
in this Plan to the contrary, in the event of a Change in Control, as defined
herein, all Participants who are also Employees of the Company on the date of such
Change in Control shall be at all times thereafter fully vested and have a
nonforfeitable right to their Accrued Benefit in all Accounts. Any Eligible
Employee that first becomes a Participant, or that was not employed by the Company
as of the date of such Change in Control shall be subject to the vesting schedule in
Section 8.03 of the Plan.




     For purposes of this Section 8.11, Change in Control shall mean the occurrence
of any of the following events:




     any one person or more than one person acting as a group acquires ownership of stock of
the Company that, together with the stock held by such person or group, constitutes more
than fifty percent (50%) of the total fair market value or the total voting power of the
stock of the Company, other than a merger in which the holders of Company Stock immediately
prior to the merger have substantially the same proportionate ownership of common stock of
the surviving corporation immediately after the merger; provided, however, if any one person
or more than one person acting as a group, is considered to own more than fifty percent
(50%) of the total fair market value or total voting power of the stock of the Company, the
acquisition of additional stock by the same person or persons is not considered to cause a
change in the ownership of the Company or to cause a change in the effective control of the
Company;




     any one person, or more than one person acting as a group acquires (or has acquired
during the twelve (12) month period ending on the date of the most recent acquisition by
such person or persons) ownership of stock of the Company possessing thirty percent (30%)
percent or more of the total voting power of the stock of the Company;



 









 






     any one person, or more than one person acting as a group acquires (or has acquired
during the twelve (12) month period ending on the date of the most recent acquisition by
such person or persons) assets of the Company that have a total gross fair market value
equal to or more than forty percent (40%) of the total gross fair market value of all of the
assets of the Company taken as a whole, immediately prior to such acquisition or
acquisitions; or




     a majority of the members of the Board of Directors is replaced during any twelve (12)
month period by directors whose appointment or election is not endorsed by a majority of the
members of the Board of Directors prior to the date of the appointment or election.




     Notwithstanding (a), (b), (c) or (d) above, a proposed transaction wherein
PepsiCo, Inc. would acquire a less than fifty percent (50%) interest in the Company
Stock shall not constitute a Change in Control.


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



Dated and effective this 30th day of June 2009.




	 	 	 	 	 
	 	PEPSIAMERICAS, INC.

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



2









 







AMENDMENT NO. 2

TO THE

PEPSIAMERICAS, INC. SALARIED 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. Salaried 401(k) Plan (the “Plan”), the Company hereby amends the
Plan effective on the date written below in the following manner:



     3. 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 repayments 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 not 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.



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



     5. This Amendment No. 2 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 	 



1









 






	 	 	 	 	 



AMENDMENT NO. 3

TO THE

PEPSIAMERICAS, INC. SALARIED 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. Salaried 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 10.07 HEART Act Withdrawals shall be added at the end of
Article X, effective for distributions occurring on or after January 14, 2009:




     “10.07 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 11.09 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 (e):





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


Dated this 30th day of December 2009.




	 	 	 	 	 
	 	PEPSIAMERICAS, INC.

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




2