Exhibit 10.19


 


FOURTH AMENDMENT TO THE


BIRDS EYE FOODS MASTER SALARIED RETIREMENT PLAN


 






 


This
amendment is adopted by Birds Eye Foods, Inc., a corporation duly formed
and existing under and by virtue of the general Corporate Law of the State of
Delaware (referred to herein as the “Employer”)


 


WITNESSETH


 


WHEREAS,
the Employer has adopted the Birds Eye Foods Master Salaried Retirement Plan
(the “Plan”) which was amended and restated effective January 1, 2001, and


 


WHEREAS,
the Employer has reserved the right pursuant to the provisions of the Plan to
amend it at any time, and


 


WHEREAS,
the Employer now wishes to amend the Plan to comply with the good faith
amendment requirements of the Economic Growth and Tax Relief Reconciliation Act
of 2001 (“EGTRRA”) which is to be construed in accordance with EGTRRA and
guidance issued thereunder;


 


NOW,
THEREFORE, the Plan is hereby amended generally effective as of the first day
of the first plan year beginning after December 31, 2001.


 


1.                         Section 1.6,
“Actuarial Equivalent”, shall be amended by adding the following sentence at
the end thereof:


 


“Notwithstanding
any other Plan provisions to the contrary, effective for distributions with an
Actual Retirement Date on or after December 31, 2002, the mortality table
prescribed in Rev. Rul. 2001-62 shall be used for:


 


(a)                   adjusting any
benefit limitation under section 415(b)(2)(B), (C), or (D) of the Code as
set forth in the Section 5.6 Plan;


 


(b)                   satisfying the
requirements of section 417(e) of the Code as set forth in Section 6.1(f) the
Plan; and


 


(c)                    for any other
section of the Plan referencing the section 417(e) mortality table.”


 


2.                         Section 1.9,
“ Base Compensation”, shall be amended by adding the following


paragraph
to the end thereof:


 


 


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“The
Compensation of each participant taken into account in determining benefit
accruals in any Plan Year beginning after December 31, 2001 shall not
exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of
the Code. The cost-of-living adjustment in effect for a calendar year applies
to Compensation for the determination period that begins with or within that
calendar year. Compensation means compensation during the Plan Year or such
other consecutive 12-month period over which Compensation is otherwise
determined under the Plan (determination period). For Participants who have an
hour of service after December 31, 2001, for purposes of determining
benefit accruals in a Plan Year beginning after December 31, 2001,
Compensation for any prior determination period shall be limited to $200,000.


 


3.                         Section 1.14,
“Compensation”, shall be amended by adding the following paragraph to the end
thereof:


 


“The
Compensation of each participant taken into account in determining benefit
accruals in any Plan Year beginning after December 31, 2001 shall not
exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of
the Code. The cost-of-living adjustment in effect for a calendar year applies
to Compensation for the determination period that begins with or within that
calendar year. Compensation means compensation during the Plan Year or such
other consecutive 12-month period over which Compensation is otherwise
determined under the Plan (determination period). For Participants who have an
hour of service after December 31, 2001, for purposes of determining
benefit accruals in a Plan Year beginning after December 31, 2001,
Compensation for any prior determination period shall be limited to $200,000. 


 


4.                         Section 5.5(g)(2) shall
be amended by adding the following new paragraph to the end thereof:


 


“Notwithstanding
any other provisions of the Plan, distribution of benefits under this Plan
shall in all events satisfy the requirements of the Code section 401(a)(9) and
the regulations thereunder. Effective for distributions made after December 31,
2002, the minimum distributions required under Section 401(a)(9) of
the Code shall be determined in accordance with the requirements of the final
and temporary regulations under section 401(a)(9) of the Code that were
issued on April 17, 2002, the provisions of which are incorporated herein
by reference.”


 


5.                         Section 5.6(d) shall
be renumbered as 5.6(e), Section 5.6(e) shall be renumbered as Section 5.6(f),
and a new Section 5.6(d) titled “Adjustment to Defined Benefit Dollar
Limitation After December 31, 2001” shall be


added
to read as follows: 


 


“(d)             Adjustment to Defined Benefit
Dollar Limitation After December 31, 2001. This subsection (d) shall
be effective for Participants who have an hour of service on or after the first
day of the first Limitation Year ending after December 31, 2001.


 


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(1)         Adjustment for
Commencement Before Age 62. If the retirement benefit of a Participant
commences before age 62, the Defined Benefit Dollar Limitation applicable to
the Participant at that earlier age is the annual retirement benefit payable in
the form of a straight life annuity beginning at the earlier age that is the
Actuarial Equivalent of the Defined Benefit Dollar Limitation applicable to the
Participant at age 62 (adjusted under (3) below, if required). The Defined
Benefit Dollar Limitation applicable at an age before 62 is determined as the
lesser of (A) the Actuarial Equivalent (at that age) of the Defined Benefit Dollar
Limitation computed using the interest rate and mortality table (or other
tabular factor) specified in the Plan and (B) the Actuarial Equivalent (at
that age) of the Defined Benefit Dollar Limitation computed using a
five-percent interest rate and the applicable mortality table as defined in the
Plan. Any decrease in the Defined Benefit Dollar Limitation determined in
accordance with this paragraph (1) shall not reflect a mortality decrement
if benefits are not forfeited upon the death of the Participant. If any
benefits are forfeited upon death, the full mortality decrement is taken into
account.


 


(2)         Adjustment for
Deferred Retirement. If the retirement benefit of  a Participant commences after
the Participant attains age 65, the  Defined Benefit Dollar
Limitation applicable to the Participant  at the later age is the
annual retirement benefit payable in the  form of a straight life
annuity beginning at the later age that  is Actuarially Equivalent to
the Defined Benefit Dollar  Limitation applicable to the
Participant at age 65 (adjusted  under (3) below, if
required). The actuarial equivalent of the  Defined Benefit Dollar
Limitation applicable at an age after 65  is determined as (A) the
lesser of the actuarial equivalent (at  that age) of the Defined
Benefit Dollar Limitation computed using  the interest rate and
mortality table (or other tabular factor)  specified in the Plan and (B) the
actuarial dollar equivalent (at  that age) of the Defined
Benefit Dollar Limitation computed using  a five percent interest rate
assumption and the applicable  mortality table as defined in
the Plan. For these purposes,  mortality between age 65 and
the age at which benefits commence  shall be ignored.


 


(3)         Adjustment for
Less Than 10 Years of Benefit Service. If a  Participant has completed
less than ten years of Benefit Service,  the Defined Benefit Dollar
Limitation shall be multiplied by a  fraction, the numerator of
which is the number of years (or part  thereof) of Benefit Service
in the Plan and the denominator of  which is 10.”


 


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6.                         Section 5.11(b)(1),
“Eligible rollover distribution” shall be amended by  adding the following
sentences to the end thereof:


 


“Effective
for distributions made after December 31, 2001, a portion of a  distribution
shall not fail to be an eligible rollover distribution merely  because the
portion consists of after-tax employee contributions that are  not includible
in gross income. However, that portion may be paid 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  the distribution
that is includible in gross income and the portion that is  not so
includible.”


 


7.                         Section 5.11(b)(2),
Eligible retirement plan” shall be amended by adding the following sentences to
the end thereof:


 


“Effective
for distributions made after December 31, 2001, an eligible  retirement plan
shall also mean an annuity contract described in section  403(b) of
the Code and an eligible plan under section 457(b) of the Code  which is
maintained by a state, political subdivision of a state, or any  agency or
instrumentality of a state or political subdivision of a state  and which agrees
to separately account for amounts transferred into such  plan from this
Plan. The definition of eligible retirement plan shall also  apply in the
case of a distribution to a surviving spouse, or to a spouse  or former spouse
who is the alternate payee under a qualified domestic  relations order,
as defined in section 414(p) of the Code.”


 


8.                         Section Twelve
shall be amended by adding a new Section 12.7 titled “Modification of
Top-Heavy Rules” to read as follows:


 


“12.7          Modification of Top-Heavy Rules


 


(a)         This section
shall apply for purposes of determining whether the Plan is a top-heavy plan
under section 416(g) of the Code for Plan Years beginning after December 31,
2001, and whether the Plan satisfies the minimum benefits requirements of
section 416(c) of the Code for those years.


 


(b)         “key employee”
shall mean a Participant or former Participant (including a deceased
Participant) who is at any time during the Plan Year that includes the
determination date


 


(1)         an officer of
the Company whose annual Compensation (as defined in Section 1.14) exceeds
$130,000 (as adjusted under section 416(i)(1) of the Code for Plan Years
beginning after December 31, 2002),


 


(2)         a five percent
owner of the Company, or


 


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(3)         a one-percent
owner of the Company having annual  Compensation (as defined in Section 1.14)
of more than  $150,000. For purposes of this definition,
annual  Compensation means compensation within the meaning of  section 415(c)(3) of
the Code.


 


(c)          This section
shall apply for purposes of determining the present values of accrued benefits
and the amounts of account balances of employees as of the determination date.


 


(1)         Distributions
during year ending on the determination date.  The present values of accrued
benefits and the amounts of  account balances of an
employee as of the determination  date shall 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 one-year period ending on the determination  date. The
preceding sentence shall 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 separation from  service, death, or disability,
this provision shall be  applied by substituting “five-year period” for
“one-year  period”.


 


(2)         Employees not
performing services during year ending on the determination date. The accrued
benefits and accounts of any individual who has not performed services for the
Employer during the one-year period ending on the determination date shall not
be taken into account.


 


(d)         For purposes of
satisfying the minimum benefit requirements of section 416(c)(1) of the
Code and the Plan, in determining years of service with the Company, any
service with the Company shall be disregarded to the extent that it occurs
during a Plan Year when the Plan benefits (within the meaning of section 410(b) of
the Code) no key employee or former key employee.”


 


IN WITNESS WHEREOF, this
Amendment has been executed this 27th day of February, 2004.


 


	
   

  	
  BIRDS EYE FOODS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Lois Warlick-Jarvie

  
	
   

  	
  Title: 

  	
  Vice President Human
  Resources

  



 


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