Exhibit 10.3


 


BIRDS EYE FOODS


 


NON-QUALIFIED


401(k) PLAN


 


EFFECTIVE JANUARY 1, 2004


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  4

  
	
  2.01

  	
  Intent

  	
  4

  
	
  2.02

  	
  Purpose

  	
  4

  
	
  2.03

  	
  Plan History

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  6

  
	
  3.01

  	
  Eligibility

  	
  6

  
	
  3.02

  	
  Entry Date

  	
  6

  
	
  3.03

  	
  Elective Deferrals

  	
  6

  
	
  3.04

  	
  Further
  Rules Regarding Elective Deferrals

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  8

  
	
  4.01

  	
  Employer Contributions

  	
  8

  
	
  4.02

  	
  Matching Contributions

  	
  8

  
	
  4.03

  	
  Voluntary Contributions by
  Employees

  	
  8

  
	
  4.04

  	
  Excellence in Performance
  (“EIP”) Award Deferrals

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  9

  
	
  5.01

  	
  Individual Accounts

  	
  9

  
	
  5.02

  	
  Allocation of Contributions

  	
  9

  
	
  5.03

  	
  Allocation of Income and
  Expenses

  	
  9

  
	
  5.04

  	
  Effect of Allocation

  	
  9

  
	
  5.05

  	
  Valuation of Assets

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  10

  
	
  6.01

  	
  Earnings on Accounts

  	
  10

  
	
  6.02

  	
  Notice to Participants

  	
  10

  
	
  6.03

  	
  Determinations Conclusive

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  11

  
	
  7.01

  	
  Vesting

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  12

  
	
  8.01

  	
  Form of Benefit

  	
  12

  
	
  8.02

  	
  Time Payments Commence

  	
  12

  
	
  8.03

  	
  Hardship Distribution
  During Employment

  	
  13

  
	
  8.04

  	
  Regulatory Challenges

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  14

  
	
  9.01

  	
  Death Benefit

  	
  14

  



 


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  9.02

  	
  Designation of Beneficiary

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  15

  
	
  10.01

  	
  Permanent Disability

  	
  15

  
	
  10.02

  	
  Definition of Disability

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  16

  
	
  11.01

  	
  Right to Terminate Plan

  	
  16

  
	
  11.02

  	
  Distribution Upon
  Termination or Discontinuance of Contributions

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  17

  
	
  12.01

  	
  Appointment of Committee

  	
  17

  
	
  12.02

  	
  Powers of Committee

  	
  17

  
	
  12.03

  	
  Investment Manager

  	
  17

  
	
  12.04

  	
  Consultants

  	
  18

  
	
  12.05

  	
  Records

  	
  18

  
	
  12.06

  	
  Action

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  19

  
	
  13.01

  	
  Amendment

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  20

  
	
  14.01

  	
  Claims Procedure

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  21

  
	
  15.01

  	
  Consolidation or Merger

  	
  21

  
	
  15.02

  	
  Termination in Event of
  Merger, etc

  	
  21

  
	
  15.03

  	
  Limitations on
  Consolidation, Merger of Plan or Transfer of Plan Assets

  	
  21

  
	
  15.04

  	
  Loans to Participants

  	
  21

  
	
  15.05

  	
  Trustee as Agent

  	
  21

  
	
  15.06

  	
  Performance of Acts

  	
  21

  
	
  15.07

  	
  Gender and Number

  	
  21

  
	
  15.08

  	
  Binding Effect

  	
  22

  
	
  15.09

  	
  Governing Law

  	
  22

  
	
  15.10

  	
  Invalidity of Part of
  Plan

  	
  22

  
	
  15.11

  	
  Headings

  	
  22

  
	
  15.12

  	
  Communication to Employees

  	
  22

  
	
  15.13

  	
  Employment Rights

  	
  22

  
	
  15.14

  	
  Service of Process

  	
  22

  
	
  15.15

  	
  Spendthrift Provision

  	
  22

  
	
  15.16

  	
  Unfunded, Unsecured
  Obligation

  	
  22

  
	
  15.17

  	
  Not an Employment Contract

  	
  23

  
	
  15.18

  	
  Impact on Other Plans

  	
  23

  



 


ii

















 


ARTICLE I


DEFINITIONS


 


1.01         The name of the
Plan shall be known and designated as the BIRDS EYE FOODS  NON-QUALIFIED
401(k) PLAN, which shall hereinafter be referred to as the  “Plan”. The Plan
was originally known as the CURTICE BURNS FOODS  NON-QUALIFIED PROFIT SHARING
PLAN, and was subsequently known as the  CURTICE BURNS FOODS
NON-QUALIFIED RETIREMENT SAVINGS AND INCENTIVE PLAN,  the AGRILINK FOODS
NON-QUALIFIED RETIREMENT SAVINGS AND INCENTIVE PLAN, and  the AGRILINK
FOODS NON-QUALIFIED 401(k) PLAN.


 


1.02         The effective
date of this amendment and restatement of the Plan shall be  January 1,
2004. The effective date of the Plan was September 15, 1989. The  Plan was
previously restated on October 1, 1995.


 


1.03         “Account” shall
mean the aggregate of the various bookkeeping accounts  maintained on
behalf of each Participant to record or accept contributions  allocated or
made on behalf of such Participant.


 


1.04         “Adjustment
Factor” shall mean the cost of living adjustment factor  prescribed by
the Secretary of the Treasury under Section 415(d) of the  Code as applied
to such items and in such manner as the Secretary shall  provide.


 


1.05         “Affiliated
Employer” shall mean the Employer and any corporation which is  a member of a
controlled group of corporations (as defined in Section  414(b) of the
Code) which includes the Employer; any trade or business  whether or not
incorporated which is under common control (as defined in  Section 414(c) of
the Code) with the Employer; any organization whether or  not incorporated
which is a member of an affiliated service group (as  defined in Section 414(m)
of the Code) which includes the Employer; and any  other entity required to be
aggregated with the Employer pursuant to the  regulations under Section 414(o)
of the Code.


 


1.06         “Board” shall mean
the Board of Directors of the Employer.


 


1.07         “Code” shall
mean the Internal Revenue Code of 1986 and amendments thereto.


 


1.08         “Committee”
shall mean the Advisory Committee appointed and acting in accordance with the
terms of Article XII hereof.


 


1.09         “Compensation”
shall, for purposes of this Plan, mean in the case of a  salaried and/or
commission Employee the basic earnings of such Employee  including
commissions and bonuses, but exclusive of bonus awards under the  Excellence in
Performance (“EIP”) program, and the payments hereunder.


 

















 


1.10         “Employee” shall
mean any person employed by the Employer in a supervisory,  executive, or
professional classification exempt from the overtime  provisions of the Fair Labor
Standards Act.


 


1.11         “Employer” shall
mean BIRDS EYE FOODS, INC., any Affiliated Employer, and  any other entity
which may adopt this Plan, and any successor of the  Employer.


 


1.12         “Entry Date”
shall mean the first day of the pay period following the date  on which an
Employee who satisfies the eligibility requirements set forth  in Section 3.01
executes a salary deferral agreement in accordance with  Section 3.04.


 


1.13         “ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended.


 


1.14         “Family Member”
shall mean an individual described in Section 414(q) of the Code.


 


1.15         “Highly
Compensated Employee” shall mean a highly compensated employee as defined from
time to time in the Birds Eye Foods 401(k) Plan.


 


1.16         “Investment
Manager” means a person or organization who is appointed  pursuant to Section 12.03
to direct the investment of all or part of the  Trust Fund (if the assets of
the Accounts are physically segregated to a  Trust Fund), and who is duly
qualified, appointed, and acting as an  Investment Manager within the
meaning of ERISA Section 3(38).


 


1.17         “Non-Highly
Compensated Employee” shall mean an Employee who is neither a  Highly
Compensated Employee nor a Family Member.


 


1.18         “Participant”
shall mean an Employee of the Employer who has met the  eligibility
requirements of Section 3.01 and who is actively participating  in the Plan.


 


1.19         “Plan
Administrator” shall be the Committee appointed in accordance with Article XII.


 


1.20         “Plan Year” shall mean
successive twelve consecutive month period beginning on January 1.


 


1.21         “Trust” or “Trust
Fund” shall mean the Trust Fund referred to in Article II  which may be
established in accordance with a trust agreement between the  Employer and a
Trustee, or any successor trust agreement, and shall consist  of any and all
payments made by the Employer to the Trust Fund together  with the net
income and gain produced by the investments of the Trust Fund,  which shall be
added to the principal of the Trust Fund by the Trustee. The  fiscal year of
the Trust shall coincide with the Plan Year and shall  change, if
necessary, so as to always conform to any changes in the Plan  Year.


 


2

















 


1.22         “Trustee” shall
mean the trustee designated in any trust agreement  governing the Trust which may
be established by the Employer to be a part  of this Plan, or any
successor trustee, including successors by merger or  consolidation.


 


3

















 


ARTICLE II


PURPOSE AND TRUST FUND


 


2.01         Intent. It is
the intent of the Employer that this Plan shall constitute a  “top hat plan”
for a select group of management or highly compensated  employees, as
such term is used in ERISA.


 


2.02         Purpose.


 


(a)       This Plan, and
any Trust of which it forms a part, is established  for the purpose of enabling
the Employees to defer compensation.  Notwithstanding the
foregoing, the assets allocated (whether by bookkeeping  entry or by
physical allocation) either to Accounts or to the Trust Fund  shall remain the
property of the Employer until actually distributed to  Participants (or
Beneficiaries) hereunder.


 


(b)      If a Trust is
established as part of this Plan, assets of the Plan  and contributions under this
Plan may be paid to the Trustee and deposited  in the Trust Fund. If the
Trustee hereunder is a bank, the Trustee is  specifically authorized to
invest all or part of the assets of the Plan in  certificates of deposit,
savings accounts, or other interest-bearing  savings instruments of the
Trustee.


 


(c)       Any Trust
established as part of this Plan shall conform to the  language of
Revenue Procedure 92-64, any successor pronouncement to such  Revenue
Procedure, or any other model provisions promulgated by the  Internal Revenue
Service.


 


2.03         Plan History.


 


(a)       (9/15/89) The
Plan was originally known as the Curtice Burns Foods  Non-Qualified Profit Sharing
Plan. Prior deferred compensation plan  balances were consolidated
into the Plan.


 


(b)      (10/1/95) The
Plan was restated to coincide with the introduction  of matching contributions
under the qualified 401(k) plan. The Plan name  was changed to the Curtice
Burns Foods Non-Qualified Retirement Savings and  Incentive Plan. The Plan’s
purposes were (i) to accept matching  contributions for the HCEs
who participated in the qualified 401(k) plan;  (ii) to accept the
Incentive Contribution (i.e., annual profit sharing  feature in the qualified 401(k) plan)
for HCEs; (iii) to provide for  deferrals of the annual
Management Incentive Plan (i.e., bonus) award for  HCEs; (iv) to permit
deferrals exceeding the limitation applicable to the  qualified 401(k) plan
limit to the maximum percentage allowable for a  qualified plan; (v) to
allow the consolidation and transfer of prior  deferred compensation plan
balances into the Plan; and (vi) to allow a  special one-time deferral
opportunity for the period 10/1/95 through  12/31/95.


 


(c)       (9/22/97) The
Plan name changed to the Agrilink Foods Non-Qualified Retirement Savings and
Incentive Plan.


 


4














 


(d)      (9/24/98) Prior
to the merger of Dean Foods Vegetable Company with  the Employer, HCEs under the
Dean Foods Company’s qualified 401(k) plan had  been able to defer directly
into the Dean Foods Company qualified 401(k)  plan to a maximum of 10% of
eligible compensation with eligibility for the  company match (50% of the
first 6%). Such rights were carried over to the  Agrilink qualified 401(k) plan,
but former DFVC participants were not  eligible for the Incentive
Contribution feature of the Agrilink qualified  401(k) plan.


 


(e)       (1/1/99) Special
rules were established for the participation of  former DFVC HCEs in the Plan.
Matching contributions for the former DFVC  HCEs were contributed to the
Plan. The former DFVC HCEs were not eligible  to make elective deferrals,
to receive an allocation of Incentive  Contributions, or to defer
any FY1999 Management Incentive Plan award.  Distributions of the 1999
plan year Account defaulted to a lump sum at  termination. The matching
contributions were subject to a 5-year graduated  vesting schedule: 40% at 2
years, 60% at 3 years, 80% at 4 years, and 100%  at 5 years with 1000 hours
per calendar year equal to one year of vesting  service.


 


(f)       (5/1/99) The
former DFVC HCEs were allowed to make elective  deferrals. The sole
distribution option for such Participants was a lump  sum at termination of
employment.


 


(g)      (1/1/00) All
distinctions under the Plan based upon a Participant’s employment with DFVC
were eliminated.


 


(h)      (7/1/00) The
Plan name changed to the Agrilink Foods Non-Qualified  401(k) Plan.
The Incentive Contribution feature was removed from qualified  401(k) plan
and therefore Incentive Contributions could no longer be  deferred into
the Plan. A matching contribution feature was added to the  Plan providing a
50% match on the first 1% of deferrals into the Plan. A  special salary
deferral enrollment opportunity was provided.


 


(i)        (12/31/00) An
Account consolidation opportunity was offered to  HCEs for 2001 as a result of
significant changes in the corporate structure  subsequent to the merger of
DFVC and the transition of HCEs from DFVC.  Revised distribution election
alternatives were provided.


 


(j)        (2/10/03) The
Plan name changed to the Birds Eye Foods Non-Qualified 401(k) Plan.


 


5

















 


ARTICLE III


ELIGIBILITY FOR PARTICIPATION


 


3.01         Eligibility.
Each Employee shall be eligible participate in the Plan who  (a) is a
Highly Compensated Employee, (b) is not entitled to compensation  from the
Employer or a subsidiary of the Employer for any period subsequent  to March 31,
1975 pursuant to a collective bargaining agreement, and (c) is  not a leased
employee (within the meaning of Section 414(n)(2) of the  Code).


 


3.02         Entry Date. An
Employee who meets the eligibility requirements set forth in  Section 3.01
on the effective date of the Plan shall be eligible to  participate in
the Plan as of the effective date and an Employee who  thereafter meets
the eligibility requirements set forth in Section 3.01  shall commence
participation in the Plan on the Entry Date determined under  Section 1.12;
provided that the Employee is still employed by the Employer  on such Entry
Date.


 


3.03         Elective
Deferrals.


 


(a)       The Committee
shall periodically determine the maximum deferral  percentage for a Highly
Compensated Employee under the Birds Eye Foods  401(k) Plan, as amended,
expressed as a percentage of the Participant’s  compensation, as defined
under such plan. An eligible Employee who wishes  to defer a percentage of
Compensation greater than the maximum deferral  percentage under such plan
may elect to participate in this Plan by  executing a written salary
deferral agreement with the Employer which shall  be applicable until amended
as provided herein. The terms of any such  salary deferral agreement
shall provide that the Participant agrees to  accept a deferral in
compensation from the Employer expressed as a  percentage of his
Compensation. Such salary deferral agreement shall be  made in whole
percentages of Compensation. An Elective Deferral will apply  to a bonus paid
to the Employee; provided, however, that an elective  deferral can apply to an
award under the Excellence in Performance program  (“EIP”) only if separately
elected by the Participant in accordance with  subsection (b) and Section 4.04.
Subject to the provisions of subsection  (b) below, no such
salary deferral agreement may provide for a deferral  under the Plan in excess of
twenty percent (20%) of the Participant’s  Compensation less the maximum
deferral percentage for a Highly Compensated  Employee under the Birds Eye
Foods 401(k) Plan.


 


(b)      Notwithstanding
the twenty percent (20%) limitation under  subsection (a) of this Section 3.03,
a Participant may elect, in accordance  with Section 4.04, to
defer all or a portion of the Participant’s  Excellence in Performance (“EIP”)
award for a fiscal year of the Employer  and the amount of such
deferral may exceed 20% of such EIP award and may  cause the Participant’s
aggregate deferral to exceed 20% of the  Participant’s Compensation.


 


6

















 


(c)       In consideration
of a salary deferral agreement, the Employer will  make a salary deferral
contribution (the “Employer contribution”), whether  by bookkeeping entry or
actual contribution of assets, to the Participant’s  Employer Contribution Account
for such Plan Year in an amount equal to the  total amount by which the
Participant’s Compensation from the Employer was  reduced during the Plan Year
pursuant to the salary deferral agreement.


 


3.04         Further Rules Regarding
Elective Deferrals. Salary deferral agreements shall be governed by the
following:


 


(a)       A salary
deferral agreement shall be entered into for each  calendar year before the
beginning of the calendar year (except when an  Employee first satisfies the
Plan’s eligibility requirements in which case  it shall be entered into
within thirty days after the Employee first  satisfies such eligibility
requirements) and shall apply to each payroll  period during that calendar
year. Once entered into, a salary deferral  shall remain in place for
that calendar year unless amended (including an  amendment to terminate the
election) in accordance with subsection (b) of  this Section 3.04.


 


(b)      Any amendment to
a salary deferral agreement to decrease the  amount of such Elective
Deferral shall be effective as of, but shall not  apply to any payroll period
preceding, the payroll period next following  the date the amendment to the
salary deferral agreement is executed by the  Participant and the Employer,
and delivered to the Employer.


 


(c)       Except as
provided above, a salary deferral agreement applicable  to any given
Plan Year may not be amended by any Participant or the  Employer.


 


(d)      A salary
deferral agreement shall be suspended for a period of six  months following
a Participant’s receipt of a hardship distribution from  the Birds Eye
Foods 401(k) Plan or any other Birds Eye Foods plan which  constitutes or
contains a qualified cash or deferred arrangement described  in Section 401(k) of
the Code.


 


(e)       Notwithstanding
the references in this Plan to written salary  deferral agreements, such
agreements may be made via electronic  communications in accordance
with such procedures as the Committee shall  establish.


 


7

















 


ARTICLE IV


CONTRIBUTIONS


 


4.01         Employer
Contributions. For each of its fiscal years, the Employer shall  make a
bookkeeping entry of the amount of an Employer contribution in an  amount equal to
the aggregate amount of Elective Deferrals elected by  Participants for
the Plan Year pursuant to salary deferral agreements  applicable to this Plan. Such
bookkeeping entry shall be made on or before  the due date, including
extensions, for the filing of the Employer’s  federal corporate income tax
return for that fiscal year. Employer  contributions based on
Elective Deferrals shall be allocated among the  Participants entitled thereto
in accordance with the provisions of Article V.


 


4.02         Matching
Contributions. For each of its fiscal years, the Employer may make  a bookkeeping
entry of the amount of an Employer contribution which shall  be designated as
a matching contribution. The amount of such matching  contribution shall be
determined by the Employer based upon the Elective  Deferrals of Participants in
this Plan made under this Plan, and the  elective deferrals of
Participants in this Plan made under the Birds Eye  Foods 401(k) Plan. Such
matching contributions shall be allocated in  accordance with Article V
hereof. Effective for fiscal years beginning in  July 2000, the Employer
has provided, on an annual basis, a match equal to  fifty percent (50%) of the
first one percent (1%) of elective deferrals  under Section 3.03(a) of
this Plan.


 


4.03         Voluntary
Contributions by Employees. No voluntary after-tax Employee contributions are
permitted under this Plan.


 


4.04         Excellence in
Performance (“EIP”) Award Deferrals. An eligible Employee who  participates in
the Employer’s Excellence in Performance (“EIP”) program  may elect to
defer all or a portion of the Employee’s EIP award for a  fiscal year of
the Employer by executing a written EIP deferral agreement.  The terms of any
such agreement shall provide that the Employee agrees to  accept a
deferral in the receipt of the Employee’s EIP award expressed as a  percentage of
the Employee’s award, in even increments of ten percent  (10%). Such
agreement shall be entered into at such time before the year in  which the EIP
award is to be paid as the Committee shall determine, shall  apply only to
the EIP award to which it refers, and shall not be subject to  amendment to
increase or decrease the amount deferred.


 


8

















 


ARTICLE V


ACCOUNTS AND ALLOCATIONS


 


5.01         Individual
Accounts. If no Trust is established as part of this Plan, the  Committee shall
maintain a bookkeeping record of an Account for each  Participant and former
Participant having an amount to his credit under  this Plan. If a Trust is
established as part of this Plan, the Trustee  shall maintain an Account to
which the Participant’s share of the portion  of the Employer’s
contribution shall be credited.


 


5.02         Allocation of
Contributions.


 


(a)       Each Participant
who has entered into a salary deferral agreement  pursuant to Section 3.03
shall receive an allocation to the Participant’s  Account of the Employer
contribution representing the Participant’s  Elective Deferrals under this
Plan.


 


(b)      Each Participant
who either has entered into a salary deferral  agreement pursuant to Section 3.03,
or has made elective deferrals under  the Birds Eye Foods 401(k) Plan,
shall receive an allocation to the  Participant’s Account under
this Plan of the Employer contribution  designated as a matching
contribution under Section 4.02 in accordance with  such factor or
formula determined by the Employer pursuant to Section 4.02.


 


(c)       Each Participant
who has entered into an EIP deferral agreement  pursuant to Section 4.04
shall receive an allocation to the Participant’s  Account of the Employer
contribution under Section 4.04 representing the  Participant’s
EIP award deferral.


 


5.03         Allocation of
Income and Expenses. As of the last business day of each  calendar month,
income for such month shall be credited to, and all losses  and expenses for
such month shall be charged to, the various Accounts  maintained for the
Participants and/or their beneficiaries, as the case may  be. Such credits
and charges shall be made in proportion to the value of  the respective
Accounts as of the preceding Valuation Date after recording  all credits and
charges required to be made as of such Valuation Date.


 


5.04         Effect of
Allocation. No allocation or credit to any Participant’s Account  shall operate to
vest in such Participant any right, title or interest to  or in the
Account or any Trust Fund hereunder except at the time or times  and upon the
terms and conditions set forth in this Plan.


 


5.05         Valuation of
Assets. If a Trust is in existence hereunder, then on the last  business day of
each calendar month, and more frequently if necessary for  the orderly
administration of the Plan, the Trustee shall revalue the  various Accounts
maintained for the Participants (and beneficiaries) such  that the
Participant (and beneficiary) Accounts will reflect any increase  or decrease in
fair market value of the assets of the Trust as of such  date. Any such
increase or decrease in market value shall be apportioned in  the same manner
that income, expenses, and losses are to be apportioned.  The date as of
which any such valuation is made is sometimes herein  referred to as the “Valuation
Date”.


 


9

















 


ARTICLE VI


INVESTMENT OF ACCOUNTS


 


6.01         Earnings on Accounts.


 


(a)       For Plan Years
in which no Trust is in existence hereunder, the  Accounts hereunder shall be
credited with an interest adjustment. Such  interest adjustment shall be
determined and allocated as of the last  business day of each calendar
month. For purposes of this Plan, the  interest adjustment shall be
applied to the average daily balances of  Participants’ Accounts
reflected in the Employer’s records during such  calendar month. The “interest
adjustment” shall be the average interest  rate paid for borrowed funds
by the Employer during the applicable period.  The “applicable period” for
each month in any calendar quarter shall mean  the three (3) month
period beginning with the month four (4) months before  the calendar
quarter and ending with the month one (1) month before the  calendar
quarter. For example, for the calendar quarter beginning in  January, 2004,
the applicable period is the months of September, October,  and November,
2003.


 


(b)      For Plan Years
in which a Trust is in existence as part of this  Plan, any actual earnings or
loss of the Trust Fund shall be allocated to  the Accounts of Participants
(or Beneficiaries) in proportion to the ratio  of the value of each
individual Account to the value of all individual  Accounts immediately before
such allocation. Such allocation shall occur  quarterly.


 


(c)       Notwithstanding
the foregoing, any interest credited, or earnings  or loss allocated, shall
remain the property of the Employer (or the Trust  if earned on Plan assets held
in a Trust forming part of this Plan) until  distributed to Participants
(or Beneficiaries) in accordance with the terms  of this Plan.


 


6.02         Notice to
Participants. On a quarterly basis, and on such interim dates as  selected by the
Committee, the Committee or the Trustee shall prepare, mail  or deliver to
each Participant a report which shall reflect and identify  the adjustments
in his Account resulting from the operations of the Plan  during such
calendar quarter, or interim period, and show the total net  credit to his
Account as of the last day of such calendar quarter or  interim period
after such adjustment.


 


6.03         Determinations
Conclusive. All determinations of the Committee or Trustee  with respect to
allocations, credits and valuations shall be binding and  conclusive for
all purposes.


 


10

















 


ARTICLE VII


VESTING


 


7.01         Vesting. A
Participant’s Account under this Plan shall be fully vested at all times.


 


11

















 


ARTICLE VIII


PAYMENT OF BENEFITS


 


8.01         Form of
Benefit. The provisions of this Article VIII shall apply to amounts  deferred,
contributed, or allocated to Accounts hereunder, plus interest,  earnings, or
losses allocated to such Accounts. The form of benefit payment  for any Account
under this Plan shall be as follows:


 


(a)       Prior to the
Employee participating in the Plan for any Plan Year,  or prior to
entering the Plan for a newly eligible Employee, the  Participant shall elect a
Payment Commencement Date and a Payment Type in  accordance with subsections (b) and
(c) respectively, and such elections  shall govern contributions to
such Participant’s Accounts for the Plan Year  governed by such election.
Such an election shall apply to contributions  for Plan Years subsequent to
the Plan Year of the election until such time  as a further election is put
in place.


 


(b)      The Payment
Commencement Date shall be the first day of any month  coincident with
or next following the Participant’s termination of  employment with the Employer,
or, if so elected by the Participant, the  first day of the month
coincident with or next following the date the  Participant attains an
elected age expressed in years and months; provided,  however, that in no event
will the Payment Commencement Date precede the  first day of the month coincident
with or next following the date of the  Participant’s termination of
employment with the Employer.


 


(c)       The Payment Type
shall be either a single, lump sum payment or an  elected number of installment
payments, to be made monthly, between and  including twelve (12)
installment payments and one-hundred twenty (120)  installment payments. Such
installment payments shall be in roughly equal  amounts and shall be adjusted
periodically to take into account allocations  of income and expenses under Article V
hereof, and allocations of earnings  under Article VI hereof.


 


(d)      Notwithstanding
the foregoing provisions, in the event a  Participant has in place
elections concerning the payment of benefits under  the Plan, which were
effective prior to the effective date of this  restatement of the Plan, then
the portion or portions of such Participant’s  Account governed by such
elections as of the effective date of this  restatement shall remain
subject to such elections.


 


8.02         Time Payments
Commence. The Participant’s Payment Type, as determined under  subsection (c) of
Section 8.01, shall be paid on the Participant’s Payment  Commencement
Date, as determined under subsection (b) of Section 8.01. If  the Participant
has elected installment payments under subsection (c) of  Section 8.01,
such payments shall be made on the first day of each month  until such time
as the Participant’s Account balance is exhausted whereupon  benefit payments
under this Plan shall terminate. Notwithstanding the  foregoing, in the event the
Participant’s Account has a value of $5,000 or  less at the


 


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time
payments are to commence, the Committee may, in its discretion, elect  to pay out the
entire balance of such Participant’s Account in a single  payment.


 


8.03         Hardship
Distribution During Employment. Subject to such uniform rules and  regulations as
may from time to time be adopted by the Committee, the  Committee may
(in its sole discretion) distribute (or direct the Trustee to  distribute) all
or a portion of the amount in the Account of a Participant  either prior to
or following the time designated in Section 8.02 above in  the event of
severe financial hardship to the Participant resulting from a  sudden and
unexpected illness or accident of the Participant or of a  dependent of the
Participant (as defined in Section 152(a) of the Code),  loss of the
Participant’s property due to casualty, or other similar  extraordinary
and unforeseeable circumstances arising as a result of events  beyond the
control of the Participant. The Committee’s rules and  regulations
governing such distributions shall be in conformity with  Treasury
Regulation Section 1.457-2(h)(4) and (5).


 


8.04         Regulatory
Challenges. If the Internal Revenue Service or any other taxing  authority shall
at any time interpret the Plan, any Trust which is a part  of the Plan, or
any salary deferral agreement entered into between the  Employer and a
Participant in the Plan, to be ineffective in deferring the  Participant’s or
designated beneficiary’s income until the time of actual  payment in cash
and that interpretation becomes final or unappealable, the  Employer shall
immediately pay over the taxable amount in question to the  Participant or
designated beneficiary. In addition, if the United States  Department of Labor
or any similar regulatory authority shall at any time  determine that
the Participant is not part of the Employer’s select group  of management or
highly compensated employees described in Sections 201(2),  301(a)(3) and
401(a)(1) of ERISA, or that the entire Plan does not fall  within those
Sections, and that determination becomes final and binding, or  any such agency
issues regulations which legal counsel to the Employer  reasonably
believes are of similar effect, the Employer shall immediately  pay over the
entire amount deferred under this Plan, plus interest or  earnings thereon
computed in accordance with Section 6.01, to the  Participant or
designated beneficiary. In the event of any payment pursuant  to this Section,
the Employer shall also indemnify and hold the Participant  or designated
beneficiary harmless against any interest and/or penalties  which are
imposed on the Participant or designated beneficiary due to the  ineffectiveness
of deferral and against any taxes imposed on the interest  and/or penalties
indemnified, as well as against any taxes pyramided  thereon.


 


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ARTICLE IX


DISTRIBUTION ON DEATH OF PARTICIPANT


 


9.01         Death Benefit.
If a Participant’s death occurs at any time prior to his  termination of
employment (or prior to the payment of all benefits owed to  a Participant),
a death benefit shall be paid to the Participant’s  designated beneficiary (“Beneficiary”)
hereunder for each Plan Year  thereafter in the amount of
the lesser of (i) $100,000 or (ii) the entire  value
(determined as of the first day of each Plan Year) of the balance in  the Participant’s
Account. If a Beneficiary shall die before receiving all  payments due
such Beneficiary hereunder, the balance of such payments shall  be made to the Beneficiary’s
estate in a single lump sum payment.


 


9.02         Designation of
Beneficiary.


 


(a)       A Participant
may designate a Beneficiary to receive death  benefits payable under Section 9.01
on forms provided by the Committee for  that purpose, and such a
designation may be changed at any time. The  Beneficiary may be a natural
person, trust or estate. Any such designation  of Beneficiary shall be made
in accordance with the requirements of this  Plan, and shall be binding
and conclusive on all persons claiming an  interest in or to any benefit
otherwise payable under Section 9.01.


 


(b)      If a Participant
fails to designate a Beneficiary during the  Participant’s lifetime, or if
no designated Beneficiary survives the  Participant, death benefits
shall be paid to the Participant’s surviving  spouse, or, if the
Participant has no surviving spouse, to the  Participant’s legal
representative. If no legal representative is appointed  within sixty
(60) days after the Participant’s death and if the death  benefit
otherwise payable hereunder does not exceed One Thousand Dollars  ($1,000.00), the
Committee may direct the Trustee to pay the Participant’s  death benefit to
such person or persons related to the Participant either  by blood or
marriage as the Committee may designate in its discretion. The  Committee shall
decide what Beneficiaries, if any, shall have been validly  designated, and
its decision shall be binding and conclusive on all  persons.


 


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ARTICLE
X


DISABILITY
OF PARTICIPANTS


 


10.01                   Permanent Disability. If a
Participant becomes permanently and totally  disabled while employed by
the Employer, the entire value of the balance  in his Account hereunder
shall be paid to him in accordance with the  provisions of Article VIII.


 


10.02                   Definition of Disability. For
purposes of this Plan, a Participant will be  deemed to be permanently and
totally disabled if a physician selected by  or acceptable to the
Committee certifies in writing that such Participant  is unable to perform the
duties of his present occupation by reason of any  injury or sickness which can
be expected to result in death or be of long,  continued and indefinite
duration.


 


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ARTICLE
XI


TERMINATION
OF PLAN AND TRUST


 


11.01                   Right to Terminate Plan. This
Plan, and any Trust which may be a part of  the Plan, are purely
voluntary on the part of the Employer, and it may, by  action of its
Board, terminate the Plan at any time. The Employer may also  discontinue
contributions under the Plan at any time. The Plan may also be  terminated,
either voluntarily or involuntarily, without formal action by  the Board or
notice to the Trustee, and in that event, the Participants’  benefits shall
be held and distributed in accordance with the provisions  of Section 11.02
hereof.


 


11.02                   Distribution Upon Termination
or Discontinuance of Contributions. Upon  termination or partial
termination of the Plan, or at such time as the  Participants (and
Beneficiaries) are not entitled to further payments  hereunder, or at such time as
the Internal Revenue Service determines any  of the salary deferral
elections, the Plan, or any Trust which is a part  of the Plan to be ineffective
to defer the taxation of the Accounts until  the Participants’ (or
Beneficiaries’) actual receipt of distributions  hereunder, the Committee may
distribute to the Participants their respective interests in their Accounts or
may direct the Trustee of any Trust which may then form a part of this Plan to
distribute to the  Participants their respective interests in
their Accounts. In such case,  the Committee shall determine
the method of distribution of the  Participant’s Account in
accordance with the provisions of Article VIII  hereof. The Employer may
elect to continue any such Trust indefinitely  for the purpose of
distributing benefits to the Participants and their  Beneficiaries, in accordance
with the provisions of this Plan, generally  upon retirement, permanent
disability, death, or termination of  employment. The election to
continue any such Trust shall be made in  writing to the Trustee.


 


16

















 


ARTICLE
XII


ADVISORY
COMMITTEE


 


12.01                   Appointment of Committee. The
Employer shall appoint an Advisory Committee  of one or more persons to be
known as the “Committee”. The Committee shall  control and manage the
operation and administration of the Plan and shall  be appointed and serve at the
pleasure of the Board. Any member may resign  by delivering his written
resignation to the Board and to the Committee.  Vacancies arising by virtue
of resignation, death, removal or otherwise  shall be filled by the Board.
The Secretary or any other officer of the  Employer shall give the
Trustee, if any, a certified copy of each Board  resolution appointing or
removing a member of the Committee. Until it  receives written notice that
a person is no longer a member of the  Committee, the Trustee shall
be fully protected in assuming that the  person is still a member of
the Committee. When the Secretary or other  corporate officer delivers to
the Trustee a certified copy of a resolution  of the Board appointing a
member of the Committee, he shall also deliver  a specimen signature of that
member. If at any time, no members are  currently serving as the
Committee, or if no Committee is appointed, the  Board shall be deemed to be
the Committee.


 


12.02                   Powers of Committee. The
Committee shall administer the Plan in accordance  with its terms, and shall
have all powers necessary to carry out its  provisions, including the
power to determine all questions arising in  connection with the
administration, management, interpretation and  application of the Plan. The
Committee shall also have the power to  allocate fiduciary
responsibilities for the operation and management of  the Plan (other than those of
the Trustee, if any, with respect to control  of the assets of the Plan)
including the power to allocate fiduciary  responsibilities (other than
Trustee responsibilities) among named  fiduciaries, and to designate
persons other than named fiduciaries to  carry out fiduciary
responsibilities (other than Trustee responsibilities) under the Plan. Any such
delegation shall be in writing and may be made  to the officers and employees
of the Employer, or to any other individual,  all of whom shall serve at
the pleasure of the Committee and, if a  full-time employee of the
Employer, without compensation. Any person who  accepts such delegation may
resign by delivering a written resignation  to the Committee.


 


12.03                   Investment Manager. The
Committee may retain an Investment Manager to  advise and direct the
Committee in carrying out its responsibilities and  functions. The Committee may
delegate to the Investment Manager the sole  responsibility for the
management of the assets of the Plan, including the  power to direct the
acquisition and disposition of any assets of the Plan,  or any specified
portion thereof; and the Investment Manager shall be  authorized to hire and
consult with accountants, actuaries, and other  professional help in the discharge
of his duties. The Investment Manager  shall serve at the pleasure
of the Committee and may resign by written  resignation submitted to the
Committee.


 


17

















 


12.04                   Consultants. The Committee
may retain and appoint legal counsel, specialists, accountants, actuaries, and
other persons it deems necessary  and desirable in connection
with the administration of this Plan.


 


12.05                   Records. The Committee and
those to whom it has delegated fiduciary duties  shall keep a record of all of
their proceedings and actions, and shall  maintain all books or
accounts, records, and other data as shall be  necessary for the proper
administration of the Plan and to meet the  applicable reporting and
disclosure requirements of ERISA, if any.


 


12.06                   Action. The Committee shall
act by a majority of its members, either by  vote at a meeting or in
writing without a meeting. The Committee may  authorize any one or more of
its members to execute any document on behalf  of the Committee, in which
event the Committee shall notify the members so  designated, and the Trustee
of the members who are so authorized to act  on behalf of the Committee.
Any Trustee serving any Trust which is part  of the Plan may rely and will
be fully protected in relying on any written  communications signed by a
majority of the members of the Committee as  being authorized by and
reflecting the action of the Committee. If the  Trustee is advised in writing
by a majority of the members of the  Committee that future
communications may be signed by a lesser number of  members of the Committee and
giving the number and names of members of  the Committee who may sign
future communications, the Trustee may rely  on communications signed by
the lesser number of members as being  authorized by, and reflecting
the actions of, the Committee.


 


18

















 


ARTICLE
XIII


AMENDMENT


 


13.01                   Amendment. The Employer, upon
authorization by its Board, shall have the  right at any time, and from
time to time, to amend, retroactively if  necessary, any or all of the
provisions of this Plan or any Trust which is  a part of this Plan. Any
amendment shall be effective as of the effective  date stated in the amendment.
Notwithstanding the foregoing, no such  amendment shall serve to
reduce the amount held in any Participant’s (or  Beneficiary’s) Account as of
the date such amendment is adopted.


 


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ARTICLE
XIV


CLAIMS
PROCEDURE


 


14.01                    Claims Procedure.


 


(a)                    A written
request for a Plan benefit made by an employee is a  Claim; the person making such
claim is a Claimant.  


 


(b)                   Each Claim shall
be filed with the Committee which shall, within  30 days from its receipt,
either accept it or deny it (wholly or  partially), and within that
time notify the Claimant of acceptance or of  denial. The 30 days may be
extended for another 90 day period if it is  found that special
circumstances require an extension of time for  processing. In this case, the
Claimant will be informed in writing of the  reasons for such extension,
and the date on which a final decision is  expected, prior to the
expiration of the initial 30 day period.


 


If a Claim is wholly or partially denied, a Claimant
shall be  furnished with a written notice setting forth in a manner calculated to  be understood by
the Claimant: (i) the specific reason(s) for denial;  (ii) specific reference(s) to
pertinent Plan provisions on which any  denial is based; (iii) a
description of any additional material or  information necessary for the
Claimant to perfect the Claim, if any, and  an explanation of why such
material or information is necessary; and  (iv) an explanation of the
Plan’s review procedures.


 


(c)                    If a Claimant
does not receive notification of acceptance, denial  or extension within 30 days from
submission of his Claim, he may request  review as if his Claim had
been entirely denied.


 


(d)                   Upon a denial,
the Claimant is entitled, either in person or by  his duly authorized
representative, to: (i) request a review of the Claim  by the Committee
for this purpose upon written application for review made  to the
Committee; (ii) review pertinent documents relating to the denial;  and (iii) submit
issues and comments in writing. In the case of a denial  as to which
written notice of denial has been given to the Claimant, any  request for
review of the Claim pursuant to subsection (d)(i) must be made  within 60 days
after receipt by the Claimant of such notice.


 


(e)                    The Committee
shall make its decision with respect to a Claim  review promptly, but not
later than 60 days after receipt of the request.  Such 60-day period may be
extended for another period of 60 days if the  Committee reviewing the Claim
finds that special circumstances require an  extension of time for
processing. In this case the Claimant will be  informed in writing of the
reasons for such extension prior to the  expiration of the initial 60
day period. The final decision of the  Committee shall be in
writing, give specific reasons for the decision and  make specific references to
the pertinent Plan provisions on which the  decision is based.


 


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ARTICLE
XV


MISCELLANEOUS


 


15.01                   Consolidation or Merger. No
provision of this Plan shall prevent the  consolidation or merger of
the Employer with or into any corporation, or  prevent the sale or transfer
by the Employer of its property or any part  thereof. The successor
corporation resulting from any consolidation,  merger, or transfer shall
succeed the Employer and become a party hereto.  The Employer agrees to notify
the Participants (and Beneficiaries) in  writing of the terms of any
such merger, consolidation, or transfer prior  to its consummation and upon
the consummation of such merger,  consolidation, or transfer
shall require its successor to expressly  acknowledge and assume, in
writing, the Employer’s obligations under this  Plan.


 


15.02                   Termination in Event of
Merger, etc. If the Employer merges or consolidates with another corporation,
or sells or transfers all or substantially all of its assets, and if the successor
corporation refuses to succeed the Employer and become a party to this
Agreement, the Participants (and Beneficiaries) of the Plan shall be entitled
to all legal and equitable remedies, including injunctive relief and other equitable
relief to prevent the transfer of all or substantially all of the Employer’s
assets.


 


15.03                   Limitations on Consolidation,
Merger of Plan or Transfer of Plan Assets. In the event of this Plan’s merger
or consolidation with, or transfer of assets or liabilities to, any other plan,
each Participant in the Plan (if the Plan then terminates) shall be entitled to
receive a benefit immediately after such merger, consolidation or transfer
which is equal to or greater than the benefit he would have been entitled to
receive immediately before the merger, consolidation or transfer (if the Plan
had then terminated).


 


15.04                   Loans to Participants. No
loans from the Plan to any Participant shall be permitted.


 


15.05                   Trustee as Agent. The
Employer or anyone acting on its behalf may at any time employ any Trustee
hereunder in its corporate (and not its fiduciary) capacity as agent to perform
any act or to keep any records in connection with the Employer’s administration
of the Plan. Any such agency relationship shall be established by a separate
written agreement between the Employer and the Trustee and the existence of
such arrangement shall not affect its responsibilities or liabilities as
Trustee under this Agreement.


 


15.06                   Performance of Acts. All
parties affected by this Plan, or claiming any interest hereunder, agree to
perform any and all acts and execute any and all documents and papers which are
necessary or desirable for carrying out this Plan or any of its provisions.


 


15.07                   Gender and Number. Wherever
any words are used herein in the masculine, they shall be construed as though
they were in the feminine in all cases where they could so apply. Words in the
singular shall be read and construed as though in the plural in all cases where
they would so apply.


 


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15.08                   Binding Effect. This Plan
shall extend to, and be binding upon the heirs, executors, administrators,
successors and assigns of any party affected thereby, the Participants and
their beneficiaries. This Plan may be executed in any number of counterparts,
each of which shall be deemed an original hereof.


 


15.09                   Governing Law. This Plan has
been executed in the State of New York and all questions pertaining to its
validity, construction and administration shall be determined in accordance
with the laws of New York or, if applicable, the provisions of ERISA. 


 


15.10                   Invalidity of Part of Plan.
In case any provision of this Plan shall be held illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining parts of
this Plan, but this Plan shall be construed and enforced as if the illegal and
invalid provisions had never been inserted herein.


 


15.11                   Headings. The headings in
this Plan have been inserted for convenience of reference only and are to be
ignored in construction of the provisions thereof.


 


15.12                   Communication to Employees.
Notice of the existence and provisions of the Plan, together with any
amendments hereto shall be communicated by the Employer to all of its affected
Employees.


 


15.13                   Employment Rights. It is
understood that the establishment of this Plan and any Trust which is a part of
this Plan gives no rights whatever to a Participant to be retained in the
employment or service of the Employer, and all Participants shall remain
subject to discharge to the same extent as if this instrument had never been
executed. Nothing contained herein shall be construed as a contract of
employment.


 


15.14                   Service of Process. In any
action involving the Plan, the Committee shall be the agent for service of
process upon the Plan.


 


15.15                   Spendthrift Provision. The
interest of a Participant in any Trust Fund which is part of the Plan shall not
be subject in any manner to assignment, transfer, anticipation, sale, pledge,
or encumbrance or otherwise alienable, either by voluntary or involuntary act
of such Participant or by operation of law, nor subject to attachment,
execution, garnishment, sequestration or other seizure under any legal,
equitable or other process. No right to payment under Plan shall in any manner
be liable for or subject to the debts, contracts, liabilities, or torts of any
Participant, any designated Beneficiary, or any other person other than the
Employer.


 


15.16                   Unfunded, Unsecured
Obligation. The Employer’s obligation to Participants represents nothing more
than its unfunded, unsecured promise to make the payments described in this
Plan. Nothing contained in this Plan shall create or be construed to create a
trust of any kind or a fiduciary relationship between the Employer or the
Committee and any Participant, any designated Beneficiary or the Committee and
any Participant, any designated Beneficiary or any other person. Title to and
beneficial ownership of any funds or other assets which the Employer may in its
discretion choose to identify,


 


22

















 


earmark or set aside to pay its obligations pursuant to this Plan shall
at all times remain exclusively in the Employer and shall for all purposes continue
to be a part of its general funds. Neither any Participant, any designated
Beneficiary nor any other person shall have any property interest whatsoever in
any specific assets of the Employer or in any investments which the Employer
may make to assist it in meeting its obligations under this Plan. To the extent
that any person acquires a right to receive payments from the Employer pursuant
to this Plan, such right shall be no greater than that of any unsecured general
creditor of the Employer.


 


15.17                   Not an Employment Contract.
Nothing contained in this Plan shall be construed to confer upon any Employee
any right to continue to be employed by the Employer in any capacity, and the
Employer retains the right to discharge Employees at will, unless a particular
Employee is subject to a separate employment contract that provides otherwise.


 


15.18                   Impact on Other Plans. 


 


Nothing contained in this Plan shall be deemed to preclude any Employee from
participating in any other compensation, bonus, severance, pension, insurance,
or other employee benefit plan offered by the Employer. However, deferred
compensation payable under this Plan shall not be counted as compensation to
the Employee for the purpose of computing  contributions or benefits
under the Birds Eye Foods 401(k) Plan or under  any other plan or arrangement
if the qualified status of that plan or  arrangement under the Code
would be jeopardized by counting such deferred  compensation.  


 


IN WITNESS WHEREOF, the undersigned has restated this Plan effective for
all purposes as of January 1, 2004.


 


	
   

  	
  BIRDS EYE FOODS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lois Warlick-Jarvie

  



 


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