Ex-10.40 Burger King Savings Plan



 










Exhibit 10.40




Burger King Savings Plan




(Amended and Restated

as of January 1, 2001)





 









 








Contents




	 	 	 	 	 	 	 
	 

	 	Article 1. Introduction
	 	 	1	 
	1.1

	 	Establishment and Amendment of the Plan
	 	 	1	 
	1.2

	 	Applicability of the Plan
	 	 	1	 
	1.3

	 	Purpose of the Plan
	 	 	1	 
	 
	 	 	 	 	 	 
	 

	 	Article 2. Definitions
	 	 	2	 
	2.1

	 	Definitions
	 	 	2	 
	 
	 	 	 	 	 	 
	 

	 	Article 3. Eligibility and Participation
	 	 	12	 
	3.1

	 	Eligibility
	 	 	12	 
	3.2

	 	Election to Participate with Respect to Basic and Matching Contributions
	 	 	13	 
	3.3

	 	Filing of Participation Elections
	 	 	13	 
	3.4

	 	Suspension of Participation
	 	 	13	 
	3.5

	 	Change in Basic Contribution
	 	 	13	 
	3.6

	 	Absence for Reasons of Maternity and Paternity
	 	 	13	 
	3.7

	 	Leased Employees
	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	Article 4. Contributions
	 	 	15	 
	4.1

	 	Basic Contributions
	 	 	15	 
	4.2

	 	Matching and Non-Elective Contributions
	 	 	15	 
	4.3

	 	Restrictions on Contributions
	 	 	15	 
	4.4

	 	Substitute Contributions
	 	 	15	 
	4.5

	 	Payment of Contributions
	 	 	16	 
	4.6

	 	Verification of Contributions
	 	 	16	 
	4.7

	 	No Interest in Employer
	 	 	16	 
	4.8

	 	Allocation of Basic and Matching Contributions
	 	 	17	 
	4.9

	 	Allocation of Non-Elective Contributions
	 	 	17	 
	4.10

	 	Limitations on Basic Contributions
	 	 	17	 
	4.11

	 	Code Section 401(m) Limitations on Matching Contributions
	 	 	19	 
	4.12

	 	Code Section 415 Limitations on Contributions
	 	 	22	 
	 
	 	 	 	 	 	 
	 

	 	Article 5. Trust Fund and Investment Funds
	 	 	24	 
	5.1

	 	The Trust Fund and the Investment Funds
	 	 	24	 
	5.2

	 	Investment Fund Elections and Transfers
	 	 	24	 






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	5.3

	 	Self-Directed Fund
	 	 	24	 
	 
	 	 	 	 	 	 
	 

	 	Article 6. Accounting
	 	 	26	 
	6.1

	 	Separate Accounts
	 	 	26	 
	6.2

	 	Adjustment of Participant’s Accounts
	 	 	26	 
	6.3

	 	Rollovers and Transfers from Other Plans
	 	 	26	 
	6.4

	 	Charging Payments and Distributions
	 	 	27	 
	6.5

	 	Statement of Account
	 	 	27	 
	6.6

	 	Combined Benefit Limitations
	 	 	27	 
	6.7

	 	Allocation to the Share Account and Cash Account within the Diageo ADS Fund
	 	 	27	 
	 
	 	 	 	 	 	 
	 

	 	Article 7. Withdrawals and Distributions During Employment
	 	 	28	 
	7.1

	 	General Withdrawals
	 	 	28	 
	7.2

	 	Hardship Withdrawals
	 	 	28	 
	7.3

	 	Charging and Payment of Withdrawals
	 	 	30	 
	7.4

	 	Loans to Participants
	 	 	30	 
	 
	 	 	 	 	 	 
	 

	 	Article 8. Period of Participation
	 	 	33	 
	8.1

	 	Restricted Participation
	 	 	33	 
	8.2

	 	Resumption of Active Participation
	 	 	33	 
	 
	 	 	 	 	 	 
	 

	 	Article 9. Payment of Account Balances
	 	 	34	 
	9.1

	 	Vesting of Account Balances Upon Retirement, Disability, or Death
	 	 	34	 
	9.2

	 	Vesting of Account Balances Upon Resignation or Dismissal
	 	 	34	 
	9.3

	 	Computation of Years of Vesting Service
	 	 	35	 
	9.4

	 	Remainders
	 	 	36	 
	9.5

	 	Form of Distribution
	 	 	36	 
	9.6

	 	Designation of Beneficiary
	 	 	38	 
	9.7

	 	Missing Participants or Beneficiaries
	 	 	39	 
	9.8

	 	Facility of Payment
	 	 	39	 
	9.9

	 	Commencement of Distributions
	 	 	40	 
	9.10

	 	Spouse’s Benefits
	 	 	41	 
	9.11

	 	Distribution in Kind
	 	 	41	 
	9.12

	 	Partial Distribution
	 	 	42	 
	9.13

	 	Payments Pursuant to a Qualified Domestic Relations Order
	 	 	42	 
	9.14

	 	Unclaimed Benefits
	 	 	43	 
	 
	 	 	 	 	 	 
	 

	 	Article 10. Reemployment
	 	 	44	 
	10.1

	 	Resumption of Participation
	 	 	44	 
	10.2

	 	Reinstatement of Remainder
	 	 	44	 






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	 	Article 11. Administration
	 	 	46	 
	11.1

	 	Authority and Responsibility of the Board of Directors
	 	 	46	 
	11.2

	 	Committee Membership
	 	 	46	 
	11.3

	 	Committee Structure
	 	 	46	 
	11.4

	 	Committee Actions
	 	 	47	 
	11.5

	 	Responsibility and Authority of the Benefits Committee
	 	 	47	 
	11.6

	 	Responsibility and Authority of the Investment Committee
	 	 	49	 
	11.7

	 	Committee Liability
	 	 	49	 
	11.8

	 	Committee Bonding
	 	 	49	 
	11.9

	 	Information to be Supplied by Employers
	 	 	50	 
	11.10

	 	Records
	 	 	50	 
	11.11

	 	Interested Committee Member
	 	 	50	 
	11.12

	 	Fiduciary Capacity
	 	 	50	 
	11.13

	 	Employer’s Agent
	 	 	50	 
	 
	 	 	 	 	 	 
	 

	 	Article 12. General Provisions
	 	 	51	 
	12.1

	 	Additional Employers
	 	 	51	 
	12.2

	 	Action by Employers
	 	 	51	 
	12.3

	 	Waiver of Notice
	 	 	51	 
	12.4

	 	Gender and Number
	 	 	51	 
	12.5

	 	Controlling Law
	 	 	51	 
	12.6

	 	Employment Rights
	 	 	51	 
	12.7

	 	Litigation by Participants
	 	 	51	 
	12.8

	 	Interests Not Transferable
	 	 	52	 
	12.9

	 	Absence of Guaranty
	 	 	52	 
	12.10

	 	Evidence
	 	 	52	 
	12.11

	 	Transfer of Pillsbury Savings Plan Benefits to the Plan
	 	 	52	 
	12.12

	 	Military Service
	 	 	53	 
	12.13

	 	Claims Procedure
	 	 	53	 
	 
	 	 	 	 	 	 
	 

	 	Article 13. Amendment and Termination
	 	 	55	 
	13.1

	 	Amendment
	 	 	55	 
	13.2

	 	Termination
	 	 	55	 
	13.3

	 	Vesting and Distribution on Termination
	 	 	56	 
	13.4

	 	Notice of Amendment or Termination
	 	 	56	 
	13.5

	 	Plan Merger, Consolidation, Etc.
	 	 	56	 
	 
	 	 	 	 	 	 
	 

	 	Article 14. Voting and Tendering of Diageo ADSs
	 	 	57	 
	14.1

	 	Registration of Diageo ADSs
	 	 	57	 
	14.2

	 	Voting Rights
	 	 	57	 
	14.3

	 	Rights on Tender or Exchange Offer
	 	 	57	 






iii 









 






	 	 	 	 	 	 	 
	 

	 	Article 15. Special Rules for Top-Heavy Plans
	 	 	58	 
	15.1

	 	Purpose and Effect
	 	 	58	 
	15.2

	 	Top-Heavy Plan
	 	 	58	 
	15.3

	 	Minimum Employer Contribution
	 	 	58	 
	15.4

	 	Vesting Requirements
	 	 	59	 
	15.5

	 	Aggregation of Plans
	 	 	60	 
	15.6

	 	Adjustment of Combined Benefit Limitations
	 	 	60	 
	15.7

	 	Use of Terms
	 	 	60	 






iv 









 






Article 1. Introduction



1.1 Establishment and Amendment of the Plan

Burger King Corporation (the “Company”) has adopted the Burger King Savings Plan (the
“Plan”) for the benefit of its Eligible Employees. The Plan was initially adopted effective as of
October 1, 1990 as a spinoff of the Pillsbury Savings Plan. The Plan is a defined contribution
savings plan, and is adopted as a qualified retirement plan within the meaning of section 401(a) of
the Internal Revenue Code of 1986 (the “Code”) and as a qualified cash or deferred arrangement
under section 401(k) of the Code. The Plan previously was amended and restated effective January 1,
1998 to reflect changes in the law and regulatory guidance since the initial adoption of the Plan
and to enact other changes the Company deemed desirable.



Effective as of January 1, 2001, the Plan is hereby again amended and restated in order to—





	(a)	 	reflect changes in the law and regulatory guidance effective since the last amendment and
restatement of the Plan; and
	 
	(b)	 	enact such other changes to the Plan as the Company deems desirable.




Provisions of the amended and restated Plan have been adopted to reflect certain provisions of the
Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). These provisions are intended
as good-faith compliance with the requirements of EGTRRA and are to be construed in accordance with
EGTRRA and guidance issued thereunder.



1.2 Applicability of the Plan

The provisions of this Plan as set forth in this document are applicable only to the
Employees in current employment on or after January 1, 2001, except as otherwise specifically
provided. Except as so provided, any person who was entitled to benefits under the Plan or a
predecessor plan as in effect on December 31, 2000, shall continue to be entitled to the same
benefits under this Plan.



1.3 Purpose of the Plan

The purpose of the Plan is to provide a convenient way for Participants to save on a regular
and long-term basis for retirement and to enable Participants to share in the profitable operations
of the Company.





1









 








Article 2. Definitions



2.1 Definitions

Whenever used in the Plan or any Supplement hereto, the following terms shall have the
respective meanings set forth below, unless otherwise expressly provided herein, and when the
defined meaning is intended, the term is capitalized.





	(a)	 	“Accounting Date” means a Daily Accounting Date, a Monthly Accounting Date, and a Special
Accounting Date.
	 
	(b)	 	“Account” means all accounts maintained in a Participant’s name under the Plan.
	 
	(c)	 	“Actual Deferral Percentage” means the average of the ratio of each Highly Compensated
Employee’s or Non-Highly Compensated Employee’s, as the case may be, Basic Contributions which
were allocated to the Participant’s Basic Contribution Account with respect to the Plan Year
to each such Participant’s Compensation for the Plan Year.
	 
	(d)	 	“Basic Contribution” means—






	 	(1)	 	with respect to Participants other than salaried officers and directors of
the Employer, a contribution made on behalf of a Participant in an amount equal to 1
percent to 15 percent (or, effective January 1, 2002, 1 percent to 50 percent) of the
Compensation for that month as elected by the Participant, provided, if a Participant
is a Highly Compensated Employee, the maximum election on behalf of such Participant
shall be 4 percent and such election may be reduced by the Committee for purposes of
compliance with the restrictions on Basic Contributions as detailed in section
4.10(c). Effective July 1, 2001, if—






	 	(A)	 	a Participant is a Highly Compensated Employee who continues to
accrue a benefit under the Burger King Retirement Plan on and after July 1,
2001, the maximum election on behalf of such a Participant shall be 4 percent;
or
	 
	 	(B)	 	a Participant is a Highly Compensated Employee whose benefit
accrual under the Burger King Retirement Plan ceased effective July 1, 2001, the
maximum election on behalf of such a Participant shall be 6 percent, and






such election may be reduced by the Committee for purposes of compliance with the
restrictions on Basic Contributions as detailed in section 4.10(c). Effective January
1, 2002, if a Participant to whom this section 2.1(d)(1) applies is a Highly
Compensated Employee, the maximum election on behalf of such Participant may be
determined by the Committee and may be reduced by



2









 






the Committee for purposes of compliance with the restrictions on Basic Contributions
as detailed in section 4.10(c).




	 	(2)	 	with respect to Participants who are salaried officers and directors of the
Employer, effective July 1, 2001, a contribution made on behalf of a Participant in an
amount equal to 1 percent of the Compensation for that month as elected by such
Participant. The Basic Contribution shall not exceed $1,000 for any such Participant
for any calendar year. If such a Participant is a Highly Compensated Employee, the
maximum election on behalf of such Participant may be reduced by the Committee for
purposes of compliance with the restrictions on Basic Contributions as detailed in
section 4.10(c).






	(e)	 	“Basic Contribution Account” means an Account maintained in a Participant’s name in which a
Participant’s Basic Contributions are placed.
	 
	(f)	 	“Beneficiary” means the natural or legal person or persons to whom a deceased Participant’s
benefits are payable under section 9.5 of the Plan.
	 
	(g)	 	“Benefits Committee” or “Committee” means the persons appointed by the Company to administer
the Plan in accordance with Article 11. (If the context clearly so indicates, “Committee” may
also refer to the Investment Committee.)
	 
	(h)	 	“Cash Account” means a separate subaccount of the Diageo ADS Fund maintained for Participants
which contains contributions, forfeitures, investment earnings, and cash dividends on Diageo
ADSs, but not yet used to purchase Diageo ADSs, and any additional cash necessary for the
operation of the Diageo ADS Fund.
	 
	(i)	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	(j)	 	“Company” means Burger King Corporation, a corporation of Florida, with executive offices in
the County of Miami-Dade, State of Florida.
	 
	(k)	 	“Compensation” means a Participant’s wages, salaries, and other amounts received in a month
for personal services rendered in the course of employment with an Employer, including
bonuses, overtime, commissions, paid incentives, any amount allocable to him as a Basic
Contribution for that month, and any salary reduction contribution for that month to any
cafeteria plan (as defined in Code section 125) maintained by any Employer, but not including
reimbursements and other expense allowances, cash and non-cash fringe benefits, moving
expenses, deferred compensation, welfare benefits (such as medical disability, and severance
benefits and group life insurance coverage), amounts realized from the grant or exercise of
stock options or the sale or exchange or other disposition of stock acquired under stock
options (other than the value of non-qualified stock options included in gross income for the
taxable year in which granted).




3









 






	 	 	However, Compensation shall not include any amount in excess of $170,000 (as adjusted
annually by the Secretary of the Treasury for increases in the cost of living pursuant to
Code section 401(a)(17)). Effective for Plan Years beginning on or after January 1, 2002,
Compensation shall not include any amount in excess of $200,000 (as adjusted annually by
the Secretary of the Treasury for increases in the cost of living pursuant to Code section
401(a)(17)).






	(l)	 	“Contribution Percentage” means the average of the ratio of each Highly Compensated
Employee’s or Non-Highly Compensated Employee’s, as the case may be, share of the Matching
Contributions, which were allocated to the Participant’s Matching Contribution Account with
respect to the Plan Year, to each such Participant’s Compensation for the Plan Year.
	 
	(m)	 	“Controlled Group Member” means any corporation or enterprise, other than the Employer,
which, as of a given date, is a member of the same controlled group of corporations, the same
group of trades or businesses under common control, or the same affiliated service group,
determined in accordance with section 414(b), (c), (m), or (o) of the Code, as is the
Employer. A Controlled Group Member that is not also an Employer shall be referred to as a
“nonparticipating Controlled Group Member.”
	 
	(n)	 	“Daily Accounting Date” means the end of each business day.
	 
	(o)	 	“Determination Date” means the last day of the preceding Plan Year.
	 
	(p)	 	“Diageo” means Diageo plc, of which the Company is an indirect wholly owned subsidiary.
	 
	(q)	 	“Diageo ADS Fund” means the Investment Fund invested primarily in American Depositary Shares
(“ADS”) each evidencing four ordinary shares of Diageo including any rights, warrants, and
options associated with such shares.
	 
	(r)	 	“Disability” means the Participant is unable to perform the majority of the material duties
pertaining to his or her job with the Company or any Controlled Group Member and the
Participant is not engaged in any employment for wage or profit, as determined by the
Committee.
	 
	(s)	 	“Eligible Employee” means an Employee who meets the requirements of section 3.1
	 
	(t)	 	“Employee” means any individual who is employed by an Employer, but excludes any person who
is a non-resident alien or who is a resident alien who is an active Participant in a
retirement or pension plan maintained by a Controlled Group Member. The term Employee shall
not include any individual—






	 	(1)	 	whose services to an Employer are rendered pursuant to the terms of a
contract with an employment or leasing agency that is not a Controlled Group Member;




4









 












	 	(2)	 	whose services are rendered pursuant to written arrangements which expressly
recite that the individual is not eligible for participation in the Plan;
	 
	 	(3)	 	whose employment becomes the subject matter of a collective bargaining
agreement between employee representatives and the Employer, unless such collective
bargaining agreement expressly provides that such person is eligible for participation
in the Plan;
	 
	 	(4)	 	who is a “Leased Employee”;
	 
	 	(5)	 	whether or not deemed a common-law employee, who is not a leased employee but
who provides services to the Employer pursuant to an agreement between the Employer
and any other person whether for services of a year or more or for periods of less
than one year;
	 
	 	(6)	 	classified by the Employer as an independent contractor, whether or not
deemed a common-law employee; or
	 
	 	(7)	 	classified on the payroll of the Employer as a Burger King temporary
employee.







	 	 	A person who is not designated as an “employee” in the Employer’s employment records during
a particular period of time, including a person designated by the Employer as an
“independent contractor,” is not considered to be an Employee during that period of time.
Such a person shall not be considered an “Employee” for purposes of this Plan, even if a
determination is made by a government agency or court that such person is an employee for
any other purposes; provided, however, that such a person may be considered an “Employee”
if the Employer designates such person as an “Employee” for purposes of the Plan. If such a
designation is made, it shall be applied prospectively only, unless the Employer
specifically provides otherwise.






	(u)	 	“Employer” means the Company and all Controlled Group Members which adopt the Plan.
	 
	(v)	 	“Equity-Capital Appreciation Fund” means the Investment Fund invested primarily in common
stocks and securities (other than those of the Company or any Controlled Group Member) or in
common trust funds or pooled funds investing in such securities with the investment objective
of long term capital appreciation.
	 
	(w)	 	“Equity-Growth and Income Fund” means the Investment Fund invested primarily in common stock
and securities or in common trust funds or pooled funds investing in such securities (other
than those of the Company or any Controlled Group Member) with the investment objective of
long term capital growth and the generation of a reasonable level of income.




5









 












	(x)	 	“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
	 
	(y)	 	“Excess Remainder Suspense Account” means an Account holding any Remainder which cannot be
allocated by reason of section 6.6 or 4.12 and is to be used to reduce Employer Contributions
in succeeding Plan Years in order of time.
	 
	(z)	 	“Highly Compensated Employee” means, with respect to any Plan Year, any Employee who is a
5-percent owner (as defined in Code paragraph 416(i)(1)) during the Plan Year, or during the
preceding Plan Year (or such other period as the Company may elect pursuant to Treasury
regulations) either—






	 	(1)	 	received Compensation from the Employer and all Controlled Group Members in
excess of $80,000 (effective January 1, 1997) (as adjusted pursuant to Code subsection
415(d)); or
	 
	 	(2)	 	was a 5-percent owner (as defined in Code paragraph 416(i)(1)).







		 	To the extent required by Code section 414(q)(6), a former Employee who was a Highly
Compensated Employee when he separated from service with the Employer and all Controlled
Group Members or at any time after attaining age 55 shall be treated as a Highly
Compensated Employee.






	(aa)	 	“Hour of Service” means each hour for which an Employee is directly or indirectly paid or
entitled to payment by an Employer or Controlled Group Member for the performance of duties
and for reasons other than the performance of duties, including each hour for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to by an Employer or
Controlled Group Member, determined and credited in accordance with Department of Labor Reg.
Sec. 2530.220b-2.
	 
	(bb)	 	“Inactive Participant” means a Participant who participates in the Plan on a restricted basis
pursuant to section 8.1.
	 
	(cc)	 	“Income Fund” means the Investment Fund invested primarily in a diversified portfolio of bank
and insurance company investment contracts and U.S. government and U.S. federal agency
securities.
	 
	(dd)	 	“Investment Committee” means the persons appointed by the Company to manage the assets of the
Plan in accordance with Article 11.
	 
	(ee)	 	“Investment Fund” means one or more of the following funds: Income Fund, Equity-Capital
Appreciation Fund, Equity-Growth and Income Fund, Diageo ADS Fund, Self-Directed Fund, or any
other fund the Committee directs the Trustee to establish.
	 
	(ff)	 	“Investment Manager” means—




6









 












	 	(1)	 	a registered investment advisor under the Investment Advisors Act of 1940;
	 
	 	(2)	 	a bank as defined in the Investment Advisors Act of 1940; or
	 
	 	(3)	 	an insurance company qualified under the laws of more than one state to
manage, acquire, and dispose of Plan assets.






	(gg)	 	“Key Employee” means a Member who is a “Key Employee,” as defined in Code subsection 416(i).
	 
	(hh)	 	“Leased Employee” means any individual who is not an Employee of an Employer or a Controlled
Group Member and who provides services for the Employer or a Controlled Group Member if—






	 	(1)	 	such services are provided pursuant to an agreement between the Employer or a
Controlled Group Member and any other person;
	 
	 	(2)	 	such individual has performed such services for the Employer or a Controlled
Group Member (or a related person within the meaning of section 144(a)(3) of the Code)
on a substantially full-time basis for a period of at least one year; and
	 
	 	(3)	 	effective January 1, 1997, such services are performed under the primary
direction and control of the Employer or nonparticipating Control Group Member.






	(ii)	 	“Leave of Absence” means an absence from work which is not treated by the Employer as a
termination of employment or which is required by law to be treated as a leave of absence.
	 
	(jj)	 	“Matching Contribution” means—






	 	(1)	 	Prior to July 1, 2001, the contribution made on behalf of each Participant,
who is employed by that Employer during that month, in an amount equal to 50 percent
of the first 4 percent of Compensation which has been contributed as a Basic
Contribution to the Plan on behalf of such Participant for that month, not to exceed 2
percent of Compensation for any Participant for that month.
	 
	 	(2)	 	Effective July 1, 2001—






	 	(A)	 	Officers and Directors. “Matching Contribution” means the
contribution made on behalf of each salaried Participant who is employed as an
officer or director of the Employer during that month, in an amount equal to 100
percent of the first 1 percent of Compensation which has been contributed as a
Basic Contribution to the Plan on behalf of such Participant for that month, not
to exceed $1,000 for any calendar year.




7









 












	 	(B)	 	Salaried Employees Participating in the Burger King Retirement
Plan. “Matching Contribution” for any salaried Employee who—






	 	(i)	 	is not employed as an officer or director of the
Employer; and
	 
	 	(ii)	 	is 40 years of age or older on June 30, 2001 and
elected to continue participation in the Burger King Retirement Plan
effective July 1, 2001,






means the contribution made on behalf of such Participant, who is employed by
that Employer during that month, in an amount equal to 50 percent of the first
4 percent of Compensation which has been contributed as a Basic Contribution
to the Plan on behalf of such Participant for that month, not to exceed 2
percent of Compensation for any Participant for that month.







	 	(C)	 	Other Employees. “Matching Contribution” for any Employee paid at
an hourly rate and for any salaried Employee who—






	 	(i)	 	is not employed as an officer or director of the
Employer; and
	 
	 	(ii)	 	satisfies either (a) or (b) where—






	 	(a)	 	is an Employee who was 40 years of age
or older on June 30, 2001 and elected to freeze his benefit under
the Burger King Retirement Plan effective July 1, 2001; or
	 
	 	(b)	 	is a salaried Employee under age 40 on
June 30, 2001,






means the contribution made on behalf of such Participant, who is employed by
that Employer during that month, in an amount equal to 100 percent of the
first 6 percent of Compensation which has been contributed as a Basic
Contribution to the Plan on behalf of such Participant for that month, not to
exceed 6 percent of Compensation for any Participant for that month.




	(kk)	 	“Matching Contribution Account” means the Account maintained in the Participant’s name in
which Matching Contributions are placed.
	 
	(ll)	 	“Maternity or Paternity Absence” means an Employee’s absence from work because of the
pregnancy of the Employee or birth of a child of the Employee, the placement of a child with
the Employee in connection with the adoption of such child by the Employee, or for purposes of
caring for the child immediately following such birth or placement. The foregoing definition
shall also apply to an absence from employment, not to exceed 12 weeks, for which an Employee
is entitled to leave under section 102(a) of the Family and Medical Leave Act for maternity or
paternity




8









 






	 	 	reasons stated above or for purposes of caring for a spouse, child, or parent (but not
parent-in-law) who has a serious health condition or because of the Employee’s own serious
health condition.






	(mm)	 	“Member” means a Participant, or a former Participant or alternate payee who still has an
Account balance in the Plan.
	 
	(nn)	 	“Member of a Collective Bargaining Unit” means any Employee who is included in a collective
bargaining unit and whose terms and conditions of employment are covered by a collective
bargaining agreement if there is evidence that retirement benefits were the subject of
good-faith bargaining between representatives of such Employee and the Employer, unless such
collective bargaining agreement makes this Plan applicable to such Employee.
	 
	(oo)	 	“Minimum Employer Contribution” has the meaning set forth in section 15.3.
	 
	(pp)	 	“Monthly Accounting Date” means the last business day of each calendar month.
	 
	(qq)	 	“Non-Elective Contribution” means an Employer Contribution made to the Accounts of
Participants as provided in subsection 4.2(b).
	 
	(rr)	 	“Non-Elective Contribution Account” means the Account maintained in a Participant’s name in
which Non-Elective Contributions are placed.
	 
	(ss)	 	“Non-Highly Compensated Employee” means, for any Plan Year, any Employee of the Employer or a
Controlled Group Member who—






	 	(1)	 	at any time during the Plan Year was an Employee eligible to make Basic
Contributions; and
	 
	 	(2)	 	was not a Highly Compensated Employee for such Plan Year.






	(tt)	 	“Normal Retirement Age” means a Participant’s sixty-fifth birthday.
	 
	(uu)	 	“One-Year Break in Service” means a Participant is not in the employ of an Employer or
Controlled Group Member for a period of 12 consecutive months following his or her termination
of employment, except as may be provided for in a Maternity or Paternity Absence.
	 
	(vv)	 	“Participant” means—






	 	(1)	 	with respect to Basic and Matching Contributions, an Eligible Employee who
has signed and filed an application in accordance with section 3.3; or
	 
	 	(2)	 	with respect to Non-Elective Contributions, an Eligible Employee with respect
to whom a Non-Elective Contribution has been made pursuant to subsection 4.2(b).




9









 












	(ww)	 	“Plan” means the Burger King Savings Plan, together with any amendments, schedules or
supplements thereto.
	 
	(xx)	 	“Plan Administrator” means the Benefits Committee of the Company (“Committee”).
	 
	(yy)	 	“Plan Year” means the 12-month period beginning on January 1 and ending on the following
December 31.
	 
	(zz)	 	“Predecessor Company” means any corporation or other entity the stock, assets, or business of
which is acquired by an Employer, whether by merger, consolidation, purchase of assets, or
otherwise, and any predecessor thereto designated by the Committee.






	(aaa)	 	“Prior Plan Account” means the Account maintained in a Participant’s name in The Pillsbury
Stock Purchase and Investment Plan, a predecessor plan, on June 1, 1982.
	 
	(bbb)	 	“Reemployed Participant” shall have the meaning as set forth in section 10.1.
	 
	(ccc)	 	“Remainder” means the amount by which a Participant’s Matching Contribution Account is
reduced under subsection 9.2(b).
	 
	(ddd)	 	“Rollover Account” means an account in which the Trustee places rollover amounts described
in section 402(c) of the Code, rollover contributions described in section 408(d)(3) of the
Code and benefits of a Participant under another plan which meets the requirements of section
401(a) of the Code.
	 
	(eee)	 	“Self-Directed Fund” means the Investment Fund which contains investments in common stock
and other forms of securities as transferred to the Plan from the Pillsbury Savings Plan
pursuant to section 12.11; provided that such investments shall remain in the Self-Directed
Fund in the Plan until they are disposed of at the direction of the Participant or
Beneficiary. The proceeds from such disposition shall be allocated to other Investment Funds
in the Plan in accordance with the Participant’s or Beneficiary’s directions and no such
proceeds shall remain in the Self-Directed Fund of the Plan.
	 
	(fff)	 	“Settlement Date” means the date on which the first of the following events occurs:






	 	(1)	 	the date of the Participant’s retirement on or after attaining his or her
Normal Retirement Age;
	 
	 	(2)	 	the date of the Participant’s retirement on or after attaining age 55 with at
least five Years of Vesting Service, but before attaining age 65;
	 
	 	(3)	 	the date of the Participant’s Disability at any age;




10









 












	 	(4)	 	the date of the Participant’s death; or
	 
	 	(5)	 	the date the Participant resigns or is dismissed from the employ of all of
the Employers before retirement and for a reason other than Disability or death.






		 	If a Participant is transferred from employment with an Employer to employment with a
Controlled Group Member, then for the purpose of determining when his or her Settlement
Date occurs, his or her employment with such Controlled Group Member (or any Controlled
Group Member to which he is subsequently transferred) shall be considered as employment
with an Employer.






	(ggg)	 	“Share Account” means a separate subaccount of the Diageo ADS Fund maintained for
Participants which contains Diageo ADSs allocated to Participants.
	 
	(hhh)	 	“Special Accounting Date” means any date designated as such by the Committee or a date of
termination as provided for in section 13.3.
	 
	(iii)	 	“Surviving Spouse” means the person to whom the Participant is married at the date of the
Participant’s death.
	 
	(jjj)	 	“Top-Heavy Plan” shall have the meaning as set forth in section 15.2.
	 
	(kkk)	 	“Trust Agreement” means the Burger King Savings Plan Trust Agreement.
	 
	(lll)	 	“Trust Fund” means all money, stocks, bonds, securities, and other property held or acquired
by the Trustee in accordance with the Plan and Trust Agreement.
	 
	(mmm)	 	“Trustee” means the bank or trust company selected and appointed as custodian of Plan assets
and to administer the Plan, in whole or in part, as provided hereinafter.
	 
	(nnn)	 	“Year of Vesting Service” means the 12-month period ending on the anniversary of the
Participant’s hire date. If a Participant has a One-Year Break in Service and returns to work,
a Year of Vesting Service shall also include the 12-month period ending on the anniversary of
the Participant’s rehire date.




11









 












Article 3. Eligibility and Participation




3.1 Eligibility






	(a)	 	Continuing Participation. Subject to the conditions and limitations of the Plan, each
Employee of the Company who was a Participant in the Plan immediately preceding January 1,
2001, will automatically continue to be a Participant on January 1, 2001.
	 
	(b)	 	New Participants. Beginning January 1, 2001, each other Employee of any Employer will become
eligible to participate in the Plan on the first day of the month next following the date he
meets all of the following requirements:






	 	(1)	 	he is—






	 	(A)	 	a full-time or part-time salaried Employee of the Employer; or
	 
	 	(B)	 	an hourly Employee of the Employer.






	 	(2)	 	he reaches age 21 and completes 1,000 Hours of Service during the 12-month
period ending on the first anniversary of his date of hire;
	 
	 	(3)	 	he is not a Leased Employee; and
	 
	 	(4)	 	he is not a member of a Collective Bargaining Unit.




For purposes of this section 3.1, an Employee who is age 21 and who has not completed 1,000 Hours
of Service as of the first anniversary of his date of hire, shall become eligible to participate in
the Plan on the first of the month next following the month in any subsequent calendar year
(commencing with the first calendar year next following his date of hire) during which he has
completed 1,000 Hours of Service.



The Company may provide, in a nondiscriminatory manner, that in determining eligibility for certain
Employees hired in connection with the acquisition by the Company of stock or assets of a
Predecessor Employer, service with the Predecessor Employer shall be treated as service with an
Employer.



In determining the eligibility of a salaried Employee hired in connection with the acquisition by
the Company of a previously franchisee-owned Burger King restaurant, section 3.1(b)(2) shall be
applied as though Hours of Service and the Employee’s date of hire with the Predecessor Employer
were Hours of Service and the Employee’s date of hire with the Employer. Such an Employee who,
prior to becoming an Employee, had 1,000 Hours of Service as of the first anniversary of his date
of hire with the Predecessor Employer (or 1,000 Hours of Service in any calendar year beginning
after his date of hire with the Predecessor Employer), and who otherwise meets the eligibility
requirements of this section 3.1, shall become eligible to participate on his date of hire with the
Employer.




12









 







3.2 Election to Participate with Respect to Basic and Matching Contributions

Participation in the Plan with respect to Basic and Matching Contributions is optional on
the part of Eligible Employees. To become such a Participant, an Eligible Employee must sign and
file with the Committee an application furnished by the Committee. The application shall authorize
an Employer—





	(a)	 	to reduce the Employee’s Compensation by an amount provided by section 2.1(d); and
	 
	(b)	 	to contribute such amounts to the Plan as a Basic Contribution.




The amount of the Basic Contribution to be made pursuant to a Participant’s election shall reduce
the compensation otherwise payable to him by an Employer. It shall be each Eligible Employee’s
obligation to request and file an application from the Committee if he desires to join the Plan.



3.3 Filing of Participation Elections

An Eligible Employee may join the Plan and become a Participant with respect to Basic and
Matching Contributions as of the date he meets the requirements of section 3.1 by signing an
application and filing it at such time and in such manner as the Committee shall determine. If an
Eligible Employee does not join the Plan as of the date he first meets the requirements of section
3.1, he may join the Plan and become a Participant with respect to Basic and Matching Contributions
as of the first day of any subsequent month (if he then meets the requirements of subsections
3.1(b)(1), (3), and (4)) by signing an application and filing it at such time and in such manner as
the Committee shall determine.



3.4 Suspension of Participation

A Participant may suspend his participation in the Plan with respect to Basic and Matching
Contributions as of the first day of any calendar month by signing a form and filing it with the
Committee at such time and in such manner as the Committee shall determine. A Participant who has
suspended his participation in the Plan with respect to Basic and Matching Contributions shall be
called an Inactive Participant.



3.5 Change in Basic Contribution

Subject to the limitations contained in section 3.2 and the provisions of section 3.4, a
Participant may change the amount of his or her Basic Contribution by signing a form and filing it
with the Committee at such time and in such manner as the Committee shall determine. There shall be
no limit on the number of changes in the amount of Basic Contributions during any calendar year.



3.6 Absence for Reasons of Maternity and Paternity

In the case of a Maternity or Paternity Absence, the one-year periods beginning on the first
day of such absence and the first anniversary thereof shall not constitute a One-Year Break in
Service. The Committee may require the Employee to furnish such information as the

13









 








Committee considers necessary to establish that the Employee’s absence was for a Maternity or
Paternity Absence. In the case of Maternity or Paternity Absence a One-Year Break in Service shall
not be deemed to have occurred until the earliest of—





	(a)	 	the date on which an Employee’s approved Leave of Absence (if any) for maternity or paternity
as granted by his Employer has terminated;
	 
	(b)	 	the date an Employee notifies his Employer that he will not be returning to eligible
employment as defined in section 3.1; or
	 
	(c)	 	the date that an Employee terminates eligible employment as defined in section 3.1 for
maternity or paternity reasons and no approved Leave of Absence has been granted by the
Employer.




3.7 Leased Employees

A person who is a Leased Employee of an Employer or nonparticipating Controlled Group Member
will not be considered an Employee for purposes of participating in this Plan or receiving any
contribution or benefit under this Plan. A Leased Employee will be excluded from this Plan
regardless of whether the leased employee participates in any plan maintained by the leasing
organization. However, if a Leased Employee participates in the Plan as a result of subsequent
employment with an Employer, the Leased Employee will receive credit for service for his employment
as a leased employee. Notwithstanding the preceding provisions of this section, a Leased Employee
will be treated as an Employee for purposes of applying the requirements described in Code
paragraph 414(n)(3) and for purposes of determining the number and identity of Highly Compensated
Employees.




14









 








Article 4. Contributions



4.1 Basic Contributions

Subject to the provisions of section 4.10, for each calendar month (but no earlier than the
month as of which it adopts the Plan), each Employer shall make Basic Contributions in accordance
with section 3.2.




4.2 Matching and Non-Elective Contributions





	(a)	 	Matching Contributions. Subject to the provisions of sections 4.11 and 9.4, for each
calendar month (but no earlier than the month as of which it adopts the Plan) each Employer
shall make a Matching Contribution on behalf of each Participant who is employed by that
Employer during that month and upon whose behalf the Employer has made a Basic Contribution
for such month.
	 
	(b)	 	Non-Elective Contributions. For any Plan Year, the Employers may make Non-Elective
Contributions to the Plan in an amount determined by the Company’s Board of Directors. Such
Non-Elective Contributions may be made on behalf of all Participants or on behalf of
Non-Highly Compensated Employees only, as determined by the Board of Directors, and shall be
allocated among the Participants on whose behalf such Non-Elective Contributions are made in
accordance with the ratio that each such Participant’s Compensation bears to the Compensation
of all such Participants.




4.3 Restrictions on Contributions

All Matching Contributions and Non-Elective Contributions for any Plan Year which are paid
or payable to the Trustee shall be made from the Employer’s net income (i.e., its net profit before
federal and state taxes on income) for that Plan Year, or its accumulated profits (i.e., its net
profits after federal and state taxes on income which have been accumulated and retained in the
business), or from any unallocated Remainders, or from any combination thereof. Each Employer’s
contribution for a Plan Year which is paid or payable to the Trustee is conditioned on its
deductibility under section 404 of the Code, shall comply with the limitations set forth in
sections 4.10 and 4.12 hereof, and shall not exceed an amount equal to the maximum amount
deductible by the Employer for that year for purposes of federal taxes on income.



4.4 Substitute Contributions

If, because of the limitations specified in the first sentence of section 4.3, an Employer
is prevented from making all or any part of its contributions pursuant to sections 4.1 and 4.2 for
any Plan Year, then so much of such contribution as the Employer is so prevented from making may be
made by the other Employers (if authorized by the Company) in such manner as the Company shall
specify. In any case in which section 404(a)(3)(B) of the Code would allow deductions by the
Employers for contributions made on behalf of an Employer prevented from making all or any part of
its contribution, the Company shall specify a

15









 








manner of making substitute contributions which is consistent with the provisions of said section.
For all purposes of the Plan, any contributions made by any Employer in accordance with this
section on behalf of an Employer prevented from making all or any part of its contribution shall be
considered as having been made by the Employer prevented from making its contribution.



4.5 Payment of Contributions

Each Employer’s Basic Contribution for any calendar month shall be payable as soon as
practicable, but no later than the fifteenth day of the calendar month following the reduction in
Participants’ pay that gave rise to such Basic Contribution. Each Employer’s Matching Contributions
for any calendar month, if not paid by the end of that month, shall be payable as soon as
practicable thereafter, without interest, but no later than 90 days after the end of the month.



4.6 Verification of Contributions

If for any reason the Company decides to verify the correctness of any amount or calculation
relating to an Employer’s contribution for any Plan Year, the certification of an independent
accountant selected by the Company as to the correctness of any such amount or calculation shall be
conclusive on all persons.



4.7 No Interest in Employer

The Employer shall have no right, title, or interest in the Trust Fund, nor will any part of
the Trust Fund at any time revert or be repaid to an Employer, unless—





	(a)	 	the Internal Revenue Service initially determines that the Plan, as applied to such Employer,
does not meet the requirements of section 401(a) of the Code, in which event the contributions
made to the Plan by such Employer shall be returned to it;
	 
	(b)	 	a contribution is made by such Employer by mistake of fact and such contribution is returned
to the Employer within one year after payment to the Trustee;
	 
	(c)	 	contributions which are expressly conditioned upon deductibility under Code section 404, are
disallowed in whole or in part as a deduction under Code section 404, then to the extent a
contribution is disallowed it may be returned to the Employer within one year after the
disallowance;
	 
	(d)	 	a contribution is refunded pursuant to section 4.10, 4.11, or 4.12 by the last day of the
Plan Year following the close of the Plan Year in which the contribution was made; or
	 
	(e)	 	there are amounts remaining in the Excess Remainder Suspense Account upon termination of the
Plan.




The amount of any contribution that may be returned to an Employer pursuant to subsection (b), (c),
or (d) above must be reduced by any portion thereof previously distributed from the

16









 








Trust Fund and by any losses of the Trust Fund allocable thereto, and in no event may the return of
such contribution cause any Participant’s Account balances to be less than the amount of such
balances had such contribution not been made under the Plan.



4.8 Allocation of Basic and Matching Contributions

Each Employer’s Basic Contribution, as established under section 4.1, and each Employer’s
Matching Contribution, as established under subsection 4.2(a) will be allocated to the Participant
on whose behalf such contribution was made as of the Daily Accounting Date upon which it is
received by the Trustee.



4.9 Allocation of Non-Elective Contributions

Each Employer’s Non-Elective Contribution, if any, made under subsection 4.2(b), will be
allocated to the Participant on whose behalf such contribution was made as of the Special
Accounting Date designated by the Company’s Board of Directors, but not later than the last day of
the Plan Year for which such contribution is made.



4.10 Limitations on Basic Contributions

Basic Contributions shall be limited as follows:





	(a)	 	In no event shall any Employer make Basic Contributions for any calendar year, with respect
to any Participant, in excess of $10,500 for 2001. Such amount shall be increased as provided
by Code section 402(g) through 2005 and thereafter adjusted by the Secretary of the Treasury
to reflect increases in the cost of living. This limit will be applied by aggregating all
plans and arrangements maintained by the Company and all Controlled Group Members that provide
for elective deferrals (as defined in Code subsection 402(g)). If this limit would be exceeded
by contributions to this Plan, the Committee shall distribute the amount of the excess (plus
earnings thereon) to the Member. If this limit would be exceeded by the contribution of excess
elective deferrals to this Plan and to the plan of another employer, the Committee will
distribute the amount of the excess (plus earnings thereon) to the Member if the Member
provides the Committee with a written claim requesting a refund of the excess on or before
March 1 of the following calendar year. Excess elective deferrals means elective deferrals
(under Code paragraph 402(a)(8)) in excess of the annual limit on elective deferrals in Code
subsection 402(g). The Committee may require additional proof regarding the existence of
excess elective deferrals. A distribution of excess elective deferrals, adjusted for earnings
and losses, will be made no later than the April 15 of the calendar year following the
calendar year in which the excess elective deferrals were made.
	 
	(b)	 	In no event will any Employer make Basic Contributions for any Plan Year that would cause the
Actual Deferral Percentage of the group of Highly Compensated Employees eligible to
participate in the Plan (referred to for purposes of this section 4.10(b) as “Eligible
Employees”) to exceed the greater of—




17









 












	 	(1)	 	1 1/4 times the Actual Deferral Percentage of the group of all other Eligible
Employees for the preceding Plan Year; or
	 
	 	(2)	 	the lesser of—






	 	(A)	 	two times the Actual Deferral Percentage of the group of all
other Eligible Employees for the preceding Plan Year; or
	 
	 	(B)	 	the Actual Deferral Percentage of the group of all other Eligible
Employees for the preceding Plan Year plus two percentage points.






The Actual Deferral Percentage of each group of Eligible Employees for any Plan Year
will be the average of the ratios (calculated separately for each Eligible Employee
in each group) of—




	 	(i)	 	the Basic Contributions made on behalf of each Eligible Employee
for the Plan Year to
	 
	 	(ii)	 	the Eligible Employee’s Compensation (earned while the Employee
was eligible to participate in the Plan) for the Plan Year.






Notwithstanding the provision in Code section 401(k)(3)(A), the Company elects, with
respect to the 2001 and later Plan Years, to determine the Actual Deferral Percentage
of Non-Highly Compensated Employees based on Basic Contributions and Compensation for
the current Plan Year.




To the extent necessary to conform to this limitation, the Committee shall reduce
Basic Contributions made on behalf of the Highly Compensated Employees. The total
amount of the reduction will be determined by reducing the deferral ratio of the
Highly Compensated Employee with the highest deferral ratio to the higher of the
deferral ratio necessary to satisfy the limitation or the deferral ratio of the
Highly Compensated Employee with the next highest deferral ratio. This process will
be repeated until the limitation is satisfied. The reduction so calculated will be
allocated to some or all Highly Compensated Employees by reducing the Basic
Contributions of the Highly Compensated Employee with the highest dollar amount of
Basic Contributions by the lesser of the total amount of the required reduction or
the amount required to cause that Participant’s Basic Contributions to equal those of
the Highly Compensated Employee with the next highest dollar amount of Basic
Contributions. This process will be repeated until the entire amount of the reduction
has been allocated.




Any reduction in the Basic Contributions allocated to any Participant will be
refunded to the Participant as soon as administratively possible, as provided in
rules adopted by the Committee (amounts refunded within 2 1/2 months after



18









 






the Plan Year in which the Basic Contributions were made are not subject to excise
tax under Code section 4979). In no event, however, will the excess contributions be
left undistributed any later than the last day of the Plan Year following the Plan
Year in which the excess contributions were made.




	(c)	 	Net earnings or losses to be refunded with the Basic Contributions shall be equal to the net
earnings or losses on such contributions for the Plan Year in which such contributions were
made. The net earnings or losses for the Plan Year shall be equal to the amount determined by
multiplying—






	 	(1)	 	the balance of the Participant’s Basic Contribution Account as of the last
day of the Plan Year reduced, but not below zero, by the denominator of the fraction
determined under paragraph (2) below; times
	 
	 	(2)	 	a fraction, the numerator of which is the amount of the Participant’s Basic
Contributions to be refunded and the denominator of which is the sum of the balance of
the Participant’s Basic Contribution Account as of the first day of the Plan Year,
plus the amount (before any refund) of the Participant’s Basic Contributions during
the Plan Year.






	(d)	 	All Basic Contributions made under this Plan and all before-tax contributions made under any
other plan that is aggregated with this Plan for purposes of Code sections 401(a)(4) and
410(b) shall be treated as made under a single plan. If any plan is permissively aggregated
with this Plan for purposes of Code section 401(k), the aggregated plans must also satisfy
Code sections 401(a)(4) and 410(b) as though they were a single plan. The Actual Deferral
Percentage ratios of any Highly Compensated Employee will be determined by treating all plans
subject to Code section 401(k) under which the Highly Compensated Employee is eligible as a
single plan.
	 
	(e)	 	The Committee may adopt such rules as it deems necessary or desirable to comply with
regulations prescribed by the Secretary of the Treasury, and to impose limitations at any time
during the Plan Year on the amount of Basic Contributions elected by Participants pursuant to
section 4.1 for the purpose of avoiding the necessity of adjustments pursuant to this section
4.10 and section 6.6.




4.11 Code Section 401(m) Limitations on Matching Contributions

Notwithstanding any other provision to the contrary, the Matching Contributions for the
Highly Compensated Employees (after any reduction under subsection 4.10(b)) shall be reduced in
accordance with the following provisions:





	(a)	 	In no event will Matching Contributions for any Plan Year be made that would cause the
Contribution Percentage of the group of Highly Compensated Employees eligible




19









 






	 	 	to participate in the Plan (referred to for purposes of this section 4.11(a) as “Eligible
Employees”) to exceed the greater of—






	 	(1)	 	1 1/4 times the Contribution Percentage of the group of all other Eligible
Employees for the preceding Plan Year; or
	 
	 	(2)	 	the lesser of—






	 	(A)	 	two times the Contribution Percentage of the group of all other
Eligible Employees for the preceding Plan Year; or
	 
	 	(B)	 	the Contribution Percentage of the group of all other Eligible
Employees for the preceding Plan Year plus two percentage points.






The Contribution Percentage of each group of Eligible Employees for any Plan Year will be
the average of the ratios (calculated separately for each Eligible Employee in each group)
of—




	 	(i)	 	the Matching Contributions made on behalf of each Eligible Employee for the
Plan Year to
	 
	 	(ii)	 	the Eligible Employee’s Compensation (earned while the Employee was eligible
to participate in the Plan) for the Plan Year.






Notwithstanding the provision in Code section 401(m)(2)(A), the Company elects, with
respect to the 2001 and later Plan Years, to determine the Contribution Percentage of
Non-Highly Compensated Employees based on Matching Contributions and Compensation for the
current Plan Year.




To the extent necessary to conform to this limitation, the Plan Administrator will reduce
and allocate Matching Contributions made on behalf of the Highly Compensated Employees in a
manner similar to the method used in section 4.10. Any such reduction in Matching
Contributions allocated to any Participant will be paid to the Participant, within the time
limits for refunds of Basic Contributions set forth in section 4.10.




	(b)	 	Net earnings or losses to be treated as a Remainder shall be equal to the net earnings or
losses on such Contributions for the Plan Year in which the Contributions were made. Net
earnings or losses shall be determined in the same manner as in section 4.10(c), except that
the phrases “Matching Contribution” and “Matching Contribution Account” shall be substituted
for the phrases “Basic Contribution” and “Basic Contribution Account” wherever used therein.
	 
	(c)	 	Any Matching Contributions which are treated as a Remainder pursuant to this section 4.11
shall be used to reduce the Matching Contributions in section 4.2(a).




20









 












	(d)	 	All Matching Contributions made under this Plan and all matching contributions made under any
other plan that is aggregated with this Plan for purposes of Code sections 401(a)(4) and
410(b) shall be treated as made under a single plan. If any plan is permissively aggregated
with this Plan for purposes of Code section 401(m), the aggregated plans must also satisfy
Code sections 401(a)(4) and 410(b) as though they were a single plan. The Contribution
Percentage ratio of any Highly Compensated Employee will be determined by treating all plans
subject to Code section 401(m) under which the Highly Compensated Employee is eligible as a
single plan.
	 
	(e)	 	For purposes of satisfying the limits on contributions described in this section 4.11 and
section 4.12, Compensation means an Employee’s compensation as defined in Code subsection
414(s). The Compensation of each Employee that may be taken into account under the Plan will
not exceed the first $170,000 ($200,000 effective January 1, 2002) of an Employee’s
Compensation (as adjusted by the Secretary of the Treasury under Code paragraph 401(a)(17)).
	 
	(f)	 	The Plan Administrator may comply with the requirements of this section by combining
contributions under any other defined contribution plan maintained by the Company or any
Controlled Group Member. Any such combination will be done in compliance with the guidelines,
if any, established by the Secretary of the Treasury. To the extent permitted by applicable
regulations, the Plan Administrator may elect to take Basic Contributions into account in
applying the Contribution Percentage test of subsection (c).
	 
	(g)	 	The Plan Administrator may take such additional action as it considers appropriate to ensure
compliance with the requirements of this section. Such action may include, but is not limited
to, reducing the maximum amount of Basic Contributions that can be contributed on behalf of or
by any group of Highly Compensated Employees.
	 
	(h)	 	For Plan Years beginning prior to January 1, 2002, the Plan will not be treated as complying
with the limits in this section 4.11 if—






	 	(1)	 	the Actual Deferral Percentage of the group of Participants who are Highly
Compensated Employees only complies with the limits in section 4.10(b)(2)(B);
	 
	 	(2)	 	the Contribution Percentage of the group of Participants who are Highly
Compensated Employees only complies with the limit in section 4.11(a)(2)(B); and
	 
	 	(3)	 	the sum of the Actual Deferral Percentage and Contribution Percentage of the
group of Participants who are Highly Compensated Employees exceed the “Aggregate
Limit.”




21









 












For purposes of subsection (d) above, the “Aggregate Limit” means the sum of—




	 	(A)	 	1 1/4 times the greater of the Actual Deferral Percentage or Contribution
Percentage of the group of all other Participants for the preceding Plan Year; and
	 
	 	(B)	 	the lesser of—






	 	(i)	 	two times the lesser of the Actual Deferral Percentage or
Contribution Percentage of the group of all other Participants for the preceding
Plan Year; or
	 
	 	(ii)	 	the sum of two percentage points and the lesser of the Actual
Deferral Percentage or Contribution Percentage of the group of all other
Participants for the preceding Plan Year.






This paragraph (h) shall not apply to Plan Years beginning on or after January 1, 2002.




	(i)	 	For purposes of the limitations described in sections 4.10(b) and 4.11(a), the Plan
Administrator may elect to use the deferral ratio and/or contribution ratio for the group of
Participants other than Highly Compensated Employees for the Plan Year being tested, rather
than the preceding Plan Year, provided that once such an election is made it may not be
changed, except as provided by the Secretary of the Treasury.




4.12 Code Section 415 Limitations on Contributions

For the purpose of complying with the restrictions on annual additions to defined
contribution plans imposed by section 415 of the Code, the amounts allocated to each Participant’s
Accounts shall, as of the last day of the Plan Year, be subject to special accounting procedures as
follows:





	(a)	 	For each Participant there shall be computed a maximum contribution (including Remainders
which are treated as Matching Contributions pursuant to section 9.4), which shall be—






	 	(1)	 	for Plan Years beginning prior to January 1, 2002, the lesser of 25 percent
of his taxable compensation (as defined in Code section 415(c)) for the Plan Year or
$35,000 (adjusted as provided in subsection 4.12(e)); and
	 
	 	(2)	 	for Plan Years beginning on or after January 1, 2002, the lesser of 100
percent of his taxable compensation (as defined in Code section 415(c)) for the Plan
Year, or $40,000 (adjusted as provided in subsection 4.12(e)).






The applicable dollar limitation shall be reduced by—



22









 






	 	(A)	 	amounts allocated to an individual medical account, as defined in section
415(1)(2) of the Code, which is part of a defined benefit Plan maintained by an
Employer or Controlled Group Member; or
	 
	 	(B)	 	amounts attributable to post-retirement medical benefits allocated to the
separate account of a Key Employee, as defined in section 401(h)(6) of the Code, under
a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the
Employer or a Controlled Group Member.






	(b)	 	If the maximum contribution for a Participant equals or exceeds the allocation for that
Participant pursuant to Article 4, an amount equal to the allocation shall be allocated to the
Participant’s respective Accounts.
	 
	(c)	 	If the allocation for a Participant pursuant to Article 4 is in excess of the maximum
contribution for the Participant, the amount of his Basic Contribution in excess of 4 percent
(elected pursuant to section 4.2) shall be reduced and paid to each affected Employee in an
amount equal to the lesser of such excess or such Basic Contribution. If the maximum
contribution for the Participant equals or exceeds the allocation after the refund described
in the preceding sentence, then the remaining allocation after such refund shall be allocated
to the Participant’s respective Accounts.
	 
	(d)	 	If the allocation for a Participant continues to be in excess of the maximum contribution for
the Participant after the refund described in subsection 4.12(c) above, the remaining amount
of his Basic Contribution and his Matching Contribution allocated to the Participant’s
Accounts together with any income thereon shall be proportionately reduced on a pro rata basis
and the amount of the Basic Contribution thereof be paid to each affected Participant.
	 
	(e)	 	The dollar amount referred to in subsection 4.12(a) above shall be adjusted to one-fourth of
the dollar amount of the defined benefit dollar limitation under section 415(b)(1) of the
Code, if greater, in accordance with regulations prescribed by the Secretary of the Treasury.
	 
	(f)	 	Any Remainder which cannot be allocated by reason of this section 4.12 shall be carried in an
Excess Remainder Suspense Account and applied to reduce Matching Contributions in succeeding
Plan Years in order of time. Any Matching Contribution which cannot be allocated because of
the foregoing limitations shall be applied to reduce Matching Contributions in succeeding Plan
Years, in order of time.
	 
	(g)	 	For purposes of applying the requirements of Code section 415 to the Plan, the Plan Year
shall be the “limitation year.”




23









 











Article 5. Trust Fund and Investment Funds



5.1 The Trust Fund and the Investment Funds

The Trust Fund may consist of one or more of the following Investment Funds: the Income
Fund, the Equity-Capital Appreciation Fund, the Equity-Growth and Income Fund, the Self Directed
Fund, the Diageo ADS Fund, or any other fund the Committee directs the Trustee to establish. The
Committee, in its discretion, may direct the Trustee to establish such other Investment Funds or to
terminate any existing Investment Funds. The Committee may select and terminate managers of such
funds, as it shall from time to time consider appropriate and in the best interests of the
Participants. Pending investment, reinvestment, or distribution as provided in the Plan, the
Trustee may temporarily retain the assets of any one or more of the Investment Funds in cash,
commercial paper, short-term government obligations, or (unless directed to the contrary by the
Committee) undivided interests or participations in common or collective short-term investment
funds, including a short-term investment fund of the Trustee.



5.2 Investment Fund Elections and Transfers

Each Participant’s share of the Basic and Matching Contributions shall be invested in the
Investment Funds in accordance with the Participant’s investment election. A Participant may change
his investment election as to future Basic and Matching Contributions on any business day. A
Participant or his or her Beneficiary may elect that all or a part of the interest of his or her
Prior Plan Account, Basic Contribution Account, and his or her Matching Contribution Account held
in an Investment Fund shall be liquidated and the proceeds thereof transferred to one or more of
the other Investment Funds. Such investment elections and transfers between Investment Funds may be
made on a daily basis, shall be made in such a manner, as the Committee shall determine, and shall
be effective only in accordance with such rules as the Committee shall establish from time to time.



5.3 Self-Directed Fund

Those Participants and Beneficiaries who were participants in the Pillsbury Savings Plan as
of September 30, 1990 and who had all or a part of his accounts in the Pillsbury Savings Plan
invested in its self-directed fund as of such date shall have the assets held in the Pillsbury
Savings Plan Self-Directed Fund transferred to the Self-Directed Fund maintained by the Plan as of
October 1, 1990. No other transfers into the Plan’s Self-Directed Fund will be permitted. When a
Participant or Beneficiary directs the brokerage firm to dispose of any assets held in the
Self-Directed Fund, the net proceeds from such disposition shall be transferred from the
Self-Directed Fund to such other Investment Funds as the Participant or Beneficiary selects and no
such proceeds shall remain in the Self-Directed Fund. The Committee will select a brokerage firm to
act as a custodian for and to handle dispositions of assets transferred to the Self-Directed Fund.
Expenses (such as brokerage fees) incurred in connection with the investment and disposition of the
assets of the Self-Directed Fund shall be paid out of such fund and charged to the respective
Participant’s Account. To facilitate the
administration of such funds, the Committee may direct the Trustee to establish such brokerage or
other accounts as the Committee deems appropriate. Title to the securities and other assets in each
the Self-Directed Fund shall at all times belong to the Trustee.




24









 








Article 6. Accounting



6.1 Separate Accounts

The Plan shall maintain for each Participant, as appropriate, a separate Prior Plan Account,
a separate Basic Contribution Account, a separate Matching Contribution Account, a separate
Non-Elective Contributions Account, and a separate Rollover Account. Each Account, where
appropriate, shall be credited with the amount of contributions, Remainders, interest, and earnings
of the Trust Fund allocated to such Account and shall be charged with all distributions,
withdrawals, and losses of the Trust Fund allocated to each such Account. In addition, the Plan
will maintain separate subaccounts, such as the Cash Account and the Share Account, which reflect
the value of the Participant’s interest in each of the respective Investment Funds. The Plan may
also maintain such other accounts in the names of Participants or otherwise as the Committee
considers advisable.



6.2 Adjustment of Participant’s Accounts

The Committee shall make adjustments of Participant’s Accounts as of the Accounting Dates
specified below:





	(a)	 	Each Participant’s Account shall be credited or charged with any increase or decrease in the
value of his shares in the Equity-Capital Appreciation Fund or the Equity-Growth and Income
Fund as determined by the Trustee as of each Daily Accounting Date.
	 
	(b)	 	Each Participant’s Accounts shall be credited or charged with their pro rata share of any
increase or decrease in the value of the Income Fund, as determined by the Trustee, as of each
Daily Accounting Date.
	 
	(c)	 	Each Participant’s Accounts shall be credited or charged with any increase or decrease in
value of their investments in the Self-Directed Fund, as determined by the Trustee, as of each
Monthly Accounting Date.
	 
	(d)	 	Each Participant’s Basic Contribution Account shall be credited as of each Daily Accounting
Date with the portion of the Basic Contribution that is allocable as of that date under
section 4.8.
	 
	(e)	 	Each Participant’s Matching Contribution Account shall be credited as of each Daily
Accounting Date with the portion, if any, of the Matching Contribution that is allocable as of
that date under section 4.8.
	 
	(f)	 	All payments or distributions shall be charged to the applicable Participant’s Accounts as of
the Daily Accounting Date upon which such distribution or payment is made.




25









 












	(g)	 	The appropriate Investment Fund transfers as provided in section 5.2 shall be made to each
Participant’s Accounts as of each Daily Accounting Date.
	 
	(h)	 	Each Participant’s Account shall be credited or charged with any increase or decrease in the
value of the Cash Account of the Diageo ADS Fund, as determined by the Trustee, as of each
Daily Accounting Date.
	 
	(i)	 	Each Participant’s Accounts shall be credited or charged with any increase or decrease in the
value of the Diageo ADSs held in the Share Account of the Diageo ADS Fund, as determined by
the Trustee, of each Daily Accounting Date.
	 
	(j)	 	Each Participant’s Non-Elective Contribution Account shall be credited as of any Special
Accounting Date with the portion, if any, of the Non-Elective Contribution that is allocable
as of that date under section 4.9.





6.3 Rollovers and Transfers from Other Plans





	(a)	 	Rollovers. At the direction of the Committee, and in accordance with such rules as the
Committee may establish from time to time, rollover amounts described in section 402(c) of the
Code, rollover contributions described in section 408(d)(3) of the Code, and benefits of a
Participant under another plan which meets the requirements of section 401(a) of the Code may
be received by the Trustee, and will be credited to the Rollover Account of the appropriate
Participant. Employees who are within the class of Employees eligible to participate in the
Plan, as described in section 3.1, but who have not yet completed 1,000 Hours of Service may
make rollover contributions under this section. Such Employees shall be treated as
Participants only with respect to such rollover contributions, and shall not be eligible for
any other contributions or benefits under the Plan until the requirements of section 3.1 are
met. Any amount received by the Trustee for a Participant in accordance with the preceding
sentence shall be adjusted from time to time in accordance with section 6.2 and shall be fully
vested (subject to investment experience) in the Participant for whom it is held under the
Plan. In no event shall any amount be transferred, either directly or indirectly, to the
Trustee under this subsection 6.3(a) from a defined benefit pension plan or money purchase
pension plan.
	 
	(b)	 	Trust-to-Trust Transfers from Controlled Group Member Plans. Participants who transfer
employment to the Employer from another Controlled Group Member may elect to transfer their
account balances under a qualified defined contribution plan maintained by the other
Controlled Group Member to the Plan. Amounts so transferred shall be allocated to the Accounts
which correspond to the type of contribution transferred. (Thus, amounts which are “elective
contributions” under Code section 401(k) shall be allocated to the Basic Contributions
Account, “matching contributions” under Code section 401(m) shall be allocated to the Matching
Contributions Account, etc.). Amounts so transferred shall be subject to all




26









 






	 	 	rights, restrictions, and features (including vesting provisions) applicable to similar
amounts contributed to and held under the Plan. The Committee may establish such
nondiscriminatory restrictions and rules applicable to such transfers as it may determine
to be necessary or desirable to maintain the qualified status of the Plan (and the
Controlled Group Member’s plan) under the Code. In no event shall any amount be transferred
to the Trustee under this subsection 6.3(b) from a defined benefit pension plan or money
purchase pension plan.




6.4 Charging Payments and Distributions

All payments or distributions made to a Participant, his Beneficiary, or an alternate payee
pursuant to a qualified order as described in section 9.13 will be charged to the appropriate
Accounts of such Participant, Beneficiary, or alternate payee as of the Daily Accounting Date
immediately preceding the date upon which the check for such payment or distribution is cut.



6.5 Statement of Account

As soon as practicable after the last day of each Plan Year, each Participant will be
furnished with a statement reflecting the condition of his Accounts in the Trust Fund as of that
date. No Participant, except one authorized by the Committee, shall have the right to inspect the
records reflecting the Accounts of any other Participant.



6.6 Combined Benefit Limitations

In any Plan Year beginning prior to January 1, 2000, if a Participant also participates in a
defined benefit plan of an Employer, then in no event shall the sum of his defined benefit plan
fraction and his defined contribution plan fraction for any Plan Year exceed 1.0. If, but for the
foregoing limitations, the sum of a Participant’s defined benefit plan fraction and defined
contribution plan fraction would exceed 1.0, the benefits that otherwise would have been payable to
the Participant under the defined benefit plans of the Employers in which he participates will be
adjusted to the extent necessary so that the sum of such fractions does not exceed 1.0; provided,
however, that such benefits shall not be reduced below the amount accrued on the last day of the
Plan Year which began prior to January 1, 1990 (determined as though the Participant terminated
employment on that date). The “defined benefit plan fraction” and “defined contribution plan
fraction” shall have the meaning provided in Code section 415(e), as in effect before 2000.



6.7 Allocation to the Share Account and Cash Account within the Diageo ADS Fund

Within the Diageo ADS Fund, as of each Daily Accounting Date on which Diageo ADSs are
acquired by the Trustee or otherwise become available for allocation to the Share Account by reason
of Participant-directed transfers, forfeitures, distributions, or withdrawals made with respect to
the Share Account in cash pursuant to section 9.11, there shall be allocated to the Share Account
the number of Diageo ADSs determined by dividing the amount of such credit balance by the “cost per
Diageo ADS” on such date, and the Cash Account shall be

27









 








charged with an amount equal to the “cost per Diageo ADS” multiplied by the number of Diageo ADSs
so allocated. For the purpose of the preceding sentence, the “cost per Diageo ADS” as of any Daily
Accounting Date on which Diageo ADSs are actually purchased by the Trustee shall be determined by
dividing the total purchase price paid by the Trustee for Diageo ADSs purchased on such date by the
total number of Diageo ADSs purchased on such date; the “cost per Diageo ADS” as of any Daily
Accounting Date on which Diageo ADSs are not actually purchased by the Trustee shall be the closing
price per Diageo ADS on the New York Stock Exchange on such date.



The Share Account in the Diageo ADS Fund shall be credited with any stock dividends on Diageo ADSs
allocated to the Share Account and shall be appropriately adjusted to reflect stock splits or any
recapitalization.



Within the Diageo ADS Fund, as of each Daily Accounting Date, the Cash Account shall be credited or
charged with any increase or decrease in cash or the value of short-term fixed-income securities or
obligations of the Diageo ADS Fund, as determined by the Trustee as of each Daily Accounting Date.




Article 7. Withdrawals and Distributions During Employment




7.1 General Withdrawals





	(a)	 	Prior Plan Account. A Participant who has a Prior Plan Account may elect to withdraw all
or any portion of the net credit balance in his or her Prior Plan Account representing
employee contributions and earnings. Each such election shall be in writing, shall be filed
with the Committee at such time and in such manner as the Committee shall determine, and shall
be effective in accordance with such rules as the Committee shall establish from time to time.
	 
	(b)	 	Withdrawals At or After Age 59 1/2. A Participant who has attained age 59 1/2 may withdraw
any or all of the net credit balance in his Accounts other than his Non-Elective Contribution
Account. Such withdrawals shall be elected on forms provided by the Committee, and shall
otherwise be subject to rules established by the Committee governing such withdrawals.




7.2 Hardship Withdrawals

A Participant may, upon the determination by the Committee that he has incurred a financial
hardship, make a hardship withdrawal from his Basic Contribution Account. In any case where the
Participant claims financial hardship, he shall submit a written request for such distribution in
accordance with procedures prescribed by the Committee. The Committee shall determine whether the
Participant has a “financial hardship” on the basis of such written request in accordance with this
section 7.2, and such determination shall be made in a uniform and nondiscriminatory manner. The
Committee shall only make a determination of “financial hardship” if the distribution is to be made
on account of an immediate and heavy financial need of the Participant, and the funds distributed
are necessary to satisfy such need.





	(a)	 	Determination of Financial Need. The determination of whether a Participant has an immediate
and heavy financial need is to be made by the Committee on the basis of all relevant facts and
circumstances. A distribution will be deemed to be on account of an immediate and heavy
financial need if made on account of—






	 	(1)	 	medical expenses described in Code section 213(d) incurred by the
Participant, the Participant’s spouse, or any dependents of the Participant (as
defined in Code section 152);
	 
	 	(2)	 	the purchase (excluding mortgage payments) of a principal residence for the
Participant;
	 
	 	(3)	 	tuition, related educational fees, and room and board expenses for the next
12 months of post-secondary education due for the Participant, the Participant’s
spouse, children, or dependents;




28









 












	 	(4)	 	the need to prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant’s principal residence; or
	 
	 	(5)	 	any other event or expense deemed an immediate and heavy financial need by
the Committee.






	(b)	 	Availability of Other Financial Resources. The determination of whether a distribution is
necessary to satisfy the immediate and heavy financial need of the Participant shall be made
by the Committee on the basis of all relevant facts and circumstances. The Committee shall
determine that a distribution is necessary to satisfy the financial need if the Participant
represents that the immediate and heavy financial need cannot be relieved by the sources
listed below and if the Committee believes it can reasonably rely on such representations:






	 	(1)	 	through reimbursement or compensation by insurance or otherwise;
	 
	 	(2)	 	by reasonable liquidation of the Participant’s assets to the extent such
liquidation would not itself cause an immediate and heavy financial need;
	 
	 	(3)	 	by cessation of Basic Contributions;
	 
	 	(4)	 	by other distributions or nontaxable loans available from the Plan or any
other plan which the Participant participates; or
	 
	 	(5)	 	by borrowing from commercial sources on reasonable commercial terms.






For purposes of this subsection 7.2(b), a Participant’s resources shall include assets of
the Participant’s spouse and minor children which are reasonably available to the
Participant.




	(c)	 	Limitations on Hardship Withdrawals. In no event may a Participant withdraw any portion of
the balance in his Matching Contribution Account for a Hardship Withdrawal. The minimum amount
of a Hardship Withdrawal shall be $500. Any withdrawals under this section 7.2 shall not
reduce the Participant’s Basic Contribution Account below the amount of the balance of any
outstanding loan made pursuant to section 7.4. Distributions from the Participant’s Basic
Contribution Account because of hardship shall not exceed the lesser of—






	 	(1)	 	the amount of the immediate and heavy financial need;
	 
	 	(2)	 	the balance of the Participant’s Basic Contribution Account as of the Daily
Accounting Date immediately preceding the day the check is cut;
	 
	 	(3)	 	in the case of a Participant whose Basic Contribution Account contains
contributions made prior to December 31, 1988, the sum of the Participant’s Basic
Contribution Account as of December 31, 1988 plus the Participant’s










29









 






	 	 	 	Basic Contributions made on or after January 1, 1989, reduced by the aggregate amount
distributed from the Participant’s Basic Contribution Account on or after January 1,
1989; or






	 	(4)	 	in the case of a Participant whose Basic Contribution Account contains only
contributions made on or after October 1, 1990, the sum of the Participant’s Basic
Contribution Account reduced by the aggregate amount distributed from the
Participant’s Basic Contribution Account.






	(d)	 	Availability of Hardship Withdrawals. Hardship Withdrawals shall be available on a reasonably
equivalent basis to all Participants and Beneficiaries who have vested Account balances in the
Plan and who are active employees so long as the granting of such Hardship Withdrawals does
not discriminate in favor of Highly Compensated Employees.




7.3 Charging and Payment of Withdrawals

All withdrawals by a Participant under section 7.1 or 7.2 shall be charged to the
appropriate Account of the Participant and to the interest in the Investment Funds of the
Participant, in accordance with such rules as the Committee may establish. In determining the
amount any Participant may withdraw hereunder, any unpaid loan or loans theretofore made to the
Participant under section 7.4 shall be taken into account. Withdrawals under this Article 7, when
approved by the Committee, shall be paid to the Participant as soon as practicable after completion
of all required Plan accounting.




7.4 Loans to Participants

Upon the submission by the Participant of a written loan application form as prescribed by
the Committee, the Committee, pursuant to subsection 11.5(d), may approve a loan to such
Participant from the Plan in accordance with this section 7.4. Such loans may be made for any
reason, and without proof of financial need.





	(a)	 	Amount of Loan. The minimum amount of any loan shall be $1,000. The amount of any loan shall
not exceed the lesser of—






	 	(1)	 	50 percent of the amount which a Participant would be entitled to receive
from his or her Accounts, other than his or her Non-Elective Contributions Account,
under section 9.2, if he were to terminate his or her employment with his Employer on
the date the loan is made; or
	 
	 	(2)	 	$50,000 reduced by the greater of—






	 	(A)	 	the highest outstanding balance of loans from the Trust Fund
during the one-year period ending on the day before the date on which such loan
is made or modified; or




30









 














	 	(B)	 	the outstanding balance of loans from the Trust Fund on the date
on which such loan is made or modified.






In no event may the loan exceed the sum of the Participant’s balance in his or her
Prior Plan Account and his or her Basic Contribution Account as of the Daily
Accounting Date immediately preceding the day the check is cut.




	(b)	 	Availability of Loans. In order to obtain a loan, a Participant must have at least a $2,000
vested balance in his Plan Accounts. Subject to the preceding sentence, such loans shall be
made available on a reasonably equivalent basis to all Participants and Beneficiaries who have
vested Account balances in the Plan and who either—






	 	(1)	 	are active employees; or
	 
	 	(2)	 	are determined by the Committee to be “parties in interest” as that term is
defined in section 3(14) of ERISA,



so long as the making of such loans does not discriminate in favor of Highly Compensated
Employees.




	(c)	 	Terms of Loans. Loans shall be made on such terms as the Committee may prescribe, provided
that any such loan shall be evidenced by a note and shall bear a reasonable rate of interest
on the unpaid principal thereof, equal to the prime rate charged by a majority of U.S. banks
as reported by The Wall Street Journal, unless the Committee determines that such interest
rate is not commensurate with the interest rates charged by persons in the business of lending
money for loans which would be made under similar circumstances, and shall be secured by the
Participant’s segregated loan account and such other security as the Committee in its
discretion deems appropriate. Loans shall be repaid by the Participant by payroll deductions
or any other methods approved by the Committee which require level amortization of principal
and repayments not less frequently than monthly. Such loans shall be repaid over a period not
to exceed five years, except that the five-year limit shall not apply to loans used for the
purchase of a principal residence of the Participant which loans shall have a 20-year limit.
	 
	(d)	 	Default Procedures. If a Participant fails to make loan payments (including interest) when
due, or if another event occurs that constitutes a default as set forth in the promissory
note, the Participant will be notified that payment must be made within 60 days to avoid the
commencement of default procedures. If payment is not made within the 60-day period, the
unpaid balance of the loan plus interest thereon shall be charged to the Participant’s
Accounts at the next accounting cycle as though it were a distribution from the Plan. Except
as provided below, if on a Participant’s Settlement Date any loan or portion of a loan made to
him, together with accrued interest thereon, remains unpaid, the Participant will be notified
that payment of the unpaid




31









 






	 	 	loan balance plus interest thereon is due. If such payment is not made within 60 days from
receipt of such notice, an amount equal to such loan or any part thereof, together with
accrued interest thereon, shall be charged to the Participant’s Accounts after all other
adjustments required under the Plan, but before any distribution pursuant to section 9.5.






	(e)	 	Loans Transferred from the Pillsbury Savings Plan. The foregoing provisions of section 7.4
notwithstanding, Participant loans that were transferred to this Plan from the Pillsbury
Savings Plan pursuant to section 12.11 shall be governed by the terms of the promissory note
governing such loans as in effect on September 30, 1990.
	 
	(f)	 	Accounting for Loans. In determining the net worth of an Investment Fund as of an Accounting
Date, the Committee shall disregard both—






	 	(1)	 	any notes held by the Trustee which evidence loans made to Participants under
this section 7.4 (including loans transferred pursuant to subsection 7.4(e)); and
	 
	 	(2)	 	any interest and principal payments on such loans received by the Trustee
since the last preceding Accounting Date.






For purposes of adjusting Participant’s Accounts under section 6.2, the Committee shall
exclude from the credit balance in a Participant’s Accounts the unpaid amount of any loan
made to him (disregarding any principal payments made since the last preceding Accounting
Date). Interest paid by a Participant on a loan made to him under this section 7.4 shall be
credited to the Account of the Participant as of the Daily Accounting Date next following
the date such interest payment is received by the Trustee, after all other adjustments
required under the Plan as of that date have been completed. All loans to a Participant and
all loan repayments including interest shall be charged or credited, as the case may be, to
the appropriate Account of the Participant and to his interest in the Investment Funds in
accordance with such rules as the Committee may establish.




	(g)	 	Amounts Not Available for Loans. Amounts credited to a Participant’s Non-Elective
Contribution Account shall not be available for loans.




32









 











Article 8. Period of Participation



8.1 Restricted Participation

Subject to the provisions of section 8.2, a Participant (and his Beneficiary in the event of
the Participant’s death) shall be an Inactive Participant if the following occurs:





	(a)	 	payment of a Participant’s Account balances is not made at his Settlement Date; or
	 
	(b)	 	a Participant transfers to a Controlled Group Member who is not an Employer or he no longer
meets the requirements of subsections 3.1(b)(1), (2), (3), and (4).




An Inactive Participant shall be treated as a Participant for all purposes of the Plan, except that
an Inactive Participant will not be eligible for loans and hardship withdrawals, will be unable to
elect Basic Contributions, and will not be entitled to any Matching Contributions after his
Settlement Date or during any period he has suspended his participation or fails to meet the
requirements of subsections 3.1(b)(1), (2), (3), and (4).



8.2 Resumption of Active Participation

An Inactive Participant who has suspended his participation in the Plan will be eligible to
resume his participation in the Plan on any date. If an Inactive Participant whose participation in
the Plan is restricted under section 8.1 for a reason specified in subsection (b) thereof
subsequently is employed by an Employer and meets the requirements of subsections 3.1(b)(1), (2),
(3), and (4) of the Plan, he will be eligible to resume his participation in the Plan on the date
he is reemployed by an Employer and satisfies such requirements.




33









 








Article 9. Payment of Account Balances



9.1 Vesting of Account Balances Upon Retirement, Disability, or Death

If a Participant’s Settlement Date occurs by reason of retirement, Disability, or death, the
balances in his or her Prior Plan Account, if any, his or her Basic Contribution Account, his or
her Matching Contribution Account, and his or her Non-Elective Contribution Account as of the
Monthly Accounting Date coincident with or next following his or her Settlement Date (after all
adjustments required under the Plan as of that date have been made) shall become 100 percent vested
and nonforfeitable and shall be distributable to him, or in the event of his or her death, to his
or her Beneficiary, under section 9.5. A Participant’s right to his or her Account balances shall
become 100 percent vested and nonforfeitable on and after he reaches Normal Retirement Age.



9.2 Vesting of Account Balances Upon Resignation or Dismissal





	(a)	 	Prior Plan Account and Basic Contribution Account. If a Participant’s Settlement Date
occurs by reason of resignation or dismissal, the balances in his or her Prior Plan Account
and his or her Basic Contribution Account as of the Monthly Accounting Date coincident with or
next following his or her Settlement Date (after all adjustments required under the Plan as of
that date have been made) shall be nonforfeitable and shall be distributable to him under
section 9.5.
	 
	(b)	 	Matching Contribution Account. If a Participant’s Settlement Date occurs by reason of
resignation or dismissal, the Participant shall be entitled to that portion of the balance in
his Matching Contribution Account which is vested. The percentage of the balance in his
Matching Contribution Account as of the Monthly Accounting Date coincident with or next
following his Settlement Date (after all adjustments required under the Plan as of that date
have been made) which is vested and nonforfeitable will be determined in accordance with the
table below.





	 	 	 
	Completed Years	 	Percent Vested in Matching
	of Vesting Service	 	Contribution Account
	 
	1

2

3

4

5 or more

	 	20%

40%

60%

80%

100%







Only completed Years of Vesting Service are considered in determining a
Participant’s vested percentage in his Matching Contribution Account. The vested percentage
in his Matching Contribution Account will be distributable to the Participant under section
9.5.



34









 






	(c)	 	Non-Elective Contribution Account. If a Participant’s Settlement Date occurs by reason of
resignation or dismissal, the Participant shall be entitled to that portion of the balance in
his Non-Elective Contribution Account which is vested. The percentage of the balance in his
Non-Elective Contribution Account as of the Monthly Accounting Date coincident with or next
following his Settlement Date (after all adjustments required under the Plan as of that date
have been made) which is vested and nonforfeitable will be determined in accordance with the
table below.





	 	 	 
	Completed Years	 	Percent Vested in Non-Elective
	of Vesting Service	 	Contribution Account
	 
	less than 5

5 or more

	 	0%

100%







Only completed Years of Vesting Service are considered in determining a
Participant’s vested percentage in his Non-Elective Contribution Account. The vested
percentage in his Non-Elective Contribution Account will be distributable to the
Participant under section 9.5.


9.3 Computation of Years of Vesting Service

For purposes of determining Years of Vesting Service, a period of concurrent employment with
two or more Employers or Controlled Group Members will be considered as employment with only one of
them during such period. Termination of employment of a Participant with one Employer or a
Controlled Group Member will not interrupt his Years of Vesting Service for purposes of the Plan
if, concurrently with or immediately after such termination, he is employed by one or more other
Employers or Controlled Group Members. To the extent provided by the Committee, a Participant’s
employment with a Predecessor Company will be considered as employment with an Employer.



For purposes of Years of Vesting Service, a Participant absent because of a Leave of Absence or
temporary layoff shall receive credit for employment for any such period computed as if the
Participant had been working his normal work week during such period. If an Employee who is not
participating in the Plan should terminate employment and then subsequently be reemployed by an
Employer, his eligibility for participation shall be determined in accordance with section 3.1, and
the Years of Vesting Service he had accrued prior to his termination shall be disregarded for
purposes of section 9.2 only if his number of consecutive One-Year Breaks in Service occurring
after his termination equal or exceed the greater of five or his Years of Vesting Service prior to
his termination. If an Employee’s or Participant’s employment with the Employers and Controlled
Group Members should terminate and such Employee or Participant is subsequently reemployed by an
Employer or Controlled Group Member before he has a One-Year Break in Service, the period between
his date of termination and date of rehire (not to exceed 12 months) shall be included in
determining his Years of Vesting Service.




35









 







9.4 Remainders

The amount by which a Participant’s Matching Contribution Account and Non-Elective
Contribution Account are reduced under subsections 9.2(b) and 9.2(c) above shall be a Remainder.
Remainders shall be used, as soon as practicable, to reinstate Remainders for Reemployed
Participants in accordance with section 10.2; and then shall be applied to reduce Matching
Contributions, and when so applied will be treated, for purposes of section 4.8, as though they
were Matching Contributions made under section 4.2.



9.5 Form of Distribution

Subject to the provisions of section 9.10 and the conditions set forth below, after each
Participant’s Settlement Date, distribution of the net credit balances in the Participant’s
Accounts will be made to or for the benefit of the Participant, or in the case of his death to or
for the benefit of his Beneficiary, by one or more of the following methods applicable as the
Participant or his Beneficiary may elect and in accordance with applicable laws and regulations.





	(a)	 	Spousal Benefit. Payments are made in the form of—






	 	(1)	 	a pre-retirement spouse’s benefit pursuant to subsection 9.10(a) in the case
of a married Participant who dies prior to commencement of payment of his benefits
under the Plan; or
	 
	 	(2)	 	a post-retirement spouse’s benefit pursuant to subsection 9.10(b) in the case
of a Participant who is married at the date payment of his benefits commences and dies
before complete distribution of his benefits.






	(b)	 	Lump Sum Payments. Payment is made in a single lump sum. A Participant whose vested Account
balances as of the Settlement Date do not exceed $5,000 will receive a full distribution of
his vested Account balances as soon as administratively feasible following his Settlement
Date.
	 
	(c)	 	Installment Payments. The installment payment method is available to Participants and their
Beneficiaries in the event of the Participant’s death, Disability, or termination of
employment on or after the Participant has reached age 55 and completed at least five Years of
Vesting Service. Payments are made in a series of monthly, quarterly, or annual installments,
of substantially equal amounts, over a period not exceeding the life expectancy of the
Participant or the joint life expectancy of the Participant and his designated Beneficiary;
provided that, if such Beneficiary is not the Participant’s spouse, the installment payments
shall be designed so that more than 50 percent of the Participant’s Account balances at the
time payments commence will be paid over the life expectancy of the Participant. If




36









 






	 	 	a Participant dies after payment of his benefits has begun, the remaining portion of such
benefits must be distributed over a period not exceeding the period over which payments
were being made to the Participant at the time of his death. If a Participant dies before
payment of his benefits has begun, his benefits must be distributed over a period not
exceeding the greatest of—






	 	(1)	 	the December 31 of the fifth calendar year after the death of the
Participant;
	 
	 	(2)	 	in the case of payments to a designated Beneficiary other than the
Participant’s spouse, the life expectancy of such Beneficiary, provided payments begin
by December 31 of the calendar year after the Participant’s death; or
	 
	 	(3)	 	in the case of payments to the Participant’s spouse, the life expectancy of
the spouse, provided payments begin by the date the Participant would have attained 70
1/2.






The life expectancy of a Participant, his spouse, or his designated Beneficiary shall be
determined in accordance with actuarial tables adopted by the Committee for this purpose in
accordance with section 401(a)(9) of the Code and the regulations promulgated thereunder
(including Treas. Reg. section 1.401(a)(9)-2); provided, however, that the permissive
recalculation rule of section 401(a)(9)(D) shall not be available to Participants or
Beneficiaries in calculating life expectancies.




With respect to distributions under the Plan made for calendar years beginning on or after
January 1, 2002, the Plan will apply the minimum distribution requirements of Code section
401(a)(9) in accordance with the regulations under section 401(a)(9) that were proposed on
January 17, 2001, notwithstanding any provision of the Plan to the contrary. This amendment
shall continue in effect until the end of the last calendar year beginning before the
effective date of final regulations under section 401(a)(9) or such other date as may be
specified in guidance published by the Internal Revenue Service.




	(d)	 	Direct Transfers to Eligible Retirement Plans. A Participant entitled to a distribution as
provided in section 7.1, 7.2, 9.5(a), 9.5(b), or 9.12 may elect to have such distribution
transferred directly from the Trust Fund to an “eligible retirement plan.” (A Participant may
not elect to have any hardship withdrawal distributed under section 7.2 on or after January 1,
2002 transferred directly to an “eligible retirement plan.”) Such election may apply to all or
part of such distribution, provided that transfers may not be made from any distribution to
more than one eligible retirement plan, and partial transfers must be in an amount not less
than $500.






For purposes of this provision, an “eligible retirement plan” shall mean an individual
retirement account, an individual retirement annuity other than an endowment contract, or a
defined contribution plan qualified under Code section 401(a) (and



37









 







funded under a trust which is qualified under Code section 501(a)) which accepts rollover
distributions. Effective for distributions made on or after January 1, 2002, an “eligible
retirement plan” shall also mean an annuity contract described in Code section 403(b) and
an eligible plan under Code section 457(b) which is maintained by a state, political
subdivision of a state, or an 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.




This provision shall not apply to any distribution which is less than $200, to any amount
required to be distributed under Code section 401(a)(9), to any installment distribution
payable over a period exceeding ten years, or to any other distribution which is not an
“eligible rollover distribution” within the meaning of Code section 401(a)(31)(C).




The foregoing rules shall also apply with respect to distributions to a Participant’s
spouse (including a spouse or former spouse who is an alternate payee under a qualified
domestic relations order), provided that a defined contribution plan qualified under Code
section 401(a) shall not be an “eligible retirement plan” with respect to such spouse.
Effective for distributions made on or after January 1, 2002, an “eligible retirement plan”
for a Participant’s spouse under this paragraph shall be the same as an “eligible
retirement plan” for a Participant, as described above.




	(e)	 	Trust-to-Trust Transfers to Controlled Group Member Plans. Participants who transfer
employment from the Employer to another Controlled Group Member may elect to transfer their
Account balances under the Plan to a qualified defined contribution plan maintained by any
Controlled Group Member which accepts such transfers. Amounts so transferred shall be subject
to all rights, restrictions, and features (including vesting provisions) applicable to similar
amounts contributed to and held under the plan of the Controlled Group Member. The Committee
may establish such nondiscriminatory restrictions and rules applicable to such transfers as it
may determine to be necessary or desirable to maintain the qualified status of the Plan (and
the Controlled Group Member’s plan) under the Code; including, without limitation, rules
insuring that such transfers comply with Code section 411(a), 411(d)(6), and the regulations
thereunder. In no event shall any amount be transferred to the Trustee under this subsection
9.5(e) from a defined benefit pension plan or money purchase pension plan.




9.6 Designation of Beneficiary

Subject to section 9.10, each Participant may from time to time, by signing a form furnished
by the Committee, designate any person or persons (who may be designated concurrently,
contingently, or successively) to whom his benefits are to be paid if he dies before he receives
all of his benefits. A Beneficiary designation form will be effective only when the form is filed
with the Committee while the Participant is alive and upon filing will cancel all

38









 








Beneficiary designation forms previously filed with the Committee. If a deceased Participant failed
to designate a Beneficiary as provided above, or if the designated Beneficiary dies before the
Participant or before complete payment of the Participant’s benefits, the Committee, in its
discretion, may direct the Trustee to pay the Participant’s benefits as follows:





	(a)	 	to or for the benefit of any one or more of his relatives by blood, adoption, or marriage and
in such proportions as the Committee determines; or
	 
	(b)	 	to the legal representative or representatives of the estate of the last to die of the
Participant and his designated Beneficiary.




9.7 Missing Participants or Beneficiaries

Each Participant and each designated Beneficiary must file with the Committee from time to
time in writing his post office address and each change of post office address. Any communication,
statement, or notice addressed to a Participant or Beneficiary at his last post office address
filed with the Committee, or if no address is filed with the Committee then, in the case of a
Participant, at his last post office address as shown on the Employer’s records, will be binding on
the Participant and his Beneficiary for all purposes of the Plan. Neither the Employers nor the
Committee will be required to search for or locate a Participant or Beneficiary. If the Committee
notifies a Participant or Beneficiary that he is entitled to a payment and also notifies him of the
provisions of this section 9.7, and the Participant or Beneficiary fails to claim his benefits or
make his whereabouts known to the Committee within three years after the notification, the benefits
of the Participant or Beneficiary will be disposed of as follows:





	(a)	 	if the whereabouts of the Participant then are unknown to the Committee but the whereabouts
of the Participant’s designated Beneficiary then are known to the Committee, payment will be
made to the designated Beneficiary; or
	 
	(b)	 	if the whereabouts of the Participant and the Participant’s designated Beneficiary then are
unknown to the Committee but the whereabouts of one or more relatives by blood, adoption, or
marriage of the Participant are known, the Committee may direct the Trustee to pay the
Participant’s benefits to one or more of such relatives and in such proportions as the
Committee decides.




9.8 Facility of Payment

When a person entitled to benefits under the Plan is under legal disability, or, in the
Committee’s opinion, is in any way incapacitated so as to be unable to manage his financial
affairs, the Committee may direct the Trustee to pay the benefits to such person’s legal
representative, or to a relative or friend of such person for such person’s benefit, or the
Committee may direct the application of such benefits for the benefit of such person. Any payment
made in accordance with the preceding sentence shall be a full and complete discharge of liability
for such payment under the Plan.




39








 







9.9 Commencement of Distributions

Distribution of benefits shall commence as set forth below:





	(a)	 	Distribution of a Participant’s Accounts in the Trust Fund shall commence with the
Participant’s consent within a reasonable time after his Settlement Date. A Participant’s
benefits shall generally commence no later than the sixtieth day after the close of the Plan
Year in which he has attained Normal Retirement Age and terminated employment with all
Employers. However, if after receiving notice of the right to receive benefits, the
Participant fails to elect to receive his benefits as of the first day of the month following
his Normal Retirement Age, he shall be deemed to have consented to the deferral of the
distribution of his benefits until the earlier of—






	 	(1)	 	April 1 following the calendar year in which he attains age 70 1/2; or
	 
	 	(2)	 	the date of his death.






All distributions under this section 9.9(a) shall be made as soon as practicable after the
required distribution date, unless otherwise required by applicable law.




	(b)	 	Notwithstanding section 9.9(a) above, a Participant who is a “5-percent owner” as defined in
Code section 416, and who remains employed with the Company or a Controlled Group Member after
attaining age 70 1/2, shall commence distribution of all such Participant’s Accounts not later
than April 1 of the calendar year following the calendar year in which the Participant attains
age 70 1/2. Any other Participant who remains employed with the Company or a Controlled Group
Member after attaining age 70 1/2 on or before December 31, 1998 may elect, in accordance with
rules established by the Committee, to commence distribution of such Participant’s
Non-Elective Contribution Account as of April 1 of the calendar year following the calendar
year in which the Participant attains age 70 1/2.
	 
	 	 	The Committee may establish rules consistent with the requirements of the Code and
regulations pursuant to which a Participant (other than a “5-percent owner” as defined in
Code section 416) who has previously commenced distributions after attainment of age 70 1/2
and prior to termination of employment may elect to terminate such distributions.




Notwithstanding anything in this section 9.9 to the contrary, if the amount of any distribution
required to commence on a certain date cannot be ascertained by such date, a payment retroactive to
such date may be made no later than 60 days after the earliest date on which such amount can be
ascertained. Notwithstanding anything in this Plan to the contrary, the Committee may direct the
Trustee to distribute to the Participant the distributable balance of his Accounts in a lump sum
payment at any time after his Settlement Date without his written consent to such distribution if,
at the time of the distribution, the value of the nonforfeitable portion of the Participant’s
Accounts does not exceed $5,000.




40









 







9.10 Spouse’s Benefits

Notwithstanding anything contained in the Plan to the contrary, the following provisions of
this section 9.10 shall apply in the case of distributions to or on behalf of a married
Participant. No Beneficiary designation pursuant to section 9.6 of the Plan, or method of
distribution elected by a Participant pursuant to section 9.5, shall be given effect by the
Committee if it conflicts in any way with the requirements of this section 9.10.





	(a)	 	Pre-Retirement Spouse’s Benefit. If a married Participant dies prior to commencement of his
benefits under the Plan, all of his Account balances will be distributed to his Surviving
Spouse, unless such spouse has made an election under subsection 9.10(c).
	 
	(b)	 	Post-Retirement Spouse’s Benefit. If a Participant is married at the date payment of his
benefits commences, any benefits remaining at the date of his death will be distributed to his
Surviving Spouse, unless such spouse has made an election under subsection 9.10(c).
	 
	(c)	 	Election by Participant’s Spouse. A Participant’s spouse may make a written election to
consent to distribution of any benefits payable upon the death of the Participant to a
Beneficiary designated by the Participant. Such an election will be effective only if it
acknowledges the effect of the consent and is witnessed by a Plan representative or a notary
public. Such consent shall not be required if, at the time of filing such designation, the
Participant established to the satisfaction or the Committee that consent of the Participant’s
spouse could not be obtained because there is no spouse, the spouse could not be located, or
by reason of such other circumstances as may be prescribed by the regulations. Any consent or
establishment that the consent could not be obtained shall be effective only with respect to
such spouse. If a Participant’s Surviving Spouse makes an election under this subsection
9.10(c), or if there is no Surviving Spouse at the date of the Participant’s death, any
benefits payable under the Plan upon the Participant’s death will be distributed pursuant to
subsection 9.5(b) or 9.5(c).




9.11 Distribution in Kind

The Committee shall cause the Trustee to make distributions in cash or in property, or
partly in each. Distributions in kind shall only be available for distributions from the Self
Directed Fund and the Diageo ADS Fund. In the event any distributions to a Participant or
Beneficiary are made in kind, the assets so distributed shall be valued at their fair market value
as of the date of distribution as determined by the Trustee in accordance with the Trust Agreement.
In order to be eligible to receive a distribution of a Diageo American Depository Receipt
representing a whole number of Diageo ADSs, the number of Diageo ADSs must be at least 100.




41









 








9.12 Partial Distribution

A Participant who has terminated employment because of retirement or Disability or the
Surviving Spouse of a deceased Participant may elect to take a partial distribution from his
Accounts of at least $500, provided that distributions of the Participant’s Accounts have not yet
begun as of the date the partial distribution is requested. Such partial distributions may be made
up to four times in a Plan Year. The Participant or Surviving Spouse shall elect such a partial
distribution by completing the form furnished by the Committee. Such partial distributions shall be
made in accordance with applicable laws and regulations.



9.13 Payments Pursuant to a Qualified Domestic Relations Order

Notwithstanding the provisions of section 12.8, the Plan will recognize a “qualified
domestic relations order” which shall be a judgment, decree, or order (including approval of a
property settlement agreement) that meets the requirements of (a), (b), (c), and (d) below:





	(a)	 	the order must relate to child support, alimony, property rights to a spouse, former spouse,
child, or dependent of a Participant and must be issued pursuant to a state domestic relations
law;
	 
	(b)	 	the order must include—






	 	(1)	 	the name and address of the Participant and alternate payee;
	 
	 	(2)	 	the amount or percentage of benefits payable to the alternate payee (or the
manner in which the amount or percentage is to be determined);
	 
	 	(3)	 	the period or number of payments involved; and
	 
	 	(4)	 	the exact name of the Plan to which the order applies;






	(c)	 	the order cannot require a type or form of benefit or option not otherwise offered under the
Plan, cannot require the Plan to provide increased benefits (determined on an actuarial
basis), and cannot affect benefits already the subject of a previous qualified domestic
relations order; and
	 
	(d)	 	the order must be capable of enforcement by the Plan in accordance with the administrative
procedures applicable to the Plan.




A qualified domestic relations order may order the Plan to commence payments to an alternate payee
immediately, even though the Participant is still employed by an Employer. An alternate payee may
elect any form of payment to which the Participant would be entitled at the time of the alternate
payee’s benefit commencement; provided, however, an alternate payee cannot elect to cover such
payee’s spouse under any joint and survivor form of payment.



The Plan shall separately account for all affected funds in a Participant’s Account following the
receipt of the domestic relations order until the earlier of 18 months following such

42









 







receipt or a determination is made as to whether the domestic relations order is a “qualified
domestic relations order” as defined in this section 9.13. If the order does qualify, funds payable
at some future date to an alternate payee shall remain invested in the Investment Funds in which
they were invested immediately prior to transfer to the alternate payee’s Account until such time
as the alternate payee elects, pursuant to section 5.2, to have his or her Accounts transferred to
different Investment Funds.



The Committee shall notify any Participant and alternate payee of the receipt of any domestic
relations order by the Plan and shall inform such Participant and alternate payee of the Plan’s
procedure for determining whether such order meets the requirements described above in this section
9.13. Such procedures shall comply with the requirements set forth in Code section 414(p) and ERISA
section 206(d).



9.14 Unclaimed Benefits

If the Committee is unable to make payment of benefits to Participants or Beneficiaries as
provided in section 9.7, and if such benefits remain unclaimed for a period of four years, then
such unclaimed benefits shall be forfeited. Such forfeited amounts shall be handled in the same
manner as provided in section 9.4 for Remainders. In the event the missing Participant and or
Beneficiary subsequently makes a valid claim for such forfeited benefits, such forfeited benefits
shall be reinstated and paid in accordance with Plan provisions.





43








 








Article 10. Reemployment



10.1 Resumption of Participation

If a Participant’s employment with all of the Employers should terminate and such
Participant is subsequently reemployed by an Employer, he shall again become eligible to
participate in the Plan and shall become a Reemployed Participant as of his date of rehire if he
then meets the requirements of subsections 3.1(b)(1), (3), and (4), and the Years of Vesting
Service to which he was entitled at the time of termination shall be reinstated in accordance with
the provisions of section 10.2.



10.2 Reinstatement of Remainder

If a Participant whose employment had terminated because of resignation or dismissal is
reemployed by an Employer or Controlled Group Member (Reemployed Participant) before he incurs
consecutive One-Year Breaks in Service that exceed the greater of five or his Years of Vesting
Service prior to his termination, any Remainder resulting from his prior resignation or dismissal
shall again be credited to his Matching Contribution Account and/or Non-Elective Contribution
Account, as appropriate, as of the Monthly Accounting Date coincident with or next following his
date of rehire, after all other adjustments required under the Plan as of such Monthly Accounting
Date have been made. Any such Remainder which had already been applied to reduce Employer
contributions in accordance with section 9.4 shall be reinstated from current Remainders not yet so
applied. If a Reemployed Participant’s subsequent Settlement Date occurs because of resignation or
dismissal and at such time the Reemployed Participant is not entitled to the full balance in his
Matching Contribution Account or Non-Elective Contribution Account, the amount distributed under
section 9.5 from his Matching Contribution Account and/or Non-Elective Contribution Account will be
determined in accordance with the following:





	(a)	 	First, the amount of the distribution received by the Reemployed Participant from his
Matching Contribution Account and/or Non-Elective Contribution Account because of his prior
resignation or dismissal shall be added to the balance in his Matching Contribution Account or
Non-Elective Contribution Account, as appropriate, as of the Monthly Accounting Date
coincident with or next preceding his subsequent Settlement Date.
	 
	(b)	 	Next, the amount determined under subsection (a) above shall be multiplied by the vesting
percentage applicable at his subsequent Settlement Date under section 9.2.
	 
	(c)	 	Finally, the amount determined under subsection (b) above shall be reduced by the amount of
the distribution received by the Reemployed Participant from his Matching Contribution Account
or Non-Elective Contribution Account, as appropriate, because of his prior resignation or
dismissal.




44









 










The remaining portion of the Reemployed Participant’s Matching Contribution Account and/or
Non-Elective Contribution Account will be treated as a Remainder and will be subject to the
provisions of section 9.4. In no event shall Years of Vesting Service occurring after a Participant
incurs consecutive One-Year Breaks in Service equal to the greater of five or his Years of Vesting
Service prior to his termination be used to determine the vested percentage of his Matching
Contribution Account or Non-Elective Contribution Account as of a prior Settlement Date.




45









 








Article 11. Administration


11.1 Authority and Responsibility of the Board of Directors

The Board of Directors shall have overall responsibility for the establishment, amendment,
termination, administration, and operation of the Plan, and the investment of the Plan’s assets,
which responsibility it shall discharge by the appointment and removal (with or without cause) of:





	(a)	 	the members of the Benefits Committee, to which is delegated the overall responsibility for
the administration and operation of the Plan as further defined in section 11.5; and
	 
	(b)	 	the members of the Investment Committee to which is delegated the responsibility to—






	 	(1)	 	appoint and remove Investment Managers to whom the Investment Committee may
delegate responsibility for the investment of all or any part of the assets in the
Investment Funds;
	 
	 	(2)	 	appoint and remove the Trustee which shall be responsible for the safekeeping
of the assets of the Plan; and
	 
	 	(3)	 	carry out the tasks set forth in section 11.6.




11.2 Committee Membership

Each Committee (i.e., the Investment Committee and the Benefits Committee) shall consist of
not less than three members, who shall be appointed by the Board of Directors. They shall remain in
office at the will of the Board of Directors, and the Board of Directors may from time to time
remove any of said members with or without cause and shall appoint their successors. The Benefits
Committee shall have the general responsibility for the administration of the Plan and for carrying
out its provisions and shall be the “plan administrator” and a named fiduciary under ERISA. The
Investment Committee shall have the general responsibility for the management and control of the
Plan assets and shall be a named fiduciary under ERISA.



11.3 Committee Structure

If requested to do so, each member of each Committee, upon becoming a member of the
Committee, shall file an acceptance thereof in writing with the secretary of the Company and the
secretary of the Committee. Any member of either Committee may resign by delivering a written
resignation to the secretary of the Company and the secretary of the Committee, and such
resignation shall become effective upon the date specified therein. In the event of a vacancy in
membership, the remaining members shall constitute the Committee in question with full power to act
until said vacancy is filled.




46









 







11.4 Committee Actions

The action of each Committee shall be determined by the vote or other affirmative expression
of a majority of its members. Each Committee shall choose a chairman who shall be a member of the
Committee and a secretary who may (but need not) be a member of the Committee. The secretary shall
keep a record of all of the meetings and acts of the Committee and shall have custody of all
records and documents pertaining to its operations. Either the chairman or the secretary may
execute any certificate or other written direction on behalf of the Committee in question.



11.5 Responsibility and Authority of the Benefits Committee

Unless otherwise specifically provided hereunder, the Benefits Committee shall have full and
complete authority, responsibility, discretion, and control over the management, administration,
and operation of the Plan, including, but not limited to, the authority to—





	(a)	 	amend the Plan to the extent that such amendment does not increase the annual expense of the
Plan by more than $500,000;
	 
	(b)	 	formulate, adopt, issue, and apply procedures and rules;
	 
	(c)	 	construe and apply the provisions of the Plan in its sole discretion;
	 
	(d)	 	make, in its sole discretion, appropriate determinations concerning eligibility for benefits,
loans, and the distribution of benefits, including loans and hardship withdrawals;
	 
	(e)	 	adopt and prescribe the use of necessary forms;
	 
	(f)	 	prepare and file reports, notices, and any other documents relating to the Plan which may be
required by the Secretary of Labor or the Secretary of the Treasury or the Pension Benefit
Guaranty Corporation, including, without limitation, those relating to a Participant’s
service, Account balances, the percentage of such benefits which are nonforfeitable, the date
after which benefits are nonforfeitable even if the Participant dies, and annual
registrations;
	 
	(g)	 	prepare and distribute to Participants all communication materials required by ERISA;
	 
	(h)	 	appoint such agents, accountants, actuaries, consultants, and other specialists to aid it in
the administration of the Plan as the Benefits Committee considers appropriate;
	 
	(i)	 	be the agent for service of legal process;
	 
	(j)	 	make available for inspection and provide upon request documents and instruments required to
be disclosed by ERISA;
	 
	(k)	 	respond to domestic relations orders in the manner described in section 9.13;




47









 













	(l)	 	authorize and direct payment of benefits; and
	 
	(m)	 	transfer or cause to be transferred to the Trust Fund amounts of contributions, and allocate
such contributions as well as the funds and property held in the Trust Fund among the
Investment Fund all in accordance with the current funding policies of the Plan and/or a
Participant’s or Beneficiary’s directions.




The Benefits Committee shall be permitted to delegate to its agent certain of its powers enumerated
above as follows:





	(1)	 	discretion to construe and apply provisions of the Plan; provided, however, the agent shall
keep written records of each interpretation of the Plan and the agent shall report all such
interpretations to the Committee;
	 
	(2)	 	make, in its discretion, appropriate determinations concerning eligibility including
financial hardship for benefits and the amount of benefits due under the Plan; provided,
however, the final decision concerning appeals from the denial of benefits shall be reserved
to the Appeal Review Committee;
	 
	(3)	 	adopt and prescribe the use of necessary forms;
	 
	(4)	 	prepare all the reports and notices described in (e) above;
	 
	(5)	 	prepare the communication materials required by ERISA; final approval before distribution of
such materials may be reserved by the Benefits Committee, if it so chooses;
	 
	(6)	 	serve as agent for service of legal process;
	 
	(7)	 	make available for inspection and provide upon request documents and instruments required to
be disclosed by ERISA;
	 
	(8)	 	respond to domestic relations orders in the manner described in section 9.13;
	 
	(9)	 	authorize and direct payment of benefits; and
	 
	(10)	 	transfer or cause to be transferred to the Trust Fund amounts of contributions, and allocate
such contributions as well as the funds and property held in the Trust Fund among the
Investment Funds all in accordance with the current funding policies of the Plan and/or a
Participant’s or Beneficiary’s directions.




Any delegation by the Benefits Committee to an agent must be done in writing. Any change in the
above-described powers that can be delegated shall be accomplished by Plan amendment. To the extent
the Benefits Committee chooses to delegate some or all of the responsibilities listed above to its
agent, the Benefits Committee must act with the prudence required of a fiduciary in section
404(a)(1) of ERISA and in the sole interests of Participants

48









 








and Beneficiaries in choosing the agent to whom it allocates or delegates its duties. Furthermore,
the Benefits Committee must act in this manner in continuing the allocation or delegation of its
duties. In order to act prudently in retaining an agent to whom duties have been delegated, the
Benefits Committee shall periodically review the appropriateness of the delegation.



To the extent permitted by law, all findings of fact, determinations, interpretations, and
decisions of the Benefits Committee or its delegates shall be conclusive and binding upon all
persons having or claiming to have any interest or right under the Plan.



11.6 Responsibility and Authority of the Investment Committee

The Investment Committee shall have the following authority, responsibility, and control
over the management and operation of the assets of the Plan:





	(a)	 	appoint and dismiss the Trustee and all Investment Managers;
	 
	(b)	 	regularly review the accounts submitted by the Trustee and any Investment Manager and monitor
and evaluate the investment performance of the Investment Managers to insure such performance
is consistent with the investment policies of the applicable Investment Fund;
	 
	(c)	 	give directions and instructions, or designate an agent to give the same, contemplated by the
terms of any trust agreement or any custodial arrangement, as they shall deem advisable to the
Trustees and to the Investment Managers; and
	 
	(d)	 	appoint such agents, counsel, consultants, and other specialists to aid it in its
responsibilities in the operation of the Trust Fund as the Investment Committee considers
appropriate.




The foregoing notwithstanding, one member of the Investment Committee can execute any instruments
requiring the signature of the Investment Committee and such instrument shall be treated as if it
were executed by the entire Investment Committee.



11.7 Committee Liability

Each Committee and the members thereof shall be free from all liability, joint or several,
for their acts as members of such Committee, except to the extent that they may have been guilty of
willful misconduct and except as otherwise required by federal law.



11.8 Committee Bonding

The members of each Committee shall serve without bond (except as otherwise required by
federal law) and without compensation for their service as such; but all expenses of each Committee
shall be paid by the Employer in such proportions as the Committee may direct.




49







 







11.9 Information to be Supplied by Employers

Employers shall provide each Committee or its delegates with such information as it shall
from time to time need in the discharge of its duties.



11.10 Records

The regularly kept records of the Benefits Committee and any Employer shall be conclusive
evidence of the period of employment and Years of Vesting Service of a person, his Compensation,
his age, his status as an Eligible Employee, his termination of employment and reason therefore,
and all other matters applicable to this Plan.



11.11 Interested Committee Member

If a member of a Committee is also a Participant in the Plan, he may not decide or determine
any matter or question concerning a distribution of any kind to be made to him or the nature or
mode of settlement of his benefits unless such decision or determination could be made by him under
the Plan if he were not serving on the Committee.



11.12 Fiduciary Capacity

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



11.13 Employer’s Agent

The Company and/or the Benefits Committee shall act as agent for each Employer in the
administration of the Plan.




50









 








Article 12. General Provisions



12.1 Additional Employers

Any Controlled Group Member may adopt the Plan and become a party to the Trust Agreement by:




	(a)	 	filing with the Company, the Committee, and the Trustee a written instrument to that effect;
and
	 
	(b)	 	filing with the Committee and the Trustee a certified copy of a resolution of the Company’s
Board of Directors consenting to such action.




12.2 Action by Employers

Any action required or permitted to be taken by an Employer under the Plan shall be by
resolution of its Board of Directors, by resolution of a duly authorized committee of its Board of
Directors, or by a person or persons authorized by resolution of its Board of Directors or such
committee.



12.3 Waiver of Notice

Any notice required under the Plan may be waived by the person entitled to notice.



12.4 Gender and Number

Where the context admits, words in the masculine gender shall include the feminine and
neuter genders, words in the feminine gender shall include the masculine and neuter genders, the
singular shall include the plural, and the plural shall include the singular.



12.5 Controlling Law

Except to the extent superseded by laws of the United States, the laws of Florida shall be
controlling in all matters relating to the Plan.



12.6 Employment Rights

The Plan does not constitute a contract of employment, and participation in the Plan will
not give any Employee the right to be retained in the employ of any Employer, nor any right or
claim to any benefit under the Plan, unless such right or claim has specifically accrued under the
terms of the Plan.



12.7 Litigation by Participants

If a legal action begun against the Trustee, an Employer, the Committee or any member or
members thereof, by or on behalf of any person results adversely to that person, or if a legal
action arises because of conflicting claims to a Participant’s or other person’s benefits, the cost
to the Trustee, the Employers, the Committee or any member or members thereof of defending the
action shall be charged to the extent permitted by law to the sums, if any, which were involved in
the action or were payable to the Participant or other person concerned.




51









 







12.8 Interests Not Transferable

The interests of persons entitled to benefits under the Plan are not subject to their debts
or other obligations and, except as provided in section 7.4 or as may be required by the tax
withholding provisions of the Code or any state’s income tax act or pursuant to a qualified court
order, such as a qualified domestic relations order as defined in section 414(p) of the Code, may
not be voluntarily or involuntarily sold, transferred, alienated, assigned, or encumbered.



12.9 Absence of Guaranty

Neither the Committee nor the Employers in any way guarantee the Trust Fund against loss or
depreciation. The liability of the Trustee or the Committee to make any payment under the Plan will
be limited to the assets held by the Trustee which are available for that purpose.



12.10 Evidence

Evidence required of anyone under the Plan may be by certificate, affidavit, document, or
other information which the person acting on it considers pertinent and reliable, and signed, made,
or presented by the proper party or parties.



12.11 Transfer of Pillsbury Savings Plan Benefits to the Plan

On or about October 1, 1990 all undistributed assets of Participants who were current or
former Burger King Corporation employees, held in the Pillsbury Savings Plan Trust were transferred
to this Plan’s Trust and each such Participant was entitled to the same benefit immediately
following the transfer to which he would have been entitled immediately prior to the transfer. In
addition, on or about October 1, 1990 all outstanding loans of Participants who were current or
former Burger King Corporation employees which were owed to the Pillsbury Savings Plan were
transferred to this Plan’s Trust with no change in the terms or conditions of such loans.



The assets were transferred from the Pillsbury Savings Plan Accounts and Investment Funds to this
Plan’s Accounts and Investment Funds as set forth below:




	 	 	 
	From the Pillsbury Savings Plan	 	To This Plan’s Account
	Account or Investment Fund	 	or Investment Fund
	Prior Plans Account

	 	Prior Plan Account
	 
	 	 
	Basic Contribution Account

	 	Basic Contribution Account
	 
	 	 
	Matching Contribution Account

	 	Matching Contribution Account
	 
	 	 
	Income Fund

	 	Income Fund
	 
	 	 
	Self-Directed Fund

	 	Self-Directed Fund
	 
	 	 
	Common Stock Fund—Income

	 	Equity-Growth and Income Fund
	 
	 	 
	Common Stock Fund—Growth

	 	Equity-Capital Appreciation Fund






52









 





12.12 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.



12.13 Claims Procedure





	(a)	 	Initial Claim for Benefits. Each Claimant must sign and submit a claim for benefits to
the Benefits Committee or its agent in writing in such form as is provided or approved by such
Benefits Committee. A Claimant shall have no right to seek review of a denial of benefits, or
to bring any action in any court to enforce a claim for benefits prior to filing a claim for
benefits and exhausting all rights under this section. When a claim for benefits has been
filed properly, such claim for benefits shall be evaluated and the Claimant shall be notified
by the Benefits Committee or its agent of approval or denial within 90 days after the receipt
of such claim unless special circumstances require an extension of time for processing the
claim. If such an extension of time for processing is required, written notice of the
extension shall be furnished to the Claimant by the Benefits Committee prior to the
termination of the initial 90-day period which shall specify the special circumstances
requiring an extension and the date by which a final decision will be reached (which date
shall not be later than 180 days after the date on which the claim was filed). A Claimant
shall be given a written notice in which the Claimant shall be advised as to whether the claim
is granted or denied, in whole or in part. If a claim is denied, in whole or in part, the
Claimant shall be given written notice which shall contain—






	 	(1)	 	the specific reasons for the denial;
	 
	 	(2)	 	references to pertinent Plan provisions upon which the denial is based;
	 
	 	(3)	 	a description of any additional material or information necessary to perfect
the claim and an explanation of why such material or information is necessary; and
	 
	 	(4)	 	the Claimant’s rights to seek review of the denial.






	(b)	 	Review of Claim Denial. If a claim is denied, in whole or in part (or if within the time
periods prescribed in subsection 12.13(a), the Benefits Committee or its agent has not
furnished the Claimant with a denial and the claim is therefore deemed denied), the Claimant
shall have the right to request that the Benefits Committee review the denial, provided that
the Claimant files a written request for review with the Benefits Committee within 60 days
after the date on which the Claimant received written notification of the denial. A Claimant
(or such Claimant’s duly authorized representative) may review pertinent documents and submit
issues and comments in writing to the Benefits Committee. Effective January 1, 2002, if a
Claimant chooses to appeal, upon request (and free of charge), the Claimant shall be provided




53









 






	 	 	reasonable access to and copies of all documents, records, and other information relevant
to his claim for benefits and shall also be informed of his right to bring suit under
ERISA. Within 60 days after a request for review of a claim is received, the review shall
be made and the Claimant shall be advised in writing by the Benefits Committee of the
decision on review, unless special circumstances require an extension of time for
processing the review, in which case the Claimant shall be given a written notification by
the Benefits Committee within such initial 60-day period specifying the reasons for the
extension and when such review shall be completed (provided that such review shall be
completed within 120 days after the date on which the request for review was filed). The
decision on review shall be forwarded to the Claimant by the Benefits Committee in writing
and shall include specific reasons for the decision and references to Plan provisions upon
which the decision is based. A decision on review shall be final and binding on all persons
for all purposes. If a Claimant shall fail to file a request for review in accordance with
the procedures described in the section, such Claimant shall have no right to review and
shall have no right to bring action in any court and the denial of the claim shall become
final and binding on all persons for all purposes.




54









 











Article 13. Amendment and Termination



13.1 Amendment

While the Employers expect and intend to continue the Plan, the Company reserves the right
to amend the Plan from time to time, except as follows:





	(a)	 	no amendment shall reduce the value of a Participant’s benefits to less than the amount he
would be entitled to receive if he had resigned from the employ of all of the Employers on the
day of the amendment;
	 
	(b)	 	except as provided in Article 4, under no condition shall any amendment result in the return
or repayment to any Employer of any part of the Trust Fund or the income therefrom, or result
in the distribution of the Trust Fund for the benefit of anyone other than Employees and
former Employees of the Employers and any other persons entitled to benefits under the Plan;
and
	 
	(c)	 	no amendment shall change any vesting schedule unless each Participant who has completed
three or more Years of Service is permitted to elect to have the nonforfeitable percentage of
his or her Matching Contribution Account and Non-Elective Contribution Account computed under
the Plan without regard to such amendment. The period for making such election shall expire no
earlier than 60 days after the latest of the following dates:






	 	(1)	 	the date the Plan amendment is adopted;
	 
	 	(2)	 	the date the Plan amendment becomes effective; or
	 
	 	(3)	 	the date the Participant is issued written notice of the Plan amendment by
the Committee.






Notwithstanding the foregoing, no election needs to be offered to a Participant whose
nonforfeitable percentage of his or her Matching Contribution Account and Non-Elective
Contribution Account cannot at any time be lower than such percentage determined without
regard to such amendment.


13.2 Termination

The Plan will terminate as to all Employers on any date specified by the Company if 30 days’
advance written notice of the termination is given to the Committee, the Trustee, and the other
Employers. The Plan will terminate as to an individual Employer on the first to occur of the
following:





	(a)	 	the date it is terminated by that Employer if 30 days’ advance written notice of the
termination is given to the Committee, the Trustee, and the other Employers;
	 
	(b)	 	the date that Employer is judicially declared bankrupt or insolvent;




55









 












	(c)	 	the date that Employer completely discontinues its contributions under the Plan; and
	 
	(d)	 	the dissolution, merger, consolidation, or reorganization of that Employer, or the sale by
that Employer of all or substantially all of its assets, except that if an Employer is merged,
dissolved, or in any other way reorganized into, or consolidated with, any other Employer, the
Plan as applied to the former Employer will automatically continue in effect without a
termination thereof.




13.3 Vesting and Distribution on Termination

On termination or partial termination of the Plan as respects any Employer, the date of
termination will be a Special Accounting Date and, after all adjustments then required to have been
made, each affected Participant’s benefits will be nonforfeitable. If, on termination of the Plan,
the Participant remains an Employee of an Employer, the amount of his benefits shall be retained in
the Trust Fund until his termination of employment with all of the Employers and then shall be paid
to him in accordance with the provisions of sections 9.5 and 9.12. In the event that the
Participant’s employment with all of the Employers is terminated coincident with the termination of
the Plan, his benefits shall be paid to him in a lump sum.



13.4 Notice of Amendment or Termination

Participants will be notified of an amendment or termination of the Plan within a reasonable
time.



13.5 Plan Merger, Consolidation, Etc.

In the case of any merger or consolidation with, or transfer of assets or liabilities to any
other Plan, each Participant’s benefits (if the Plan terminated immediately after such merger,
consolidation, or transfer) shall be equal to or greater than the benefits he would have been
entitled to receive if the Plan had terminated immediately before the merger, consolidation, or
transfer.




56









 








Article 14. Voting and Tendering of Diageo ADSs



14.1 Registration of Diageo ADSs

All Diageo ADSs held or acquired by the Trustee under the Plan will be registered in the
name of the Trustee or its nominee, and any such Diageo ADSs and any rights, warrants, and options,
if any, with respect to such ADSs which have been allocated to the Accounts of Participants shall
be voted or exercised by the Trustee as provided for in section 14.2 of the Plan. For purposes of
this Article 14, a Participant (or in the event of his or her death, his or her Beneficiary) is
hereby designated a “named fiduciary” within the meaning of ERISA section 403(a)(1) with respect to
Diageo ADSs, and any such rights, warrants, and options with respect to such Diageo ADSs allocated
to his and/or her Account.



14.2 Voting Rights

Each Participant (or in the event of his or her death, his or her Beneficiary) shall have
the right to direct the Trustee in writing as to the manner in which Diageo ADSs allocated to the
Participant’s Account shall be voted on each matter brought before an annual or special
stockholder’s meeting of Diageo. Before each such meeting of stockholders, the Committee shall
cause to be furnished to each Participant or Beneficiary a copy of the proxy solicitation material,
together with a form requesting confidential instructions on how the shares of Diageo ADSs
allocated to such Participant’s Account shall be voted on each such matter. Upon timely receipt of
such instructions, the Trustee shall on each such matter vote as instructed the number of such
Diageo ADSs (including fractions) allocated to such Participant’s Share Account. The instructions
received by the Trustee from Participants shall be held by the Trustee in confidence and shall not
be divulged or released to any person, including officers or employees of the Company, Diageo, or
any affiliated entity. The Trustee shall vote Diageo ADSs for which it has not received timely
instructions on any matter in the same proportion as such Diageo ADSs for which the Trustee has
received timely instructions on such matter; and the Trustee shall have no discretion in such
matter.



14.3 Rights on Tender or Exchange Offer

Each Participant (or, in the event of his or her death, his or her Beneficiary) shall have
the right to direct the Trustee in writing as to the manner in which to respond to a tender or
exchange offer with respect to Diageo ADSs allocated to his or her Account, and the Trustee shall
respond in accordance with the instructions so received. The Committee shall utilize its best
efforts to timely distribute or cause to be distributed to each Participant (or Beneficiary) who is
entitled to exercise such right, such information as will be distributed to holders of Diageo ADSs
in connection with any such tender or exchange offer, together with a form requesting confidential
instructions on whether all or any part of the Diageo ADSs allocated to such Participant’s Account
shall be tendered or exchanged. If the Trustee shall not receive timely direction from a
Participant (or Beneficiary) as to the manner in which to respond to such a tender or exchange
offer, the Trustee shall not tender or exchange any Diageo ADSs allocated to the Participant’s
Account, and the Trustee shall have no discretion in such
matter. The instructions received by the Trustee shall be held by the Trustee in confidence and
shall not be divulged or released to any persons, including officers or employees of the Company,
Diageo, or any affiliated entity.




57









 








Article 15. Special Rules for Top-Heavy Plans



15.1 Purpose and Effect

The purpose of this section is to comply with the requirements of section 416 of the
Internal Revenue Code of 1986. The provisions of this section shall be effective for each Plan Year
in which the Plan is a “Top-Heavy Plan” within the meaning of section 416(g) of the Code.



15.2 Top-Heavy Plan

In general, the Plan will be a Top-Heavy Plan for any Plan Year if, as of the Determination
Date, the aggregate Account balances of Participants who are Key Employees (as defined in section
416(i)(1) of the Code) exceed 60 percent of the aggregate Account balances of all Participants. In
making the foregoing determination, the following special rules shall apply:





	(a)	 	A Participant’s Account balances shall be increased by the aggregate distributions, if any,
made with respect to the Participant during the five-year period (or, effective January 1,
2002, the one-year period for distributions made on account of separation from service, death,
or Disability) ending on the Determination Date.
	 
	(b)	 	The Account balances of a Participant who was previously a Key Employee, but who is no longer
a Key Employee, shall be disregarded.
	 
	(c)	 	The Accounts of a Beneficiary of a Participant shall be considered accounts of the
Participant.
	 
	(d)	 	The Account balances of a Participant who did not receive any compensation from an Employer
(other than benefits under the Plan), during the five-year period (or, effective January 1,
2002, the one-year period) ending on the Determination Date shall be disregarded.





15.3 Minimum Employer Contribution





	(a)	 	Single Plan. For any Plan Year in which the Plan is a Top-Heavy Plan, the Employer
contribution and Remainders, if any, credited to each Participant who is not a Key Employee
shall not be less than 3 percent of such Participant’s compensation for that year. In no
event, however, shall the Employer contribution and Remainders credited in any year to a
Participant who is not a Key Employee (expressed as a percentage of such Participant’s
compensation) exceed the Minimum Employer Contribution (including Basic Contributions) and
Remainders credited in that year to a Key Employee (expressed as a percentage of such Key
Employee’s compensation up to the limit in effect under Code section 401(a)(17)).
	 
	(b)	 	Multiple Plans. A Participant who is covered under this Plan and under a defined benefit plan
maintained by the Employers and nonparticipating Affiliates shall receive a minimum benefit
under the defined benefit plan. No minimum contribution under this section shall be allocable
to any non-Key Employee who participates in a




58









 






	 	 	defined benefit plan maintained by an Employer or nonparticipating Affiliate and who
receives the minimum benefit described in Code section 416(c)(1) under such defined benefit
plan. If a Participant is covered under more than one defined contribution plan, the
minimum contribution required under subsection (a) above shall be provided under only one
such plan.






	(c)	 	Effect of Matching Contributions. For Plan Years beginning before January 1, 2002, Matching
Contributions allocated to Key Employees shall be treated as an allocation of contributions by
an Employer under this section 15.3. Additionally, if Matching Contributions to non-key
Employees are used to satisfy the minimum contribution requirement under this section 15.3,
these Matching Contributions shall not be tested under section 4.11 and they must otherwise
satisfy the nondiscrimination requirements of Code section 401(a)(4).






For Plan Years beginning on or after January 1, 2002, Matching Contributions shall be taken
into account in determining whether the Plan has satisfied the minimum contribution
requirements under this section 15.3. Matching Contributions that are used to satisfy the
requirements of this section 15.3 shall be treated as Matching Contributions for purposes
of the nondiscrimination test described in section 4.11. These provisions, effective for
Plan Years beginning on or after January 1, 2002, also shall apply with respect to matching
contributions under another plan, as provided in subsection (b).


15.4 Vesting Requirements

For any Plan Year in which the Plan is a Top-Heavy Plan, then the Participant’s interest in
his Non-Elective Contribution Account shall vest in accordance with the more favorable of the
provisions of section 9.2(c) or the following schedule:




	 	 	 	 	 
	Years of Service	 	Vesting Percentage
	Less than 2
	 	 	0	%
	2
	 	 	20	%
	3
	 	 	40	%
	4
	 	 	60	%
	5
	 	 	80	%
	6 or more
	 	 	100	%





If in a subsequent Plan Year the Plan is no longer Top-Heavy, the vesting provisions that
were in effect prior to the time the Plan became Top-Heavy shall be reinstated; provided, however,
that any portion of a Participant’s Account which was vested prior to the time the Plan was no
longer Top-Heavy shall remain vested, and provided further that a Participant who has at least
three years of Service at the start of such Plan Year shall have the option of remaining under the
vesting schedule in effect while the Plan was Top Heavy.




59









 







15.5 Aggregation of Plans

Each other defined contribution plan and defined benefit plan maintained by the Employers
which during the Plan Year containing the Determination Date covers a Key Employee as a Participant
or enables a plan covering a Key Employee to meet the requirements of Code section 401(a)(4) or
410(b) shall be aggregated with this Plan in determining whether this Plan is Top Heavy. In
addition, any other defined contribution or defined benefit plan of the Employers may be included
if all such plans which are included, when aggregated, satisfy the requirements of Code section
401(a)(4) and 410(b).



15.6 Adjustment of Combined Benefit Limitations

For any Plan Year beginning prior to January 1, 2000 in which the Plan is a Top-Heavy Plan,
the determination of the defined contribution plan fraction and defined benefit plan fraction under
section 6.6 shall be adjusted downward in accordance with the provisions of section 416(h) of the
Code, unless the Employer contribution is not less than 4 percent of the compensation credited to
each Participant who is not a Key Employee and the Plan is not a “Super Top-Heavy Plan” (as
described below and in section 416(h) of the Code) for that year. The Plan will not be a Super
Top-Heavy Plan for any Plan Year if the Plan would not be a Top-Heavy Plan under section 15.2 above
if the figure “90 percent” was substituted for the figure “60 percent” in that subsection.



15.7 Use of Terms

All terms and provisions of the Plan shall apply to Article 15, except that where the terms
and provisions of the preceding provisions of this Plan and this Article 15 conflict, the terms and
provisions of this Article 15 shall govern.




* * * * * * * * * *





60









 








     In Witness Whereof, Burger King Corporation has caused this instrument to be signed by its duly
authorized officer as of this ___ day of _______________, effective as of January 1, 2001
and such subsequent dates as are stated herein.



	 	 	 	 	 
	 	Burger King Corporation 

 	 
	 	By  /s/ Howard K. Perlman
 	 
	 	Its Vice President 	 
	 	 	 



61









 






	 	 	 	 	 



Affidavit of Intent to Change Plan Provisions for the

Burger King Savings Plan



WHEREAS, it is the intent of the Affiant to ensure that plan provision changes for the Burger King
Savings Plan (“Plan”) described below are officially adopted, properly executed and a copy thereof
sent promptly to American Express Trust Company at the address listed in the Administrative
Services Agreement;



WHEREAS, the Affiant represents that he/she has the authority to make said assurances; and



WHEREAS, the Affiant intends the following specific plan provision changes for the Plan:






Making revisions to the withdrawal provisions (Age 591/2 and Prior Plan Withdrawals) in
order to allow for paperless processing of requests, including eliminating written
application/form requirements.




Making revisions to the loan withdrawal provisions and the Loan Policy in order to allow
for paperless processing of requests, including eliminating written application/form
requirements.



Nothing further is contained in this affidavit.




	 	 	 	 	 
	 	 	 
	 	                                         Affiant      /s/  Susan Kunreuther
 	 
	 	Title        Director of Total Rewards 	 
	 	Date         10/21/02 	 



 









 






	 	 	 	 	 



First Amendment

to the

Burger King Savings Plan

(Effective as of January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”); and



Whereas,
the Plan was amended and restated effective January 1, 2001;



Whereas, the Plan permits Participants and Beneficiaries to take loans from vested Account
balances; and



Whereas, the Company desires to amend the Plan’s loan provisions to generally allow for a
suspension of loan repayments during a leave of absence, as permitted by IRS guidance, and to
permit a Participant to repay a loan that has been deemed distributed.



Now, therefore, section 7.4 of the Plan is hereby amended in its entirety as follows effective
January 1, 2002:





“7.4 Loans to Participants




Upon the submission by the Participant of a written loan application form as prescribed by
the Committee, the Committee, pursuant to subsection 11.5(d), may approve a loan to such
Participant from the Plan in accordance with this section 7.4. Such loans may be made for
any reason, and without proof of financial need.




	 	(a)	 	Amount of Loan. The minimum amount of any loan shall be $ 1,000. The amount
of any loan shall not exceed the lesser of—






	 	(1)	 	50 percent of the amount which a Participant would be entitled
to receive from his or her Accounts, other than his or her Non-Elective
Contributions Account, under section 9.2, if he were to terminate his or her
employment with his Employer on the date the loan is made; or
	 
	 	(2)	 	$50,000 reduced by the greater of—






	 	(A)	 	the highest outstanding balance of loans from
the Trust Fund during the one-year period ending on the day before the
date on which such loan is made or modified; or
	 
	 	(B)	 	the outstanding balance of loans from the Trust
Fund on the date on which such loan is made or modified.






In no event may the loan exceed the sum of the Participant’s balance in his or her
Prior Plan Account and his or her Basic Contribution Account as of the Daily
Accounting Date immediately preceding the day the check is cut.



1









 






	 	(b)	 	Availability of Loans. In order to obtain a loan, a Participant must have at
least a $2,000 vested balance in his Plan Accounts. Subject to the preceding sentence,
such loans shall be made available on a reasonably equivalent basis to all Participants
and Beneficiaries who have vested Account balances in the Plan and who either—






	 	(1)	 	are active employees; or
	 
	 	(2)	 	are determined by the Committee to be “parties in interest” as
that term is defined in section 3(14) of ERISA,




so long as the making of such loans does not discriminate in favor of Highly Compensated Employees.
The Committee shall be able to limit the number of outstanding loans available under this section
7.4.




          (c) Terms of Loans.





	 	(1)	 	General. Loans shall be made on such terms as the Committee may
prescribe, provided that any such loan shall be evidenced by a note and shall
bear a reasonable rate of interest on the unpaid principal thereof, equal to
the prime rate charged by a majority of U.S. banks as reported by The Wall
Street Journal, unless the Committee determines that such interest rate is not
commensurate with the interest rates charged by persons in the business of
lending money for loans which would be made under similar circumstances, and
shall be secured by the Participant’s segregated loan account and such other
security as the Committee in its discretion deems appropriate.
	 
	 	(2)	 	Repayment. Loans shall be repaid by the Participant by payroll
deductions or any other methods approved by the Committee which, require level
amortization of principal and repayments not less frequently than monthly. Such
loans shall be repaid over a period not to exceed five years, except that the
five-year limit shall not apply to loans used for the purchase of a principal
residence of the Participant which loans shall have a 20-year limit.
	 
	 	(3)	 	Leaves of Absence.






	 	(A)	 	General. Effective January 1,2002, a
Participant who goes on an unpaid Leave of Absence while any loan
balance is outstanding may, with the consent of the Committee, either
continue to make regular loan repayments as they-become due or suspend
loan repayments. Such a Participant may elect to suspend or continue
loan repayments in accordance with procedures established by the
Committee. If no election is made, the loan repayments shall be
suspended in accordance with the provisions of this section
7.4(c)(3)(A). A suspension of loan repayments may extend for the period
that the Participant is on the Leave of Absence, except that




2









 






	 	 	 	in no event shall the suspension exceed one year. Notwithstanding the
preceding provisions of this section 7.4(c)(3)(A), a loan must be
repaid (including any interest that accrues during the Leave of
Absence) by the latest date permitted under the terms of the loan,
and the amount of the loan repayments due after a suspension shall
not be less than the amount required under the original terms of the
loan.






	 	(B)	 	Military Service. Effective January 1, 2002, a
Participant who goes on an unpaid Leave of Absence for a period during
which the Participant is performing service in the uniformed services
(as defined in chapter 43 of title 38, United States Code), whether or
not qualified military service, may with the consent of the Committee
either continue to make regular loan repayments as they become due or
suspend loan repayments for the period that the Participant is on the
military Leave of Absence. Such a Participant may elect to suspend or
continue loan repayments in accordance with procedures established by
the Committee. If no election is made, the loan repayments shall be
suspended in accordance with the provisions of this section
7.4(c)(3)(B). A suspension may extend throughout the period of the
military Leave of Absence as provided in Code section 414(u).
Notwithstanding the preceding provisions of this section 7.4(c)(3)(B),
a loan must be repaid (including any interest that accrues during the
Leave of Absence) by the latest date permitted under the terms of the
loan plus an extended period equal to the period of suspension, and the
amount of the loan repayments due after a suspension shall not be less
than the amount required under the original terms of the loan.






	 	(d)	 	Default Procedures. If a Participant fails to make loan payments (including
interest) when due, or if another event occurs that constitutes a default as set forth
in the promissory note, the Participant will be notified that payment must be made
within 60 days to avoid the commencement of default procedures. If payment is not made
within the 60-day period, the unpaid balance of the loan plus interest thereon shall be
charged to the Participant’s Accounts at the next accounting cycle as though it were a
distribution from the Plan. Except as provided below, if on a Participant’s Settlement
Date any loan or portion of a loan made to him, together with accrued interest thereon,
remains unpaid, the Participant will be notified that payment of the unpaid loan
balance plus interest thereon is due. If such payment is not made within 60 days from
receipt of such notice, an amount equal to such loan or any part thereof, together with
accrued interest thereon, shall be charged to the Participant’s Accounts after all
other adjustments required under the Plan, but before any distribution pursuant to
section 9.5.
	 
	 	 	 	Effective January 1, 2002, in the event that a loan or any portion of a loan,
together with interest thereon, continues to remain unpaid and the outstanding
amount becomes a deemed distribution under Code section 72(p), the Participant




3









 






	 	 	 	shall be allowed to repay the loan, together with interest until the time of
repayment, as provided under Code section 72(p) and Treasury regulations thereunder.
Any loan which is deemed distributed and remains unpaid shall count against the
maximum number of loans permitted under the Plan for each Participant, as determined
by the Committee, and the maximum amount of a loan, as determined under section
7.4(a).






	 	(e)	 	Loans Transferred from the Pillsbury Savings Plan. The foregoing provisions of
section 7.4 notwithstanding, Participant loans that were transferred to this Plan from
the Pillsbury Savings Plan pursuant to section 12.11 shall be governed by the terms of
the promissory note governing such loans as in effect on September 30, 1990.
	 
	 	(f)	 	Accounting for Loans. In determining the net worth of an Investment Fund as of
an Accounting Date, the Committee shall disregard both—






	 	(1)	 	any notes held by the Trustee which evidence loans made to
Participants under this section 7.4 (including loans transferred pursuant to
subsection 7.4(e)); and
	 
	 	(2)	 	any interest and principal payments on such loans received by
the Trustee since the last preceding Accounting Date.






For purposes of adjusting Participant’s Accounts under section 6.2, the Committee
shall exclude from the credit balance in a Participant’s Accounts the unpaid amount
of any loan made to him (disregarding any principal payments made since the last
preceding Accounting Date). Interest paid by a Participant on a loan made to him
under this section 7.4 shall be credited to the Account of the Participant as of the
Daily Accounting Date next following the date such interest payment is received by
the Trustee, after all other adjustments required under the Plan as of that date
have been completed. All loans to a Participant and all loan repayments including
interest shall be charged or credited, as the case may be, to the appropriate
Account of the Participant and to his interest in the Investment Funds in accordance
with such rules as the Committee may establish.




	 	(g)	 	Amounts Not Available for Loans. Amounts credited to a Participant’s
Non-Elective Contribution Account shall not be available for loans.”





**********




4









 








     In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers this ___ day of _______________, 2002.



	 	 	 	 	 
	 	Burger King Corporation 

 	 
	 	 	 
	 	 	 
	 	 	 
	 



Attest:




	 	 	 	 	 
	 	 	 
	 	             By /s/ Howard K. Perlman
 	 
	 	 	 
	 	 	 
	 
	 	Its Vice President

	 
	 	 	 
	 	 	 
	 	 	 
	 



By ______________________________





5









 








Second Amendment

to the

Burger King Savings Plan

(Effective as of January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas,
the Plan was amended and restated effective January 1, 2001;



Whereas, the Plan provides that any participant who incurs a disability will be immediately vested
and eligible for a distribution from the Plan;



Whereas, the Company desires to condition a participant’s “disability” on a finding of disability
by a party other than the Plan and for purposes other than making a benefit determination under the
Plan; and



Whereas, ihe Company desires to amend the Plan’s definition of “disability”‘ to provide that a
participant will be considered disabled if he is eligible for Social Security disability benefits.



Now, therefore, section 2. l(r) of the Plan is hereby amended in its entirety as follows effective
January 1, 2002:





	 	 	 	“(r) “Disability” means any disability for which the Participant is entitled to
Social Security disability benefits. A Participant shall be deemed to have incurred a
Disability under the Plan if, and only if, that Participant has been determined to be
“disabled” under the federal Social Security Act and is, therefore, eligible to receive
a Social Security disability benefit. Such a Participant will be deemed to have
incurred a Disability as of the date upon which the Participant is entitled to a Social
Security disability benefit, as determined by the Social Security Administration.”





**********



In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers this 27th day of December, 2002.




	 	 	 
	 	 	Burger King Corporation
	Attest:
	 	 
	By:  /s/ Jill Tyson	 	
By /s/  Julie L. Peterson
 

	 	 	 
	Its: Sr. Analyst	 	
Its: VP Total Rewards






1









 






Third Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective as of January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1, 2001;



Whereas, the Plan provides that distributions under the Plan will made in accordance with the
minimum distribution rules under Code section 401(a)(9);



Whereas, the Company desires to amend the Plan to adopt final regulations under Code section
401(a)(9).



Now, therefore, section 9.15 is added to the Plan effective January 1, 2003. to read as follows;








     “9.15 Minimum Distributions (Effective January 1, 2003)









     (a) General Rules.





	 	(1)	 	Effective Date. The provisions of this section 9.15 will apply
for purposes of determining required minimum distributions for calendar years
beginning with the 2003 calendar year.
	 
	 	(2)	 	Precedence. The requirements of this .section 9.15 will take
precedence over any inconsistent provisions of the Plan.
	 
	 	(3)	 	Requirements of Treasury Regulations Incorporated. All
distributions required under this section 9.15 will be determined and made in
accordance with the Treasury regulations under Code section 401(a)(9).
	 
	 	(4)	 	TEFRA Section 242(b)(2) Elections. Notwithstanding the other
provisions of this section 9.15, 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 of 1982 (TEFRA) and any 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 (as defined in subsection (e)
below).”




1









 












	 	(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 (as defined in subsection (e)
below), then, except as elected pursuant to section 9.15(b)(2)(E),
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, except as elected
pursuant to section 9.15(b)(2)(E), distributions to the designated
beneficiary will begin by December 31 of the calendar year immediately
following the calendar year in which the Participant died.
	 
	 	(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 9.l5(b)(2), other than section 9.15(b)(2)(A), will
apply as if the Surviving Spouse were the Participant.
	 
	 	(E)	 	Elections.






	 	(i)	 	Participants or Beneficiaries may
elect on an individual basis whether the five-year rule, or the
life expectancy rule hi this section 9.15(b)(2) and section
9.15(d)(2) of the Plan, applies to distributions after the death
of a Participant who has a designated beneficiary (and an
election by a beneficiary after the death of the Participant
will supersede any election by the Participant). The election
must be made no later than the earlier of—






	 	(I)	 	September 30 of
the calendar year in which distribution would be
required to begin under this section 9.15(b)(2) of the
Plan, or
	 
	 	(II)	 	by September 30
of the calendar year which contains the fifth
anniversary of the Participant’s (or, if applicable,
Surviving Spouse’s) death. If neither the Participant
nor the beneficiary makes an




2









 






	 	 	 	election under this section 9.15(b)(2)(E),
distributions will be made in accordance with section
9.15(b)(2) and section 9.15(d)(2) of the Plan (as
applied in the absence of such election).






	 	(ii)	 	A designated beneficiary who is
receiving payments under the five-year rule may, until December
31,2003, make a new election to receive payments under the life
expectancy rule provided that all amounts that would have been
required to be distributed under the life expectancy rule for
all distribution calendar years before 2004 are distributed by
the earlier of December 31,2003 or the end of the five-year
period.






For purposes of this section 9.15(b)(2) and section 9.15(d), unless
section 9.15(b)(2)(D) applies, distributions are considered to begin
on the Participant’s required beginning date. If section
9.15(b)(2)(D) applies, distributions are considered to begin on the
date distributions are required to begin to the Surviving Spouse
under section 9.15(b)(2)(A).




	 	(F)	 	Forms of Distribution. Unless the Participant’s
interest in any Account is distributed 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 section 9.15(c) and
section 9.15(d).










(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 (as defined in subsection (e) below) by
the distribution period in the Uniform Lifetime Table set forth in
Treasury regulation section 1.401(a)(9)-9, using the Participant’s age
as of the Participant’s birthday in the distribution calendar year (as
defined in subsection (e) below); or
	 
	 	(B)	 	if the Participant’s sole designated
beneficiary for the distribution calendar year is the Participant’s
spouse, the quotient obtained by dividing the Participant’s Account
balance by the number in the Joint and Last Survivor Table set forth in
Treasury regulation section 1.40l(a)(9)-9, using the Participant’s and
spouse’s attained ages as of the Participant’s and spouse’s birthdays
in the distribution calendar year.




3









 












	 	(2)	 	Lifetime Required Minimum Distributions Continue Through Year
of Participant’s Death. Required minimum distributions will be determined under
this section 9.15(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.






	 	(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




4









 






	 	 	 	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:
Except as elected at section 9.15(b)(2)(E), 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 9.15 (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 9.15(b)(2)(D), this section 9.15(d)(2) will apply
as if the Surviving Spouse were the Participant.






	 	(e)	 	Definitions.






	 	(1)	 	Designated Beneficiary. The “designated beneficiary” means the
individual who is designated as the beneficiary under the Plan and is the
designated beneficiary under section 401(a)(9) of the Code and Treasury
regulation section 1.401(a)(9)-l, Q&A-4.
	 
	 	(2)	 	Distribution Calendar Year. The “distribution calendar year”
means 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 section
7.12(b)(2). The required minimum distribution for the Participant’s first
distribution calendar year will be made on or before the Participant’s




5









 






	 	 	 	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” means the life expectancy as
computed by use of the Single Life Table in Treasury regulation section
1.401(a)(9)-9.
	 
	 	(4)	 	Participant’s Account Balance. The “Account balance” means 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 such
valuation date and decreased by distributions made in the valuation calendar
year after such 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. “Required beginning date” means—






	 	(A)	 	for a Participant who is not a five-percent
owner (as defined in Code section 416(i)(l)) the April 1 following the
later of the calendar year in which the Participant attains age 701/2 or
the calendar year in which the Participant terminates employment; and
	 
	 	(B)	 	for a Participant who is a five-percent owner
(as defined in Code section 416(i)(l)) the April 1 following the
calendar year in which the Participant attains age 701/2.”





*********



In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers this 24th day of December 2003.




	 	 	 
	 	 	
Burger King Corporation
	 
	 
	Attest: /s/ Jill Tyson	 	
By  /s/ Peter C. Smith
	Its:  Sr. Analyst, Total Rewards	 	
Its:  EVP, Human Resources






6









 






AMENDMENT

TO THE

BURGER KING SAVINGS PLAN

(Amended and Restated as of January 1, 2001)



The Burger King Savings Plan is hereby amended as follows:




     1. Section 2.1 is amended to add a new definition of “Annual Addition” to read as follows:



     “Annual Addition” means for any limitation year, the sum of (a) all Basic
Contributions, Matching Contributions, Non-Elective Contributions and Remainders allocated to a
Participant’s Accounts under this Plan; (b) any employer contributions, forfeitures and employee
after-tax contributions allocated to such Participant under any other defined contribution plan
maintained by the Employer or an Affiliate; and (c) amounts allocated to an individual medical
account as defined in Code Section 415(1)(2) and amounts attributable to post-retirement medical
benefits allocated to an account described in Code Section 419A(d)(2) maintained by the Employer or
an Affiliate.



     2. Section 4.12 is amended to read as follows:



     4.12 Code Section 415 Limitations on Contributions.




     For the purpose of complying with the restrictions on Annual Additions to defined
contributions plans imposed by section 415 of the Code, the amounts allocated to each Participant’s
Accounts shall, as of the last day of the Plan Year, be subject to special accounting procedures as
follows:




	 	(a)	 	For each Participant there shall be computed a maximum Annual Addition, which
shall be—






	 	(1)	 	for Plan Years beginning prior to January 1, 2002, the lesser of
25 percent of his taxable compensation (as defined in Code section 415(c),
which for limitation years beginning after December 31,1997, shall include
elective deferrals, and any amounts contributed by the Employer and not
included in his gross income by Code section 125, 132(f)(4) (effective January
1, 2001) and 457) for the Plan Year or $35,000 (adjusted as provided in
subsection 4.12(e)); and
	 
	 	(2)	 	for Plan Years beginning on or after January 1, 2002, the
lesser of 100 percent of his taxable compensation (as defined in Code section
415(c), which shall include elective deferrals any amounts contributed by the
Employer and not included in his gross income by Code section 125, 132(f)(4)
and 457) for the Plan Year, or $40,000 (adjusted as provided in subsection
4.12(e)).




1









 












	 	(b)	 	If the maximum Annual Addition for a Participant equals or exceeds the
allocation for that Participant pursuant to Article 4, an amount equal to the
allocation shall be allocated to the Participant’s respective Accounts.
	 
	 	(c)	 	If the allocation for a Participant pursuant to Article 4 is in excess of the
maximum Annual Addition for the Participant, the amount of his Basic Contribution in
excess of 4 percent (elected pursuant to section 4.2) shall be reduced and paid to
each affected Employee in an amount equal to the lesser of such excess or such Basic
Contribution. If the maximum Annual Addition for the Participant equals or exceeds the
allocation after the refund described in the preceding sentence, then the remaining
allocation after such refund shall be allocated to the Participant’s respective
Accounts.
	 
	 	(d)	 	If the allocation for a Participant continues to be in excess of the maximum
Annual Addition for the Participant after the refund described in subsection 4.12(c)
above, the remaining amount of his Basic Contribution and his Matching Contribution
allocated to the Participant’s Accounts together with any income thereon shall be
proportionately reduced on a pro rata basis and the amount of the Basic Contribution
thereof be paid to each affected Participant.
	 
	 	(e)	 	Any Remainder which cannot be allocated by reason of this section 4.12 shall be
carried in an Excess Remainder Suspense Account and applied to reduce Matching
Contributions in succeeding Plan Years in order of time. Any Matching Contribution
which cannot be allocated because of the foregoing limitations shall be applied to
reduced Matching Contributions in succeeding Plan Years, in order of time.
	 
	 	(f)	 	For purposes of applying the requirements of Code section 415 to the Plan, the
Plan Year shall be the “limitation year.”





3. Section 9.5 is amended so that the penultimate paragraph thereof reads as follows:




This provision shall not apply to any distribution which is less than $200, to any
amount required to be distributed under Code section 401(a)(9), to any installment
distribution payable over a period exceeding ten years, any hardship distribution
made in accordance with Code section 401(k)(2)(B)(i)(IV) (effective on and after
January 1, 1999), or to any other distribution which is not an “eligible rollover
distribution” within the meaning of Code section 401(a)(31)(C).



2









 





     IN WITNESS WHEREOF, Burger King Corporation has caused this Amendment of the Plan to be
executed this 24th day of December, 2003.



	 	 	 	 	 
	 	BURGER KING CORPORATION



 	 
	 	By:  	/s/ Peter C. Smith
 	 
	 	 	Title:  EVP, Human Resources 	 
	 	 	 	 
	 



3









 






	 	 	 	 	 



AMENDMENT

TO THE

BURGER KING SAVINGS PLAN

(Amended and Restated as of January 1,2001)





     1. The Burger King Savings Plan is hereby amended so that Section 10.2 reads as follows:



     10.2 Reinstatement of Remainder




     (a) If a Participant whose employment had terminated because of resignation or
dismissal is reemployed by an Employer or Controlled Group Member (Reemployed Participant)
before he incurs consecutive One-Year Breaks in Service that exceed the greater of five or
his Years of Vesting Service prior to his termination and prior to (i) December 1, 2004 or
(ii) a distribution of the vested portion of his Matching Contribution Account and/or his
Non-Elective Contribution Account, any Remainder resulting from his prior resignation or
dismissal shall again be credited to his Matching Contribution Account and/or Non-Elective
Contribution Account, as appropriate, as of the Monthly Accounting Date coincident with or
next following his date of rehire, after all other adjustments required under the Plan as of
such Monthly Accounting Date have been made. Any such Remainder which had already been
applied to reduce Employer contributions in accordance with Section 9.4 shall be reinstated
from current Remainders not yet so applied.




     (b) If a Reemployed Participant is reemployed on or after December 1, 2004, and before
he incurs consecutive One-Year Breaks in Service that exceed the greater of five or his
Years of Vesting Service prior to his termination, but after distribution of the
nonforfeitable portion of his Matching Contribution Account and/or Non-Elective Contribution
Account, and if the Reemployed Participant repays the amount distributed before the earlier
of




          (i) 5 years from the date of such reemployment; or




          (ii) the end of 5 consecutive One-Year Breaks in Service following the date of such
distribution,




the amount of the Matching Contribution Account and/or Non-Elective Contribution Account
distributed to the Participant and any Remainder resulting from his prior resignation or
dismissal shall again be credited to his Matching Contribution Account and/or Non-Elective
Contribution Account, as appropriate, as of the Monthly Accounting Date coincident with or
next following the date of such repayment, after all other adjustments required under the
Plan as of such Monthly Accounting Date have been made. Any such Remainder which had already
been applied to reduce Employer contributions in accordance with Section 9.4 shall be
reinstated from current Remainders not yet so applied



     (c) If a Reemployed Participant’s subsequent Settlement Date occurs because of
resignation or dismissal and at such time the Reemployed Participant is not entitled to



1









 




the full balance in his Matching Contribution Account or Non-Elective Contribution
Account, the amount distributed under Section 9.5 from his Matching Contribution Account
and/or Non-Elective Contribution Account will be determined in accordance with the
following:





	 	(i)	 	First, the amount of the distribution received (and not repaid) by the
Reemployed Participant from his Matching Contribution Account and/or Non-Elective
Contribution Account because of his prior resignation or dismissal shall be added to
the balance in his Matching Contribution Account or Non-Elective Contribution Account,
as appropriate, as of the Monthly Accounting Date coincident with or next preceding his
subsequent Settlement Date.
	 
	 	(ii)	 	Next, the amount determined under subsection (a) above shall be multiplied by
the vesting percentage applicable at his subsequent Settlement Date under Section 9.2.
	 
	 	(iii)	 	Finally, the amount determined under subsection (b) above shall be reduced by
the amount of the distribution received (and not repaid) by the Reemployed Participant
from his Matching Contribution Account or Non-Elective Contribution Account, as
appropriate, because of his prior resignation or dismissal.






The remaining portion of the Reemployed Participant’s Matching Contribution Account and/or
Non-Elective Contribution Account will be treated as a Remainder and will be subject to
the provisions of Section 9.4. In no event shall Years of Vesting Service occurring after
a Participant incurs consecutive One-Year Breaks in Service equal to the greater of five
or his Years of Vesting Service prior to his termination be used to determine the vested
percentage of his Matching Account or Non-Elective Contribution Account as of a prior
Settlement Date.



     2. In all other respects, the Savings Plan shall remain in full force and effect.



     IN WITNESS WHEREOF, Burger King Corporation has caused this Amendment of the Plan to be
executed this
1st day of December, 2004.



	 	 	 	 	 
	 	BURGER KING CORPORATION 



 	 
	 	By:  	/s/ Susan Kunreuther
 	 
	 	 	Title:  V.P. Total Rewards 	 
	 	 	 	 



2









 






	 	 	 	 	 



Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1, 2001;



Whereas, in order for the Plan to maintain its compliance with Internal Revenue Code requirements,
it is necessary to amend the Plan to provide for automatic rollovers with respect to certain
distributions.



Now, therefore, the Plan is amended, effective March 28, 2005, as follows:





	1.	 	Section 9.4(b) as amended to read as follows:






	 	(b)	 	Lump Sum Payments. Payment is made in a single lump sum. A Participant whose
vested Account balances as of the Settlement Date do not exceed $5,000 will receive a
full distribution of his vested Account balances as soon as administratively feasible
following his Settlement Date. Effective March 28, 2005, notwithstanding any provision
of the Plan to the contrary, in the event that the vested Account balances as of the
Settlement Date are greater than $1,000 but less than $5,000, if the Participant
(or a spouse that is the beneficiary of a deceased Participant) does not elect to have
such lump sum paid directly to an eligible retirement plan specified by the Participant
(or beneficiary) in a direct rollover or to receive the lump sum directly, then the
Benefits Committee shall pay the lump sum in a direct rollover to an individual
retirement plan designated by the Benefits Committee, and the payment thereof shall be
in full satisfaction of any liability of the Trust to the Participant (or beneficiary).






	2.	 	The last paragraph of Section 9.9 is amended to read as follows:






Notwithstanding any in this section 9.9 to the contrary, if the amount of any
distribution required to commence on a certain date cannot be ascertained by such
date, a payment retroactive to such date may be made no later than 60 days after the
earliest date on which such amount can be ascertained. Notwithstanding anything in
this Plan to the contrary, the Committee may, in accordance with the procedures in
section 9.4(b), direct the Trustee to distribute to the Participant the
distributable balance of his Accounts in a lump sum payment at any time after his
Settlement Date without his written consent to such distribution if, at the time of
the distribution, the value of the nonforfeitable portion of the Participant’s
Accounts does not exceed $5,000.



1









 




In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers as of this 26th day of July, 2005.




	 	 	 	 	 
	 	Burger King Corporation 

 	 



Attest:




	 	 	 	 	 
	 	 	 
	 	                            By /s/ Susan Kunreuther
 	 
	 	 	 
	 	Its  V.P. Total Rewards 	 
	 



	 	 	 	 	 
	 	 	 
	 	By  /s/ Matt Sitkowski
 	 
	 	 	 
	 	Its Assistant Secretary 	 



2









 






	 	 	 	 	 



Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1,2001;



Whereas, in order to reflect upcoming administrative changes to be implemented by the Plan’s
recordkeeper with respect to the handling of lost participants and stale checks, it is necessary to
amend the Plan.



Now, therefore, the Plan is amended, effective September 27, 2005, as follows:





	1.	 	Section 9.14 is amended to read as follows:






9.14 Lost Participants.




	 	(a)	 	A Participant or Beneficiary will be treated as a “Lost
Participant” if a communication (such as a statement of the Participant’s or
Beneficiary’s account, a notice, or disclosure statement) is returned by the
United States Postal Service as undeliverable after it was mailed to the
Participant or Beneficiary using the address for the Participant or Beneficiary
reflected in the records of the Employer or the Plan Administrator as the most
recent mailing address.
	 
	 	(b)	 	Notwithstanding any provisions of the Plan to the contrary, if
a Lost Participant is entitled to a benefit payable under the Plan and
reasonable efforts to locate the Lost Participant have been unsuccessful, then
amounts distributable to the Lost Participant will remain in the Lost
Participant’s account
	 
	 	(c)	 	In addition and notwithstanding any provision of the Plan to
the contrary, a Lost Participant who is eligible for a distribution payable is
not subject to the Plan’s mandatory distribution provisions that would
otherwise result in the automatic rollover or “cash out” of such amounts
without the Lost Participant’s consent.






	2.	 	A new Section 9.15 is added to read as follows:






9.15 Stale Checks.




If a distribution check has been issued and outstanding for more than 180 days (including a
distribution check that has been returned by the United States Postal Service as
undeliverable after it was mailed to the Participant or Beneficiary using the address for
the Participant or Beneficiary reflected on the records of the Employer or Plan



1









 






Administrator as the most recent mailing address) and reasonable efforts to locate the
Participant or Beneficiary have been unsuccessful, the amount of the check will be
re-deposited into the Plan and treated as a forfeiture under the Plan. Such forfeited
amounts shall be handled in the same manner as provided in Section 9.4 for Remainders. In
the event that a former Participant or Beneficiary makes a claim for reinstatement of a
benefit forfeited under this paragraph, such benefit will be reinstated in an amount equal
to the amount of the benefit on the date of the forfeiture.


In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers as of this 8th day of August, 2005.




	 	 	 	 	 
	 	Burger King Corporation 

 	 



Attest:




	 	 	 	 	 
	 	 	 
	 	                        By /s/ Susan Kunreuther
 	 
	 	 	 
	 	Its  V.P. Total Rewards 	 
	 



	 	 	 	 	 
	 	 	 
	 	By  /s/ Jill Tyson
 	 
	 	 	 
	 	Its  Manager Benefits 	 



2









 






	 	 	 	 	 



Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Sayings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1, 2001;



Whereas, effective beginning in 2006, the Company has decided to utilize the safe harbor testing
provisions under Code Sections 401(k) and 401(m) and to-permit catch-up contributions under Code
Section 414(v).



Now, therefore, the Plan is amended, effective January 1, 2006, as follows:





	1.	 	Section 2.1 (k) (the definition of “Compensation”) shall be amended to add the following
sentence at the end thereof to read as follows:






Notwithstanding anything in the foregoing to the contrary, for officers and directors who
are Highly Compensation Employees, “Compensation” shall not include bonuses, commissions
or paid incentives.




	2.	 	Section 2. l(jj) (the definition of “Matching Contribution”) shall be amended to read as
follows:






	 	(jj)	 	“Matching Contribution” means the contribution made on behalf of such
Participant, who is employed by that Employer during that month, in an amount equal to
100 percent of the first 6 percent of Compensation which has been contributed as a
Basic Contribution to the Plan on behalf of such Participant for that month, not to
exceed 6 percent of Compensation for any Participant for that month.






	3.	 	Section 3.2 is hereby amended to add a new sentence at the end thereof to read as follows:






Notwithstanding anything in the foregoing to the contrary, beginning with the 2006 Plan
Year an officer or director who becomes eligible to participate (either after being
initially hired or rehired on or after January 1, 2006) shall be deemed to have elected to
make a Basic Contribution equal to 6 percent of his/her Compensation unless he/she has, in
accordance with IRS requirements, affirmatively elected not to contribute to the Plan or
to contribute another whole percentage of a Basic Contribution. For the avoidance of
doubt, the foregoing sentence shall .not apply (and no automatic enrollment shall apply)
to any other individual who becomes eligible to participate on or after January 1, 2006,
and shall also not apply to any individual who, while an employee, becomes an officer or
director of the Company.




	4.	 	Section 4.2 shall be amended to add a new subsection (c) to read as follows:




1









 












	 	(c)	 	Special Transition Contributions. The Employers may make Special Transition
Contributions to the Plan in an amount, and allocated in a manner, determined by the
Company’s Compensation Committee. Such Special Transition Contributions shall be
nonforfeitable at all times.






	5.	 	Section 4.10 shall be amended to add a new subsection (f) to read as follows:






	 	(f)	 	Effective beginning with the 2006 Plan Year, the Plan is intended to satisfy
one of the alternative methods of meeting the nondiscrimination requirements under Code
Section 401(k)(12), and accordingly the nondiscrimination tests under Code Section
401(k)(3)(ii) are not required to be performed.






	6.	 	A new Section 4.10A shall be added to read as follows:






4.10A Catch-Up Contributions




     Effective as of the first day of the 2006 Plan Year, all Employees who are eligible to
make Basic Contributions under this Plan and who have attained age 50 before the close of
the Plan Year shall be eligible to make catch-up contributions in accordance with, and
subject to the limitations of, Code Section 414(v). Such catch-up contributions shall not be
taken into account for purposes of the provisions of the Plan implementing the required
limitations of Code Sections 402(g) and 415. The Plan shall not be treated as failing to
satisfy the provisions of the Plan implementing the requirements of Code Sections 401(k)(3),
401(k)(ll), 401(k)(12), 410(b), or 416, as applicable, by reason of any such catch-up
contributions.




	7.	 	Section 4.11 shall be amended to add a new subsection (j) to read as follows:






	 	(j)	 	Effective beginning with the 2006 Plan Year, the Plan is intended to satisfy
one of the alternative methods of meeting the nondiscrimination requirements under Code
Section 40l(m)(l1), and accordingly the nondiscrimination tests under Code Section
401(m)(2) are not required to be performed.






	8.	 	Section 7.1(b) shall be amended to read as follows:






	 	(g)	 	Withdrawals At or After Age 59 1/2. A Participant who has attained age 591/2 may
withdraw any or all of the net credit balance in his Accounts other than his
Non-Elective Contribution Account (including Special Transition Contributions). Such
withdrawals shall be elected on forms provided by the Committee, and shall otherwise be
subject to rules established by the Committee governing such withdrawals.






	9.	 	Section 7.2(a) shall be amended to amend subsection (2), redesignate subsection (5) as
subsection (7), and to insert new subsections (5) and (6) to read as follows:






	 	(2)	 	purchase or new construction (excluding, in either case mortgage — payments)-of
a principal residence for the Participant;




2









 












	 	(5)	 	To pay for repairs to damage to the Participant’s principal residence that
qualify for a casualty deduction on the Participant’s tax return; or
	 
	 	(6)	 	To pay for funeral/burial expenses for a Participant’s parent, spouse, child or
dependent,






	10.	 	Section 7.4(g) shall be amended to read as follows:






	 	(g)	 	Amounts Not Available for Loans. Amounts credited to a Participant’s
Non-Elective Contribution Account (including Special Transition Contributions), and
amounts credited to a Participant’s Matching Account with respect to the 2006 and later
Plan Years, shall not be available for loans.






	11.	 	Section 9.2 shall be amended to add the following sentence at the end of subsection 9.2(b) to
read as follows:






Notwithstanding anything in the foregoing to the contrary, Matching Contributions made to
the Plan with respect to the 2006 and later Plan Years shall be nonforfeitable at all
times.



**********



In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers as of this 31st day of December, 2005.




	 	 	 	 	 
	 	Burger King Corporation 

 	 



Attest:




	 	 	 	 	 
	 	 	 
	 	                        By /s/ Susan Kunreuther
 	 
	 	 	 
	 	Its  V.P. Total Rewards 	 
	 



	 	 	 	 	 
	 	 	 
	 	By  /s/ Jill Tyson
 	 
	 	 	 
	 	Its  Manager Benefits 	 



3









 






	 	 	 	 	 



Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective January 1,2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1,2001;



Whereas, the Company desires to clarify that any dividends or dividend equivalent payments made on
Company stock shall not be considered eligible compensation under the Plan.



Now, therefore, the Plan is amended, effective January 1, 2006, to add the following sentence at
the end of Section 2.1(k) (the definition of “Compensation”) to read as follows:






Notwithstanding anything in the foregoing to the contrary, “Compensation” shall not
include dividends or dividend equivalent payments paid by the Company or any Controlled
Group Member with respect to Company stock or equity award.


In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers as of this 8th day of February, 2006.




	 	 	 	 	 
	 	Burger King Corporation 

 	 



Attest:




	 	 	 	 	 
	 	 	 
	 	                        By /s/ Susan Kunreuther
 	 
	 	 	 
	 	Its  V.P. Total Rewards 	 
	 



	 	 	 	 	 
	 	 	 
	 	By  /s/ Jill Tyson
 	 
	 	 	 
	 	Its  Manager, Benefits 	 



1









 






	 	 	 	 	 



Amendment

to the

Burger King Savings Plan

(As Amended and Restated Effective January 1, 2001)



Whereas, Burger King Corporation (the “Company”) maintains the Burger King Savings Plan (the
“Plan”);



Whereas, the Plan was amended and restated effective January 1, 2001;



Whereas, the Company desires to amend the Plan to permit participants to invest a portion of their
contributions to the Plan in the common stock of Burger King Holdings, Inc.



Now, therefore, the Plan is amended, effective July 20, 2007, as follows:





	 	1.	 	Section 5.1 is amended to add a new sentence to the end thereof to read as
follows:






Effective July 20, 2007, or as soon as administratively practicable thereafter, the Trust
Fund shall include a Company Stock Fund consisting of common stock of Burger King Holdings,
Inc. and cash or cash equivalents needed to meet the obligations of such Company Stock Fund
or for the purchase of common stock of Burger King Holdings, Inc.




	 	2.	 	Section 5.2 is amended to add a new sentence at the end thereof to read as
follows:






Effective July 20, 2007, or as soon as administratively practicable thereafter, each
Participant may elect to direct that up to 10% of future Basic and Matching Contributions
are invested in the Company Stock Fund. Each participant may also direct that up to 10% of
his Accounts be transferred to the Company Stock Fund. If the value of the portion of the
Participant’s Accounts invested in the Company Stock Fund equals or exceeds 10% of the value
of his Accounts, the Participant may not transfer additional amounts into the Company Stock
Fund unless and until the aggregate value of the amount so invested is below 10% of his
Accounts; provided, however, the Participant may continue to direct that up to 10% of future
Basic and Matching Contributions are invested in the Company Stock Fund.



2









 




In Witness Whereof, Burger King Corporation has caused this Amendment to be signed on its behalf
and attested by its duly authorized officers as of this 31st day of May, 2007.




	 	 	 	 	 
	 	Burger King Corporation 

 	 



Attest:




	 	 	 	 	 
	 	 	 
	 	                        By /s/ Susan Kunreuther
 	 
	 	 	 
	 	Its  VP, Total Rewards 	 
	 



	 	 	 	 	 
	 	 	 
	 	By  /s/ Jill Tyson
 	 
	 	 	 
	 	Its  Manager, Benefits 	 



3