Exhibit
4.8


 


PepsiAmericas, Inc.


 


 


Salaried
401(k) Plan


 


 


(As
Amended and Restated Effective January 1, 2005)


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I            Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  “Accounting Period”

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.02

  	
  “Accounts”

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.03

  	
  “Accrued Benefit”

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.04

  	
  “Administrative Committee”

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.05

  	
  “Administrative Services Agreement”

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.06

  	
  “Administrator”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.07

  	
  “Alternate Payee”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.08

  	
  “Appendix”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.09

  	
  “Authorized Leave of Absence”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.10

  	
  “Beneficiary”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.11

  	
  “Board of Directors”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.12

  	
  “Business Day”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.13

  	
  “CEO”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.14

  	
  “Change Date”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.15

  	
  “Commonly Controlled Entity”

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.16

  	
  “Company”

  	
  5

  
	
   

  	
   

  	
   

  
	
  1.17

  	
  “Company Stock”

  	
  5

  
	
   

  	
   

  	
   

  
	
  1.18

  	
  “Compensation”

  	
  5

  
	
   

  	
   

  	
   

  
	
  1.19

  	
  “Computation Period”

  	
  6

  
	
   

  	
   

  	
   

  
	
  1.20

  	
  “Contract Administrator”

  	
  6

  
	
   

  	
   

  	
   

  
	
  1.21

  	
  “Contributions”

  	
  6

  
	
   

  	
   

  	
   

  
	
  1.22

  	
  “Contribution Dollar Limit”

  	
  7

  
	
   

  	
   

  	
   

  
	
  1.23

  	
  “Contribution Election” or “Election”

  	
  7

  
	
   

  	
   

  	
   

  
	
  1.24

  	
  “Contribution Percentage”

  	
  7

  
	
   

  	
   

  	
   

  
	
  1.25

  	
  “Conversion Election”

  	
  7

  
	
   

  	
   

  	
   

  
	
  1.26

  	
  “Custodial Agreement”

  	
  7

  
	
   

  	
   

  	
   

  
	
  1.27

  	
  “Custodian”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.28

  	
  “Direct Rollover”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.29

  	
  “Disability” or “Disabled”

  	
  8

  



 


i





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.30

  	
  “Distributee”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.31

  	
  “Effective Date”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.32

  	
  “Elective Deferral”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.33

  	
  “Eligible Employee”

  	
  8

  
	
   

  	
   

  	
   

  
	
  1.34

  	
  “Eligibility Service”

  	
  9

  
	
   

  	
   

  	
   

  
	
  1.35

  	
  “Eligible Retirement Plan”

  	
  9

  
	
   

  	
   

  	
   

  
	
  1.36

  	
  “Eligible Rollover Distribution”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.37

  	
  “Employee”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.38

  	
  “Employer”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.39

  	
  “Employment Date”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.40

  	
  “ERISA”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.41

  	
  “Fiduciary”

  	
  10

  
	
   

  	
   

  	
   

  
	
  1.42

  	
  “Highly Compensated Eligible Employee” or “HCE”

  	
  11

  
	
   

  	
   

  	
   

  
	
  1.43

  	
  “Hour of Service”

  	
  11

  
	
   

  	
   

  	
   

  
	
  1.44

  	
  “Hussmann”

  	
  11

  
	
   

  	
   

  	
   

  
	
  1.45

  	
  “Hussmann Participant”

  	
  11

  
	
   

  	
   

  	
   

  
	
  1.46

  	
  “Hussmann Plan”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.47

  	
  “Insurance Contract Arrangement”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.48

  	
  “Internal Revenue Code” or “Code”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.49

  	
  “Investment Election”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.50

  	
  “Investment Fund” or “Fund”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.51

  	
  “Limited Deferrals”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.52

  	
  “Management Committee”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.53

  	
  “Midas”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.54

  	
  “Midas Participant”

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.55

  	
  “Midas Plan”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.56

  	
  “Named Fiduciary”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.57

  	
  “Non-Highly Compensated Employee” or “NHCE”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.58

  	
  “Normal Retirement Date”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.59

  	
  “Notice Date”

  	
  13

  



 


ii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.60

  	
  “Participant”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.61

  	
  “Payment Date”

  	
  13

  
	
   

  	
   

  	
   

  
	
  1.62

  	
  “Plan”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.63

  	
  “Plan Administrator”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.64

  	
  “Plan Year”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.65

  	
  “QDRO”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.66

  	
  “Qualified Joint and Survivor Annuity”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.67

  	
  “Related Plan”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.68

  	
  “Rollover Contribution”

  	
  14

  
	
   

  	
   

  	
   

  
	
  1.69

  	
  “Senior Vice President”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.70

  	
  “Settlement Date”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.71

  	
  “Spousal Consent”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.72

  	
  “Spouse”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.73

  	
  “Sweep Date”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.74

  	
  “Termination of Employment”

  	
  15

  
	
   

  	
   

  	
   

  
	
  1.75

  	
  “Trade Date”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.76

  	
  “Trust”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.77

  	
  “Trust Agreement”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.78

  	
  “Trust Fund”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.79

  	
  “Trustee”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.80

  	
  “Trustee Transfer”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.81

  	
  “Unit Value”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.82

  	
  “Valuation Date”

  	
  16

  
	
   

  	
   

  	
   

  
	
  1.83

  	
  “Year of Service”

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE II           Participation

  	
  17

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Eligibility

  	
  17

  
	
   

  	
   

  	
   

  
	
  2.02

  	
  Reemployment

  	
  18

  
	
   

  	
   

  	
   

  
	
  2.03

  	
  Participation Upon Change of Job Status

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III          Participant
  Contributions

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Pre-Tax Contribution Election

  	
  18

  



 


iii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.02

  	
  Election Procedures

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV          Employer
  Contributions and Allocations

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Pre-Tax Contributions

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.02

  	
  Matching Contributions

  	
  20

  
	
   

  	
   

  	
   

  
	
  4.03

  	
  Pay Based Contributions

  	
  21

  
	
   

  	
   

  	
   

  
	
  4.04

  	
  Special Contributions or QNEC Contributions

  	
  22

  
	
   

  	
   

  	
   

  
	
  4.05

  	
  Miscellaneous

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE V           Rollovers

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Rollovers

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.02

  	
  Transfers

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.03

  	
  Hurricane Katrina Distribution Recontribution

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI          Accounting
  for Participants’ Accounts and for Investment Funds

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Individual Participant Accounting

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.02

  	
  Accounting for Investment Funds

  	
  25

  
	
   

  	
   

  	
   

  
	
  6.03

  	
  Accounts for Alternate Payees

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.04

  	
  Transition Rules

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII        Investment
  Funds and Elections

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Investment of Contributions

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.02

  	
  Investment of Accounts

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.03

  	
  Investment Funds

  	
  28

  
	
   

  	
   

  	
   

  
	
  7.04

  	
  Transition Rules

  	
  28

  
	
   

  	
   

  	
   

  
	
  7.05

  	
  Restricted Investment Funds

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.06

  	
  Risk of Loss

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.07

  	
  Interests in the Investment Funds

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.08

  	
  Sole Source of Benefits

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.09

  	
  Alternate Payees

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII       Vesting
  and Forfeitures

  	
  29

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Fully Vested Contribution Accounts

  	
  29

  
	
   

  	
   

  	
   

  
	
  8.02

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

  	
  30

  



 


iv





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  8.03

  	
  Vesting Schedule and Forfeitures

  	
  30

  
	
   

  	
   

  	
   

  
	
  8.04

  	
  Forfeitures

  	
  30

  
	
   

  	
   

  	
   

  
	
  8.05

  	
  Forfeiture Account

  	
  31

  
	
   

  	
   

  	
   

  
	
  8.06

  	
  Break in Service

  	
  31

  
	
   

  	
   

  	
   

  
	
  8.07

  	
  Authorized Leave of Absence

  	
  32

  
	
   

  	
   

  	
   

  
	
  8.08

  	
  Transfers

  	
  32

  
	
   

  	
   

  	
   

  
	
  8.09

  	
  Reemployment

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX         Participant
  Loans

  	
  33

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Participant Loans Permitted

  	
  33

  
	
   

  	
   

  	
   

  
	
  9.02

  	
  Loan Funding Limits

  	
  33

  
	
   

  	
   

  	
   

  
	
  9.03

  	
  Maximum Number of Loans

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.04

  	
  Source of Loan Funding

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.05

  	
  Interest Rate

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.06

  	
  Repayment

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.07

  	
  Repayment Hierarchy

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.08

  	
  Loan Application, Note and Security

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.09

  	
  Default, Suspension and Acceleration Feature

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE X           In-Service
  Withdrawals

  	
  35

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Withdrawals for 401(k) Hardship

  	
  35

  
	
   

  	
   

  	
   

  
	
  10.02

  	
  Withdrawals for Participants over age 591⁄2 or who are
  Disabled

  	
  37

  
	
   

  	
   

  	
   

  
	
  10.03

  	
  Withdrawals of Mature Amounts

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.04

  	
  Withdrawal Processing

  	
  38

  
	
   

  	
   

  	
   

  
	
  10.05

  	
  Transfer of Accounts

  	
  39

  
	
   

  	
   

  	
   

  
	
  10.06

  	
  Withdrawals for Hurricane Katrina Victims

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI         Distributions
  On and After Termination of Employment

  	
  40

  
	
   

  	
   

  	
   

  
	
  11.01

  	
  Request for Distribution of Benefits

  	
  40

  
	
   

  	
   

  	
   

  
	
  11.02

  	
  Deadline for Distribution

  	
  40

  
	
   

  	
   

  	
   

  
	
  11.03

  	
  Payment Form and Medium

  	
  41

  
	
   

  	
   

  	
   

  
	
  11.04

  	
  Small Amounts Paid Immediately

  	
  41

  
	
   

  	
   

  	
   

  
	
  11.05

  	
  Payment Within Life Expectancy

  	
  41

  



 


v





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  11.06

  	
  Incidental Benefit Rule

  	
  41

  
	
   

  	
   

  	
   

  
	
  11.07

  	
  Continued Payment of Amounts in Payment Status on the
  Effective Date

  	
  42

  
	
   

  	
   

  	
   

  
	
  11.08

  	
  TEFRA Transitional Rule

  	
  42

  
	
   

  	
   

  	
   

  
	
  11.09

  	
  Direct Rollover

  	
  42

  
	
   

  	
   

  	
   

  
	
  11.10

  	
  Delay

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII        Distribution
  of Accrued Benefits On Death

  	
  43

  
	
   

  	
   

  	
   

  
	
  12.01

  	
  Payment to Beneficiary

  	
  43

  
	
   

  	
   

  	
   

  
	
  12.02

  	
  Beneficiary Designation

  	
  43

  
	
   

  	
   

  	
   

  
	
  12.03

  	
  Benefit Election

  	
  44

  
	
   

  	
   

  	
   

  
	
  12.04

  	
  Payment Form

  	
  44

  
	
   

  	
   

  	
   

  
	
  12.05

  	
  Required Commencement of Distribution

  	
  44

  
	
   

  	
   

  	
   

  
	
  12.06

  	
  Direct Rollover

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII       Maximum
  Contributions

  	
  49

  
	
   

  	
   

  	
   

  
	
  13.01

  	
  Limit on Pre-Tax Contributions

  	
  49

  
	
   

  	
   

  	
   

  
	
  13.02

  	
  Actual Deferral Percentage Test

  	
  50

  
	
   

  	
   

  	
   

  
	
  13.03

  	
  Actual Contribution Percentage Test

  	
  51

  
	
   

  	
   

  	
   

  
	
  13.04

  	
  Maximum Contributions

  	
  52

  
	
   

  	
   

  	
   

  
	
  13.05

  	
  Imposition of Limitations

  	
  52

  
	
   

  	
   

  	
   

  
	
  13.06

  	
  Return of Excess Annual Additions, Deferrals and
  Contributions

  	
  52

  
	
   

  	
   

  	
   

  
	
  13.07

  	
  Incorporation by Reference

  	
  56

  
	
   

  	
   

  	
   

  
	
  13.08

  	
  Additional Special Contributions

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV       Custodial
  Arrangements

  	
  57

  
	
   

  	
   

  	
   

  
	
  14.01

  	
  Custodial Agreement

  	
  57

  
	
   

  	
   

  	
   

  
	
  14.02

  	
  Selection of Custodian

  	
  57

  
	
   

  	
   

  	
   

  
	
  14.03

  	
  Custodian’s Duties

  	
  57

  
	
   

  	
   

  	
   

  
	
  14.04

  	
  Separate Entity

  	
  57

  
	
   

  	
   

  	
   

  
	
  14.05

  	
  Plan Asset Valuation

  	
  58

  
	
   

  	
   

  	
   

  
	
  14.06

  	
  Right of Employers to Plan Assets

  	
  58

  



 


vi





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV        Administration
  and Investment Management

  	
  58

  
	
   

  	
   

  	
   

  
	
  15.01

  	
  General

  	
  58

  
	
   

  	
   

  	
   

  
	
  15.02

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

  	
  59

  
	
   

  	
   

  	
   

  
	
  15.03

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

  	
  60

  
	
   

  	
   

  	
   

  
	
  15.04

  	
  Management Committee and Administrator as Named
  Fiduciaries for the Plan

  	
  61

  
	
   

  	
   

  	
   

  
	
  15.05

  	
  Management Committee as Named Fiduciary for the Trust

  	
  61

  
	
   

  	
   

  	
   

  
	
  15.06

  	
  Actions

  	
  61

  
	
   

  	
   

  	
   

  
	
  15.07

  	
  Procedures for Designation of a Named Fiduciary

  	
  62

  
	
   

  	
   

  	
   

  
	
  15.08

  	
  Compensation

  	
  62

  
	
   

  	
   

  	
   

  
	
  15.09

  	
  Discretionary Authority of each Named Fiduciary

  	
  62

  
	
   

  	
   

  	
   

  
	
  15.10

  	
  Responsibility and Powers of the Administrator Regarding
  Administration of the Plan

  	
  63

  
	
   

  	
   

  	
   

  
	
  15.11

  	
  Allocations and Delegations of Responsibility

  	
  64

  
	
   

  	
   

  	
   

  
	
  15.12

  	
  Bonding

  	
  65

  
	
   

  	
   

  	
   

  
	
  15.13

  	
  Information to be Supplied by Employer

  	
  65

  
	
   

  	
   

  	
   

  
	
  15.14

  	
  Information to be Supplied by Named Fiduciary

  	
  65

  
	
   

  	
   

  	
   

  
	
  15.15

  	
  Misrepresentations

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.16

  	
  Records

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.17

  	
  Plan Expenses

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.18

  	
  Fiduciary Capacity

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.19

  	
  Employer’s Agent

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.20

  	
  Plan Administrator

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.21

  	
  Plan Administrator Duties and Power

  	
  66

  
	
   

  	
   

  	
   

  
	
  15.22

  	
  Named Fiduciary Decisions Final

  	
  67

  
	
   

  	
   

  	
   

  
	
  15.23

  	
  No Agency

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI       Claims
  Procedure

  	
  68

  
	
   

  	
   

  	
   

  
	
  16.01

  	
  Claims Procedure

  	
  68

  
	
   

  	
   

  	
   

  
	
  16.02

  	
  Notices to Participants, Etc

  	
  72

  
	
   

  	
   

  	
   

  
	
  16.03

  	
  Notices to Administrator

  	
  72

  



 


vii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  16.04

  	
  Administrator’s Discretion

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII     Adoption
  and Withdrawal from Plan

  	
  72

  
	
   

  	
   

  	
   

  
	
  17.01

  	
  Procedure for Adoption

  	
  72

  
	
   

  	
   

  	
   

  
	
  17.02

  	
  Procedure for Withdrawal

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVIII    Amendment,
  Termination and Merger

  	
  73

  
	
   

  	
   

  	
   

  
	
  18.01

  	
  Amendments

  	
  73

  
	
   

  	
   

  	
   

  
	
  18.02

  	
  Plan Termination

  	
  75

  
	
   

  	
   

  	
   

  
	
  18.03

  	
  Plan Merger

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIX      Special
  Top-Heavy Rules

  	
  77

  
	
   

  	
   

  	
   

  
	
  19.01

  	
  Application of Article XIX

  	
  77

  
	
   

  	
   

  	
   

  
	
  19.02

  	
  Definitions Concerning Top-Heavy Status

  	
  78

  
	
   

  	
   

  	
   

  
	
  19.03

  	
  Calculation of Top-Heavy Ratio

  	
  79

  
	
   

  	
   

  	
   

  
	
  19.04

  	
  Effect of Top-Heavy Status

  	
  79

  
	
   

  	
   

  	
   

  
	
  19.05

  	
  Effect of Discontinuance of Top-Heavy Status

  	
  80

  
	
   

  	
   

  	
   

  
	
  19.06

  	
  Intent of Article XIX

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE XX        Miscellaneous
  Provisions

  	
  80

  
	
   

  	
   

  	
   

  
	
  20.01

  	
  Assignment and Alienation

  	
  80

  
	
   

  	
   

  	
   

  
	
  20.02

  	
  Protected Benefits

  	
  80

  
	
   

  	
   

  	
   

  
	
  20.03

  	
  Plan Does Not Affect Employment Rights

  	
  80

  
	
   

  	
   

  	
   

  
	
  20.04

  	
  Deduction of Taxes from Amounts Payable

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.05

  	
  Facility of Payment

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.06

  	
  Source of Benefits

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.07

  	
  Indemnification

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.08

  	
  Reduction for Overpayment

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.09

  	
  Limitation on Liability

  	
  81

  
	
   

  	
   

  	
   

  
	
  20.10

  	
  Company Merger

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.11

  	
  Employees’ Trust

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.12

  	
  Gender and Number

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.13

  	
  Invalidity of Certain Provisions

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.14

  	
  Headings

  	
  82

  



 


viii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  20.15

  	
  Uniform and Nondiscriminatory Treatment

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.16

  	
  Law Governing

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.17

  	
  Military Service

  	
  82

  
	
   

  	
   

  	
   

  
	
  20.18

  	
  Notice and Information Requirements

  	
  82

  
	
   

  	
   

  	
   

  
	
  APPENDIX 1.50   INVESTMENT
  FUNDS

  	
  1

  



 


ix





















 


ARTICLE I



DEFINITIONS


 


The following sections of
this Article I provide basic definitions of terms used throughout the
Plan, and whenever used herein in a capitalized form, except as otherwise
expressly provided, the terms shall be deemed to have the following meanings:


 


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


 


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


 


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


 


(b)           “ESOP Account” which means a Participant’s interest in the
Plan’s assets composed of the amount allocated under the Plan, as of the
Effective Date, if any (as identified by the Administrator), including amounts
allocated from the Whitman Employee Stock Ownership Plan,
if any, which continue to be accounted for under the Plan consistent with the
former provisions of the Plan (as identified by the Administrator), plus all
income and gains credited to, and minus all losses, expenses, withdrawals and
distributions charged to, such Account.


 


(c)           “Former Matching Contribution Account” which means a
Participant’s interest in the Plan’s assets composed of the amount allocated
under the Plan prior to January 1, 1994, if any (as identified by the
Administrator), plus all income and gains credited to, and minus all losses,
expenses, withdrawals and distributions charged to, such Account.


 


(d)           “Matching Account” which means a Participant’s interest in
the Plan’s assets composed of Matching Contributions allocated on or after January 1,
1994 and Pay Based Contributions allocated on and after January 1, 2002 to
the Participant under the Plan, the amount allocated under the Plan as of the
Effective Date, if any (as identified by the Administrator), including an
amount allocated from the Lou Gen Ltd. Profit
Sharing Plan, if any, which continues to be accounted for under
the Plan (as identified by the Administrator), plus all income and gains
credited to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.


 


(e)           “Pay Based Account” which means a Participant’s interest in
the Plan’s assets composed of Pay Based Contributions allocated on or after the


 





















 


Effective Date to the
Participant under the Plan, the amount allocated under the Plan as of the
Effective Date, if any (as identified by the Administrator), including an
amount allocated from the Lou Gen Ltd. Profit
Sharing Plan, if any, which continues to be accounted for under
the Plan (as identified by the Administrator), plus all income and gains
credited to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.


 


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


 


(g)           “Pre-Tax Account” which means a Participant’s interest in
the Plan’s assets composed of Pre-Tax Contributions allocated on or after the
Effective Date to the Participant under the Plan, the amount allocated under
the Plan as of the Effective Date, if any (as identified by the Administrator),
including an amount allocated from the Pepsi-Cola General
Bottling Company of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan,
if any, including an amount allocated from the Lou
Gen Ltd. Profit Sharing Plan, if any, and an amount allocated
from the Pepsi-Co Long Term Savings Program,
if any, which continues to be accounted for under the Plan (as identified by
the Administrator), plus all income and gains credited to, and minus all
losses, expenses, withdrawals and distributions charged to, such Account.


 


(h)           “QVEC Account” which means a Participant’s interest in the
Plan’s assets composed of the amount allocated under the Plan as of the
Effective Date, if any (as identified by the Administrator), including an
amount allocated from the Lou Gen Ltd. Profit
Sharing Plan, if any, which continues to be accounted for under
the Plan (as identified by the Administrator), plus all income and gains
credited to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.


 


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


 


(j)            “Special Account” which means a Participant’s interest in
the Plan’s assets composed of Special Contributions allocated on or after the
Effective Date to the Participant under the Plan, the amount allocated under
the Plan as of the Effective Date, if any (as identified by the Administrator),
including


 


2





















 


an amount allocated from
the Lou Gen Ltd. Profit Sharing Plan, if
any, which continues to be accounted for under the Plan (as identified by the
Administrator), plus all income and gains credited to, and minus all losses,
expenses, withdrawals and distributions charged to, such Account.


 


(k)           “TRASOP Account” which means a Participant’s interest in the
Plan’s assets composed of the amount allocated under the Plan as of the
Effective Date, if any (as identified by the Administrator), including amounts
allocated from the Whitman Corporation Tax Reduction Act Stock
Ownership Plan, if any, which continue to be accounted for under
the Plan consistent with the former provisions of the Plan (as identified by
the Administrator), plus all income and gains credited to, and minus all
losses, expenses, withdrawals and distributions charged to, such Account.


 


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


 


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


 


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


 


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


 


1.04        “Administrative
Committee”
means the committee appointed pursuant to the terms of the Plan to manage and
control the operation and administration of the Plan.  Administrative Committee means the committee
appointed pursuant to the terms of the Plan and Trust as the Named Fiduciary
for the investment of Plan assets in the Trust. 
The Management Committee has assumed the responsibilities of the
Administrative Committee.


 


1.05        “Administrative
Services Agreement” means a contractual arrangement with, or if no separate
contractual arrangement exists, that portion of an


 


3





















 


Insurance Contract Arrangement with, a Trustee, Named Fiduciary or a
Contract Administrator which describes the services to be rendered by the
Trustee, Named Fiduciary or Contract Administrator to or on behalf of the Plan
and which Administrative Services Agreement is incorporated into and made a
part of the Plan.


 


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


 


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


 


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


 


1.09        “Authorized Leave
of Absence”
means an absence, with or without Compensation, authorized on a
nondiscriminatory basis by a Commonly Controlled Entity under its standard
personnel practices applicable to the Employee, including any period of time
during which such person is covered by a short-term disability plan of his or
her Employer.  An Employee who leaves the
service of a Commonly Controlled Entity to enter the Armed Forces of the United
States of America and who reenters the service of the Commonly Controlled
Entity with reemployment rights under any statute granting reemployment rights
to persons in the Armed Forces shall be deemed to have been on an Authorized
Leave of Absence.  The date that an
Employee’s Authorized Leave of Absence ends shall be determined in accordance
with the personnel policies of such Commonly Controlled Entity, which ending
date shall be no earlier than the date that the Authorized Leave of Absence is
scheduled to end, unless the Employee communicates to such Commonly Controlled
Entity that he or she is to have a Termination of Employment as of an earlier
date.


 


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


 


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


 


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


 


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


 


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


 


1.15        “Commonly
Controlled Entity”
means: (1) an Employer and any corporation, trade or business, but only
for so long as it and the Employer are members


 


4





















 


of a controlled group of corporations as defined in Section 414(b) of
the Code or under common control as defined in Section 414(c) of the
Code; provided, however, that solely for purposes of the limitations of Section 415
of the Code, the standard of control under Sections 414(b) and 414(c) of
the Code shall be deemed to be “more than 50%” rather than “at least 80%;” (2) an
Employer and an organization, but only for so long as it and the Employer are,
on and after the Effective Date, members of an affiliated service group as
defined in Section 414(m) of the Code; (3) an Employer and an
organization, but only for so long as the employees of it and the Employer are
required to be aggregated, on and after the Effective Date, under Section 414(o)
of the Code; or (4) any other organization designated as such by the
Senior Vice President.


 


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


 


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


 


1.18        “Compensation” means:


 


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


 


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


 


(c)           For purposes of the definition of “Compensation”
hereunder:


 


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


 


(2)           an
amount that should have been paid in a manner that met the requirements imposed
by this Section 1.18 (as modified by subsection (c)(1), above), but
that was mistakenly paid in a different manner, will be treated as meeting the
requirements imposed by this Section 1.18;


 


(3)           all
amounts paid in settlement (including, but not limited to, amounts paid for
front and back pay and emotional distress) to an Eligible Employee will be
excluded from the definition of “Compensation” hereunder unless otherwise ordered pursuant to the final
decision of the presiding court,


 


5





















 


arbitrator, or administrative agency after all available
appeals have been exhausted; and


 


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


 


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


 


For purposes of the
definition of Compensation under this Section 1.18, amounts under Section 125
of the Code include any amounts not available to a Participant in cash in lieu
of group health coverage because the Participant is unable to certify that such
Participant has other health coverage. An amount will be treated as an amount
under Section 125 of the Code only if the Employer does not request or
collect information regarding the Participant’s other health coverage as part
of the enrollment process for the health plan


 


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


 


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


 


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


 


(a)           Catch-Up.  An amount of Contributions for a Plan Year
(prior to the application of this Section 1.21(a)) pursuant to a
Participant’s Contribution Election which exceeds the lowest of the following
three amounts for such Plan Year: (i) the maximum actual deferral
percentage described in Section 13.02 multiplied by the Participant’s
Compensation; (ii) the percentage limitation on Pre-Tax Contributions
described in Section 3.01(a) multiplied by the Participant’s
Compensation, or (iii) the Contribution Dollar Limit or other limit
contained in the Code on annual additions permitted to be made under the Plan
(without regard to Section 414(v) of the Code), provided, however,
that the amount of Catch-up Contributions added to the account of any
Participant for a Plan Year under this Plan or under any similar provision of
any other plan maintained by the Company or a Commonly Controlled Entity may
not exceed the applicable dollar limit described in Section 414(v)(2)(B)(i) of
the Code, as adjusted in accordance with Section 414(v)(2)(C) of the
Code. The determination as to


 


6





















 


whether the Contributions made on behalf of a Participant exceed one of
the limitations described in the preceding sentence shall be determined as of
the last day of such Plan Year, and any portion of such Contributions
determined to be Catch-up Contributions shall be allocated to the Participant’s
Catch-up Account as of the last day of such Plan Year. Contributions made on
behalf of a Participant pursuant to Section 3.01(d) which do not
exceed one of the limitations described in the first sentence of this Section 1.21(a) shall
be treated as Pre-Tax Contributions. Catch-up Contributions shall not be taken
into account in applying the limits described in Sections 13.01, 13.02, 13.05,
13.07, 13.08, Article XIX, or Section 414(v) of the Code.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.25        “Conversion
Election”
means an election by a Participant to change the investment of all or some
specified portion of such Participant’s Accounts by voice response to the
telephone number provided by the Named Fiduciary to whom it is spoken, or on
such form that may be required by the Named Fiduciary to whom it is
delivered.  No Conversion Election shall
be deemed to have been given to the Named Fiduciary unless it is complete and
delivered in accordance with the procedures established by such Named Fiduciary
for this purpose.


 


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


 


7





















 


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


 


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


 


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


 


1.30        “Distributee” includes an Employee or former
Employee.  In addition, the Employee’s or
former Employee’s surviving Spouse and the Employee’s or former Employee’s
Spouse or former Spouse who is the Alternate Payee under a QDRO are
Distributees with regard to the interest of the Spouse or former Spouse.


 


1.31        “Effective Date” means January 1, 2005, the
date upon which the provisions of this document become effective.  In general, the provisions of this document
only apply to Participants who are Employees on or after the Effective
Date.  However, investment and
distribution provisions apply to all Participants with Account balances to be
invested or distributed after the Effective Date.


 


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


 


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


 


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


 


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


 


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


 


(d)           effective January 1, 1992, any Employee who is
eligible to participate in the Whitman Management Incentive Compensation Plan (“MIC
Plan”) at any time during the Plan Year which begins on or after the date such
Employee is designated by an Employer as being eligible for such MIC Plan;
except that, effective as of May 21, 1999: (1) a person who becomes
an Employee as the result of the merger of Whitman Corporation and Heartland
Territories Holdings, Inc. shall not be subject to this restriction and
shall not, therefore, fail to be an Eligible Employee as a consequence of being
eligible for the MIC Plan, and (2) with respect to an Employee of
Pepsi-Cola


 


8





















 


General Bottlers, Inc. (or any subsidiary thereof), this
restriction shall lapse in its entirety on the last day of 1999 so that, as of January 1,
2000, no Employee of Pepsi-Cola General Bottlers, Inc. (or any subsidiary
thereof) shall fail to be an Eligible Employee as a consequence of being
eligible for the MIC Plan.;


 


(e)           any person who is a temporary employee;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9























 


1.36        “Eligible Rollover Distribution” means any distribution of all
or any portion of the balance to the credit of a Distributee, except that an
Eligible Rollover Distribution does not include any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the Distributee’s
designated Beneficiary, or for a specified period of 10 years or more; any
distribution to the extent such distribution is required under Section 401(a)(9) of
the Code; or any hardship withdrawal, whether described in Section 401(k)(2)(B) of
the Code and the regulations promulgated thereunder or otherwise. The portion
of a distribution which consists of post-tax contributions which are not
includible in gross income may be transferred only in a trustee-to-trustee
transfer and may be transferred only to an individual retirement account or
annuity described in Section 408(a) or (b) of the Code, or to a
qualified defined contribution plan described in Section 401(a) or
403(a) of the Code that agrees to separately account for amounts so
transferred, including separately accounting for the portion of such distribution
which is includible in gross income and the portion of such distribution which
is not so includible.


 


1.37        “Employee” means any person who renders
services as a common law employee to a Commonly Controlled Entity or is on an
Authorized Leave of Absence, including the period of time before which the
trade or business became a Commonly Controlled Entity, but excluding the period
of time after which it ceases to be a Commonly Controlled Entity.  No person who was hired through a temporary
agency (including but not limited to any leased Employee) shall be considered
an Employee and no person, the terms of whose services are governed by an
independent contractor or consulting agreement with an Employer, shall be
considered an Employee except to the extent explicitly provided to the contrary
in such agreement; provided, however, any individual considered an Employee of
a Commonly Controlled Entity under Section 414(n) of the Code shall be
deemed employed by the Commonly Controlled Entity for which the individual
performed services.


 


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


 


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


 


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


 


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


 


10





















 


and manage the operation and administration of the Plan or Trust; or (c) such
individual or entity which a Named Fiduciary, acting on behalf of the Plan,
designates to be a Fiduciary with respect to such person’s authority to control
and manage the operation and administration of the Plan or Trust.


 


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


 


1.43        “Hour of Service” means, as it applies to
Computation Periods, each hour for which an Employee is entitled to:


 


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


 


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


 


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


 


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


 


The crediting of hours
shall be made in accordance with Department of Labor Regulation Sections
2530.200b-2 and 3.  An equivalent number
of hours shall be credited for each payroll period in which the full-time
Employee would be credited with at least 1 hour.  The payroll period equivalencies are 190
hours monthly.


 


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


 


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


 


1.45        “Hussmann Participant” means a person who: (1) has
a balance in one or more of the Accounts or had accrued a right to have a
balance in one or more of the Accounts; and (2) is an Employee of Hussmann
or a person whose last employment


 


11





















 


with a Commonly Controlled Entity was with Hussmann, or a Beneficiary
of either such person.


 


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


 


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


 


1.48        “Internal Revenue Code” or “Code” means the Internal Revenue Code
of 1986, as amended, any subsequent Internal Revenue Code and final Treasury
Regulations.  If there is a subsequent
Internal Revenue Code, any references herein to Internal Revenue Code Sections
shall be deemed to refer to comparable Sections of any subsequent Internal
Revenue Code.


 


1.49        “Investment Election” means an election by which a
Participant directs the investment of his or her Contributions by voice response
to the telephone number provided by the Named Fiduciary to whom it is spoken,
or on such form that may be required by the Named Fiduciary to whom it is
delivered.  No Investment Election shall
be deemed to have been given to the Named Fiduciary unless it is complete and
delivered in accordance with the procedures established by such Named Fiduciary
for this purpose.


 


1.50        “Investment Fund” or “Fund” means one or more collective
investment funds, a pool of assets, or deposits with the Custodian, a mutual
fund, insurance contract, or managed pool of assets.  The Investment Funds authorized by the
Administrator are listed in Appendix 1.50.


 


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


 


1.52        “Management Committee” means, the committee appointed
pursuant to the terms of the Plan and Trust as the Named Fiduciary for the
investment of Plan assets in the Trust.


 


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


 


1.54        “Midas Participant” means a person who: (1) has
a balance in one or more of the Accounts or had accrued a right to have a
balance in one or more of the Accounts; and (2) is an Employee of Midas or
a person whose last employment with a Commonly Controlled Entity was with
Midas, or a Beneficiary of either such person.


 


12





















 


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


 


1.56        “Named Fiduciary” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13





















 


Notwithstanding the
determination of a Payment Date hereunder and effective with respect to an
Employee who becomes a Participant prior to July 1, 2001, and prior to the
later of July 1, 2001 or the 90th day after Participants have
been furnished with a summary of the Plan amendment which eliminates annuities
as a form of distribution herein and satisfies the requirements of Department
of Labor Regulation Section 2520.104b-3, distribution in accordance with
an affirmative election will not commence before the expiration of the 7-day
period that begins the day after the explanation of the Qualified Joint and
Survivor Annuity is provided to the Participant.


 


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


 


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


 


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


 


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


 


1.66        “Qualified Joint and Survivor
Annuity”
means the QJSA described in Article XI.


 


1.67        “Related Plan” means:


 


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


 


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


 


1.68        “Rollover Contribution” means:


 


(a)           an amount contributed by a Participant that constitutes all
or part of an eligible rollover distribution (within the meaning of Section 402(f)(2)(A) of
the Code), as described in Section 5.1, provided that such distribution (i) is
made by an individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, and (ii) does
not include after-tax employee contributions (or any earnings allocable
thereto); or


 


14





















 


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


 


1.69        “Senior Vice President” means the Senior Vice
President-Human Resources of PepsiAmericas, Inc. or any person who shall
succeed to the functional responsibilities of said office.  The Senior Vice President shall have the
power and authority to act, to the extent delegated to him or her, on behalf of
the Company (and all Employers) with respect to matters which relate to the
Plan and Trust.


 


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


 


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


 


1.72        “Spouse” means a person, not of the same
sex, who, as of the earlier of a Participant’s Payment Date and death, is alive
and married to the Participant within the meaning of the laws of the State of
the Participant’s residence as evidenced by a valid marriage certificate or
other proof acceptable to the Administrator. 
A spouse who was the Spouse on the Payment Date but who is divorced from
the Participant at the Participant’s death shall still be the Spouse at the
date of the Participant’s death, except as otherwise provided in a QDRO.


 


1.73        “Sweep Date” means the date established by
the responsible Named Fiduciary as the cutoff date and time for the responsible
Named Fiduciary to receive notification with respect to a financial transaction
for an Accounting Period in order to be processed with respect to a Trade Date
designated by the responsible Named Fiduciary.


 


1.74        “Termination of Employment” occurs when a person ceases to
be an Employee, as determined by the personnel policies of the Commonly
Controlled Entity to whom he or she rendered services; provided, however, for
periods prior to January 1, 2003, where a Commonly Controlled Entity
ceases to be such with respect to an


 


15





















 


Employee as a result of either an asset sale or stock sale, an Employee
of the Commonly Controlled Entity shall be deemed not to have incurred a
Termination of Employment:  (a) unless
the Administrator shall make a determination that the transaction satisfies Section 401(k)
of the Code, or if no such determination is made, until such Employee ceases to
be employed by the successor to the Commonly Controlled Entity; or (b) if
the Administrator shall make a Trustee Transfer of his or her Accrued
Benefit.  Transfer of employment from one
Commonly Controlled Entity to another Commonly Controlled Entity shall not constitute
a Termination of Employment for purposes of the Plan.


 


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


 


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


 


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


 


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


 


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


 


1.80        “Trustee Transfer” means:


 


(a)           a transfer to the Custodian of an amount by the custodian of
a retirement plan qualified for tax-favored treatment under Section 401(a) of
the Code or by the trustee(s) of a trust forming part of such a plan, which
plan provides for such transfer; or


 


(b)           a Direct Rollover within the meaning of Section 402(c)(8)(B) of
the Code; provided, that with respect to any withdrawal or distribution from
the Plan, a Participant may elect a transfer to only one eligible retirement
plan, except as may otherwise be determined by the Administrator in a uniform
and nondiscriminatory manner.


 


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


 


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


 


16





















 


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


 


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


 


As it applies to Vesting
under Article VIII, Years of Service means a Computation Period in which
the Employee is credited with at least 1,000 Hours of Service and such other
periods of employment continuation recognition by an applicable Appendix.


 


ARTICLE II



PARTICIPATION


 


2.01        Eligibility.


 


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


 


(a)           Any Employee who was a Participant in the Plan immediately
before January 1, 2005 shall continue to participate in accordance with
the provisions of the Plan, as amended and in effect on and after January 1,
2005.


 


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


 


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


 


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


 


(c)           Any other Eligible Employee who is a regular, part-time
Employee scheduled to work fewer than thirty (30) Hours of Service per week
will become a Participant in all portions of the Plan on the first day of the
second (2nd) calendar quarter following the month in which such Employee
completes one year of Eligibility Service.


 


17





















 


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


 


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


 


(b)           Participant who has not completed at least one Year of Service
at the time he or she incurs a Break in Service and who is again employed as an
Eligible Employee shall re-participate in the Plan as of the date he or she
again completes an Hour of Service.  His
or her years of pre-break service shall be restored, but only if the number of
his or her consecutive 1-year Breaks in Service is less than five.  A former Participant who has not had his or
her pre-break service restored under the preceding sentence shall be treated as
a new, first-time employee upon his or her re-employment by the Employer and
shall be required to satisfy the eligibility requirements of Section 2.01
for participation in the Plan.


 


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


 


ARTICLE III



PARTICIPANT CONTRIBUTIONS


 


3.01        Pre-Tax Contribution Election.


 


(a)           A Participant who is an Eligible Employee and who desires to
have Pre-Tax Contributions made on his or her behalf by his or her Employer
shall file a Contribution Election pursuant to procedures specified by the
responsible Named Fiduciary, specifying his or her Contribution Percentage of
not more than 50% and authorizing the Compensation otherwise payable to him or
her to be reduced.


 


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


 


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


 


18





















 


Election which has not been properly completed or which does not
contain a properly completed Investment Election will be deemed not to have
been received and be void.


 


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


 


(e)           Effective January 1, 2006, the Employer will make a
Pre-Tax Contribution of 3% of each Participant’s Compensation per payroll
period for each Participant who is hired on or after January 1, 2006.  An Employee may elect a different Pre-Tax
Contribution Election, or can elect not to participate as of any Change Date,
pursuant to procedures specified by the responsible Named Fiduciary.


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)           Canceling the Election.  A Participant desiring to cancel his or her
existing Contribution Election and reduce his or her Contribution Percentage to
zero must make a new Contribution Election, pursuant to procedures specified by
the


 


19





















 


responsible Named Fiduciary.  The
responsible Named Fiduciary will establish procedures, to be administered in a
uniform and nondiscriminatory manner, for allowing a Participant to cancel his
or her Contribution Election.  Any
Contribution Election received on or before a Notice Date shall become
effective with respect to the payroll cycle ended after the next Change
Date.  A Participant who is an Eligible
Employee and who has cancelled his or her Election may again make a
Contribution Election at any time.  If
such Contribution Election is received by the Notice Date, it shall become
effective with respect to the first payroll cycle ended after the next Change
Date.  Any Participant who has improperly
completed a Contribution Election will be deemed not to have made an Election.


 


ARTICLE IV



EMPLOYER CONTRIBUTIONS AND ALLOCATIONS


 


4.01        Pre-Tax Contributions.


 


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


 


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


 


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


 


4.02        Matching Contributions.


 


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


 


(b)           Allocation Method.  The Matching Contributions for each period
shall total one hundred percent (100%) of each eligible Participant’s Pre-Tax
Contributions for the period, provided that no Matching Contributions shall be
made based upon a Participant’s Contributions in excess of six percent (6%) of
his or her Compensation.  The Employer
may change the one hundred percent (100%) matching rate or the six


 


20





















 


percent (6%) of considered Compensation to any other percentages, including
zero (0%).


 


(c)           Timing, Medium and Posting.  The Employer shall make each period’s
Matching Contribution in cash as soon as is feasible, and not later than the
Employer’s federal tax filing date, including extensions, for deducting such
Contribution.  The Administrator shall
post such amount to each Participant’s Matching Account once the total
Contribution received by the Custodian has been balanced against the specific
amount to be credited to each Participant’s Matching Account.


 


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


 


(e)           True-Up Contribution.  For each Participant who is an Employee on
the last Business Day of the Plan Year and who has elected to contribute at
least six percent (6%) of his or her Compensation as a Pre-Tax Contribution for
all periods during such Plan Year in which he or she could make Pre-Tax
Contributions, the Employer shall make a Matching Contribution equal to the
least of:


 


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


 


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


 


(3)           six percent (6%) of the dollar limit in Section 401(a)(17)
of the Code,


 


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


 


4.03        Pay Based Contributions.


 


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


 


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


 


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


 


21





















 


total Contribution received by the Custodian has been balanced against
the specific amount to be credited to each Participant’s Pay Based Account.


 


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


 


4.04        Special Contributions or QNEC
Contributions.


 


(a)           Frequency and Eligibility.  Subject to the limits of the Plan and to the
Administrator’s authority to limit Contributions under the Plan, for each Plan
Year the Employer may make a Special Contribution in an amount determined by
the Administrator on behalf of each Non-Highly Compensated Employee Participant
who was an Eligible Employee at any time during the Plan Year.


 


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


 


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


 


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


 


4.05        Miscellaneous.


 


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


 


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


 


22





















 


Participants subject to such Deductible Amount during the
Plan Year (before the application of this provision).


 


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


 


(3)           Pay Based Contributions.


 


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


 


ARTICLE V



ROLLOVERS


 


5.01        Rollovers.  The Administrator may authorize the Custodian
to accept a Rollover Contribution from an Eligible Employee in cash, even if he
or she is not yet a Participant.  The
Employee shall furnish satisfactory evidence to the Plan Administrator that the
amount is eligible for rollover treatment. 
Such amount shall be posted to the Employee’s Rollover Account by the
Administrator as of the date received by the Custodian.


 


If it is later determined
that an amount transferred pursuant to the above paragraph did not in fact
qualify as a Rollover Contribution, the balance credited to the Employee’s
Rollover Account shall immediately be: (1) segregated from all other Plan
assets, (2) treated as a non-qualified trust established by and for the
benefit of the Employee, and (3) distributed to the Employee.  Any such non-qualifying rollover shall be
deemed never to have been a part of the Plan.


 


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


 


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


 


5.03        Hurricane Katrina Distribution
Recontribution.  Effective January 1, 2006, the
Administrator may authorize the Custodian to accept the recontribution by a
Participant of a distribution that was made under the conditions of Section 10.06,
to the extent the distribution was an Eligible Rollover Distribution, provided
the recontribution


 


23





















 


occurs during the 3-year period beginning the day after the date of the
Katrina distribution.


 


ARTICLE VI



ACCOUNTING FOR PARTICIPANTS’

ACCOUNTS AND FOR INVESTMENT FUNDS


 


6.01        Individual Participant Accounting.


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)           How Fees and Expenses are Charged to Accounts.  Account maintenance fees will be charged to
Accounts (to the extent such fees are not paid by the Employer), provided that
no fee will reduce an Account balance below zero.  Transaction type fees (such as loan set-up
fees, etc.) will be charged to the Accounts involved in the transaction as
determined pursuant to procedures adopted by the


 


24





















 


Administrator.  Fees and expenses
incurred for the management and maintenance of Investment Funds will be charged
at the Investment Fund level and reflected in the net gain or loss of each
Investment Fund.


 


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


 


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


 


6.02        Accounting for Investment Funds.


 


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


 


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


 


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


 


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


 


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


 


(3)           Dividends and Income.  Dividends (whether in cash or in property)
and other income received by the Custodian in respect of Company Stock will be
reinvested in Company Stock and will constitute income and be recognized on an
accrual basis for the Accounting Period in which occurs the record date with
respect to such dividend; provided that, with respect to any dividend which is
reflected in the market price of the underlying stock, the Administrator will
direct the Custodian during such trading period to trade such stock the regular
way to reflect the value of the dividend, and all transfers and cash
distributions will be


 


25





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


26





















 


ARTICLE VII



INVESTMENT FUNDS AND ELECTIONS


 


7.01        Investment of Contributions.


 


(a)           Investment Election.  Each Participant may direct the Custodian, by
submission to the responsible Named Fiduciary of an Investment Election, to
invest Contributions (and loan repayments) posted to his or her Accounts and
other amounts allocated and posted to the Participant’s Account in one or more
Investment Funds; provided, however, that a separate Investment Election is
required for Rollover Contributions.  If
a Participant does not have a valid Investment Election on file, his or her Investment
Election will be deemed to be a 100% election of the Investment Fund designated
by the Administrator as the default option, as indicated in
Appendix 1.50.  If the Participant
elects to have any such Contributions made on his or her behalf invested in
more than one Investment Fund, he or she must designate in whole multiples of
one percent (1%) what percentage of the Contribution is to be invested in each
such Investment Fund.  Notwithstanding
the above and effective as of May 21, 1999, no Investment Election may be
made by a Participant or Beneficiary which directs the investment of any
Contributions into the PepsiCo Stock Fund.


 


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


 


7.02        Investment of Accounts.


 


(a)           Conversion Election.  Notwithstanding a Participant’s Investment
Election, a Participant may direct the Custodian, by submission of a Conversion
Election to the responsible Named Fiduciary, to change the investment of his or
her Accounts between two or more Investment Funds, on a pro rata basis with
respect to each of the Participant’s Accounts (exclusive of the Participant’s
loans) from existing plan.  If a
Participant does not have a valid Conversation Election on file, his or her
Conversion Election will be deemed to be a 100% election of the Investment Fund
designated by the Administrator as the default option, as indicated in Appendix
1.50.  If the Participant or Beneficiary
elects to invest his or her Accrued Benefit in more than one (1) Investment
Fund, he or she must designate in whole multiples of one percent (1%) what
percentage of his or her Accounts is to be invested in such Investment Fund;
provided, however, effective as of May 21, 1999, no Conversion Election
may be made by a Participant or Beneficiary which directs the investment of any
part of his or her Accrued Benefit into the PepsiCo Stock Fund.


 


(b)           Effective Date of Conversion Election.  A Conversion Election to change a
Participant’s investment of his or her Accounts in one Investment Fund to another
Investment Fund will be effective with respect to such Investment Funds on the
Trade Date(s) which relates to the Sweep Time on which or prior to which the


 


27





















 


Conversion Election is received and not revoked pursuant to procedures
specified by the Administrator. 
Notwithstanding the foregoing, a Conversion Election made with respect
to the Account balance of a Participant who dies on or after the Effective Date
will not be valid if it is made after such time that is established by the
Administrator following the date the Administrator is notified of such
Participant’s death.


 


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


 


7.03        Investment Funds.  The Plan’s Investment Funds are indicated in
Appendix 1.50.  In addition, the
Management Committee may, from time to time, in its discretion:


 


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


 


(b)           add funding vehicles thereunder;


 


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


 


(d)           add new Investment Funds to, or delete Investment Funds
from, Appendix 1.50.


 


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


 


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


 


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


 


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


 


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


 


28





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE VIII



VESTING AND FORFEITURES


 


8.01        Fully Vested Contribution
Accounts


 


A Participant who first
performed an Hour of Service prior to January 1, 2004 shall be fully
vested and have a nonforfeitable right to his or her Accrued Benefit in all
Accounts at all times.  An Employee who
was a participant in the 401(k) plan sponsored


 


29





















 


by Central Investment Corporation (“CIC”) and who had at least three
Years of Service as of January 1, 2006, shall be fully vested and have a
nonforfeitable right to the portion of his Accrued Benefit attributable to the
CIC 401(k) Plan at all times.


 


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


 


	
  Post-Tax Account

  	
   

  	
  Pre-Tax Account

  	
   

  	
  Catch-Up Account

  
	
  Rollover Account

  	
   

  	
  Special Account

  	
   

  	
   

  



 


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


 


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


 


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


 


(b)           attainment of Normal Retirement Date;


 


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


 


(d)           he or she dies while an Employee.


 


8.03        Vesting Schedule and
Forfeitures


 


(a)           Vesting.  If a Participant
who first performs an Hour of Service on or after January 1, 2004 has a
Termination of Employment, the Participant shall be vested and have a
nonforfeitable right to his or her Accrued Benefit in his or her Matching and
Formula Based Accounts, determined in accordance with the following vesting
schedule:


 


	
  Years of Vesting Service

  	
   

  	
  Nonforfeitable
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 1 year

  	
   

  	
  0

  	
  %

  
	
  1 year but less than 2
  years

  	
   

  	
  20

  	
  %

  
	
  2 years but less than 3
  years

  	
   

  	
  40

  	
  %

  
	
  3 years but less than 4
  years

  	
   

  	
  60

  	
  %

  
	
  4 years but less than 5
  years

  	
   

  	
  80

  	
  %

  
	
  5 years or more

  	
   

  	
  100

  	
  %

  



 


8.04        Forfeitures


 


(a)           Forfeiture Where Payment Commences After a Break
in Service. 
If no Payment Date of a Participant’s nonforfeitable Accrued Benefit
occurs before having incurred a Break in Service, that portion of the
Participant’s Accrued Benefit (which is


 


30





















 


Employer-derived) which is forfeitable as of his or her Termination of
Employment shall be forfeited as of the completion of a Break in Service.  If the Participant is reemployed as an
Employee prior to having incurred a Break in Service, the Forfeiture shall not
occur.  If the Participant is reemployed
as an Employee after incurring a Break in Service, the Participant shall be
fully vested and have a nonforfeitable interest in that portion of his or her
Accounts accrued prior to the Break in Service and not forfeited as a result of
such Break in Service.  A Participant who
incurs a Termination of Employment with a zero vested interest in his or her
Accrued Benefit (which is Employer-derived) shall be deemed to have a Payment
Date and a Forfeiture of his or her Accrued Benefit as of such Termination of
Employment.


 


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


 


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


 


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


 


8.06        Break in Service.  For purposes of this Article VIII, Break
in Service means a 12-consecutive month computation period during which he or
she is credited


 


31





















 


with 500 or less Hours of Service. 
The applicable computation period shall be the Plan Year.


 


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


 


A Maternity/Paternity
Leave means a paid or unpaid and unapproved absence from employment with a
Commonly Controlled Entity: (1) by reason of the pregnancy of the
Employee; (2) by reason of the birth of a child of the Employee; (3) by
reason of the placement of a child under age 18 in connection with the adoption
of such child by the Employee (including a trial period prior to adoption); and
(4) for the purpose of caring for a child of the Employee immediately
following the birth or adoption of such child. 
The Employee must prove to the satisfaction of the Administrator or its
agent that the absence meets the above requirements and must supply information
concerning the length of the absence unless the Administrator has access to
relevant information without the Employee submitting it.


 


8.07        Authorized Leave of Absence


 


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


 


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


 


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


 


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


 


32





















 


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


 


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


 


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


 


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


 


(b)           A Participant who has not completed at least one Year of
Service at the time he or she incurs a Break in Service and who is again
employed as an Eligible Employee shall have his or her years of pre-break
service restored, but only if the number of his or her consecutive 1-year
Breaks in Service is less than five.  A
former Participant who has not had his or her pre-break service restored under
the preceding sentence shall be treated as a new, first-time employee upon his
or her re-employment by the Employer.


 


ARTICLE IX



PARTICIPANT LOANS


 


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


 


9.02        Loan Funding Limits.  The loan amount must meet the following
limits:


 


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


 


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


 


33





















 


Pre-Tax Account

Catch-up Account

Special Account

Matching Account

Pay Based Account

Former Matching Contribution Account

ESOP Account

TRASOP Account

Rollover Account and

Post-Tax Account.


 


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


 


9.03        Maximum Number of Loans.  A Participant may have only one loan
outstanding at any given time, and any prior existing loan must be fully repaid
for ninety (90) days before a new loan may be secured.


 


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


 


9.05        Interest Rate.  The interest rate charged on Participant
loans shall be fixed and equal to the prime rate, as published in the Wall
Street Journal.


 


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


 


9.07        Repayment Hierarchy.  Loan principal repayments shall be credited
to the Participant’s Contribution Accounts in the inverse of the order used to
fund the loan.  Loan interest shall be
credited to the Contribution Account in direct proportion to the


 


34





















 


principal repayment.  Loan
payments are credited by investment type based upon the Participant’s current
Conversion Election for that Account.


 


9.08        Loan Application, Note and
Security.  A Participant shall apply for any loan in
accordance with a procedure established by the responsible Named
Fiduciary.  The responsible Named
Fiduciary shall administer Participant loans and shall specify the time frame
for approving loan applications.  All
loans shall be evidenced by a promissory note and security agreement and
secured only by a Participant’s Account balance.  The Plan shall have a lien on a Participant’s
Account to the extent of any outstanding loan balance.


 


9.09        Default, Suspension and
Acceleration Feature.


 


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


 


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


 


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


 


ARTICLE X



IN-SERVICE WITHDRAWALS


 


10.01      Withdrawals for 401(k) Hardship.


 


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


 


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


 


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


 


35





















 


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


 


(3)           payment of tuition and related educational fees and room and
board expenses for the next twelve (12) months of post-secondary education for
the Participant, his or her Spouse, children or dependents (as defined in Section 152
of the Code);


 


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


 


(5)           effective January 1, 2006, payments for burial or
funeral expenses for the Participant’s deceased parent, spouse, children or
dependents (as defined in section 152 of the Code, without regard to section 152(d)(1)(B));
or


 


(6)           effective January 1, 2006, expenses for the repair of
damage to the Participant’s principal residence that would qualify for the
casualty deduction under Code section 165 (determined without regard to
whether the loss exceeds 10% of adjusted gross income).


 


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


 


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


 


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


 


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


 


(4)           the Contribution Dollar Limit for the taxable year
immediately following the taxable year in which the financial hardship
withdrawal is received shall be reduced by the Elective Deferrals for the
taxable year in which the financial hardship withdrawal is received; provided,
however, that the provisions set forth in this sentence will not apply effective
for calendar years beginning


 


36





















 


after December 31, 2001, to Participants who withdrew
all or part of their Pre-Tax Account after December 31, 2000.


 


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


 


Post-Tax Account

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account

Pay Based Account

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


Catch-up Account

Pre-Tax Account


Special Account


 


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


 


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


 


(a)           Requirements.  A Participant who
is over age 591⁄2 or who is Disabled may withdraw from the portion of his or her
Accounts listed in paragraph (b) below.


 


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


 


Post-Tax Account

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account

Pay Based Account

Matching Account

Catch-up Account

Pre-Tax Account

Special Account.


 


37





















 


10.03      Withdrawals of Mature Amounts.


 


(a)           Requirements.  Withdrawal is
permitted from an amount credited to any of the Accounts listed in paragraph (b) below.


 


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


 


Post-Tax Account

QVEC Account

TRASOP Account

ESOP Account

Rollover Account

Former Matching Contribution Account

Effective as of January 1, 2000, Pay Based Account.


 


10.04      Withdrawal Processing.


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)           Medium and Form of Payment.  The medium of payment for withdrawals is
either cash or direct deposit; provided however, a withdrawal under either Section 10.02


 


38





















 


or 10.03 may be paid, as directed by the Participant, in whole shares
of Company Stock to the extent the withdrawal is funded from the Company Stock
Fund.  The form of payment for
withdrawals shall be a single installment.


 


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


 


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


 


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


 


(k)           Spousal Consent.  Spousal Consent
will not be required for any withdrawal, except with respect to a Participant
who has elected an annuity form of distribution pursuant to Section 11.01.


 


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


 


10.05      Transfer of Accounts.  If a Participant transfers to an employment
classification that causes him to be excluded from active participation in this
Plan and also eligible to participate in another defined contribution plan
maintained by the Employer or a Commonly Controlled Entity, the Administrator
may cause the Participant’s Accounts to be transferred to such other plan as of
any Valuation Date.  A transfer of
accounts under this Section 10.05 shall not be an Eligible Rollover
Distribution.


 


10.06      Withdrawals for Hurricane Katrina
Victims.  Effective January 1,
2006, a Participant whose principal place of abode on August 28, 2005 is
located in Louisiana, Mississippi, Alabama or Florida, and who has sustained an
economic loss by reason of Hurricane Katrina, may withdraw up to $100,000 from
his vested Account.  This withdrawal must
occur prior to January 1, 2007.


 


39























 


ARTICLE XI



DISTRIBUTIONS ON AND AFTER

TERMINATION OF EMPLOYMENT


 


11.01      Request for Distribution of
Benefits.


 


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


 


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


 


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


 


40





















 


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


 


11.03      Payment Form and Medium.


 


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


 


(1)           a single sum,


 


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


 


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


 


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


 


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


 


11.04      Small Amounts Paid Immediately.  If a Participant incurs a Termination of
Employment and the Participant’s vested Accrued Benefit is $1,000 or less at
any time, including after withdrawals have commenced, the Participant’s Accrued
Benefit will be paid as a single sum as soon as administratively possible,
pursuant to such procedures as may be established by the Administrator.


 


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


 


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


 


41





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42





















 


ARTICLE XII



DISTRIBUTION OF ACCRUED BENEFITS ON DEATH


 


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


 


12.02      Beneficiary Designation.


 


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


 


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


 


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


 


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


 


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


 


(2)           agreement between the Participant and such Spouse.


 


(e)           If a Participant designates his or her Spouse as his or her
Beneficiary, and the Administrator receives a QDRO with respect to the
marriage, separation or divorce of the Participant and such Spouse, such Spouse
will cease to be the Participant’s Beneficiary unless and until the Participant
again designates his or her Spouse as the


 


43





















 


Participant’s Beneficiary in accordance with the provisions of this
Section, except to the extent otherwise provided in the QDRO.


 


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


 


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


 


12.03      Benefit Election.


 


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


 


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


 


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


 


12.05      Required Commencement of
Distribution.


 


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


 


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


 


44





















 


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


 


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


 


(b)           Time and Manner of Distribution.


 


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


 


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


 


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


 


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


 


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


 


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


 


(E)           Notwithstanding the provisions of subsections (A) and (B) above,
Beneficiaries may elect on an individual basis whether the life


 


45





















 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          the quotient obtained by dividing the Participant’s Account
balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9
of the Treasury regulations, using the Participant’s age as of the Participant’s
birthday in the distribution calendar year; or


 


(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


 


46





















 


and Last Survivor Table set forth in Section 1.401(a)(9)-9
of the Treasury regulations, using the Participant’s and spouse’s attained ages
as of the Participant’s and spouse’s birthdays in the distribution calendar
year.


 


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


 


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


 


(1)           Death On or After Date Distributions Begin.


 


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


 


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


 


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


 


(iii)          If the Participant’s surviving spouse is not the Participant’s
sole designated beneficiary, the designated beneficiary’s remaining life
expectancy is calculated using the age of the beneficiary in the year following
the year of the Participant’s death, reduced by one for each subsequent year.


 


(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


 


47





















 


after the year of the Participant’s death is the quotient
obtained by dividing the Participant’s Account balance by the Participant’s
remaining life expectancy calculated using the age of the Participant in the
year of death, reduced by one for each subsequent year.


 


(2)           Death Before Date Distributions
Begin.


 


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


 


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


 


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


 


(e)           Definitions.


 


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


 


(2)           Distribution calendar year.  A calendar year for which a minimum
distribution is required.  For
distributions beginning before the Participant’s death, the first distribution
calendar year is the calendar year immediately preceding the calendar year
which contains the Participant’s required beginning date.  For distributions beginning after the
Participant’s death, the first distribution calendar year is the calendar year
in which distributions are required to begin under Section 12.05(b)(2).  The required minimum distribution for the
Participant’s first distribution calendar year will be made on or before the
Participant’s required beginning date. 
The required minimum distribution for other distribution calendar


 


48





















 


years, including the required minimum distribution for the
distribution calendar year in which the Participant’s required beginning date
occurs, will be made on or before December 31 of that distribution
calendar year.


 


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


 


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


 


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


 


(f)            Special Rule.  A designated
beneficiary who is receiving payments under the 5-year rule may make a new
election to receive payments under the life expectancy rule until December 31,
2003, 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
5-year period.


 


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


 


ARTICLE XIII



MAXIMUM CONTRIBUTIONS


 


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


 


(a)           the Contribution Dollar Limit, reduced by:


 


49





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


50





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


51





















 


13.04      Maximum Contributions.


 


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


 


(b)           If the limitations imposed by this Section 13.05 apply
to a Participant who is entitled to annual additions under one or more
tax-qualified plans with which the Plan is aggregated for purposes of Section 415
of the Code, the annual additions under the Plan and such other plan or plans
will be reduced in the following order, to the extent necessary to prevent the
Participant’s benefits and/or annual additions from exceeding the limitations
imposed by this Section:


 


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


 


(2)           the Plan.


 


13.05      Imposition of Limitations.  Notwithstanding anything contained in the
Plan to the contrary, the Administrator may, in his or her sole discretion,
limit the amount of a Participant’s Pre-Tax Contributions during a Plan Year to
the extent that he or she determines that the imposition of such a limit is
necessary or appropriate to ensure that the Plan will satisfy the requirements
of this Article.  Any such limitation may
be imposed on a Participant at any time and without advance notice to the
Participant, and regardless of whether the Participant is covered by a
collective bargaining agreement between employee representatives and an
Employer.  The Administrator can impose
limitations beyond those that are absolutely necessary to satisfy the
requirements of this Article and may, in his or her sole discretion,
impose more restrictive limitations that are designed to enable the Plan to
satisfy those requirements by a reasonable margin.  Notwithstanding anything contained in the
Plan to the contrary, in the event that the Contributions to be allocated to a
Participant for a particular payroll period would cause the limitations of Section 13.05
to be exceeded with respect to a Participant, the Matching Contributions which
otherwise would be made with respect to such Participant for such period will
be first reduced or eliminated so that the limitations of Section 13.05
are not exceeded.


 


13.06      Return of Excess Annual
Additions, Deferrals and Contributions.


 


(a)           If a Participant’s Pre-Tax Contributions cause the annual
additions allocated to a Participant’s Account to exceed the limit imposed by Section 13.05,
such


 


52





















 


excess contributions (plus or minus any gains or losses thereon) will
be returned to the Participant in the following order: (i) Pre-Tax
Contributions for which no Matching Contributions were made; and (ii) Pre-Tax
Contributions for which Matching Contributions were made.  Contributions returned pursuant to this subsection (a) will
be disregarded in applying the limits imposed by Sections 13.01 through 13.04.


 


(b)           After any excess annual additions (plus or minus any gains
or losses thereon) with respect to a Plan Year have been distributed as
provided in subsection (a), above, if a Participant’s aggregate elective
deferrals (as defined in Section 402(g)(3) of the Code) with respect
to a Plan Year exceed the Contribution Dollar Limit, the following rules will
apply to such excess (the Participant’s “excess deferrals”):


 


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


 


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


 


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


 


After any excess annual
additions (plus or minus any gains or losses thereon) with respect to a Plan
Year have been distributed as provided in subsection (a), above, after any
excess deferrals (plus or minus any gains or losses thereon) with respect to a
Plan Year have been distributed as provided in subsection (b), above, and
after any action pursuant to Section 13.06 with respect to the Plan Year
has been taken, if the actual deferral percentage for a Plan Year of HCEs
exceeds the limit imposed by Section 13.02, the following rules apply:


 


(4)           (A)          The amount of the excess contributions (determined in
accordance with Section 401(k)(8)(B) of the Code and subparagraph
(3), below), plus or minus any gains or losses thereon (including, in the
discretion of the Administrator, gains or losses attributable to the “gap
period” within the meaning of Treasury Regulation Section 1.401(k)-1(f)(4)),
will be distributed to HCEs, beginning with the HCE with the highest dollar amount
of Pre-Tax Contributions for the Plan Year in an amount required to cause that
HCE’s Pre-Tax


 


53





















 


Contributions to equal the dollar amount of the Pre-Tax
Contributions of the HCE with the next highest dollar amount of Pre-Tax
Contributions (or in such lesser amount that is equal to the total amount of
excess contributions). The process described in the preceding sentence will
continue until the reduction equals the total excess contributions made to the Plan.


 


(B)           The distribution described in subparagraph (A), above, will
be made as soon as practicable, but in no event later than the close of the
Plan Year following the close of the Plan Year with respect to which the excess
contributions were made.


 


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


 


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


 


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


 


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


 


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


 


The distribution described in subparagraph (1), above,
will be made notwithstanding any other provision of the Plan. The amount
distributed pursuant


 


54





















 


to subparagraph (1),
above, for a Plan Year with respect to a Participant will be reduced by any
excess deferral previously distributed from the Plan to such Participant for the
Participant’s taxable year ending with or within such Plan Year.


 


(c)           If a Participant’s Pre-Tax Contributions (plus or minus any
gains or losses thereon) are returned to him or her pursuant to the provisions
of this Section 13.07, any Matching Contributions (plus or minus any gains
or losses thereon) with respect to such returned Pre-Tax Contributions will be
immediately forfeited.  Notwithstanding
the preceding sentence, if a Participant’s Pre-Tax Contributions are treated as
Catch-up Contributions, any Matching Contributions (plus or minus any gains or
losses thereon) with respect to such Pre-Tax Contributions will (1) be
forfeited if such Pre-Tax Contributions are treated as Catch-up Contributions
because of the limit imposed by Section 13.05, or (2) not be
forfeited if such Pre-Tax Contributions are treated as Catch-up Contributions
because of the Contribution Dollar Limit. 
Any such forfeitures will be applied to reduce the Company’s obligation
to make Matching Contributions pursuant to Article IV.


 


(d)           After any excess deferrals (plus or minus any gains or
losses thereon), and any excess contributions (plus or minus any gains or
losses thereon), with respect to a Plan Year have been distributed and/or
re-characterized, in accordance with subsections (a), (b), (c), and (d), above,
and after any action pursuant to Section 13.06 with respect to the Plan
Year has been taken, if the contribution percentage for a Plan Year of HCEs
exceeds the actual contribution percentage limit imposed by Section 13.03,
the following rules will apply:


 


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


 


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


 


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


 


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


 


55





















 


earnings) credited to the Participant’s Matching Account for
the Plan Year (and for the gap period, if elected by the Company).


 


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


 


(2)           Any distribution in accordance with subparagraph (1), above,
will be made to HCEs, beginning with the HCE with the highest dollar amount of
Matching Contributions for the Plan Year in an amount required to cause that
HCE’s Matching Contributions to equal the dollar amount of the Matching
Contributions of the HCE with the next highest dollar amount of Matching
Contributions (or in such lesser amount that is equal to the total amount of
excess aggregate contributions). This process will continue until the reduction
equals the total excess aggregate contributions made to the Plan. Such
distributions will be made notwithstanding any other provision of the Plan.


 


(3)           The excess aggregate contributions to the Plan will be
determined in accordance with Section 401(m)(6)(B) of the Code by
performing the hypothetical calculation described in this subparagraph (3). The
actual contribution percentage of the HCE with the highest individual actual
contribution percentage will be reduced to the extent necessary to cause his or
her actual contribution percentage to equal the actual contribution percentage
of the HCE with the second highest individual actual contribution percentage
(or, if it would result in a lesser reduction, to the extent necessary to cause
the Plan to satisfy the actual contribution percentage under Section 13.03).
The excess aggregate contribution to the Plan is the amount by which the
Matching Contributions on behalf of the HCE with the highest individual actual
contribution percentage would have been reduced after the hypothetical
reduction in actual contribution percentage described in the preceding
sentence. This process will continue until no excess aggregate contributions
remain.


 


The determination of the excess aggregate
contributions under this subsection (e) for any Plan Year will be
made after taking the measures called for by the preceding subsections of this Section 13.07.


 


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


 


13.08      Additional Special Contributions. 
Notwithstanding anything in this Plan to the contrary, in lieu of
distributing excess contributions and/or excess aggregate contributions, as
provided in Section 13.07(b)(4) and/or 13.07(d) above, the
Company may make and allocate a Special Contribution to NHCEs in the Plan in an
amount and


 


56





















 


manner which will cause the Plan to meet the Actual Deferral Percentage
and/or Actual Contribution Percentage tests for the Plan Year.


 


ARTICLE XIV



CUSTODIAL ARRANGEMENTS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE XV



ADMINISTRATION AND INVESTMENT MANAGEMENT


 


15.01      General.  The Company, through the
authority vested in the Board of Directors, has appointed the Management
Resources and Compensation Committee of the Board of Directors to act on behalf
of the whole Board of Directors of the Company, and the Board of Directors has
appointed, by separate documentation, the Senior Vice President, and has
enabled him or her to have the power and authority to act, to the


 


58





















 


extent delegated to such person, on behalf of the
Company (and therefore all Employers), with respect to matters which relate to
the Plan and Trust, but not on behalf of the Plan and Trust.  Furthermore, the Company has adopted the Plan
and Trust, thereby:


 


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


 


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


 


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


 


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


 


15.02      Senior Vice President Authority
to Act as Employer with Respect to the Plan and Trust.  The Senior Vice
President has the following authority and control and such other authority and
control as shall be granted to it, from time to time, to act on behalf of the
Company:


 


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


 


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


 


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


 


(3)           any amendment needed to facilitate the
transition of employees following an acquisition or other corporate transaction
in which it is necessary to designate which employee groups are eligible to participate
in the Plan and/or


 


59





















 


any issues with respect to the granting of service credit
for prior employment to the extent permitted in the Plan;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15.03      Management Resources and
Compensation Committee of the Board of Directors Authority to Act as Employer
with Respect to the Plan and Trust.  The Compensation
and Benefits Committee of the Board of Directors of the Company (the “Compensation
Committee”), acting on behalf of the whole Board of Directors of the Company,
has the following authority and control and such other authority and control as
shall be granted to it, from time to time, to act on behalf of the Company:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)           To the extent that administrative functions with respect to
the Plan are delegated to the Administrator pursuant to Section 15.10 of
the Plan (and pursuant to Sections 15.20 and 15.21, if a separate Plan
Administrator apart from the Administrator is not delegated the
responsibilities under Section 15.21), the Administrator shall be the
Named Fiduciary with respect to those responsibilities under the Plan, and the
Management Committee shall cease to be a Named Fiduciary with respect to the
responsibilities so delegated.


 


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


 


15.06      Actions.


 


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


 


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


 


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


 


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


 


(e)           Except as provided in Section 15.23, the Administrator
or the Management Committee may, in writing delivered to the Trustee, empower a
representative to act on its behalf and such person shall have the authority to
act within the scope of such empowerment to the full extent the Administrator
or the Management Committee could have acted.


 


15.07      Procedures for Designation of a
Named Fiduciary.  The Compensation Committee, acting on behalf
of the Company, may from time to time, designate a person to be a Named
Fiduciary with respect to management and control of the operation and
administration of the Plan or the management and control of the Plan’s
assets.  Such designation shall specify
the person designated by name and either: (a) specify the management and
control authority with respect to which the person will be a Named Fiduciary;
or (b) incorporate by reference an agreement with such person to provide
services to or on behalf of the Plan or Trust and use such agreement as a means
for specifying the management and control authority with respect to which such
person will be a Named Fiduciary.  No
person who is designated as a Named Fiduciary hereunder must consent to such
designation nor shall it be necessary for the Compensation Committee to seek
such person’s acquiescence.  The
authority to manage and control, which any person who is designated to be a
Named Fiduciary hereunder may have, shall be several and not joint with the
Administrator or the Management Committee, and shall result in the
Administrator or the Management Committee no longer being a Named Fiduciary
with respect to, nor having any longer, such authority to manage and
control.  On and after the designation of
a person as a Named Fiduciary, the Employer, the Compensation Committee, the
Management Committee, the Administrator, and any other Named Fiduciary with
respect to the Plan or Trust, shall have no liability for the acts (or failure
to act) of any such Named Fiduciary except to the extent of its co-Fiduciary
duty under ERISA.


 


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


 


15.09      Discretionary Authority of each
Named Fiduciary.  Each Named Fiduciary on behalf of the Plan
and Trust will enforce the Plan and Trust in accordance with their terms.  Each Named Fiduciary shall have full and
complete authority, responsibility and control (unless an allocation has been
made to another Named Fiduciary in which case such Named Fiduciary shall have
such authority, responsibility and control) over that portion of the
management, administration, and operation of the Plan or Trust allocated to
such Named Fiduciary, including, but not limited to, the


 


62





















 


authority and discretion to do the following.  In the absence of a delegation pursuant to
the terms of the Plan (including the delegation to the Administrator in Section 15.10
and the delegation to the Plan Administrator in Section 15.21), the Senior
Vice President shall exercise this authority on behalf of the Plan and/or
Trust:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15.11      Allocations and Delegations of
Responsibility.


 


(a)           Delegations.  Each Named
Fiduciary may designate persons (other than a Named Fiduciary) to carry out
Fiduciary responsibilities (other than trustee responsibilities as described in
Section 405(c)(3) of ERISA) it may have with respect to the Plan or
Trust and make a change of delegated responsibilities.  Such delegation shall specify the delegated
person by name and either: (a) specify the discretionary authority with
respect to which the person will be a Fiduciary; or (b) incorporate by
reference an agreement with such Named Fiduciary to provide services to the
Plan or Trust on behalf of the delegating Named Fiduciary as a means of
specifying the discretionary authority with respect to which such person will
be a Fiduciary.  No person (other than an
investment manager (as defined in Section 3(38) of ERISA) to whom
Fiduciary responsibility has been delegated must consent to being a Fiduciary
nor shall it be necessary for the Named Fiduciary to seek such person’s
acquiescence; however, where such person has not contractually accepted the
responsibility delegated, he or she must be given notification of the services
to be performed and, in either case, will be deemed to have accepted such
Fiduciary responsibility if he or she performs the services described for
thirty (30) days or more without specific objection thereto.  The discretionary authority any person who is
delegated Fiduciary responsibilities hereunder may have shall be several and
not joint with the Named Fiduciary delegating and each other Named
Fiduciaries.  A delegation of Fiduciary
responsibility to a person which is not implemented in the manner set forth
herein shall not be void; however, whether the delegating Named Fiduciary shall
have joint liability for acts of such person shall be determined by applicable
law.


 


(b)           Allocations.  The Compensation
Committee, acting on behalf of the Company, may allocate Fiduciary
responsibilities (other than trustee responsibilities described in Section 405(c)(3) of
ERISA) among Named Fiduciaries when it designates


 


64





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)           where applicable, to provide each Participant or his or
her Spouse with QJSA and QPSA information;


 


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


 


(g)           respond to a QDRO;


 


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


 


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


 


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


 


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


 


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


 


15.23      No Agency.  Each Named Fiduciary shall perform (or fail
to perform) its responsibilities and duties or discretionary authority with
respect to the Plan and Trust


 


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as an independent contractor and not as an agent of the Company, any
Employer, the Senior Vice President, the Compensation Committee, the
Administrator or the Management Committee. 
No agency is intended to be created nor is the Administrator or the
Management Committee empowered to create an agency relationship with a Named
Fiduciary.


 


ARTICLE XVI



CLAIMS PROCEDURE


 


16.01      Claims Procedure.


 


(a)           Definitions.  For purposes of this Section 16.01, the
following words or phrases in quotes when capitalized will have the meaning set
forth below:


 


(1)           “Adverse
Benefit Determination” means a denial, reduction or the termination of, or a
failure to provide or make payment (in whole or in part) with respect to a
Claim for a benefit, including any such denial, reduction, termination, or
failure to provide or make payment that is based on a determination of a
Participant’s or Beneficiary’s eligibility to participate in the Plan.


 


(2)           “Claim”
means a request for a benefit or eligibility to participate in the Plan, made
by a Claimant in accordance with the Plan’s procedures for filing Claims, as
described in this Section 16.01.


 


(3)           “Claimant”
is defined in Section 16.01(b)(2).


 


(4)           “Notice”
or “Notification” means the delivery or furnishing of information to an
individual in a manner that satisfies applicable Department of Labor
regulations with respect to material required to be furnished or made available
to an individual.


 


(5)           “Relevant
Documents” include documents, records or other information with respect to a
Claim that:


 


(A)          were
relied upon by the Administrator in making the benefit determination;


 


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


 


(C)           demonstrate
compliance with administrative processes and safeguards required in making the
benefit determination; or


 


(D)          constitute
a statement of policy or guidance with respect to the Plan concerning the
denied benefit for the Participant’s circumstances,


 


68





















 


without regard to whether such advice was relied upon by the
Administrator in making the benefit determination.


 


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


 


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


 


(2)           Claims
and appeals of denied Claims may be pursued by a Participant or an authorized
representative of the Participant (each of whom will be referred to in this section as
a “Claimant”).  However, the
Administrator may establish reasonable procedures for determining whether an
individual has been authorized to act on behalf of a Participant.


 


(c)           Initial Claim Review.  The initial Claim review will be conducted by
the Administrator, with or without the presence of the Claimant, as determined
by the Administrator in its discretion. 
The Administrator will consider the applicable terms and provisions of
the Plan and amendments to the Plan, information and evidence that is presented
by the Claimant and any other information it deems relevant.  In reviewing the Claim, the Administrator
will also consider and be consistent with prior determinations of Claims from
other Claimants who were similarly situated and which have been processed
through the Plan’s claims and appeals procedures within the past 24 months.


 


(d)           Initial Benefit
Determination.


 


(1)           The
Administrator will notify the Claimant of the Administrator’s determination
within a reasonable period of time, but in any event (except as described in
paragraph (2) below) within 90 days after receipt of the Claim by the
Administrator.


 


(2)           The
Administrator may extend the period for making the benefit determination by 90
days if it determines that such an extension is necessary due to matters beyond
the control of the Plan and if it notifies the Claimant, prior to the
expiration of the initial-90 day period, of circumstances requiring the
extension of time and the date by which the Administrator expects to render a
decision.


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)          A
description of the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the Claimant’s right to bring a civil
action under Section 502(a) of ERISA following an Adverse Benefit
Determination on review.


 


(f)            Procedure for Filing a
Review of an Adverse Benefit Determination.


 


(1)           Any
appeal of an Adverse Benefit Determination by a Claimant must be brought to the
Administrator within 60 days after receipt of the Notice of the Adverse Benefit
Determination.  Failure to appeal within
such 60-day period will be deemed to be a failure to exhaust all administrative
remedies under the Plan.  The appeal must
be in writing utilizing the appropriate form provided by the Administrator (or
in such other manner acceptable to the Administrator); provided, however, that
if the Administrator does not provide the appropriate form, no particular form
is required to be utilized by the Participant. 
The appeal must be filed with the Administrator at the address listed in
the Summary Plan Description.


 


(2)           A
Claimant will have the opportunity to submit written comments, documents,
records and other information relating to the Claim.


 


(g)           Review Procedures for
Adverse Benefit Determinations.


 


(1)           The
Administrator will provide a review that takes into account all comments,
documents, records and other information submitted by the Claimant without
regard to whether such information was submitted or considered in the initial
benefit determination.


 


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(2)           The
Claimant will be provided, upon request and free of charge, reasonable access
to and copies of all Relevant Documents.


 


(3)           The
review procedure may not require more than two levels of appeals of an Adverse
Benefit Determination.


 


(h)           Timing and Notification of
Benefit Determination on Review. 
The Administrator will notify the Claimant within a reasonable period of
time, but in any event within 60 days after the Claimant’s request for review,
unless the Administrator determines that special circumstances require an
extension of time for processing the review of the Adverse Benefit
Determination.  If the Administrator
determines that an extension is required, written Notice will be furnished to
the Claimant prior to the end of the initial 60-day period indicating the
special circumstances requiring an extension of time and the date by which the
Administrator expects to render the determination on review, which in any event
will be within 60 days from the end of the initial 60-day period.  If such an extension is necessary due to a
failure of the Claimant to submit the information necessary to decide the
Claim, the period in which the Administrator is required to make a decision
will be tolled from the date on which the notification is sent to the Claimant
until the Claimant adequately responds to the request for additional
information.


 


(i)            Manner and Content of
Notification of Benefit Determination on Review.


 


(1)           The
Administrator will provide a written or electronic Notice of the Plan’s benefit
determination on review, in accordance with applicable Department of Labor
regulations.


 


(2)           The
Notification will set forth:


 


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


 


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


 


(iii)          A
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all Relevant Documents; and


 


(iv)          A
statement of the Claimant’s right to bring a civil action under Section 502(a) of
ERISA following an Adverse Benefit Determination on review.


 


(j)            Collectively Bargained
Benefits.


 


(1)           Where
benefits are provided pursuant to a collective bargaining agreement and such
collective bargaining agreement maintains or incorporates


 


71





















 


by specific reference: (i) provisions concerning the
filing of a Claim for a benefit and the initial disposition of a Claim; and (ii) a
grievance and arbitration procedure to which Adverse Benefit Determinations are
subject, then Section 16.01(c) through and including Section 16.01(i) will
not apply to such Claim.


 


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


 


(k)           Statute of Limitations.  No cause of action may be brought by a
Claimant who has received an Adverse Benefit Determination later than two years
following the date of such Adverse Benefit Determination.


 


16.02      Notices to
Participants, Etc.  Any notice, report or statement given, made,
delivered or transmitted to a Participant or any other person entitled to or
claiming benefits under the Plan will be deemed to have been duly given, made
or transmitted when sent via messenger, delivery service, facsimile or mailed
by first class mail with postage prepaid and addressed to the Participant or
such person at the address last appearing on the records of the Administrator
or the responsible Named Fiduciary, whichever is applicable.  A Participant or other person may record any
change of his or her address from time to time by following the procedures
established by the Administrator.


 


16.03      Notices to
Administrator.  Any written direction, notice or other
communication from Participants or any other person entitled to or claiming
benefits under the Plan to the Administrator will be deemed to have been duly
given, made or transmitted either when delivered to such location as will be
specified upon the forms prescribed by the Administrator for the giving of such
direction, notice or other communication or when otherwise received by the
Administrator.


 


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


 


ARTICLE XVII



ADOPTION AND WITHDRAWAL FROM PLAN


 


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


 


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


 


ARTICLE XVIII



AMENDMENT, TERMINATION AND MERGER


 


18.01      Amendments.


 


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


 


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


 


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


 


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


 


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


 


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


 


(6)           have
any retroactive effect as to deprive any such person of any benefit already
accrued, except that no amendment made in order to conform the Plan as a plan
described in Section 401(a) of the Code of which amendments are
permitted by the Code or are required or permitted by any other statute
relating


 


73





















 


to employees’ trusts, or any official regulations or rulings
issued pursuant thereto, shall be considered prejudicial to the rights of any
such person.


 


(b)           Restriction on Amendment.  No amendment to the Plan shall deprive a
Participant of his or her nonforfeitable rights to benefits accrued to the date
of the amendment.  Further, if the
vesting schedule of the plan is amended, each Participant with at least
three (3) years of service for vesting with the Employer may elect, within
a reasonable period after the adoption of the amendment, to have his or her
nonforfeitable percentage computed under the Plan without regard to such
amendment.  The period during which the
election may be made shall commence with the date the amendment is adopted and
shall end on the latest of:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18.03      Plan Merger.


 


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


 


75





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


76





















 


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


 


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


 


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


 


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


 


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


 


ARTICLE XIX



SPECIAL TOP-HEAVY RULES


 


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


 


19.01      Application of Article XIX.  This Article XIX will apply only if the
Plan is Top-Heavy, as defined below.  If,
as of any Top-Heavy Determination Date, as defined below, the Plan is Top-Heavy,
the provisions of Section 19.04 will take effect as of the


 


77





















 


first day of the Plan Year next following the Top-Heavy Determination
Date and will continue to be in effect until the first day of any subsequent
Plan Year following a Top-Heavy Determination Date as of which it is determined
that the Plan is no longer Top-Heavy.


 


19.02      Definitions
Concerning Top-Heavy Status.  In addition to the
definitions set forth in Article I, the following definitions will apply
for purposes of this Article XIX, and will be interpreted in accordance
with the provisions of Section 416 of the Code:


 


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


 


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


 


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


 


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


 


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


 


(f)            Top-Heavy - the Plan is included in an Aggregation Group
under which, as of the Top-Heavy Determination Date, the sum of the actuarial
present value of the cumulative accrued benefits for Key Employees under all
defined benefit plans in the Aggregation Group and the aggregate of the
accounts of Key Employees under all defined contribution plans in the Aggregation
Group exceeds sixty percent (60%) of the analogous sum determined for all
employees.  The determination of whether
the Plan is Top-Heavy will be made in accordance with Section 416(g)(2)(B) of
the Code.


 


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


 


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


 


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


 


78





















 


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


 


(a)           Determination of Accrued Benefits:  The accrued benefit of any current
Participant will be calculated, as of the most recent valuation date that is
within a 12-month period ending on the Top-Heavy Determination Date as if the
Participant had voluntarily terminated employment as of such valuation
date.  Such valuation date will be the
same valuation date used for computing plan costs for purposes of the minimum
funding provisions of Section 412 of the Code.  Unless, as of the valuation date, the Plan
provides for a nonproportional subsidy, the actuarial present value of the
accrued benefit will reflect a retirement income commencing at age 65 (or
attained age, if later).  If, as of the
valuation date, the Plan provides for a nonproportional subsidy, the benefit
will be assumed to commence at the age at which the benefit is most
valuable.  The present values of accrued
benefits and the amounts of account balances of an employee as of the Top-Heavy
Determination Date will be increased by the distributions made with respect to
the employee under the Plan and any plan aggregated with the plan under Section 416(g)(2) of
the Code during the 1-year period ending on the Top-Heavy Determination Date.
The preceding sentence will also apply to distributions under a terminated plan
which, had it not been terminated, would have been aggregated with the plan
under Section 416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than severance from service, death, or
disability, this provision will be applied by substituting “5-year period” for “1-year
period.” The accrued benefits and accounts of any individual who has not
performed services for the employer during the 1-year period ending on the
determination date will not be taken into account.


 


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


 


19.04      Effect of Top-Heavy
Status.


 


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


 


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requirements shall be treated as matching contributions for purposes of
the actual contribution percentage test and other requirements of Section 401(m)
of the Code.


 


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


 


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


 


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


 


ARTICLE XX



MISCELLANEOUS PROVISIONS


 


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


 


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


 


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


 


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


 


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


 


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20.04      Deduction of Taxes
from Amounts Payable.  The Custodian shall
deduct from the amount to be distributed such amount as the Custodian, in its
sole discretion, deems proper to protect the Custodian and the Plan’s assets
held under the Custodial Agreement against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted,
the Custodian may discharge any such liability and pay the amount remaining to
the Participant, the Beneficiary or the deceased Participant’s estate, as the
case may be.


 


20.05      Facility of Payment.  If a Participant or Beneficiary is declared
an incompetent or is a minor and a conservator, guardian, or other person
legally charged with his or her care has been appointed, any benefits to which
such Participant or Beneficiary is entitled shall be payable to such
conservator, guardian, or other person legally charged with his or her
care.  The decision of the Administrator
in such matters shall be final, binding, and conclusive upon the Employer and
the Custodian and upon each Employee, Participant, Beneficiary, and every other
person or party interested or concerned. 
An Employer, the Custodian and the Administrator shall not be under any
duty to see to the proper application of such payments.


 


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


 


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


 


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


 


20.09      Limitation on
Liability.  No Employer nor any agent or representative
of any Employer who is an employee, officer, or director of an Employer in any
manner guarantees the assets of the Plan against loss or depreciation, and, to
the extent not


 


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prohibited by federal law, none of them shall be liable (except for his
or her own gross negligence or willful misconduct), for any act or failure to
act, done or omitted in good faith, with respect to the Plan.  No Employer shall be responsible for any act or
failure to act of any Custodian appointed to administer the assets of the Plan.


 


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


 


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


 


20.12      Gender and Number.  Except when the context indicates to the
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.


 


20.13      Invalidity of
Certain Provisions.  If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof and the Plan shall be construed and enforced as if
such provisions, to the extent invalid or unenforceable, had not been included.


 


20.14      Headings.  The headings or articles are included solely
for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.


 


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


 


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


 


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


 


20.18      Notice and Information
Requirements.  Except as otherwise provided in this Plan or
in the Custodial Agreement or as otherwise required by law, the Employer shall
have no duty or obligation to affirmatively disclose to any Participant or
Beneficiary, nor shall any Participant or Beneficiary have any right to be
advised of, any material information regarding the Employer, at any time prior
to, upon or in connection


 


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with the Employer’s purchase, or any other distribution or transfer (or
decision to defer any such distribution) of any Company Stock or any other
stock held under the Plan.


 


Executed this 22nd day of
December, 2005.


 


	
   

  	
   

  	
  PepsiAmericas, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Anne D. Sample

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President, Human

  Resources

  
					



 


83





















 


APPENDIX 1.50


 


INVESTMENT FUNDS


 


Investment
Funds


 


The Investment Funds
offered to Participants and Beneficiaries as of January 1, 2003, based
upon share accounting, are:


 


Tier 1


 


Lifestyle Investment Options:


Fidelity Freedom Funds:


 


Fidelity Freedom Income Fund


Fidelity Freedom 2000 Fund


Fidelity Freedom 2010 Fund


Fidelity Freedom 2020 Fund


Fidelity Freedom 2030 Fund


Fidelity Freedom 2040 Fund


 


Tier 2


 


Core Investment Options


 


Invesco Institutional (PRIMCO) Stable Value Fund


Barclays US Debt Index Fund


PRIMCO Total Return Fund


Fidelity Dividend Growth Fund


SsgA S& P 500 Index Fund


Barclays Extended Market Index Fund


Wellington Trust Mid-Cap Opportunities Portfolio


Fidelity Small Company Commingles Pool


Fidelity Diversifies International Fund


PepsiAmericas, Inc. Stock Fund


 


Tier 3


 


Mutual Fund Window


 


A variety of mutual funds
with a more narrowly defined focus and investment objective.


 


Tier
4


 


Self Directed Brokerage


 


APPENDIX 1.50





















 


Fidelity BrokerageLink, a
retail-type brokerage account offering Participants the option of investing in
an even wider range of vehicles, including individual stocks, bonds, CDs,
mutual funds and more.


 


Tier 5


 


Company Stock


 


The Investment Funds prior
to January 1, 2003 are those Investment Funds that were in the Plan on the
Business Day prior to January 1, 2003.


 


Default


 


If a Participant hired prior
to January 1, 2006 does not make an Investment Election, the Participant’s
Election will be deemed to be 100% in the Invesco Institutional (PRIMCO) Stable
Value Fund.  For a Participant hired on
or after January 1, 2006, who does not make an Investment Election, such
Participant’s Election will be deemed to be 100% in the Lifestyle Investment
Option for the retirement year closest to the year in which such Participant
shall attain Normal Retirement Age.


 


APPENDIX 1.50