SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Quarter Ended June 17, 1997
Commission file number 1-7554
THE EARTHGRAINS COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 36-3201045
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8400 Maryland Avenue, St. Louis, Missouri 63105
(Address of Principal Executive Offices) (Zip)
314-259-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [X ] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
$.01 Par Value Common Stock - 10,784,278 shares as of July 15, 1997
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THE EARTHGRAINS COMPANY
Index
Page No.
Part I. FINANCIAL INFORMATION
Condensed Consolidated Balance Sheets 2
Condensed Consolidated Statements of Earnings 3
Condensed Consolidated Statements of Cash Flows 4
Notes to Condensed Consolidated Financial Statements 5
Management's Discussion and Analysis of Financial Condition
and Results of Operations 6
Part II. OTHER INFORMATION
Other Information 8
Exhibits and Reports on Form 8-K 9
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THE EARTHGRAINS COMPANY
Condensed Consolidated Balance Sheets
(In millions)
(Unaudited)
June 17, March 25,
1997 1997
________ _________
Assets
Current assets:
Cash and cash equivalents $ 46.1 $ 43.1
Accounts receivable, net of allowance for
doubtful accounts of $6.2 and $6.0, respectively 144.2 141.5
Inventories 65.1 66.4
Deferred income taxes and other 52.2 45.6
Total current assets 307.6 296.6
Other assets 28.6 28.8
Goodwill, net 138.8 140.0
Plant and equipment, net 688.1 706.7
_______ ______
Total assets $1,163.1 $1,172.1
_________ __________
_________ __________
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable $ 103.6 $ 121.4
Accrued salaries, wages and benefits 49.5 46.6
Accrual for restructuring and consolidation 5.5 15.4
Other current liabilities 37.8 32.6
Total current liabilities 196.4 216.0
_______ ______
Postretirement benefits 118.5 118.8
Long-term debt 108.7 103.0
Deferred income taxes 101.4 103.8
Other noncurrent liabilities 48.4 48.1
Commitments and contingencies -- --
Shareholders' equity
Common stock 0.1 0.1
Additional paid-in capital 604.7 604.4
Retained earnings 21.1 14.7
Unearned ESOP shares (14.8) (15.1)
Unearned portion of restricted stock (4.0) (4.2)
Cumulative translation adjustment (17.4) (17.5)
_______ _____
Shareholders' equity 589.7 582.4
_______ _____
Total liabilities and shareholders' equity $1,163.1 $1,172.1
__________ ________
__________ ________
See accompanying Notes to Condensed Consolidated Financial Statements.
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THE EARTHGRAINS COMPANY
Condensed Consolidated Statements of Earnings
(In millions except per share data)
(Unaudited)
For the twelve week
period ended
____________________
June 17, June 18,
1997 1996
________ ________
Net sales $377.4 $370.5
Cost of products sold 214.7 225.3
________ ________
Gross profit 162.7 145.2
Marketing, distribution and administrative expenses 149.4 142.3
________ ________
Operating income 13.3 2.9
Other income and expenses:
Interest expense (1.5) (1.4)
Other (expense) income, net (0.2) 0.8
________ _______
Income before income taxes 11.6 2.3
Provision for income taxes 4.7 1.6
________ _______
Net income $ 6.9 $ 0.7
________ _______
________ _______
Earnings per share $ 0.68 $ 0.07
________ _______
________ _______
Weighted average shares outstanding 10.2 10.1
________ _______
________ _______
See accompanying Notes to Condensed Consolidated Financial Statements.
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THE EARTHGRAINS COMPANY
Condensed Consolidated Statements of Cashflows
(In millions except per share data)
(Unaudited)
For the twelve week
period ended
June 17, June 18,
1997 1996
_________ _________
Cash flow from operating activities:
Net income $ 6.9 $ 0.7
Adjustments to reconcile earnings to net cash
flow provided by operations:
Depreciation and amortization 18.3 18.0
Deferred income taxes (1.9) (0.9)
(Gain) loss on disposal of fixed assets (0.2) 0.1
Changes in noncash working capital (18.2) (3.1)
Other, net (2.1) 1.8
________ ______
Net cash flow from operations 2.8 16.6
Cash flows from investing activities:
Capital expenditures (7.5) (21.8)
Other, net 2.5 0.6
_______ ______
Net cash used by investing activities (5.0) (21.2)
Cash flows from financing activities:
Proceeds from (payments on) borrowings, net 5.7 2.7
Dividends to shareholders (0.5) --
_______ _____
Net cash provided by financing activities 5.2 2.7
_______ _____
Net increase (decrease) in cash and cash equivalents 3.0 (1.9)
Cash and cash equivalents, beginning of period 43.1 38.9
_______ _____
Cash and cash equivalents, end of period $ 46.1 $ 37.0
________ _______
________ _______
See accompanying Notes to Condensed Consolidated Financial Statements.
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Notes to Condensed Consolidated Financial Statements
- ---------------------------------------------------------
Note 1 - In the opinion of the Company, the accompanying unaudited
condensed consolidated financial statements contain all adjustments
(consisting of only normal recurring adjustments) necessary for a fair
presentation of the financial statements pursuant to the applicable SEC
rules and guidelines pertaining to interim financial information.
Operating results for any quarter are not necessarily indicative of the
results for any other quarter or for the full year. These condensed
consolidated financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the Annual
Report to Shareholders for the year ended March 25, 1997.
Note 2 - Inventories are carried at the lower of cost or market. Cost is
determined under the first-in, first-out method.
Total inventories consisted of the following:
June 17, March 25,
1997 1997
________ _________
Raw materials $ 50.7 $ 51.6
Finished goods 14.4 14.8
_________ ________
$ 65.1 $ 66.4
_________ ________
_________ ________
Note 3 - Earnings per share for the quarters ended June 17, 1997 and June
18, 1996 are based on the weighted average number of shares of Earthgrains
common stock outstanding for the periods then ended.
Note 4 - On May 5, 1997, the Earthgrains Board of Directors declared a two-
for-one stock split for shareholders of record as of May 30, 1997. The
split was effective July 28, 1997.
Note 5 - On July 25, 1997, the Company announced that it has entered into
an agreement to acquire the stock of CooperSmith, Inc. of Atlanta, GA.
CooperSmith operates eight bakeries producing bread, buns and rolls in the
South, Southeast and Northeast United States.
Additionally, on July 25, 1997, the Company announced it is doubling
its quarterly cash dividends payable to $.10 per common share (pre-split
basis) payable August 31, 1996.
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Management's Discussion and Analysis of Financial Condition and
Results of Operations
INTRODUCTION
This discussion summarizes the significant factors affecting the
consolidated operating results, financial condition and liquidity of The
Earthgrains Company for the twelve week period ended June 17, 1997 compared
to the twelve week period ended June 18, 1996. This discussion should be
read in conjunction with the consolidated financial statements and notes
thereto for the fiscal year ended March 25, 1997 included in the Company's
Annual Report to Shareholders.
RESULTS OF OPERATIONS
Net sales for the twelve week period ended June 17, 1997, of $377.4 million
increased 1.9% from $370.5 million reported for the comparable prior-year
period, despite a $10.4 million unfavorable impact from foreign exchange
rates. Increased volume from domestic operations and the international
fresh baked goods business along with sales related to the acquisition of
Heiner's bakery in December 1996 contributed to the increase in sales for
the quarter.
Gross margins increased significantly in the current period to 43.1% from
39.2% in the year-ago period. The margin improvements can be attributed to
the continued effect of achieved price increases, lower manufacturing
costs, and improved operating efficiencies.
A significant portion of the increase in marketing, distribution and
administrative expenses can be attributed to the increase in advertising
expenditures and a shift in spending away from price promotions. The
increase in advertising is in line with the Company's strategy to build
brand awareness in its premium core brands.
The variance in the effective income tax rate reflects the relative impact
of the nondeductible fixed goodwill amortization on the respective earnings
levels.
Net earnings for the twelve week period were $6.9 million or $0.68 per
share, compared to $0.7 million, or $0.07 per share in the prior year's
comparable period. The significant improvement in earnings is reflective
of continued benefits and efficiencies achieved from restructuring and
plant consolidations and the other factors discussed above.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary source of liquidity continues to be cash flow from
operations. Cash flows from operations for the current period decreased
notably from the year-ago period as a direct result of the change in
working capital. Net working capital, excluding cash and cash equivalents,
was $65.1 million at June 17, 1997 compared to $37.5 million at March 25,
1997. The increase can be primarily attributed to the timing of
disbursements at each period end, reduction of the accrual for
restructuring and seasonality of the business.
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The Company's primary routine cash requirements will consist of funding
capital expenditures, interest payments pursuant to the credit facility and
dividends to shareholders. While only $7.5 million was invested in capital
expenditures during the current quarter, spending for the fiscal year is
still as planned for a level of $80-90 million. Due to the timing of
certain projects, in particular the new bakery in Portugal, capital
investments are expected to be heavier in the second half of the year.
Additionally, a favorable IRS tax ruling was received during the quarter on
the stock repurchase program authorized by the Company's Board of Directors
in March 1997. The program authorizes the repurchase of up to 500,000
shares of common stock (on a pre-split basis) as the Company determines.
Cash provided by operations and borrowings available under the $225 million
credit facility should continue to provide the funding for ongoing cash
requirements.
ENVIRONMENTAL MATTERS
The Company is subject to Federal, state and local environmental protection
laws and regulations and is operating within such laws or is taking action
aimed at assuring compliance with such laws and regulations. Earthgrains
has been identified as a potentially responsible party ("PRP") at certain
locations by the EPA and may be required to share in the cost of cleanup
with respect to two sites. While it is difficult to quantify with
certainty the financial impact of actions related to environmental matters,
based on the information currently available it is management's opinion
that the ultimate liability arising from such matters, taking into
consideration established reserves, should not have a material effect on
the Company's results of operations or financial position.
7
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings. The Company has no legal proceedings which
have become a reportable event in the current period.
Item 2. Changes in Securities. None.
Item 3. Defaults Upon Senior Securities. None.
Item 4. Submission of Matters to a Vote of Security-Holders. At the
Annual Meeting of Shareholders of the company held July 25, 1997, the
following matters were voted upon:
1. Election of Jaime Iglesias and William E. Stevens to serve as
Directors of the company for a term of three years expiring in 2000.
For Withheld Non-Votes
Jaime Iglesias 9,553,814 33,126 0
_________ ________ _________
William E. Stevens 9,554,115 32,825 0
_________ ________ _________
2. Ratification the 1996 Stock Incentive Plan.
For 8,701,544
_________
Against 792,391
_________
Abstain 38,826
_________
Non-Votes 54,179
_________
3. Approval of an amendment to the 1996 Stock Incentive Plan,
increasing the amount of shares available under the Plan by 300,000 shares
(on a pre-split basis).
For 8,334,920
_________
Against 1,208,438
_________
Abstain 43,585
_________
Non-Votes 0
_________
4. Approval of a new Exceptional Performance Plan.
For 9,148,856
_________
Against 344,156
_________
Abstain 39,761
_________
Non-Votes 54,167
_________
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Item 5. Other Information. None.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits - 27 - Financial Data Schedule
10.1 The Earthgrains Company Excess Benefit Plan (formerly
the Campbell Taggart, Inc. Excess Benefit Plan) (Amended and Restated
effective as of October 1, 1993).
10.2 The Earthgrains Company Supplemental Executive
Retirement Plan (Amended and Restated effective as of March 27, 1996).
10.3 The Earthgrains Company 401(k) Restoration Plan
(formerly the Campbell Taggart 401(k) Restoration Plan) (Amended and
Restated effective as of April 1, 1996).
10.4 The Earthgrains Company Deferred Compensation Plan
(Effective March 27, 1996).
(b) Reports on Form 8-K
On July 30, 1997, the Company filed with the Securities and
Exchange Commission a current report on Form 8-K disclosing the
announcement of the pending acquisition of CooperSmith, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
THE EARTHGRAINS COMPANY
(Registrant)
Date: July 31, 1997 By: /s/ Mark H. Krieger
Mark H. Krieger
Vice President and
Chief Financial Officer
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EXHIBIT 10.1
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THE EARTHGRAINS COMPANY
EXCESS BENEFIT PLAN
(formerly known as the CAMPBELL TAGGART, INC.
EXCESS BENEFIT PLAN)
Amended and Restated Effective as of October 1, 1993
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THE EARTHGRAINS COMPANY
EXCESS BENEFIT PLAN
(formerly known as the Campbell Taggart, Inc.
Excess Benefit Plan)
Amended and Restated as of October 1, 1993
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TABLE OF CONTENTS
PAGE
1. Definitions Applicable to this Plan. . . . . . . . . . . 1
2. Eligibility to Participate . . . . . . . . . . . . . . . 2
3. Benefits Under this Plan . . . . . . . . . . . . . . . . 2
4. Special Rule for Non-Deductible Amounts. . . . . . . . . 3
5. Pre-Retirement Death Benefits. . . . . . . . . . . . . . 3
6. Payment Method . . . . . . . . . . . . . . . . . . . . . 3
7. Obligation to Pay Benefits Hereunder . . . . . . . . . . 3
8. Concerning Payment . . . . . . . . . . . . . . . . . . . 4
9. Facility of Payment. . . . . . . . . . . . . . . . . . . 5
10. Payees Presumed Competent . . . . . . . . . . . . . . . 5
11. Notice of Address; Lost Payees. . . . . . . . . . . . . 6
12. No Liability for Participant's Debts. . . . . . . . . . 6
13. Administration. . . . . . . . . . . . . . . . . . . . . 6
14. Negation of Employment Contract . . . . . . . . . . . . 7
15. Forfeiture for Activity Contrary to a Participating
Employer's Best Interests . . . . . . . . . . . . . . . 7
16. Amendment . . . . . . . . . . . . . . . . . . . . . . . 8
17. Termination . . . . . . . . . . . . . . . . . . . . . . 8
18. Participating Employer. . . . . . . . . . . . . . . . . 9
19. Successor Participating Employer. . . . . . . . . . . . 9
20. Change in Control . . . . . . . . . . . . . . . . . . . 9
21. Set Off and Withholding . . . . . . . . . . . . . . . . 11
22. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 12
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THE EARTHGRAINS COMPANY
EXCESS BENEFIT PLAN
(formerly known as the CAMPBELL TAGGART, INC.
EXCESS BENEFIT PLAN)
Amended and Restated Effective as of October 1, 1993
This Excess Benefit Plan ("Plan") was established by the
predecessor of Campbell Taggart, Inc. (the predecessor also having
been known as Campbell Taggart, Inc.), effective as of April 22,
1976, to provide supplemental retirement benefits to certain
employees whose retirement benefits may be adversely affected by
the limitations of Section 415 of the Internal Revenue Code. The
Company became responsible for this Plan by statutory merger on
November 2, 1982. The Plan is intended to be an "excess benefit
plan" as defined in Section 3(36) of the Employee Retirement Income
Security Act of 1974. The Company hereby amends and restates the
Plan effective as of October 1, 1993. The provisions of this
restated Plan shall apply to all eligible individuals whose
termination of employment occurs on or after October 1, 1993.
1. Definitions Applicable to this Plan. All capitalized terms
used in this Plan shall have the meanings herein set out:
(a) "Actuarial Equivalent" means a benefit or benefits, or
a payment or payments, which are of equal value at the date of
determination to the benefits for which they are to be substituted.
Equivalence of value is determined from actuarial calculations
based on actuarial assumptions as to interest and mortality as
follows:
Interest--
(i) For the computation of a lump sum payable in
1993 in connection with Company's Enhanced Retirement Program
pursuant to Section 4.5 of the Basic Plan then in effect, 6-1/2%.
(ii) For the computation of a lump sum payable
in 1994 in connection with Company's Enhanced Retirement Program
pursuant to Section 4.5 of the Basic Plan then in effect, if the
lump sum exceeds $25,000, 5.4%, and if the lump sum does not exceed
$25,000, 4.5%.
(iii) For computation of early retirement
benefits under the general provisions of the Plan and the payments
under any
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optional form of payment under the general provisions of the Plan,
the interest rate applicable under the Basic Plan.
Mortality--The mortality table set forth in the Basic
Plan.
(b) Through March 26, 1996, "Basic Plan" means the
Anheuser-Busch Companies Pension Plan, including only the
provisions of the main plan document and the provisions of the
Supplement for the Campbell Taggart Retirement Plan, as the same
may be amended or restated from time to time. From and after March
27, 1996, "Basic Plan" shall mean the tax-qualified defined benefit
pension plan in effect for salaried employees of The Earthgrains
Company resident in the United States.
(c) "Committee" means the same group of persons appointed
to administer the Basic Plan.
(d) "Company" means The Earthgrains Company (formerly
known as Campbell Taggart, Inc.), a Delaware corporation, and any
corporation(s) into which or with which it may be liquidated,
merged, or consolidated.
(e) "Participant" means an individual who is eligible to
participate in this Plan as described in Section 2.
(f) "Participating Employer" as used in this Plan means a
Participating Employer under the Basic Plan.
(g) "Plan" means The Earthgrains Company Excess Benefit
Plan set forth herein (formerly known as the Campbell Taggart, Inc.
Excess Benefit Plan), as it may be amended from time to time.
(h) "Subsidiary" means any business entity in which the
Company has an equity interest of at least fifty percent.
2. Eligibility to Participate. Any individual whose retirement
benefit under the Basic Plan will be limited by the provisions of
Section 415 of the Internal Revenue Code, or any regulations issued
thereunder, shall be a Participant in this Plan.
3. Benefits Under this Plan. The Retirement Benefit payable by
a Participating Employer under this Plan shall be equal to the
Actuarial Equivalent of:
(a) The retirement benefit a Participant would be entitled
to receive under the Basic Plan, under the actual method of payment
elected under such plan, if Section 415 of the Internal Revenue
Code were inapplicable, less
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(b) The retirement benefit actually payable to the
Participant under the Basic Plan.
No Participant shall be vested in benefits under this Plan
until the Participant has (a) terminated employment, (b) attained
age 55 (age 53 for Participants who elect to be governed by Section
4.5 of the Basic Plan in effect as of December 31, 1993), (c)
vested in his or her benefit under the Basic Plan, and (d)
satisfied all other requirements of this Plan for commencement of
benefits.
4. Special Rule for Non-Deductible Amounts. Any amount
otherwise payable under the Plan in a calendar year for which the
Company determines that the amount would not be deductible by any
Participating Employer under Section 162(m) of the Internal Revenue
Code shall not be paid until such calendar year as the Company
determines that the amount has ceased to be so non-deductible. In
the case of any inconsistency between this Section 4 any other
provision of the Plan, this Section 4 shall govern, unless Section
20 applies.
5. Pre-Retirement Death Benefits. There will be no pre-
retirement death benefit under this Plan.
6. Payment Method. The retirement benefit determined under
Section 3 shall be payable under the basic method of payment under
the Basic Plan. However, a Participant may elect, subject to
approval of the Committee, to have his or her retirement benefit
hereunder paid under one or more of the optional methods of payment
set forth in the Basic Plan. All optional methods of payment shall
be the Actuarial Equivalent of the amount determined under Section
3. For Participants who elect to be governed by Section 4.5 of the
Basic Plan as in effect on December 31, 1993, payment shall be in
the form of a single sum. In other cases, payment shall be made
pursuant to the Basic Method provided for in the Basic Plan unless
the Participant elects a different form of payment available under
the Basic Plan at least one (1) year prior to the Participant's
Payment Date as defined in the Basic Plan. Except as otherwise
specifically provided in this Plan, retirement benefits hereunder
shall commence as of the same date benefits commence under the
Basic Plan.
7. Obligation to Pay Benefits Hereunder. No trust fund, escrow
account or other segregation of assets shall be established or made
by a Participating Employer to guarantee, secure or assure the
payment of any benefit hereunder. A Participating Employer's
obligation to pay retirement benefits pursuant to this Plan shall
constitute only a general contractual liability to the Participants
and other payees hereunder in accordance with the terms hereof.
Payment of benefits by a Participating Employer shall be made only
from the general funds of such Participating Employer and no
Participant or any other potential payee of any amount hereunder
shall have any interest in any particular asset of a
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Participating Employer by reason of the existence of this Plan.
The amounts payable hereunder shall be subject in all respects to
claims of general creditors of the Participating Employer until
actually paid over to the person(s) entitled to receive the same.
8. Concerning Payment.
(a) Except as otherwise provided in this Section 8, any
amount payable under this Plan as a result of or following the
death of a Participant shall be applied only for the benefit of the
beneficiary or beneficiaries designated by the Participant pursuant
to this Section 8. Each Participant shall specifically designate,
by name, on forms provided by the Committee, the beneficiary(ies)
to whom any such amounts shall be paid. Except as provided in
paragraph (c), a Participant may change or revoke a beneficiary
designation without the consent of the beneficiary(ies) at any time
by filing a new beneficiary designation form with the Committee.
The filing of a new form shall automatically revoke any forms
previously filed with the Committee. A beneficiary designation
form not properly filed with the Committee prior to the death of
the Participant shall have no validity under the Plan.
(b) Except as provided in paragraph (c), any such
designation shall be contingent on the designated beneficiary
surviving the Participant. If a designated beneficiary survives
the Participant but dies before receiving the entire amount payable
to the designated beneficiary hereunder, the amount which would
otherwise have been so paid shall be paid to the estate of the
deceased beneficiary unless a contrary direction was made by the
Participant, in which case such direction shall control. More than
one beneficiary, and alternative or contingent beneficiaries, may
be designated, in which case the Participant shall specify the
shares, terms, and conditions upon which amounts shall be paid to
such multiple or alternative or contingent beneficiaries, all of
which must be satisfactory Committee.
(c) If a Participant has selected a joint and survivor
annuity method of payment and the contingent annuitant dies before
payments to the Participant begin, the selection shall be revoked,
but if the contingent annuitant dies after payments begin, the
selection of this method of payment shall not be affected and no
new contingent annuitant may be named.
(d) If no beneficiary designation is on file with the
Committee at the time of the Participant's death or no beneficiary
designated by the Participant survives the Participant, the
Participant's estate shall be deemed to be
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the beneficiary designated to receive any amounts then remaining
payable under this Plan.
(e) In determining any question concerning a Participant's
beneficiary, the latest designation filed with the Committee shall
control and intervening changes in circumstances shall be ignored.
For example, if a Participant's spouse is designated as beneficiary
but thereafter is divorced from the Participant, such designation
shall remain valid unless and until the Participant files a later
beneficiary designation form with the Committee during the
Participant's lifetime.
(f) Any check issued on or before the date of a
Participant's death shall remain payable to the Participant,
whether or not the check is received by the Participant prior to
death. Any check issued after the date of the Participant's death
shall be the property of the Participant's beneficiaries determined
in accordance with this Section 8.
9. Facility of Payment. If any amount is payable hereunder to
a minor or other person under legal disability or otherwise
incapable of managing his or her own affairs, as determined by the
Committee in its sole discretion, payment thereof shall be made in
one (or any combination) of the following ways, as the Committee
shall determine in its sole discretion:
(i) Directly to said minor or other person;
(ii) To a custodian for said minor or other person
(whether designated by the Committee or any other person) under the
Missouri Transfers to Minors Law, the Missouri Personal Custodian
Law or a similar law of any other jurisdiction;
(iii) To the conservator of the estate of said minor
or other person; or
(iv) To some relative or friend of such minor or
other person for the support, welfare or education of such minor or
other person.
The Committee shall not be required to see to the application of
any payment so made, and payment to the person determined by the
Committee shall fully discharge the Participating Employers and
this Plan from any further accountability or responsibility with
respect to the amount so paid.
10. Payees Presumed Competent. Every person receiving or
claiming amounts payable under this Plan shall be conclusively
presumed to be mentally competent and of legal age until the
Committee receives a written notice, in form, manner and substance
acceptable to it, that any such person is
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incompetent or is a minor or that a guardian or other person
legally vested with the care of his or her estate has been
appointed.
11. Notice of Address; Lost Payees. The address of every
Participant or other person entitled to any payment hereunder on
file for purposes of the Basic Plan shall be used for all purposes
of this Plan. If the Committee is unable to locate any person, or
the estate of such person, entitled to receive a payment hereunder
within two years after an amount becomes payable, the right and
interest of such payee in and to the amount payable shall terminate
on the last day of such two year period.
12. No Liability for Participant's Debts. Amounts payable
under this Plan shall not be liable for or subject to the debts or
liabilities of any payee, and no amount payable hereunder shall at
any time or in any manner be subject to anticipation, alienation,
sale, transfer, assignment, pledge or encumbrance of any kind,
whether to the Participating Employer or to any other party
whomsoever, and whether with or without consideration. If any
payee shall attempt to, or shall anticipate, alienate, sell,
transfer, assign, pledge or otherwise encumber any amounts payable
hereunder or any part thereof, or if by reason of bankruptcy or
other event, such amounts would at any time be received or enjoyed
by persons other than such payee, except as otherwise permitted by
this Plan, the Committee in its sole discretion may terminate such
person's interest in any such amounts and hold or apply such
amounts to or for the use of such person, his or her spouse,
children or other dependents, or any of them, as the Committee may
determine.
13. Administration. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to
carry out the provisions of the Plan. The Committee shall
interpret the Plan; shall determine all questions arising in the
administration, interpretation, and application of the Plan; and
shall construe any ambiguity, supply any omission, and reconcile
any inconsistency in such manner and to such extent as the
Committee deems proper. Any interpretation or construction placed
upon any term or provision of the Plan by the Committee, any
decisions and determinations of the Committee arising under the
Plan, including without limiting the generality of the foregoing:
(i) the eligibility of any individual to become or remain a
Participant and a Participant's status as such; (ii) the time,
method and amounts of payments payable under the Plan; (iii) the
rights of Participants; and any other action or determination or
decision whatsoever taken or made by the Committee in good faith
shall be final, conclusive, and binding upon all persons concerned,
including, but not limited to, the Committee, all Participating
Employers and all Participants and beneficiaries.
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14. Negation of Employment Contract. This Plan does not create
an employment contract and nothing contained herein shall be deemed
(a) to give a Participant the right to be retained in the employ of
any Participating Employer; (b) to interfere with the right of the
Participating Employer to discharge a Participant at any time; (c)
to give the Participating Employer the right to require a
Participant to remain in its employ; or (d) interfere with the
right of a Participant to terminate his or her employment
voluntarily whenever he or she chooses.
15. Forfeiture for Activity Contrary to a Participating
Employer's Best Interests.
(a) Notwithstanding any provision of this Plan to the
contrary, the right of a Participant and his or her beneficiary or
beneficiaries to receive a benefit hereunder is expressly
conditioned upon the Participant neither (i) having ceased to be
employed by the Company or any Subsidiary under circumstances or
conditions inimical or contrary to the best interests of the
Company or any Subsidiary, nor (ii) thereafter engaging in any
activity which in the Committee's judgment is inimical or contrary
to the best interests of the Company or any Subsidiary.
(b) Should a Participating Employer propose to enforce the
foregoing, it shall give written notice to the Participant or other
person(s) otherwise entitled to payment, and may withhold payment
pending final resolution of the matter. The Committee shall
thereupon investigate the alleged violation and shall consider,
under such rules of procedure as the Committee shall deem
reasonable, such evidence and testimony as the Participating
Employer and the Participant or other person or persons receiving
or otherwise entitled to receive payment may wish to submit in
support or refutation of the alleged violation. The decision of
the Committee shall be final and conclusive. If the Committee
concludes that there has been a violation, the right of the
Participant and all beneficiaries of the Participant to receive
payment hereunder shall thereupon cease. If the Committee
concludes that there has not been a violation, the amounts withheld
or suspended shall become payable as though no proceedings had been
instituted nor any payment withheld or suspended, without, however,
any interest for the period during which such amounts were withheld
or suspended.
(c) The provisions of this Section authorizing the
Participating Employer to give notice of an alleged violation or
possible violation of the conditions of paragraph (a) shall not be
interpreted as requiring the Participating Employer to take such
action in each and every instance of a violation or suspected
violation, and in determining whether an attempt to enforce the
forfeiture provisions of this Section shall be made, the
Participating Employer may consider the possible economic damage it
might suffer
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from the violation or suspected violation, the circumstances
surrounding the discontinuance of the employment of the Participant
with the Participating Employer and the quantum of proof which the
Participating Employer may have of a violation of the aforesaid
conditions.
(d) The provisions of this Section shall in no way impair
or derogate the rights which a Participating Employer may otherwise
have under any employment contract with a Participant or at law or
in equity, to prevent the disclosure of confidential information or
to recover damages for the disclosure thereof or to prevent a
Participant from engaging in competition with a Participating
Employer or to recover damages therefor.
(e) The Board of Directors of the Company (or the
Executive Committee at any time the Board of Directors is not in
session) may revoke this Section at any time, whereupon no benefit
that would otherwise become payable under this Plan shall ever be
subject to forfeiture or revocation for any reason, including (but
not limited to) any subsequent amendment to this Plan which
reinstates the provisions of this Section or imposes similar
conditions on a Participant's right to receive benefits hereunder.
(f) If the provisions of this Section are invoked at any
time after payments have already been made, the Participating
Employer shall have the right to a refund of all monies theretofore
paid. If the Participating Employer shall find it necessary to file
suit to recover any amount hereunder, it shall be entitled to
recover its reasonable attorney's fees and costs.
16. Amendment. The Board of Directors or the Chief Executive
Officer of the Company shall have the absolute right to modify or
amend this Plan in whole or in part, at any time and from time to
time, effective as of any specified prior, current or future date;
provided that the Chief Executive Officer shall not have authority
to amend the Plan in any manner that would cause it to cease to be
an excess benefit plan within the meaning of Section 3(36) of ERISA
that is supplementary solely to the Basic Plan. Any amendments to
the Basic Plan shall automatically amend the provisions of this
Plan where they would so apply.
17. Termination. The Board of Directors or the Chief Executive
Officer of the Company shall have the right to terminate this Plan
as of any specified current or future date. The Plan shall be
automatically terminated upon: (a) termination of the Basic Plan;
(b) the Company being legally adjudicated a bankrupt; (c) the
appointment of a receiver or trustee in bankruptcy with respect to
the Company's assets and business if such appointment is not set
aside within 90 days thereafter; or (d) the making by the Company
of an
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assignment for the benefit of creditors. Upon a termination of
this Plan, no additional employees shall become eligible to
participate herein, and no additional benefits shall be accrued
hereunder. Notwithstanding the termination of this Plan, a
Participant shall remain entitled to a retirement benefit under
this Plan, determined under Section 3, but based only on the
Participant's benefit accrued under the Basic Plan prior to the
date of termination and payable as otherwise provided herein.
18. Participating Employer. Any Participating Employer in the
Basic Plan may become a Participating Employer in this Plan by a
writing executed by its proper officers and approved by the proper
officers of the Company. No Participating Employer other than the
Company shall have any authority whatsoever to amend or terminate
the Plan. A Participating Employer may withdraw from the Plan at
any time by action of its proper officers. If a Participating
Employer ceases to be a member of the controlled group of
corporations that includes the Company, the Participating Employer
shall automatically withdraw from the Plan as of the date of
cessation of the controlled group relationship without the
execution of any other instrument. Notwithstanding such
withdrawal, a Participant shall remain entitled to a retirement
benefit from such withdrawing Participating Employer, determined
under Section 3, but based only on the Participant's benefit
accrued under the Basic Plan prior tot he date of termination and
payable as otherwise provided herein.
19. Successor Participating Employer. In the event of the
dissolution, merger, consolidation or reorganization of a
Participating Employer other than the Company, the successor
company may adopt and continue this Plan as a Participating
Employer, provided it has adopted the Basic Plan. If a successor
company does not continue this Plan, all Participants affected
thereby shall be entitled to a retirement benefit from such
successor company calculated and payable as provided in Section 18
with the benefits determined as of the date of dissolution, merger,
consolidation or reorganization.
20. Change in Control.
(a) If a Change in Control (as defined in Section 20(b)
shall occur, then, notwithstanding anything to the contrary herein,
a Participant's benefit under the Plan as of the Change in Control
Date (as defined in Section 20(b)), shall be fully vested and non-
forfeitable. Within 30 days after the Change in Control Date, the
Participant shall be paid, in a single lump-sum payment, the
Actuarial Equivalent of his or her benefits determined under
Section 3 as if the Participant had terminated employment and
commenced receiving benefits immediately.
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(b) For purposes of this Plan, a "Change in Control" shall
occur if:
(i) any Person (as defined herein) becomes the
beneficial owner directly or indirectly (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934 as amended ("Act"))
of more than 30% of the then outstanding voting securities of the
Company (measured on the basis of voting power), provided, however,
that shares issued or distributed by the Company in connection with
the acquisition of another company or business from such Person
shall be counted as being outstanding, but otherwise shall be
ignored in determining the percentage beneficially owned by such
Person;
(ii) the shareholders of the Company approve a
definitive agreement of merger or consolidation with any other
corporation or business entity, other than (x) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (y)
a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no Person acquires
more than 50% of the combined voting power of the Company's then
outstanding securities;
(iii) a change occurs in the composition of the Board
of Directors of the Company during any period of twenty-four
consecutive months such that individuals who at the beginning of
such period were members of the Board of Directors of the company
cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the
shareholders of the Company, of each new director was approved by
a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved; or
(iv) the shareholders of the Company approve a plan
of complete liquidation or dissolution of the Company or an
agreement for the
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sale or disposition by the Company of all or substantially all the
assets of the Company.
A Change in Control shall be deemed to have occurred on the
date as of which any of the events described in clauses (i) through
(iv) occur (such date being referred to as the "Change in Control
Date"). For purposes of this paragraph, "Person" shall have the
meaning given in Section 3(a)(9) of the Act, as modified and used
in Sections 13(d) and 14(d) thereof; however, a person shall not
include (aa) the Company or any of its subsidiaries, (bb) a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries, (cc) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (dd) a corporation owned, directly or indirectly, by
the shareholders of the Company in substantially the same
proportions as their ownership of stock in the Company.
(c) Notwithstanding Sections 16 and 17, following a Change
in Control, the provisions of this Section 20 cannot, after the
Change in Control Date, be amended in any manner without the
written consent of each individual who was a Participant
immediately prior to a Change in Control.
(d) Following a Change in Control, this Plan shall
continue in effect, notwithstanding that payment of benefits shall
have been made under Section 20(a), unless and until terminated by
the Company.
(e) If a Change in Control occurs, Section 15 shall no
longer apply to any individual whose activities are not under
investigation by the Committee on the Change in Control Date.
(f) If by reason of this Section an excise or other
special tax ("Excise Tax") is imposed on any payment under this
Plan (a "Required Payment"), the amount of each Required Payment
shall be increased by an amount which, after payment of income
taxes, payroll taxes and Excise Tax thereon, will equal such Excise
Tax on the Required Payment.
21. Set Off and Withholding.
(a) Any amount then due and payable by the Company or any
other Participating Employer to any Participant or the beneficiary
of any Participant under this Plan may be offset by any amounts
owed to the Company or any Subsidiary by the Participant and/or the
beneficiary for any reason and in any capacity whatsoever, as the
Company may determine in its sole and absolute discretion.
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(b) There shall be deducted from any amount payable under
this Plan all taxes required to be withheld by any federal, state
or local government. Participants and their beneficiaries shall
bear any and all federal, state, local and other income taxes and
other taxes imposed on amounts paid under the Plan, whether or not
withholding is required or carried out in accordance with this
provision.
22. Miscellaneous.
(a) In any instance in which the Committee believes such
action to be in the best interest of the party entitled to receive
any payment under this Plan, or to be in the best interests of a
Participating Employer (such as to avoid the administrative
inconvenience and expense which might be incurred if relatively
small amounts were to be paid to multiple recipients over lengthy
periods of time), amounts payable hereunder may be paid in a single
lump sum, the amount of which shall be the Actuarial Equivalent of
the benefits otherwise payable.
(b) In the event of the death of a Participant or any
Beneficiary designated by him or her, no payment need be made by
the Plan until the Committee shall have received proof satisfactory
to it of such death and of the identity, existence and location of
the party thereafter entitled to receive payments under this Plan.
(c) In making any payment or taking any action under this
Plan, the Participating Employer and the Committee shall be
absolutely protected in relying upon any finding or statement of
facts believed by it to be true, and on any written instrument
believed by it to have been signed by the proper party.
(d) Subject to the applicable provisions of the Employee
Retirement Income Security Act of 1974 which provide to the
contrary, this Plan shall be administered, construed, and enforced
according to the laws of the State of Missouri and in Courts
situated in that State.
IN WITNESS WHEREOF, The Earthgrains Company has caused
this Plan to be executed by its officers thereunto duly authorized
this _____ day of March, 1996, effective as of October 1, 1993.
THE EARTHGRAINS COMPANY
By_________________________________
Barry H. Beracha
Chief Executive Officer
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EXHIBIT 10.2
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
<PAGE>
<PAGE>
TABLE OF CONTENTS
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
2. Participation. . . . . . . . . . . . . . . . . . . . . . 3
3. Benefit on or After Normal Retirement Date . . . . . . . 3
4. Benefit on Early Retirement. . . . . . . . . . . . . . . 5
5. Pre-Retirement Death Benefit . . . . . . . . . . . . . . 5
6. Disability Benefit . . . . . . . . . . . . . . . . . . . 5
7. Forfeiture for Activity Contrary to the Company's Best
Interests . . . . . . . . . . . . . . . . . . . . 5
8. Payment Methods. . . . . . . . . . . . . . . . . . . . . 7
9. Obligation to Pay Benefits Hereunder . . . . . . . . . . 7
10. Special Rule for Non-Deductible Amounts . . . . . . . . 8
11. Change in Control . . . . . . . . . . . . . . . . . . . 8
12. Concerning Payment; Beneficiaries . . . . . . . . . . . 10
13. Payees Presumed Competent . . . . . . . . . . . . . . . 11
14. Facility of Payment . . . . . . . . . . . . . . . . . . 11
15. Notice of Address; Lost Payees. . . . . . . . . . . . . 12
16. Participating Employer. . . . . . . . . . . . . . . . . 12
17. No Liability for Payee's Debts. . . . . . . . . . . . . 12
18. Administration. . . . . . . . . . . . . . . . . . . . . 13
19. Negation of Employment Contract . . . . . . . . . . . . 13
20. Modification, Amendment, or Termination . . . . . . . . 13
21. Set Off and Withholding . . . . . . . . . . . . . . . . 14
22. Claims Procedures . . . . . . . . . . . . . . . . . . . 14
23. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 16
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THE EARTHGRAINS COMPANY, a Delaware corporation (the "Company"),
does hereby establish this Supplemental Executive Retirement Plan,
effective as of April 1, 1996. The provisions of this Plan shall
apply to eligible employees whose termination of employment with
the Company or any other Participating Employer occurs on or after
April 1, 1996. The Plan is intended to be a non-qualified,
unfunded plan to provide supplemental retirement benefits to a
select group of management and highly compensated employees, as
described in Section 201(2) of the Employee Retirement Income
Security Act of 1974 ("ERISA").
1. Definitions. The capitalized terms used in this Plan shall
have the meanings herein set out:
(a) "Accrued Benefit" means at any given time the benefit
calculated in accordance with the formula in Section 3, using the
Participant's Eligible Earnings and Credited Service as of the date
the calculation is being made. The benefit so calculated shall be
the benefit that would commence under the basic method of payment
on the Participant's Normal Retirement Date.
(b) "Actuarial Equivalent" means a benefit or benefits, or
a payment or payments, which are of equal value at the date of
determination to the benefits for which they are to be substituted.
Equivalence of value is determined from actuarial calculations
based on actuarial assumptions as to interest and mortality as
follows:
Interest - The interest rate in effect for
the Basic Plan from time to time.
Mortality - The mortality table specified in
the Basic Plan.
(c) "Basic Plan" means the tax-qualified defined benefit
pension plan for salaried employees of The Earthgrains Company as
in effect from time to time.
(d) "Board" means the board of directors of the Company.
(e) "Committee" means the Company's Compensation and
Benefits Committee, as constituted from time to time.
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(f) "Company" means The Earthgrains Company, a Delaware
corporation, and any corporation(s) into which or with which it may
be liquidated, merged or consolidated.
(g) "Credited Service" means a Participant's Credited
Service taken into account in determining his or her Accrued
Benefit under the Basic Plan, including the period of his or her
participation in both the Basic Plan and the Anheuser-Busch
Companies Pension Plan. Credited Service shall not exceed 30
years.
(h) "Eligible Earnings" means, for any fiscal year of the
Company, the sum of the employee's annual base salary from a
Participating Employer as of the first day of the fiscal year plus
the employee's bonus earned from the Company during the prior
fiscal year. For purposes of computing benefits under this Plan,
the Eligible Earnings to be used shall be the highest of the
Eligible Earnings in the fiscal year of termination or any of the
four preceding fiscal years or such fewer number of consecutive
fiscal years prior to termination for which the employee received
base salary from a Participating Employer. Eligible Earnings shall
recognize any compensation deferred under the Company's Executive
Deferred Compensation Plan, 401(k) Plan and 401(k) Restoration Plan
and treat such compensation as if it were not deferred.
(i) "Eligible Employee" means the Chief Executive Officer
of the Company and any other officer or executive with high level
responsibility who is (i) selected by the Chief Executive Officer
of the Company in his or her sole discretion, (ii) employed by a
Participating Employer, and (iii) an active participant currently
accruing benefits in the Basic Plan.
(j) "Excess Benefit Plan" means The Earthgrains Company
Excess Benefit Plan (formerly known as the Campbell Taggart, Inc.
Excess Benefit Plan), as originally adopted and as thereafter
amended, or any other "excess plan" as described in Section 3(36)
of ERISA, maintained by a Participating Employer and as in effect
from time to time.
(k) "Normal Retirement Date" means the first day of the
month coincident with or next following the date on which the
Participant attains his or her sixty-fifth (65th) birthday.
(l) "Participant" means an Eligible Employee who is
participating in this Plan in accordance with Section 2.
(m) "Participating Employer" means the Company and any
other member of the controlled group of corporations of which the
Company is a member
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which is a Participating Employer in the Basic Plan and which has
adopted this Plan in the manner described in Section 18.
(n) "Plan" means The Earthgrains Company Supplemental
Executive Retirement Plan, effective March 27, 1996.
(o) "Primary Social Security Benefit" means, for
retirement on or after the Normal Retirement Date, the estimated
primary insurance amount that would commence immediately under the
Federal Social Security Act in effect on the retirement date
assuming that the Participant's earnings for Social Security
purposes are equal to the benefit base as determined under Section
230 of the Federal Social Security Act from the date the
Participant attained age 21 until his or her retirement date.
For purposes of determining the Accrued Benefit prior to
a Participant's Normal Retirement Date, the Primary Social Security
Benefit means:
(i) An amount determined as described above assuming
that the Participant retires on his or her Normal Retirement Date
and that the Social Security Act and benefit base remain unchanged
in the future, multiplied by
(ii) The ratio of the Participant's Credited Service
as of the date of determination of the lesser of thirty (30) years
or the Participant's Credited Service had he or she remained an
active Participant until his or her Normal Retirement Date.
(p) "Subsidiary" means any business entity in which the
Company has an equity interest of at least fifty percent.
Miscellaneous Rules of Construction. Masculine pronouns include
the feminine, the singular includes the plural, and the plural
includes the singular, as the context or application demands.
2. Participation. Each Eligible Employee shall commence
participation in this Plan as of the first day of the month
coincident with or next following the date he or she first becomes
an Eligible Employee. Except as provided in Section 18, once an
individual becomes a Participant, he or she shall continue to
participate until termination of employment occurs even if such
individual's status changes such that he or she would no longer be
eligible to participate.
3. Benefit on or After Normal Retirement Date. A Participant
who ceases to be employed by all members of the Company's
controlled group of corporations on or after his or her Normal
Retirement Date shall receive a monthly benefit,
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payable under the basic method of payment described in Section 8
and commencing on the first day of the month coinciding with or
immediately following his or her last date of employment, in an
amount which is one-twelfth of the following:
(a) For Policy Committee members, one and two-thirds
percent of Eligible Earnings times Credited Service; and for all
other Participants, one and one-half percent of Eligible Earnings
times Credited Service; less
(b) The Participant's annual retirement benefit payable at
Normal Retirement Date (or, if applicable, postponed retirement
date) under the Basic Plan, as applicable, under the basic method
of payment described in the Basic Plan; less also
(c) Any other benefits from any tax-qualified defined
benefit pension plan, excess benefit plan or other retirement plan
or arrangement maintained or sponsored by the Company or any
Subsidiary or by Anheuser-Busch Companies, Inc. and any of its
Subsidiaries, other than a qualified or non-qualified 401(k) plan
or a voluntary non-qualified deferred compensation plan. The
reduction under this paragraph shall be the annual benefit under
such other plan or plans, payable at the Normal Retirement Date
provided for under the Basic Plan (or, if applicable, postponed
retirement date), expressed as if payable under the basic method of
payment described in the Basic Plan; provided: (i) if such basic
method is not a form of single life annuity, then it shall be
expressed as if payable solely for the lifetime of the Participant
on an Actuarially Equivalent basis; and (ii) this provision shall
include reduction for all benefits that are due and/or paid under
all such plans, whether they become due or are paid before, on or
after the date payments become due hereunder; less also
(d) The Participant's annual Primary Social Security
Benefit.
In no event shall a participant's benefit calculated hereunder be
less than the difference between (x) the Participant's annual
retirement benefit that would have been payable at Normal
Retirement Date (or, if applicable, postponed retirement date)
under the Basic Plan under the basic method for payment described
in the Basic Plan without regard to the limitation imposed by
Section 401(a)(17) of the Internal Revenue Code, and (y) if less,
the sum of the amounts determined under paragraphs (b) and (c).
This minimum benefit shall be separately calculated with respect to
all Participants, including those whose benefits exceed this
minimum, and shall be deemed a separate obligation payable from a
separate plan for the purpose of determining which, if any, portion
of a Participant's retirement benefits is subject to income tax in
the state where the Participant resided when the benefits were
earned;
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providing that nothing in this sentence shall be interpreted to
entitle a Participant to an aggregate amount under this Plan and
such separate plan that exceeds the greater of the minimum provided
for in this paragraph or the amount otherwise determined under the
Plan.
4. Benefit on Early Retirement. The following benefits are
available for Participants who retire prior to Normal Retirement
Date:
(a) A Participant who ceases to be employed by all members
of the Company's controlled group of corporations prior to his or
her Normal Retirement Date but after reaching age 62 and completing
30 years of Credited Service shall be entitled to receive a
retirement benefit equal to his or her Accrued Benefit, but
commencing on the first day of the month coinciding with or
immediately following his or her last date of employment.
(b) A Participant who ceases to be employed by all members
of the Company's controlled group of corporations after reaching
age 55 and who has at least five years of Credited Service but who
is not eligible to receive a benefit under paragraph (a) above may,
unless disapproved by the Company's Chief Executive Officer (or, in
the case of the Chief Executive Officer, the Board), be granted a
benefit equal to his or her Accrued Benefit reduced in accordance
with the reduction applicable to early retirement benefits under
the Basic Plan. Such benefit shall commence as of the first day of
the month coincident with or next following his or her last date of
employment.
(c) There shall be no benefits payable from this Plan for
a Participant who ceases employment prior to the attainment of age
55, except as provided in Section 11.
5. Pre-Retirement Death Benefit. There will be no pre-
retirement death benefit under this Plan.
6. Disability Benefit. There will be no pre-retirement
disability benefit under this Plan.
7. Forfeiture for Activity Contrary to the Company's Best
Interests.
(a) Notwithstanding any provision of this Plan to the
contrary, the right of a Participant and his or her beneficiary or
beneficiaries to receive a benefit hereunder is expressly
conditioned upon the Participant neither (i) having ceased to be
employed by the Company or any Subsidiary under circumstances or
conditions inimical or contrary to the best
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interests of the Company or any Subsidiary, nor (ii) thereafter
engaging in any activity which in the Committee's judgment is
inimical or contrary to the best interests of the Company or any
Subsidiary.
(b) Should a Participating Employer propose to enforce the
foregoing, it shall give written notice to the Participant or other
person(s) otherwise entitled to payment, and may withhold payment
pending final resolution of the matter. The Committee shall
thereupon investigate the alleged violation and shall consider,
under such rules of procedure as the Committee shall deem
reasonable, such evidence and testimony as the Participating
Employer and the Participant or other person or persons receiving
or otherwise entitled to receive payment may wish to submit in
support or refutation of the alleged violation. The decision of
the Committee shall be final and conclusive. If the Committee
concludes that there has been a violation, the right of the
Participant and all beneficiaries to receive payment hereunder
shall thereupon cease. If the Committee concludes that there has
not been a violation, the amounts withheld or suspended shall
become payable as though no proceedings had been instituted nor any
payment withheld or suspended, without, however, any interest for
the period during which such amounts were withheld or suspended.
(c) The provisions of this Section authorizing the
Participating Employer to give notice of an alleged violation or
possible violation of the conditions of paragraph (a) shall not be
interpreted as requiring the Participating Employer to take such
action in each and every instance of a violation or suspected
violation, and in determining whether an attempt to enforce the
forfeiture provisions of this Section shall be made, the
Participating Employer may consider the possible economic damage it
might suffer from the violation or suspected violation, the
circumstances surrounding the discontinuance of the employment of
the Participant with the Participating Employer and the quantum of
proof which the Participating Employer may have of a violation of
the aforesaid conditions.
(d) The provisions of this Section shall in no way impair
or derogate the rights which a Participating Employer may otherwise
have under any employment contract with a Participant or at law or
in equity, to prevent the disclosure of confidential information or
to recover damages for the disclosure thereof or to prevent a
Participant from engaging in competition with a Participating
Employer or to recover damages therefor.
(e) The Board (or the Executive Committee at any time the
Board of Directors is not in session) may revoke this Section at
any time,
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whereupon no Accrued Benefit at that time shall ever be subject to
forfeiture or revocation for any reason, including (but not limited
to) any subsequent amendment to this Plan which reinstates the
provisions of this Section or imposes similar conditions on a
Participant's right to receive benefits hereunder.
(f) If the provisions of this Section are invoked at any
time after payments have already been made, the Participating
Employer shall have the right to a refund of all monies theretofore
paid. If the Participating Employer shall find it necessary to
file suit to recover any amount hereunder, it shall be entitled to
recover its reasonable attorney's fees and costs.
8. Payment Methods. The basic method of payment shall be
monthly payments for life, beginning on the first day of the month
coincident with or next following the Participant's retirement
date, with the last payment being for the month in which the
Participant's death occurs. Notwithstanding for foregoing, payment
shall be made in a single lump sum unless the Participant gives
written notice to the Committee, at least one year prior to the
date benefits are to commence, that he or she elects to receive
benefits under either the basic method of payment described above
or one of the following optional methods which shall be the
Actuarial Equivalent of the basic method of payment:
(a) A fifty percent joint and survivor annuity with such
contingent annuitant as the Participant may designate. If a
Participant has selected this method of payment and the contingent
annuitant dies before the Participant's payments begin, the
selection shall be revoked, but if the contingent annuitant dies
after the Participant's payments begin, the selection of this
method of payment shall not be affected and no new contingent
annuitant may be named; or
(b) Level installments over a five-year period.
A Participant may elect an optional method of payment under
this Plan which is different from the method of payment elected
under either the Basic Plan or the Excess Benefit Plan.
9. Obligation to Pay Benefits Hereunder. No trust fund, escrow
account or other segregation of assets shall be established or made
by any Participating Employer to guarantee, secure or assure the
payment of any benefit hereunder. The obligation of each
Participating Employer to pay benefits pursuant to this Plan shall
constitute only a general obligation of the Participating Employer
to the Participants and other payees hereunder in accordance with
the terms hereof. Payment of benefits by a Participating Employer
hereunder shall be made only from the general funds of the
Participating Employer and no
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Participant or other potential payee of any amount hereunder shall
have any interest in any particular asset of any Participating
Employer by reason of the existence of this Plan, and the amounts
payable hereunder shall be subject in all respects to claims of
general creditors of the respective Participating Employers until
actually paid over to the person(s) entitled to receive the same.
10. Special Rule for Non-Deductible Amounts. Any amount
otherwise payable under the Plan in a calendar year for which the
Company determines that the amount would not be deductible by any
Participating Employer under Section 162(m) of the Internal Revenue
Code shall not be paid until such calendar year as the Company
determines that the amount has ceased to be so non-deductible. In
the case of any inconsistency between this Section 10 and any other
provision of the Plan, this Section 10 shall govern, except in the
case of Section 11 becoming applicable.
11. Change in Control.
(a) If a Change in Control (as defined in Section 11(b))
shall occur, then, notwithstanding anything to the contrary herein,
a Participant's Accrued Benefit under the Plan as of the Change in
Control Date (as defined in Section 11(b)) shall be fully vested
and non-forfeitable. Within 30 days after the Change in Control
Date, the Participant shall be paid, in a single lump-sum payment,
the Actuarial Equivalent of such Accrued Benefit as of the date of
payment. Notwithstanding the foregoing, if, on the Change in
Control Date, a Participant otherwise satisfied the eligibility
requirements for early or normal retirement benefits under Section
3 or 4, such Participant's benefit shall be paid as if he or she
actually retired on the Change in Control Date. The Chief
Executive Officer and the Board shall be deemed to have granted any
necessary approvals.
(b) For purposes of this Plan, a "Change in Control" shall
occur if:
(i) any Person (as defined herein) becomes the
beneficial owner directly or indirectly (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934 as amended (the
"Act")) of more than 30% of the then outstanding voting securities
of the Company (measured on the basis of voting power); provided,
however, that shares issued or distributed by the Company in
connection with the acquisition of another company or business from
such Person shall be counted as being outstanding, but otherwise
shall be ignored in determining the percentage beneficially owned
by such Person;
8
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(ii) the shareholders of the Company approve a
definitive agreement of merger or consolidation with any other
corporation or business entity, other than (x) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (y)
a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no Person acquires
more than 50% of the combined voting power of the Company's then
outstanding securities;
(iii) a change occurs in the composition of the Board
of Directors of the Company during any period of twenty-four
consecutive months such that individuals who at the beginning of
such period were members of the Board of Directors of the Company
cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the
shareholders of the Company, of each new director was approved by
a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved; or
(iv) the shareholders of the Company approve a plan
of complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all the assets of the Company.
A Change in Control shall be deemed to have occurred on
the date as of which any of the events described in clauses (i)
through (iv) occur (such date being referred to as the "Change in
Control Date"). For purposes of this paragraph, "Person" shall
have the meaning given in Section 3(a)(9) of the Act, as modified
and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (aa) the Company or any of its subsidiaries, (bb)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries, (cc) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (dd) a corporation owned, directly or
indirectly, by the
9
<PAGE>
shareholders of the Company in substantially the same proportions
as their ownership of stock in the Company.
(c) Notwithstanding Section 20, following a Change in
Control, the provisions of this Section 11 cannot, after the Change
in Control Date, be amended in any manner without the written
consent of each individual who was a Participant immediately prior
to the Change in Control.
(d) Following a Change in Control, this Plan shall
continue in effect, notwithstanding that payment of benefits shall
have been made under Section 11(a), unless and until terminated by
the Company.
(e) If a Change in Control occurs, Section 7 shall no
longer apply to any individual whose activities are not under
investigation by the Committee on the Change in Control Date.
(f) If by reason of this Section an excise or other
special tax ("Excise Tax") is imposed on any payment under this
Plan (a "Required Payment"), the amount of each Required Payment
shall be increased by an amount which, after payment of income
taxes, payroll taxes and Excise Tax thereon, will equal such Excise
Tax on the Required Payment.
12. Concerning Payment; Beneficiaries.
(a) Except as otherwise provided in this Section, any
amount payable under this Plan as a result of or following the
death of a Participant shall be applied only for the benefit of the
beneficiary or beneficiaries designated by the Participant pursuant
to this Section. Each Participant shall specifically designate, by
name, on forms provided by the Committee, the beneficiary(ies) to
whom any such amounts shall be paid. A Participant may change or
revoke a beneficiary designation without the consent of the
beneficiary(ies) at any time by filing a new beneficiary
designation form with the Committee. The filing of a new form
shall automatically revoke any forms previously filed with the
Committee. A beneficiary designation form not properly filed with
the Committee prior to the death of the Participant shall have no
validity under the Plan.
(b) Except as provided in Section 8 or 9, any such
designation shall be contingent on the designated beneficiary
surviving the Participant. If a designated beneficiary survives
the Participant but dies before receiving the entire amount payable
to the designated beneficiary hereunder, the amount which would
otherwise have been so paid shall be paid to the estate of the
deceased beneficiary unless a contrary direction was made
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<PAGE>
by the Participant, in which case such direction shall control.
More than one beneficiary, and alternative or contingent
beneficiaries, may be designated, in which case the Participant
shall specify the shares, terms and conditions upon which amounts
shall be paid to such multiple or alternative or contingent
beneficiaries, all of which must be satisfactory to the Committee.
(c) If no beneficiary designation is on file with the
Committee at the time of the Participant's death or no beneficiary
designated by the Participant survives the Participant, the
Participant's estate shall be deemed to be the beneficiary
designated to receive any amounts then remaining payable under this
Plan.
(d) In determining any question concerning a Participant's
beneficiary, the latest designation filed with the Committee shall
control and intervening changes in circumstances shall be ignored.
For example, if a Participant's spouse is designated as beneficiary
but thereafter is divorced from the Participant, such designation
shall remain valid unless and until the Participant files a later
beneficiary designation form with the Committee during the
Participant's lifetime.
(e) Any check issued on or before the date of a
Participant's death shall remain payable to the Participant,
whether or not the check is received by the Participant prior to
death. Any check issued after the date of the Participant's death
shall be the property of the Participant's beneficiaries determined
in accordance with this Section 12.
13. Payees Presumed Competent. Every person receiving or
claiming amounts payable under this Plan shall be conclusively
presumed to be mentally competent and of legal age until the
Committee receives a written notice, in form, manner and substance
acceptable to it, that any such person is incompetent or is a minor
or that a guardian or other person legally vested with the care of
his or her estate has been appointed.
14. Facility of Payment. If any amount is payable hereunder to
a minor or other person under legal disability or otherwise
incapable of managing his or her own affairs, as determined by the
Committee in its sole discretion, payment thereof shall be made in
one (or any combination) of the following ways, as the Committee
shall determine in its sole discretion:
(i) Directly to said minor or other person;
(ii) To a custodian for said minor or other person
(whether designated by the Company or any other person) under the
Missouri Transfers
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to Minors Law, the Missouri Personal Custodian Law or a similar law
of any other jurisdiction;
(iii) To the conservator of the estate of said minor
or other person; or
(iv) To some relative or friend of such minor or
other person for the support, welfare or education of such minor or
other person.
The Committee shall not be required to see to the application
of any payment so made, and payment to the person determined by the
Committee shall fully discharge the plan and the Participating
Employer from any further accountability or responsibility with
respect to the amount so paid.
15. Notice of Address; Lost Payees. The address of every
Participant or other person entitled to any payment hereunder on
file for purposes of the Basic Plan shall be used for all purposes
of this Plan. If the Committee is unable to locate any person, or
the estate of such person, after a reasonable attempt to locate
such person has been made, within two years after an amount becomes
payable hereunder, the right and interest of such payee in and to
the amount payable shall terminate on the last day of such two-year
period.
16. Participating Employer. Any Participating Employer in the
Basic Plan may become a Participating Employer in this Plan by
submitting to the Committee a resolution of its board of directors
adopting the provisions of this Plan. The adoption of this Plan by
a Participating Employer shall constitute an automatic delegation
by it to the Board of full authority to amend or terminate the Plan
and to the Committee to administer this Plan. Benefits payable
under this Plan for a Participant whose employment with a
Participating Employer terminates shall be solely the obligation of
that Participating Employer. A Participating Employer may withdraw
from the Plan at any time by action of its board of directors. If
a Participating Employer ceases to be a member of the controlled
group of corporations that includes the Company, the Participating
Employer shall automatically withdraw from the Plan as of the date
of cessation of the controlled group relationship, without the
execution of any other instrument. If a Participating Employer
withdraws from the Plan for any reason, no benefit shall be payable
under this Plan to any Participant who has not otherwise satisfied
the eligibility requirements of Section 3 or 4 as of the date of
withdrawal. Notwithstanding the foregoing, any benefits in pay
status as of the date of withdrawal shall continue to be paid in
full in accordance with the terms hereof.
17. No Liability for Payee's Debts. Amounts payable under this
Plan shall not be liable for or subject to the debts or liabilities
of any payee, and no amount payable hereunder shall at any time or
in any manner be subject to anticipation,
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<PAGE>
alienation, sale, transfer, assignment, pledge or encumbrance of
any kind, whether to any Participating Employer or to any other
party whomsoever, and whether with or without consideration. If
any payee shall attempt to, or shall anticipate, alienate, sell,
transfer, assign, pledge or otherwise encumber any amounts payable
hereunder or any part thereof, or if by reason of bankruptcy or
other event, such amounts would at any time be received or enjoyed
by persons other than such payee, except as otherwise permitted by
this Plan, the Committee in its sole discretion may terminate such
person's interest in any such amounts and hold or apply such
amounts to or for the use of such person, his or her spouse,
children or other dependents, or any of them, as the Committee may
determine.
18. Administration. This Plan shall be administered by the
Company's Compensation and Benefits Committee. The Committee shall
administer the Plan in accordance with its terms and shall have all
powers necessary to carry out the provisions of the Plan. The
Committee shall interpret the Plan; shall determine all questions
arising in the administration, interpretation, and application of
the Plan; and shall construe any ambiguity, supply any omission,
and reconcile any inconsistency in such manner and to such extent
as the Committee deems proper. Any interpretation or construction
placed upon any term or provision of the Plan by the Committee, any
decisions and determinations of the Committee arising under the
Plan, including without limiting the generality of the foregoing:
(a) the eligibility of any individual to become or remain a
Participant and a Participant's status as such, and Eligible
Earnings for any year; (b) the time, method and amounts of payments
payable under the Plan; (c) the rights of Participants; and any
other action or determination or decision whatsoever taken or made
by the Committee in good faith shall be final, conclusive, and
binding upon all persons concerned, including, but not limited to,
the Company, all Participating Employers and all Participants and
beneficiaries.
19. Negation of Employment Contract. This Plan does not create
an employment contract and nothing contained herein shall be deemed
(a) to give a Participant the right to be retained in the employ of
any Participating Employer; (b) to interfere with the right of any
Participating Employer to discharge a Participant at any time with
or without cause; (c) to give any Participating Employer the right
to require a Participant to remain in its employ; or (d) to
interfere with the right of a Participant to terminate employment
voluntarily whenever the Participant chooses.
20. Modification, Amendment, or Termination. The Company has
the absolute right to modify or amend this Plan in whole or in
part, at any time and from time to time, effective as of any
specified prior, current or future date. Such amendment shall be
made in accordance with applicable corporate procedures
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<PAGE>
then in effect for similar matters. The Company also reserves the
right to terminate this Plan, in whole or in part, voluntarily as
of any specified current or future date. This Plan shall be
automatically terminated upon termination of the Basic Plan,
dissolution of the Company (but not upon a merger, consolidation,
reorganization or recapitalization of the Company if the surviving
corporation therein specifically assumes this Plan and agrees to be
bound by the terms hereof); upon the Company being legally
adjudicated a bankrupt; upon the appointment of a receiver or
trustee in bankruptcy with respect to the Company's assets and
business if such appointment is not set aside within 90 days
thereafter; or upon the making by the Company of an assignment for
the benefit of creditors. Upon termination of this Plan, no
additional employee shall become eligible to participate herein,
and no additional benefits shall be accrued hereunder.
Notwithstanding the termination of this Plan, no Participant
affected thereby shall be deprived of the right to receive his or
her Accrued Benefit at the time and in the manner provided by this
Plan.
21. Set Off and Withholding.
(a) Any amount then due and payable by the Company or any
other Participating Employer to any Participant or the beneficiary
of any Participant under this Plan may offset by any amounts owed
to any Subsidiary by the Participant and/or the beneficiary for any
reason and in any capacity whatsoever, as the Company may determine
in its sole and absolute discretion.
(b) There shall be deducted from any amount payable under
this Plan all taxes required to be withheld by any federal, state
or local government. Participants and their beneficiaries shall
bear any and all federal, state, local and other income taxes and
other taxes imposed on amounts paid under the Plan, whether or not
withholding is required or carried out in accordance with this
provision.
22. Claims Procedures.
(a) The Committee shall make all decisions and
determinations respecting the right of any person to a payment
under the Plan.
(b) The following procedure shall be followed with respect
to claims under the Plan:
(i) Any claimant who believes he or she is entitled
to a benefit under this Plan shall submit a claim for such benefit
in writing to the Committee.
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(ii) Any decision by the Committee denying a claim in
whole or in part shall be stated in writing by the Committee and
delivered or mailed to the claimant within ninety (90) days after
receipt of the claim by the Committee unless special circumstances
require an extension of time for processing, but in any event
within one hundred eighty (180) days after such receipt. If such
an extension of time is taken, the Committee shall inform the
claimant of the delay in writing before the expiration of the
initial ninety (90) day period, including the reasons therefor and
the date by which the Committee expects to render a decision. Any
decision denying a claim shall set forth the specific reasons for
the denial with specific references to Plan provisions on which the
denial is based, a description of any additional material or
information necessary to perfect the claim and the reasons
therefor, and an explanation of the Plan's claim review procedure,
all written in a manner calculated to be understood by the
claimant. If the Committee does not notify the claimant of denial
of the claim or the need for an extension of time within the
initial ninety (90) day period, the claim shall be deemed denied.
(iii) If a claim is denied in whole or in part, the
claimant or his or her duly authorized representative may request
a review by the Committee of the decision upon written application
to the Committee within sixty (60) days after notification of the
decision. The claimant or his or her duly authorized
representative may review pertinent documents and submit issues and
comments in writing. The Committee shall make its decision on
review not later than sixty (60) days after receipt of the request
for review unless special circumstances require an extension of
time for processing, in which case its decision shall be rendered
as soon as possible, but not later than one hundred twenty (120)
days after receipt of the request for review. If such an extension
of time is taken, the Committee shall inform the claimant of the
delay in writing before the expiration of the initial sixty (60)
day period. The decision on review shall be in writing and shall
include specific reasons for the decision, written in a manner
calculated to be understood by the claimant and specific references
to the pertinent plan provisions on which the decision is based.
If the Committee does not notify the claimant of its decision on
review within the period herein provided for, the claim shall be
deemed denied on review.
(c) The Committee may adopt such rules as it deems
necessary, desirable, or appropriate to carry out its duties under
this Section 22. Any action
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<PAGE>
or determination or decision whatsoever taken or made by the
Committee under this Section 22 shall be final, conclusive, and
binding upon all persons concerned, including, but not limited to,
the Company, all Participating Employers and all Participants and
beneficiaries.
(d) The procedure provided for in this Section 22 shall be
the sole, exclusive and mandatory procedure for resolving any
dispute under this Plan.
23. Miscellaneous.
(a) In any instance in which the Committee believes such
action to be in the best interest of the party entitled to receive
any payment under this Plan, or to be in the best interests of any
Participating Employer (such as to eliminate small account balances
or to avoid the administrative inconvenience and expense which
might be incurred if relatively small amounts were to be paid to
multiple recipients over lengthy periods of time), amounts payable
hereunder may be paid in a single lump-sum payment, the amount of
which shall be the Actuarial Equivalent of the payment in question.
(b) In the event of the death of a Participant or any
beneficiary then receiving payments hereunder, the Committee need
not make any payment provided for by this Plan until it shall have
received proof satisfactory to it of such death and of the
identity, existence and location of the party thereafter entitled
to receive payments under this Plan.
(c) In making any payment or taking any action under this
Plan, the Participating Employers and the Committee shall be
absolutely protected in relying upon any finding or statement of
facts believed to be true, and on any written instrument believed
to have been signed by the proper party.
(d) Subject to the applicable provisions of the Employee
Retirement Income Security Act of 1974 which provide to the
contrary, this Plan shall be administered, construed, and enforced
according to the laws of the State of Missouri and in Courts
situated in that State.
IN WITNESS WHEREOF, THE EARTHGRAINS COMPANY has caused this
Amended and Restated Plan to be executed by its officers thereunto
duly authorized, this _____ day of March, 1996, effective as of
March 27, 1996.
THE EARTHGRAINS COMPANY
By_________________________________
Barry H. Beracha
Chief Executive Officer
16
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EXHIBIT 10.3
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
401(k) RESTORATION PLAN
(formerly known as the Campbell Taggart 401(k) Restoration Plan)
(Amended and Restated as of April 1, 1996)
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY 401(k) RESTORATION PLAN
(formerly known as the Campbell Taggart 401(k) Restoration Plan)
(Amended and restated as of April 1, 1996)
TABLE OF CONTENTS
ARTICLE I RESTATEMENT OF PLAN 1
1.1 Prior Establishment of Plan 1
1.2 Amendment and Restatement of Plan 1
ARTICLE II DEFINITIONS 1
2.1 "Account." 1
2.2 "Beneficiary." 1
2.3 "Company Contributions." 1
2.4 "Compensation." 1
2.5 "Effective Date." 2
2.6 "Election Date." 2
2.7 "Eligible Employee." 2
2.8 "Employee." 2
2.9 "Investment Fund." 2
2.10 "Match Rate." 2
2.11 "Participant." 2
2.12 "Participating Employer." 2
2.13 "Personal Salary Deferral Contributions." 2
2.14 "Plan Year." 2
2.15 "Regular 401(k) Plan." 2
2.16 "Regular 401(k) Plan Matched Contributions." 3
2.17 "Reporting Person." 3
2.18 "Reporting Person's HCSF Sub-Account." 3
ARTICLE III ELIGIBILITY 3
3.1 Eligibility on Election Dates 3
3.2 Eligibility Requirements 3
3.3 Participation 3
3.4 Suspension 4
ARTICLE IV PARTICIPANT DEFERRAL OF COMPENSATION 4
4.1 Election 4
4.2 Time For Making Election 5
4.3 Special Rule for Reporting Persons 5
4.4 Cessation of Personal Salary Deferral Contributions 5
ARTICLE V COMPANY CONTRIBUTIONS 5
5.1 Company Matching Contributions 5
<PAGE>
ARTICLE VI ACCOUNTS 5
6.1 Establishment of Accounts 5
6.2 Crediting of Personal Salary Deferral Contributions 6
6.3 Crediting of Company Contributions 6
6.4 Crediting or Debiting of Investment Returns 6
6.5 Debiting of Payments 6
ARTICLE VII HYPOTHETICAL INVESTMENTS 6
7.1 Election of Hypothetical Investments 6
7.2 Crediting of Investment Returns 7
ARTICLE VIII VESTING 7
8.1 Personal Salary Deferral Contributions 7
8.2 Company Contributions 7
ARTICLE IX PAYMENT OF BENEFITS 8
9.1 Election 8
9.2 Commencement of Payments 8
9.3 Timing of Payments 8
9.4 Set Off and Withholding 9
9.5 Determination of Payment Amounts 9
9.6 Unforeseeable Emergency 10
9.7 Change in Control 11
9.8 General Right to Accelerate Payment 13
9.9 Payments After Death 13
9.10 All Payments to be Made by the Company 14
9.11 Special Rule for Non-deductible Amounts 14
9.12 Special Rule for Reporting Persons 14
ARTICLE X LIABILITIES TRANSFERRED FROM THE ANHEUSER-BUSCH
401(k) RESTORATION PLAN 15
10.1 Addition to Accounts 15
10.2 Treatment of Additions to Accounts 15
ARTICLE XI PARTICIPATING EMPLOYERS OTHER THAN THE COMPANY 15
11.1 Adoption 15
11.2 Withdrawal 15
11.3 Succession 15
ARTICLE XII ADMINISTRATION AND CLAIMS PROCEDURES 16
12.1 Administrative Duties of the Company 16
12.2 Claims Procedures 17
12.3 Books and Records 18
12.4 Notices 18
<PAGE>
ARTICLE XIII AMENDMENT AND TERMINATION 19
13.1 Amendment and Termination 19
ARTICLE XIV MISCELLANEOUS 20
14.1 Company's Obligations Unsecured 20
14.2 No Alienation 20
14.3 No Waiver of Rights 20
14.4 Severability 20
14.5 Legal Expenses 20
14.6 Presumption of Competence 20
14.7 Facility of Payment 21
14.8 No Guarantee of Employment or Compensation 21
14.9 Plan Provisions Binding 21
14.10 Rules of Interpretation 21
14.11 Missouri Law Controls 21
14.12 Reporting Persons 22
14.13 Counterparts 22
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
401(k) RESTORATION PLAN
(formerly known as the Campbell Taggart 401(k) Restoration Plan)
(Amended and Restated as of April 1, 1996)
ARTICLE I
RESTATEMENT OF PLAN
1.1 Prior Establishment of Plan. Effective as of July 1, 1994,
The Earthgrains Company, a Delaware corporation then known as
Campbell Taggart, Inc. (the "Company"), established the Campbell
Taggart 401(k) Restoration Plan (the "Plan") for the purpose of
restoring certain benefits which are precluded from being provided
under the Regular 401(k) Plan to a select group of management and
highly compensated employees.
1.2 Amendment and Restatement of Plan. The Company deems it
necessary and desirable to amend and restate the Plan in its
entirety incident to amendment and restatement of the Regular
401(k) plan, effective April 1, 1996.
ARTICLE II
DEFINITIONS
Except as otherwise expressly provided in this Plan, all
capitalized terms used herein shall have the meaning ascribed to
them in the Regular 401(k) Plan as in effect on April 1, 1996.
2.1 "Account." The separate record of the interest of each
Participant in this Plan which the Company will establish in
accordance with Article VI.
2.2 "Beneficiary." The individual or individuals designated by a
Participant to receive benefits under Section 9.9, or any other
person deemed to be a Beneficiary under any other provision of this
Plan or by law.
2.3 "Company Contributions." The amounts credited to the Accounts
of Participants pursuant to Article V hereof.
2.4 "Compensation." Base Pay under the Regular 401(k) Plan,
except that no reduction shall be made to reflect the limitation
under Section 401(a)(17) of the Code.
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2.5 "Effective Date." July 1, 1994 with respect to the prior
provisions of the Plan; April 1, 1996 with respect to the
provisions of this amendment and restatement of the Plan.
2.6 "Election Date." A date determined by the Company not later
than which any election under the Plan must be made.
2.7 "Eligible Employee." An Employee of any Participating
Employer who is eligible to participate in the Plan in accordance
with Article III hereof.
2.8 "Employee." A common-law employee of any Participating
Employer.
2.9 "Investment Fund." Any of the investment sub-funds which,
from time to time, comprise the Fund under the Regular 401(k) Plan.
As of April 1, 1996, the Investment Funds include the Company Stock
Fund, the Anheuser-Busch Companies, Inc. Common Stock Fund, the
Equity Index Fund, the Medium-Term Fixed Income Fund, the Short-
Term Fixed Income Fund, the Indexed Balanced Fund and the Managed
Balanced Fund. Nothing in this Section 2.9 shall require amendment
of this Plan in the event that any investment sub-funds under the
Regular 401(k) Plan are changed from time to time.
2.10 "Match Rate." The applicable contribution rate for Company
Matching Contributions under the Regular 401(k) Plan from time to
time.
2.11 "Participant." Any Eligible Employee who has elected to
participate in the Plan in accordance with Section 4.1 hereof and
for whom an Account is maintained.
2.12 "Participating Employer." The Company and any other employer
which is a Participating Employer under the Regular 401(k) Plan and
employs any Eligible Employees.
2.13 "Personal Salary Deferral Contributions." A Participant's
personal salary deferral contributions to this Plan.
2.14 "Plan Year." The fiscal year adopted for this Plan. As of
April 1, 1996, the Plan Year shall be the fiscal year of the
Company.
2.15 "Regular 401(k) Plan." The Earthgrains Company Employee
Stock Ownership Plan, previously known as the Anheuser-Busch
Deferred Income Stock Purchase and Savings Plan (for Certain
Employees of Campbell Taggart, Inc. and its Subsidiaries), as
amended from time to time.
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2.16 "Regular 401(k) Plan Matched Contributions." A Participant's
Personal Contributions to the Regular 401(k) Plan with respect to
which Company Matching Contributions are made.
2.17 "Reporting Person." As of a given date, an Employee who
would be required to report an ordinary purchase or sale of the
common stock of The Earthgrains Company occurring on such date to
the Securities and Exchange Commission pursuant to Section 16(a) of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
2.18 "Reporting Person's HCSF Sub-Account." That portion of an
Account of a Reporting Person which is hypothetically invested in
the Company Stock Fund.
ARTICLE III
ELIGIBILITY
3.1 Eligibility on Election Dates. Any person who is an Employee
of a Participating Employer on the Effective Date or any subsequent
Election Date is eligible to participate in the Plan as of such
Effective Date or Election Date provided he or she satisfies the
requirements of Section 3.2 on such date.
3.2 Eligibility Requirements. In order to be eligible to defer
any portion of his or her Compensation under the Plan from time to
time, an Employee must satisfy the following requirements:
(a) Be a participant in the Regular 401(k) Plan;
(b) Have Compensation exceeding the limit established under
Section 401(a)(17) of the Code by more than $1,000 per year,
determined on a ratable basis under the standards applied under the
Regular 401(k) Plan; and
(c) Be contributing to the Regular 401(k) Plan the maximum
percentage of Base Pay which may constitute Regular 401(k) Plan
Matched Contributions.
3.3 Participation. Any Eligible Employee shall become a
Participant in the Plan by electing to make Personal Salary
Deferral Contributions pursuant to Article IV hereof, and shall
remain a Participant as long as he or she shall continue to live
and have an Account.
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3.4 Suspension.
(a) A Participant who reduces contributions to the Regular
401(k) Plan below the maximum percentage of Base Pay which may
constitute Regular 401(k) Plan Matched Contributions shall be
suspended from making Personal Salary Deferral Contributions and
from receiving Company Contributions under this Plan for period of
twelve (12) months after the effective date of such reduction.
(b) A Participant who makes a withdrawal pursuant to Section
9.6 or a hardship withdrawal under the Regular 401(k) Plan shall be
suspended from making Personal Salary Deferral Contributions and
receiving Company Contributions under this Plan for a period of
twelve (12) months after the effective date of such withdrawal.
(c) A Participant who is suspended from making Regular 401(k)
Plan Matched Contributions for any other reason shall be suspended
from making Personal Salary Deferral Contributions and receiving
Company Contributions under this Plan for the same period as the
suspension period provided for in the Regular 401(k) Plan.
(d) Any Participant suspended pursuant to this Section 3.4
may resume deferrals under this Plan only if the Participant
satisfies the requirements of Section 3.2 at the time of resumption
and makes an election described in Section 4.1 not later than the
Election Date for the Plan Year in which deferrals are resumed,
whether the Participant's suspension period expires as of the first
day of the Plan Year or on a later date during the Plan Year.
ARTICLE IV
PARTICIPANT DEFERRAL OF COMPENSATION
4.1 Election. An Eligible Employee who wishes to begin or resume
Personal Salary Deferral Contributions under the Plan must execute
and deliver the appropriate Company form properly completed.
Execution and delivery of such form to the Company shall be an
irrevocable direction by the Participant to his or her
Participating Employer to defer payment of an amount which is equal
to (a) the difference between the Participant's Compensation and
the applicable annual compensation limit under Section 401(a)(17)
of the Code, times (b) the maximum percentage of Base Pay which may
constitute Regular 401(k) Plan Matched Contributions, until the
earliest of the date the
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Participant's employment with all Participating Employers ends, the
date of suspension of the Participant's contributions pursuant to
Section 3.4 or the date of cessation of the Participant's Personal
Salary Deferral Contributions pursuant to Section 4.4.
4.2 Time For Making Election. In general, the election described
in Section 4.1 must be made not later than the Election Date which
immediately precedes the Plan Year in which the Participant wishes
to begin or resume making Personal Salary Deferral Contributions.
In the case of an Employee who becomes an Eligible Employee after
the Effective Date, the election to begin making Personal Salary
Deferral Contributions described in Section 4.1 must be made not
later than the Election Date which coincides with such Employee's
initial eligibility, and will apply to defer amounts attributable
to services performed after such Election Date.
4.3 Special Rule for Reporting Persons. Notwithstanding anything,
an election described in Section 4.1 by a Reporting Person shall
not be effective as to Compensation payable prior to the first day
of the month following the calendar month in which the election is
executed and delivered.
4.4 Cessation of Personal Salary Deferral Contributions. A
Participant may cease making Personal Salary Deferral Contributions
as of the first day of any Plan Year, provided that the Participant
executes and delivers the appropriate form promulgated by the
Company not later than the Election Date which immediately precedes
the Plan Year. An election under this Section 4.4 does not
constitute a termination of participation in the Plan.
ARTICLE V
COMPANY CONTRIBUTIONS
5.1 Company Matching Contributions. Each Participant's Account
will be credited with a Company Matching Contribution which is
equal to (a) the amount of such Participant's Personal Salary
Deferral Contribution, times (b) the Match Rate, all as determined
from time to time.
ARTICLE VI
ACCOUNTS
6.1 Establishment of Accounts. The Company will establish an
Account for the benefit of each Participant.
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6.2 Crediting of Personal Salary Deferral Contributions. Each
Participant's Account shall be credited with his or her Personal
Salary Deferral Contributions at the same time as accounts under
the Regular 401(k) Plan are credited with Personal Contributions.
6.3 Crediting of Company Contributions. Each Participant's
Account will also be credited with Company Matching Contributions
in accordance with Article V, at the same times as accounts under
the Regular 401(k) Plan are credited therewith.
6.4 Crediting or Debiting of Investment Returns. The Company
shall credit or debit, as the case may be, each Participant's
Account to reflect the return on hypothetical investments provided
in Article VII.
6.5 Debiting of Payments. Each Participant's Account shall be
debited by the amount of any payments of benefits pursuant to
Article IX at the time of any such payments.
ARTICLE VII
HYPOTHETICAL INVESTMENTS
7.1 Election of Hypothetical Investments. Prior to becoming a
Participant, each Participant must (and at such times as the
Company may thereafter allow, each Participant may) select the
combination of Investment Funds in which he or she wishes
hypothetically to invest, subject to the following limitations:
(a) The portion of each Participant's Account which is
attributable to Company Contributions, including earnings thereon,
shall be hypothetically invested at all times in the Company Stock
Fund.
(b) At least 50% of the portion of each Participant's Account
which is attributable to Personal Salary Deferral Contributions,
including earnings thereon, shall be hypothetically invested in the
Company Stock Fund for at least one complete Plan Year after the
Plan Year of contribution.
(c) Notwithstanding (b) above, no part of the value of a
Reporting Person's Account which is attributable to Personal Salary
Deferral Contributions shall be hypothetically invested in the
Company Stock Fund at any time.
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(d) A Participant's elections respecting hypothetical
investment of future deferrals and hypothetical investment of the
Participant's existing Account shall be made separately and
independently in accordance with the rules and regulations of the
Regular 401(k) Plan.
(e) If a Participant dies before distribution of the
Participant's entire Account is complete, the Participant's
Beneficiary shall have the right to make the elections reserved to
the Participant in the foregoing subsections of this Section 7.1
from the date the Company receives written notice of the
Participant's death through the date of final distribution;
provided: (i) if a deceased Participant has two or more
Beneficiaries, the Beneficiaries shall have the right to make such
elections with respect to the portions of the Participant's Account
to which they are respectively entitled; and (ii) if the
Beneficiary is a minor or otherwise legally incompetent, a parent
or legal guardian of the Beneficiary, as the case may be, shall
exercise such right on behalf of the Beneficiary.
7.2 Crediting of Investment Returns. The Company shall, at such
times and in such manner as it in its sole discretion determines to
be appropriate, credit or debit each Participant's Account, as the
case may be, with the appropriate amount of income, gain or loss,
as if such Account had been invested in the combination of
Investment Funds he or she has selected in accordance with Section
7.1.
ARTICLE VIII
VESTING
8.1 Personal Salary Deferral Contributions. The portion of a
Participant's Account which is attributable to the Participant's
Personal Salary Deferral Contributions, together with all earnings
thereon, shall be fully vested and non-forfeitable at all times.
8.2 Company Contributions. The portion of a Participant's Account
which is attributable to Company Contributions, together with all
earnings thereon, shall vest and become non-forfeitable when the
portion of such Participant's Regular 401(k) Plan account which is
attributable to Company Matching Contributions vests and becomes
non-forfeitable.
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ARTICLE IX
PAYMENT OF BENEFITS
9.1 Election.
(a) At the time an Eligible Employee makes the initial
election to participate in the Plan which is described in Section
4.1, he or she shall also irrevocably elect whether amounts
deferred under the Plan during the initial Plan Year and subsequent
Plan Years shall be made in a single sum, or five (5) installments,
and whether payment shall begin as of the first day of the calendar
month following termination of the Participant's employment with
all Employing Companies or as of the first day of the Plan Year
following the termination, all subject to acceleration as provided
for in Sections 9.6, 9.7 and 9.8.
(b) A Participant may change any prior election made pursuant
to Section 9.1(a) or any election pursuant to this Section 9.1(b),
effective as to the value of the Participant's Account which is
attributable to contributions made on and after the first day of
any succeeding Plan Year. Notice of any such change shall be filed
by the Election Date for such Plan Year on a form prescribed by the
Company.
9.2 Commencement of Payments. Subject to the remaining provisions
of this Article IX, payments under the Plan shall begin as the
first day of the calendar month following the Participant's
termination of employment with all Employing Companies or as of the
first day of the Plan Year following the termination, as elected by
the Participant.
9.3 Timing of Payments.
(a) If a Participant has elected payment of any portion of
the Participant's Account in a single sum pursuant to Section 9.1,
such single sum amount shall be due and payable as of the first day
of the calendar month following termination of the Participant's
employment with all Employing Companies or as of the first day of
the Plan Year following the termination, as elected by the
Participant.
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(b) If a Participant has elected payment of any portion of
the Participant's Account in installments pursuant to Section 9.1,
the initial installment shall be due and payable as of the first
day of the calendar month following the Participant's termination
of employment with all Employing Companies or as of the first day
of the Plan Year following the termination, as elected by the
Participant, and the remaining four (4) installments shall be due
and payable as of the first day of each of the next four (4) Plan
Years.
(c) Notwithstanding Section 9.3(b), if the Participant's
employment with all Employing Companies terminates before age
fifty-five (55) for any reason other than the Participant's death
or disability, the Company may determine that payment of the
Participant's entire Account balance shall be paid in a single sum,
notwithstanding any election by the Participant to the contrary.
9.4 Set Off and Withholding.
(a) Any amount then due and payable by the Company to any
Participant and/or Beneficiary under this Plan may be offset by any
amount owed to any Employing Company by the Participant and/or
Beneficiary for any reason and in any capacity whatsoever, as the
Company may determine in its sole and absolute discretion.
(b) There shall be deducted from any amount payable under
this Plan all taxes required to be withheld by any federal, state
or local government. Participants and their Beneficiaries shall
bear any and all federal, state, local and other income taxes and
other taxes imposed on amounts paid under the Plan, whether or not
withholding is required or carried out in accordance with this
provision.
9.5 Determination of Payment Amounts.
(a) If payment to a Participant or Beneficiary occurs in a
single sum, the amount of such single sum shall be equal to the
Participant's vested Account balance as of the Plan's valuation
date immediately preceding the payment date.
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(b) If payment to a Participant or Beneficiary occurs in
annual installments, the amount of each installment shall be equal
to the Participant's vested Account balance as of the Plan's
valuation date immediately preceding the payment date, divided by
the number of installments then remaining to be paid. For example,
to determine the amount of the first installment, divide the
Participant's vested Account balance by five (5); to determine the
amount of the second installment, divide the Participant's vested
Account balance by four (4), and so on.
9.6 Unforeseeable Emergency.
(a) Notwithstanding Sections 9.1, 9.2 and 9.3 above, the
Company may determine that payment of any portion of the amount
then due a Participant or Beneficiary under the Plan shall be
accelerated on application of the Participant or Beneficiary on
account of and subject to reasonable proof of unforeseeable
emergency.
(b) For purposes of this Section 9.6, an unforeseeable
emergency is a severe financial hardship to the Participant or
Beneficiary resulting from a sudden and unexpected illness or
accident of the Participant or Beneficiary or of a dependent (as
defined in Section 152(a) of the Internal Revenue Code) of the
Participant or Beneficiary, loss of the Participant's or
Beneficiary's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant or Beneficiary.
The circumstances that will constitute an unforeseeable emergency
will depend upon the facts of each case, but, in any case, payment
may not be made to the extent that such hardship is or may be
relieved --
(i) Through reimbursement or compensation by insurance
or otherwise,
(ii) By liquidation of the Participant's or
Beneficiary's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship, or
(iii) By cessation of Personal Salary Deferral
Contributions under the Plan if and when possible under the
remaining provisions of the Plan, or by cessation of elective
deferrals if and when possible under any other deferred
compensation plan for which the Participant or Beneficiary is
eligible.
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Examples of what are not considered to be unforeseeable
emergencies include the need to send a Participant's or
Beneficiary's child to college or the desire to purchase a home.
(c) Withdrawal of amounts because of an unforeseeable
emergency shall be permitted only to the extent reasonably needed
to satisfy the emergency. If the Company determines that an
unforeseeable emergency requires and can be satisfied by cessation
of deferrals under this Plan and any other deferred compensation
plan without withdrawal under this Plan, the Company shall direct
cessation of such deferrals under this Plan and any other such plan
if and to the extent permitted under the provisions thereof, and
shall not direct acceleration of payment under this Section 9.6.
(d) All determinations under this Section 9.6 shall be made
by an Administrative Committee appointed pursuant to Section
12.1(c).
9.7 Change in Control.
(a) If a Change in Control (as defined in Section 9.7(b)) shall
occur, then, notwithstanding anything to the contrary herein, the
entire amount accrued on behalf of a Participant under the Plan as
of the Change in Control Date (as defined in Section 9.7(b)) shall be paid
in a single sum within 30 days after the Change in Control Date.
(b) For purposes of this Plan, a "Change in Control" shall
occur if:
(i) Any Person (as defined herein) becomes the
beneficial owner directly or indirectly (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934 as amended ("Act"))
of more than 30% of the then outstanding voting securities of the
Company (measured on the basis of voting power) provided, however,
that shares issued or distributed by the Company in connection with
the acquisition of another company or business from such Person
shall be counted as being outstanding, but otherwise shall be
ignored in determining the percentage beneficially owned by such
Person;
(ii) The shareholders of the Company approve a
definitive agreement of merger or consolidation with any other
corporation or business entity, other than (x) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the
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surviving entity), in combination with the ownership of any trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries, at least 50% of the
combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (y) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than 50% of the
combined voting power of the Company's then outstanding securities;
(iii) A change occurs in the composition of the Board of
Directors of the Company during any period of twenty-four
consecutive months such that individuals who at the beginning of
such period were members of the Board of Directors of the Company
cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the
shareholders of the Company of each new director was approved by a
vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved; or
(iv) The shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement
for the sale or disposition by the Company of all or substantially
all the assets of the Company.
A Change in Control shall be deemed to have occurred on
the date as of which any of the events described in clauses (i)
through (iv) occur (such date being referred to as "Change in
Control Date"). For purposes of this paragraph, "Person" shall
have the meaning given in Section 3(a)(9) of the Act, as modified
and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (aa) the Company or any of its subsidiaries, (bb)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries, (cc) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (dd) a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock in the Company.
(c) Following a Change in Control, the provisions of this
Section 9.7 cannot, after the Change in Control Date, be amended in any
manner without the written consent of each individual who was a
Participant immediately prior to a Change in Control.
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(d) Following a Change in Control, this Plan may continue in
effect, notwithstanding that that payment of benefits shall have
been made under Section 9.7(a).
9.8 General Right to Accelerate Payment. Notwithstanding Sections
9.2 and 9.3, the Company by its proper officers in its sole
discretion may direct current payment of all amounts then credited
to all Participants' Accounts under the Plan.
9.9 Payments After Death.
(a) Except as otherwise provided in this Section 9.9, any
amount payable under this Plan as a result of or following the
death of a Participant shall be applied only for the benefit of the
Beneficiary or Beneficiaries designated by the Participant pursuant
to this Section 9.9 or any other person deemed to be a Beneficiary
under any other provision of this Plan or by law. Each Participant
shall specifically designate, by name, on forms provided by the
Company, the Beneficiary(ies) to whom any such amounts shall be
paid. A Participant may change or revoke a Beneficiary designation
without the consent of the Beneficiary(ies) at the time by filing
a new Beneficiary designation form with the Company. The filing of
a new form shall automatically revoke any forms previously filed
with the Company. A Beneficiary designation form not properly
filed with the Company prior to the death of the Participant shall
have no validity under the Plan.
(b) Any such designation shall be contingent on the
designated Beneficiary surviving the Participant. If the
designated Beneficiary survives the Participant but dies before
receiving the entire amount payable to the designated Beneficiary
hereunder, the amount which would otherwise have been so paid shall
be paid to the estate of the deceased Beneficiary unless a contrary
direction was made by the Participant, in which case such direction
shall control. More than one Beneficiary, and alternative or
contingent Beneficiaries may be designated, in which case the
Participant shall specify the shares, terms and conditions upon
which amounts shall be paid to such multiple or alternative or
contingent Beneficiaries, all of which must be satisfactory to the
Company.
(c) If no Beneficiary designation is on file with the Company
at the time of the Participant's death, the Beneficiary(ies) for
purposes of the Regular 401(k) Plan shall be deemed to be the
Beneficiary designated to receive any amounts then remaining
payable under this Plan.
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(d) If no Beneficiary designated by the Participant under
this Plan or the Regular 401(k) Plan survives the Participant, the
Participant's estate shall be deemed to be the Beneficiary
designated to receive any amounts then remaining payable under this
Plan.
(e) In determining any question concerning a Participant's
Beneficiary, the latest designation filed with the Company shall
control and intervening changes in circumstances shall be ignored.
For example, if a Participant's spouse is designated as Beneficiary
but thereafter is divorced from the Participant, such designation
shall remain valid until and unless the Participant files a later
Beneficiary designation form with the Company.
(f) Any check issued on or before the date of a Participant's
death shall remain payable to the Participant whether or not the
check is received by the Participant prior to death. Any check
issued after the date of the Participant's death shall be the
property of the Participant's Beneficiaries determined in
accordance with this Section 9.9.
(g) A Participant's election of payment in installments shall
not be altered by reason of the Participant's death.
9.10 All Payments to be Made by the Company. All payments due any
Participant or Beneficiary under this Plan shall be the sole
responsibility of the Company.
9.11 Special Rule for Non-deductible Amounts. Any amount
otherwise payable under the Plan in a Plan Year for which the
Company determines that the amount would not be deductible by any
Participating Employer under Section 162(m) of the Internal Revenue
Code shall not be paid until such Plan Year as the Company
determines that the amount has ceased to be non-deductible by any
Participating Employer under Section 162(m) of the Internal Revenue
Code. In the case of any inconsistency between this Section 9.11
and any other provision of the Plan, this Section 9.11 shall
govern, except in the case of Section 9.7.
9.12 Special Rule for Reporting Persons. Notwithstanding any
other provision of the Plan, including without limitation Sections
9.6, 9.7, and 9.8, no amount shall be distributed from a Reporting
Person's HCSF until the affected Participant either ceases to be a
Reporting Person or ceases to be an Employee, whichever occurs
first.
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ARTICLE X
LIABILITIES TRANSFERRED FROM THE
ANHEUSER-BUSCH 401(k) RESTORATION PLAN
10.1 Addition to Accounts. The amount of liabilities transferred
to this Plan from the Anheuser-Busch 401(k) Restoration Plan (the
"A-B Plan") with respect to each individual who is an Eligible
Employee as of March 27, 1996, shall be determined under the
provisions of the A-B Plan as of March 31, 1996, and the amount
equal to the liability so determined with respect to each affected
Eligible employee shall be added to his or her Account under this
Plan as of April 1, 1996.
10.2 Treatment of Additions to Accounts. Amounts transferred from
the A-B Plan to an Eligible Employee's Account under this Plan
pursuant to Section 10.1 shall be entirely subject to the
provisions of this Plan, except that any prior election under the
A-B Plan with respect to the time and form of distribution of any
and all portions of the amount transferred to the Account of each
affected Eligible Employee shall remain in full force and effect,
provided that all provisions for distribution occurring on any
January 1 under the A-B Plan shall refer to the first day of the
Plan Year commencing after such January 1.
ARTICLE XI
PARTICIPATING EMPLOYERS OTHER THAN THE COMPANY
11.1 Adoption. A Participating Employer other than the Company
shall adopt this Plan by written instrument executed by its proper
officers, subject to the written approval of the Company by its
proper officers or their delegates. Adoption of the Plan by a
Participating Employer shall constitute automatic delegation of all
rights and duties it might otherwise reserve to itself under the
Plan to the Company, including full authority to amend or terminate
the Plan.
11.2 Withdrawal. A Participating Employer shall automatically
withdraw from the Plan if and when it ceases to be a Participating
Employer under the Regular 401(k) Plan, without the execution of
any other instrument. A Participating Employer may voluntarily
withdraw from the Plan on not less than thirty (30) days' written
notice from its proper officers.
11.3 Succession. In the event of dissolution, merger,
consolidation, or spin-off involving a Participating Employer, the
entity surviving the transaction shall succeed to the rights and
duties of the affected Participating Employer without the execution
of any other instrument.
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ARTICLE XII
ADMINISTRATION AND CLAIMS PROCEDURES
12.1 Administrative Duties of the Company.
(a) The Company shall have sole responsibility for the
administration of the Plan.
(b) The Company shall administer the Plan in accordance with
its terms and shall have all powers necessary to carry out the
provisions of the Plan. The Company shall interpret the Plan;
shall determine all questions arising in the administration,
interpretation, and application of the Plan; and shall construe any
ambiguity, supply any omission, and reconcile any inconsistency in
such manner and to such extent as the Company deems proper. Any
interpretation or construction placed upon any term or provision of
the Plan by the Company, any decisions and determinations of the
Company arising under the Plan, including without limiting the
generality of the foregoing: (i) the eligibility of any individual
to become or remain a Participant, a Participant's status as such
and the amount of a Participant's Compensation for any Plan Year,
(ii) the time, method and amounts of payments payable under the
Plan; (iii) the rights of Participants; and (iv) any other action
or determination or decision whatsoever taken or made by the
Company in good faith, shall be final, conclusive, and binding upon
all persons concerned, including, but not limited to, the Company,
all Participant Employers and all Participants and Beneficiaries.
(c) The Chief Executive Officers of the Company shall appoint
one or more employees of the Company to carry out the Company's
duties hereunder.
(d) The Company may employ accountants, counsel, specialists,
and other persons necessary to help carry out its duties and
responsibilities under the Plan. The Company or any appointee
shall be entitled to rely conclusively upon any opinions or reports
which shall be furnished to it, him, or her by such accountants,
counsel, specialists, and other persons.
(e) No Employee shall participate in determining his or her
own entitlement under the Plan.
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12.2 Claims Procedures.
(a) The Company shall make all decisions and determinations
respecting the right of any person to a payment under the Plan.
(b) The following procedure shall be followed with respect to
claims under the Plan:
(i) Any claimant who believes he or she is entitled to
a payment under this Plan shall submit a claim for such payment in
writing to the Company.
(ii) Any decision by the Company denying a claim in
whole or in part shall be stated in writing by the Company and
delivered or mailed to the claimant within ninety (90) days after
receipt of the claim by the Company unless special circumstances
require an extension of time for processing, but in any event
within one hundred eighty (180) days after such receipt. If such
an extension of time is taken, the Company shall inform the
claimant of the delay in writing before the expiration of the
initial ninety (90) day period, including the reasons therefor and
the date by which the Company expects to render a decision. Any
decision denying a claim shall set forth the specific reasons for
the denial with specific references to Plan provisions on which the
denial is based, a description of any additional material or
information necessary to perfect the claim and the reasons
therefor, and an explanation of the Plan's claim review procedure
as provided for in Section 12.2(b)(iii), all written in a manner
calculated to be understood by the claimant. If the Company does
not notify the claimant of denial of the claim or the need for an
extension of time within the initial ninety (90) day period, the
claim shall be deemed denied.
(iii) If a claim is denied in whole or in part, the
claimant or his or her duly authorized representative may request
a review by the Company of the decision upon written application to
the Company within sixty (60) days after notification of the
decision. The claimant or his or her duly authorized
representative may review pertinent documents and submit issues and
comments in writing. The Company shall make its decision on review
not later than sixty (60) days after receipt of the request for
review unless special circumstances require an extension of time
for processing; in which case its decision shall be rendered as
soon as possible, but not later than one hundred twenty (120) days
after receipt of the request for review. If such an extension of
time is taken, the
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Company shall inform the claimant of the delay in writing before
the expiration of the initial sixty (60) day period. The decision
on review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood
by the claimant and specific references to the pertinent plan
provisions on which the decision is based. If the Company does not
notify the claimant of its decision on review within the period
herein provided for, the claim shall be deemed denied on review.
(c) The Company may adopt such rules as it deems necessary,
desirable, or appropriate to carry out its duties under this
Section 12.2. All rules, decisions and determinations of the
Company under this Section 12.2 shall be uniformly and consistently
applied. Any action or determination or decision whatsoever taken
or made by the Company under this Section 12.2 in good faith shall
be final, conclusive and binding upon all persons concerned,
including, but not limited to, the Company, all Participating
Employers, and all Participants and Beneficiaries.
(d) The procedure provided for in this Section 12.2 shall be
the sole, exclusive and mandatory procedure for resolving any
dispute under this Plan.
12.3 Books and Records.
(a) The Company shall keep such books, records, and other
data as it deems necessary for proper administration of the Plan,
including but not limited to records of each Participant's Personal
Salary Deferral Contributions, hypothetical Investment Fund and
payment elections, Account balance and payment record.
(b) The records of the Company shall be binding on all
persons unless proved incorrect to the satisfaction of the Company.
(c) The Company shall comply with all reporting and
disclosure requirements of the law and shall maintain all records
required by law.
12.4 Notices.
(a) Any notice from the Company to any Participant shall be
in writing and shall be given by delivery to the Participant, or by
mailing to the last known residence address of the Participant.
Any notice from a Participant to the Company shall be in writing
and shall be given by delivery to the Company to the attention of
the Director of
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Compensation and Benefits, at the headquarters of the Company,
except as otherwise designated by the Company. Notices shall be
effective on the date of actual delivery.
(b) Each Participant shall furnish all information, including
post office address and each change of post office address, proofs,
receipts and releases, as may be required by the Company.
(c) Any communication, statement or notice addressed to any
individual at the last post office address filed with the Company
shall be binding for all purposes of the Plan, and the Company
shall not be obligated to search for or ascertain the whereabouts
of any such individual.
(d) Except as provided for in Article IV, any notice required
by the Plan may be waived by the Company or any Participant.
(e) Notwithstanding any other provision of this Section 12.4,
in the event and to the extent permitted under the Regular 401(k)
Plan, the Company may determine that notices may be made by
electronic means.
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendment and Termination. The Chief Executive Officer of
the Company shall have authority to amend or terminate the Plan on
behalf of the Company in his or her sole discretion at any time,
except as follows:
(a) Any amendments that make the Match Rate different from
the Match Rate determined under the Regular 401(k) Plan shall
require approval by the Board of Directors of the Company; and
(b) No amendment shall retroactively reduce any Participant's
Account under the Plan, except as provided for in Section 14.12.
All Participants shall be bound by any amendment to the Plan
without the execution of any other instrument.
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ARTICLE XIV
MISCELLANEOUS
14.1 Company's Obligations Unsecured. It is the intention of the
Company and all Participants that the Plan shall be unfunded for
tax purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974. Amounts payable to Participants under
this Plan shall be paid solely from the general assets of the
Company as they come due from time to time. No Participant or
Beneficiary shall have any property interest whatsoever in any
asset of the Company on account of participation in this Plan.
Participants' rights under this Plan shall be no greater than the
right of an unsecured general creditor of the Company. Nothing in
this Plan shall require the Company to invest any amount in any
asset or type of asset.
14.2 No Alienation. Except as required by law, amounts payable
under this Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind, either
voluntary or involuntary; any attempt to anticipate, alienate,
sell, transfer, assign, pledge, encumber, charge or otherwise
dispose of any right to payment hereunder shall be void, and the
Company shall not in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements or torts of any
Participant or other person.
14.3 No Waiver of Rights. Except as provided for in Section 11.2,
no failure or delay by the Company or any Participant to exercise
any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
14.4 Severability. The invalidity of any particular clause,
provision or covenant herein shall not invalidate all or any part
of the remainder of this Plan, but such remainder shall be and
remain valid in all respects as fully as the law will permit.
14.5 Legal Expenses. In any proceeding to enforce rights and
obligations hereunder, the unsuccessful party shall pay the
successful party an amount equal to all reasonable out-of-pocket
expenses (including reasonable legal expenses and court costs)
incurred by the successful party.
14.6 Presumption of Competence. Every person receiving or
claiming amounts payable under this Plan shall be conclusively
presumed to be mentally competent and of legal age unless and until
the Company receives proof satisfactory to the Company that the
person is incompetent or is a minor or
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that a guardian or other person legally vested with the care of the
person's estate has been appointed.
14.7 Facility of Payment. If any amount is payable hereunder to
a minor or other person under legal disability or otherwise
incapable of managing his or her own affairs, as determined by the
Company in its sole discretion, payment thereof shall be made in
one (or any combination) of the following ways, as the Company
shall determine in its sole discretion:
(a) directly to said minor or other person;
(b) to a custodian for said minor or other person (whether
designated by the Company or any other person) under the Missouri
Transfers to Minors Law, the Missouri Personal Custodian Law or a
similar law of any jurisdiction;
(c) to the conservator of the estate of said minor or other
person; or
(d) to some relative or friend of such minor or other person
for the support, welfare or education of such minor or other
person.
The Company shall not be required to see to the application of
any payment so made, and payment to the person determined by the
Company shall fully discharge the Company from any further
accountability or responsibility with respect to the amount so
paid.
14.8 No Guarantee of Employment or Compensation. No provision of
this Plan shall restrict any Employing Company from discharging a
Participant from employment or restrict any Participant from
resigning from employment with any Participating Employer. No
provision of this Plan shall restrict any Employing Company from
increasing or decreasing the compensation of any Employee.
14.9 Plan Provisions Binding. The provisions of the Plan shall be
binding upon the Company, all Participating Employers and all
person entitled to benefits under the Plan and their respective
successors, heirs and legal representatives.
14.10 Rules of Interpretation. Words of gender shall include
persons and entities of any gender, the plural shall include the
singular, and the singular shall include the plural. Captions are
intended to assist in reference and shall not be interpreted as
part of the Plan.
14.11 Missouri Law Controls. Subject to the applicable provisions
of the Employee Retirement Security Act of 1974 which provide to
the contrary, this Plan shall
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be administered, construed and enforced according to the laws of
the State of Missouri and in Courts situated in that state.
14.12 Reporting Persons. It is intended that the interests of
Reporting Persons in the Plan qualify for exclusion from the
definition of "derivative securities: contained in Rule 16a-1(c) of
the Securities and Exchange Commission; the Plan shall be
interpreted in a manner consistent with that intent. Moreover, the
Chief Executive Officer of the Company may amend the Plan,
retroactively if deemed prudent, as such Officer deems appropriate
to ensure the continuation of such qualification.
14.13 Counterparts. This Plan may be executed in two or more
counterparts, any one of which shall constitute an original without
reference to the others.
IN WITNESS WHEREOF, the Company has executed this Plan this
____ day of March, 1996, effective as of the 1st day of April,
1996.
THE EARTHGRAINS COMPANY
By:_______________________________
Barry H. Beracha
Chief Executive Officer
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EXHIBIT 10.4
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective March 27, 1996
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
PREAMBLE 1
I. DEFINITIONS 1
Base Salary Rate 1
Bonus 1
Company 1
Effective Date 1
Eligible Employee 1
Employee 1
Participant 1
Participating Employer 2
Plan 2
Related Employer 2
Year 2
II. ELIGIBILITY 2
III. DEFERRAL ELECTIONS 2
3.01. Types of Election; Time of Election 2
3.02. Special Rule for Non-deductible Amounts 3
3.03. Termination of Deferrals on Termination of
Employment 3
3.04. Miscellaneous Limitations on Deferral 3
IV. ACCRUAL OF INTEREST 4
4.01. Participant Elections 4
4.02. Accrual of Interest during Deferral Period 4
4.03. Accrual of Interest on Installment Payments 4
4.04. If Payment Is Delayed 5
4.05. If Payment Is Accelerated 5
V. PAYMENTS TO PARTICIPANTS 5
5.01. Time Payment Begins 5
5.02. Form of Payment 5
5.03. Set Off and Withholding 6
5.04. Determination of Installment Amounts 6
5.05. Acceleration of Payment for Unforeseeable
Emergency 6
5.06. Change in Control 7
5.07. General Right to Accelerate Payment 9
5.08. Payments After Death 9
5.09. All Payments to be Made by the Company 10
VI. ADMINISTRATION 10
6.01. Administrative Duties of the Company 10
6.02. Claims Procedures 11
6.03. Books and Records 12
6.04. Notices 12
<PAGE>
VII. LIABILITIES TRANSFERRED FROM THE ANHEUSER-BUSCH EXECUTIVE
DEFERRED COMPENSATION PLAN 13
7.01. Establishment of Accounts for Eligible Employees 13
7.02. Treatment of Amounts Derived From A-B Plan 13
7.03. Remaining Provisions of This Plan Control 14
VIII.AMENDMENT AND TERMINATION 14
IX. PARTICIPATING EMPLOYERS OTHER THAN THE COMPANY 14
9.01. Adoption 14
9.02. Withdrawal 14
9.03. Succession 14
X. MISCELLANEOUS 15
10.01. Company's Obligations Unsecured 15
10.02. No Alienation 15
10.03. No Waiver of Rights 15
10.04. Severability 15
10.05. Legal Expenses 15
10.06. Presumption of Competence 16
10.07. Facility of Payment 16
10.08. No Guarantee of Employment or Compensation 16
10.09. Plan Provisions Binding 16
10.10. Rules of Interpretation 17
10.11. Missouri Law Controls 17
10.12. Counterparts 17
<PAGE>
<PAGE>
THE EARTHGRAINS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
PREAMBLE
The Earthgrains Company does hereby adopt The Earthgrains Company
Executive Deferred Compensation Plan set forth herein for the
purpose of providing deferred compensation to a select group of
management and highly compensated employees, effective as of March
27, 1996.
I. DEFINITIONS
Base Salary Rate: An Eligible Employee's regular periodic
salary payable by a Participating Employer in exchange for services
rendered during a Year, regardless of when paid, expressed on an
annual basis.
Bonus: Any amount awarded by a Participating Employer to an
Eligible Employee for a Year under a regular cash bonus plan or any
special retention bonus awarded pursuant to a written employment
agreement entered into between a Participating Employer and an
Eligible Employee in 1995, regardless of when awarded or paid, but
excluding any other extraordinary bonuses.
Company: The Earthgrains Company
Effective Date: March 27, 1996
Eligible Employee: With respect to any Year, an Employee who
satisfies the requirements for participation in the Plan for the
Year, as determined pursuant to Section II.
Employee: A salaried common-law employee of a Participating
Employer as determined from time to time. In no event shall any
individual be classified as an Employee while he or she is in any
of the following categories:
(a) Independent contractors, including non-employee
directors or the Company and its subsidiaries.
(b) Leased employees.
(c) Non-resident aliens.
(d) Collective bargaining unit members.
Participant: With respect to any Year, an Eligible Employee
who elects to defer a portion of his or her Bonus for the Year or
who so elected with respect to an earlier Year as to which the
entire amount deferred and all interest accrued thereon have not
been paid.
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Participating Employer: The Company and any other business
entity in which the Company has an equity interest of at least
fifty percent (50%), and which adopts this Plan, as determined from
time to time.
Plan: The Earthgrains Company Executive Deferred Compensation
Plan, the Plan set forth herein, as duly amended from time to time.
Related Employer: Each Participating Employer and each other
legal entity as to which the Company has at least fifty percent
(50%) of the voting power.
Year: Each fiscal year of the Company commencing on or after
March 27, 1996.
II. ELIGIBILITY
In general, an Employee shall be an Eligible Employee for a
Year only if the Employee's Base Salary Rate as of the January 1
prior to the beginning of a Year exceeds $150,000, as adjusted for
each Year commencing after 1996 in accordance with the Company's
budgeted internal merit increase factor for that Year (hereinafter
"$150,000 As Adjusted"). For the Year commencing March 27, 1996,
an Employee shall be an Eligible Employee for the Year only if the
Employee's Base Salary Rate as of the first day of the Year exceeds
$150,000.
III. DEFERRAL ELECTIONS
3.01. Types of Election; Time of Election.
Each Participant for a Year shall make the following
irrevocable elections in writing on a form provided by the Company
and delivered to the Company not later than the Company may direct,
but in any event before the first day of the Year.
(a) The portion of the Participant's Bonus for the Year that
shall be deferred; however, if any portion of a Participant's total
compensation from all Participating Employers for a Year would not
be deductible for the Year by any Participating Employer under
Section 162(m) of the Internal Revenue Code, the Participant may
elect to defer an indefinite amount consisting of part or all of
such non-deductible portion of the Participant's compensation, and
the Company may adopt such special rules and procedures as it deems
appropriate to carry out such election.
(b) The period of deferral for amounts deferred during the
Year, which may be a definite period of five (5), ten (10) or
fifteen (15) Years including the Year of deferral, or an indefinite
period ending on termination of the Participant's employment with
all Related Employers, subject to extension provided for in
Sections 3.01(e) and 3.02 or acceleration as provided for in Sections 5.01(b),
5.06 and 5.07.
(c) The interest rates to be applied to amounts deferred
during the Year and to any previously deferred amounts as to which
a new election is required under Section 4.01.
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(d) Whether payment of amounts deferred for the Year and
interest accrued thereon shall be made in a single sum or in five
(5) installments, subject to acceleration as provided for in
Sections 5.02(c), 5.05, 5.06 and 5.07.
(e) Whether payment of amounts deferred for the Year that
become due on account of termination of the Participant's
employment with all Related Employers shall begin as of the first
day of the calendar month following the termination or the first
day of the Year following the termination.
3.02. Special Rule for Non-deductible Amounts.
Any amount otherwise payable under the Plan in a Year for
which the Company determines that the amount would not be
deductible by any Participating Employer under Section 162(m) of
the Internal Revenue Code shall not be paid until such Year as the
Company determines that the amount has ceased to be non-deductible
by any Participating Employer under Section 162(m) of the Internal
Revenue Code. In the case of any inconsistency between this Section
3.02 and any other provision of the Plan, this Section 3.02 shall
govern, except in the case of Section 5.06.
3.03. Termination of Deferrals on Termination of Employment.
If a Participant's employment with all Participating Employers
is terminated before the end of a Year as to which the Participant
elected to defer any part of the Participant's Bonus under the
Plan:
(a) Except for deferrals described in Section 3.01(a), all such
deferrals shall cease upon such termination of employment, whether
or not the Participant receives any amounts otherwise classified as
Bonus after such termination, and
(b) No portion of the Participant's Bonus previously deferred
during the Year shall be refunded to the Participant, even though
the Participant's total actual base salary for the Year may be less
than $150,000 As Adjusted.
3.04. Miscellaneous Limitations on Deferral.
Notwithstanding Section 3.01, a Participant's deferral election for
a Year shall be of no force or effect to the extent that it
requires deferral of: (i) any amounts the Participant elects to
contribute under any tax-qualified plan maintained by any
Participating Employer which is designed to comply with Section
401(k) or 401(m) of the Internal Revenue Code on either a before-
tax or after-tax basis or The Earthgrains Company 401(k)
Restoration Plan; (ii) any amounts that the Participant elects or
is required to contribute under any welfare benefit plan maintained
by any Participating Employer; (iii) any payroll taxes, income
taxes or any other taxes required to be withheld from the
Participant's compensation which is subject to such taxes during
the Year, including but not limited to FICA taxes and federal,
state and local income taxes required to be withheld on the
Participant's wages for the Year; and (iv) any amounts payable to
a court or other individual or entity by court order.
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IV. ACCRUAL OF INTEREST
4.01. Participant Elections.
(a) Before the beginning of each Year, the Company shall
offer one or more combinations of interest rates (hereinafter
"Rates") and time periods (hereinafter "Terms") which shall apply
to amounts deferred during the Year and to all prior deferrals and
interest accrued thereon as to which the previous Terms expired on
the last day of the prior Year. An amount shall be deemed deferred
for this purpose on the date it would otherwise be payable in cash
to the Eligible Employee. For example, if the Bonus accrued in one
Year is payable in the next Year, it shall be deemed deferred in
the later Year for this purpose.
(b) The Rates and Terms for each Year shall be determined by
the Chief Financial Officer of the Company and shall correspond
generally to the borrowing rates and terms that will be available
to the Company for the Year on the basis of market rates in effect
prior to announcement to Eligible Employees of the Rates and Terms
for the Year.
(c) In general, all Terms shall commence on the first day of
a Year and expire on the last day of a Year. For example, if
before the first day of the Year that begins in 1997, a Participant
elects a combination of a 3-Year Term and a 3% Rate for the amounts
deferred by the Participant for the Year beginning in 1997, the 3%
Rate shall apply to all amounts deferred during the Year that
begins in 1997 from the date of deferral through the last day of
the Year that begins in 1999.
(d) The Terms elected by a Participant need not be limited to
the deferral period for the amount subject to the Term elected.
For example, a Participant may elect a 10-Year Term for an amount
the Participant has elected to be distributed after 5 Years.
(e) Each Participant shall elect the Rate/Term combinations
which shall apply to amounts the Participant defers during the Year
and to the Participant's prior deferrals and interest accrued
thereon as to which the previous Terms expired on the last day of
the prior Year.
4.02. Accrual of Interest during Deferral Period.
Interest shall accrue on the amounts deferred by a Participant
during each Year in accordance with the Participant's elections
from time to time as provided for in Section 4.01 until payment becomes
due with respect to such amounts pursuant to Section V.
4.03. Accrual of Interest on Installment Payments.
If any amount is paid in installments pursuant to a
Participant's election in accordance with Section 3.01(d), interest shall
accrue on any balance thereof remaining to be paid in installments
from time to time at the Rate in effect with respect to such amount
on the day prior to the due date of the first installment.
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4.04. If Payment Is Delayed.
(a) In the event payment of an amount due a Participant
occurs thirty (30) or fewer days after its due date, no interest
shall accrue during the period between the due date and the date of
payment.
(b) In the event payment of any amount due a Participant
occurs more than thirty (30) days after its due date, interest
shall accrue during the period between the due date and the date of
payment at an annual rate equal to the prime rate published by The
Boatmen's National Bank of St. Louis as of the due date.
4.05. If Payment Is Accelerated.
If payment of an amount due a Participant is accelerated for
any reason, no interest shall accrue with respect to the
accelerated amount after the date scheduled for accelerated
payment, notwithstanding that the Participant previously elected a
longer term or a later payment date, except as provided for in
Section 4.04(b).
V. PAYMENTS TO PARTICIPANTS
5.01. Time Payment Begins.
(a) Subject to the remaining provisions of this Section V,
payment of amounts deferred during a Year and interest accrued
thereon shall begin as of the first day of the Year following
expiration of the deferral period the Participant elected therefor
in accordance with Section 3.01(b).
(b) Notwithstanding Section 5.01(a), payment of a Participant's
deferred amounts and interest thereon shall begin not later than
the first day of the calendar month following termination of the
Participant's employment with all Related Employers on account of
retirement, death or any reason or the first day of the Year
following the termination, as elected by the Participant pursuant
to Section 3.01(e).
5.02. Form of Payment.
(a) If a Participant elects payment of any amount in a single
sum pursuant to Section 3.01(d), such single sum amount shall be due and
payable as of the date determined pursuant to Section 5.01.
(b) If a Participant elects payment of any amount in five (5)
installments pursuant to Section 3.01(d), the initial installment shall be
paid as of the first day of the calendar month following
termination of the Participant's employment with all Related
Employers or as of the first day of the Year following the
termination, as elected by the Participant pursuant to Section 3.01(e),
and the remaining four (4) installments shall be paid as of the
first day of each of the next four (4) Years.
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(c) Notwithstanding Section 5.02(b): (i) if a Participant's
employment with all Related Employers terminates before age fifty-
five (55) for any reason other than the Participant's death or
disability, or (ii) if a Participant's termination of employment
with all Related Employers occurs before the end of the
Participant's first Year of deferral under the Plan, the Company
may determine that payment of the entire amount then accrued for
the benefit of the Participant under the Plan shall be paid in a
single sum, notwithstanding any election by the Participant to the
contrary.
5.03. Set Off and Withholding.
(a) Any amount then due and payable by the Company to any
Participant or the successor to any Participant under this Plan may
be offset by any amounts owed to any Related Employer by the
Participant and/or the successor for any reason and in any capacity
whatsoever, as the Company may determine in its sole and absolute
discretion.
(b) There shall be deducted from any amount payable under
this Plan all taxes required to be withheld by any federal, state
or local government. Participants and their beneficiaries shall
bear any and all federal, state, local and other income taxes and
other taxes imposed on amounts paid under the Plan, whether or not
withholding is required or carried out in accordance with this
provision.
5.04. Determination of Installment Amounts.
If payment of a deferred amount occurs in installments, the
amount of each installment shall be equal to the deferred amount
and accrued interest thereon remaining unpaid as of the last day of
the Year preceding payment, divided by the number of installments
then remaining to be paid. For example, to determine the amount of
the first installment, divide the total amount of the deferral and
accrued interest as of the last day of the preceding Year by five
(5); to determine the amount of the second installment, divide the
amount of the deferral and accrued interest remaining to be paid as
of last day of the preceding Year by four (4), and so on.
5.05. Acceleration of Payment for Unforeseeable Emergency.
(a) The Company may determine that payment of any portion of
the amount then accrued for the benefit of a Participant or
beneficiary under the Plan shall be accelerated on application of
the Participant or beneficiary on account of and subject to
reasonable proof of unforeseeable emergency as provided for in this
Section 5.05.
(b) For purposes of this Section 5.05, an unforeseeable emergency is
a severe financial hardship to the Participant or beneficiary
resulting from a sudden and unexpected illness or accident of the
Participant or beneficiary or of a dependent (as defined in Section
152(a) of the Internal Revenue Code) of the Participant or
beneficiary, loss of the Participant's or beneficiary's property
due to casualty, or other similar
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extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant or beneficiary.
The circumstances that will constitute an unforeseeable emergency
will depend upon the facts of each case, but, in any case, payment
may not be made to the extent that such hardship is or may be
relieved --
(i) Through reimbursement or compensation by insurance
or otherwise,
(ii) By liquidation of the Participant's or
beneficiary's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship, or
(iii) By cessation of deferrals under this Plan or by
cessation of elective deferrals if and when possible under any
other deferred compensation plan for which the Participant or
beneficiary is eligible; provided that a Participant shall not be
permitted to cease deferrals under this plan as of any date other
than the first day of a Year.
Examples of what are not considered to be unforeseeable
emergencies include the need to send a Participant's or
beneficiary's child to college or the desire to purchase a home.
(c) Withdrawal of amounts because of an unforeseeable
emergency shall be permitted only to the extent reasonably needed
to satisfy the emergency need.
(d) All determinations under this Section 5.05 shall be made by an
Administrative Committee appointed pursuant to Section 6.01(c).
Notwithstanding any other provision of this Section 5.05, authorization of
distribution on account of hardship under any tax-qualified plan
maintained by any Participating Employer which is designed to
comply with the requirements of Section 401(k) of the Internal
Revenue Code shall automatically terminate any deferral election of
the Participant then in force with respect to the Participant's
Bonus and further deferrals under this Plan shall not be permitted
for a period of twelve (12) months.
5.06. Change in Control.
(a) If a Change in Control (as defined in Section 5.06(b)) shall
occur, then, notwithstanding anything to the contrary herein, the
entire amount accrued on behalf of a Participant under the Plan as
of the Change in Control Date (as defined in Section 5.06(b)) shall be
paid in a single sum within 30 days after the Change in Control
Date.
(b) For purposes of this Plan, a "Change in Control" shall
occur if:
(i) Any Person (as defined herein) becomes the
beneficial owner directly or indirectly (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934 as amended ("Act"))
of more
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than 30% of the then outstanding voting securities of the Company
(measured on the basis of voting power); provided, however, that
shares issued or distributed by the Company in connection with the
acquisition of another company or business from such Person shall
be counted as being outstanding, but otherwise shall be ignored in
determining the percentage beneficially owned by such Person;
(ii) The shareholders of the Company approve a
definitive agreement of merger or consolidation with any other
corporation or business entity, other than (x) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (y)
a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no Person acquires
more than 50% of the combined voting power of the Company's then
outstanding securities;
(iii) A change occurs in the composition of the Board of
Directors of the Company during any period of twenty-four
consecutive months such that individuals who at the beginning of
such period were members of the Board of Directors of the Company
cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the
shareholders of the Company of each new director was approved by a
vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved; or
(iv) The shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement
for the sale or disposition by the Company of all or substantially
all the assets of the Company.
A Change in Control shall be deemed to have occurred on
the date as of which any of the events described in clauses (i)
through (iv) occur (such date being referred to as "Change in
Control Date"). For purposes of this paragraph, "Person" shall
have the meaning given in Section 3(a)(9) of the Act, as modified
and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (aa) the Company or any of its subsidiaries, (bb)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries, (cc) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (dd) a corporation owned, directly or
indirectly, by the
8
<PAGE>
shareholders of the Company in substantially the same proportions
as their ownership of stock in the Company.
(c) Following a Change in Control, the provisions of this
Section 5.06 cannot, after the Change in Control Date, be amended in
any manner without the written consent of each individual who was a
Participant immediately prior to a Change in Control.
(d) Following a Change in Control, this Plan may continue in
effect, notwithstanding that payment of benefits shall have been
made under Section 5.06(a).
(e) If by reason of this Section 5.06 an excise or other special tax
("Excise Tax") is imposed on any payment under the Plan (a
"Required Payment"), the amount of each Required Payment shall be
increased by an amount which, after payment of income taxes,
payroll taxes and Excise Tax thereon, will equal such Excise Tax on
the Required Payment.
5.07. General Right to Accelerate Payment.
Notwithstanding Sections 5.01 and 5.02, the Company by its proper
officers in its sole discretion may direct current payment of all
amounts that all Participants have elected to defer pursuant to
Section 3.01 and all interest then accrued thereon.
5.08. Payments After Death.
(a) Except as otherwise provided in this Section 5.08, any amount
payable under this Plan as a result of or following the death of a
Participant shall be applied only for the benefit of the
beneficiary or beneficiaries designated by the Participant pursuant
to this Section 5.08. Each Participant shall specifically designate, by
name, on forms provided by the Company, the beneficiary(ies) to
whom any such amounts shall be paid. A Participant may change or
revoke a beneficiary designation without the consent of the
beneficiary(ies) at any time by filing a new beneficiary
designation form with the Company. The filing of a new form shall
automatically revoke any forms previously filed with the Company.
A beneficiary designation form not properly filed with the Company
prior to the death of the Participant shall have no validity under
the Plan.
(b) Any such designation shall be contingent on the
designated beneficiary surviving the Participant. If a designated
beneficiary survives the Participant but dies before receiving the
entire amount payable to the designated beneficiary hereunder, the
amount which would otherwise have been so paid shall be paid to the
estate of the deceased beneficiary unless a contrary direction was
made by the Participant, in which case such direction shall
control. More than one beneficiary, and alternative or contingent
beneficiaries, may be designated, in which case the Participant
shall specify the shares, terms and conditions upon which amounts
shall be paid to such multiple or alternative or contingent
beneficiaries, all of which must be satisfactory to the Company.
9
<PAGE>
(c) If no beneficiary designation is on file with the Company
at the time of the Participant's death or no beneficiary designated
by the Participant survives the Participant, the Participant's
estate shall be deemed to be the beneficiary designated to receive
any amounts then remaining payable under this Plan.
(d) In determining any question concerning a Participant's
beneficiary, the latest designation filed with the Company shall
control and intervening changes in circumstances shall be ignored.
For example, if a Participant's spouse is designated as beneficiary
but thereafter is divorced from the Participant, such designation
shall remain valid unless and until the Participant files a later
beneficiary designation form with the Company.
(e) Any check issued on or before the date of a Participant's
death shall remain payable to the Participant, whether or not the
check is received by the Participant prior to death. Any check
issued after the date of the Participant's death shall be the
property of the Participant's beneficiaries determined in
accordance with this Section 5.08.
(f) A Participant's election of payment in installments shall
not be altered by reason of the Participant's death.
5.09. All Payments to be Made by the Company.
All payments due any Participant or beneficiary under this
Plan shall be the sole responsibility of the Company.
VI. ADMINISTRATION
6.01. Administrative Duties of the Company.
(a) The Company shall have sole responsibility for the
administration of the Plan.
(b) The Company shall administer the Plan in accordance with
its terms and shall have all powers necessary to carry out the
provisions of the Plan. The Company shall interpret the Plan;
shall determine all questions arising in the administration,
interpretation, and application of the Plan; and shall construe any
ambiguity, supply and omission, and reconcile any inconsistency in
such manner and to such extent as the Company deems proper. Any
interpretation or construction placed upon any term or provision of
the Plan by the Company, any decisions and determinations of the
Company arising under the Plan, including without limiting the
generality of the foregoing: (i) the eligibility of any individual
to become or remain a Participant and a Participant's status as
such, and Eligible Compensation for any Year; (ii) the time, method
and amounts of payments payable under the Plan; (iii) the rights of
Participants; and any other action or determination or decision
whatsoever taken or made by the Company in good faith shall be
final, conclusive, and binding upon
10
<PAGE>
all persons concerned, including, but not limited to, the Company,
all Participating Employers and all Participants and beneficiaries.
(c) The Chief Executive Officer of the Company shall appoint
one or more Employees to carry out the Company's duties hereunder.
(d) The Company may employ accountants, counsel, specialists,
and other persons necessary to help carry out its duties and
responsibilities under the Plan. The Company or any appointee
shall be entitled to rely conclusively upon any opinions or reports
which shall be furnished to it or him by such accountants, counsel,
specialists, and other persons.
(e) No Employee shall participate in determining his or her
own entitlement under the Plan.
6.02. Claims Procedures.
(a) The Company shall make all decisions and determinations
respecting the right of any person to a payment under the Plan.
(b) The following procedure shall be followed with respect to
claims under the Plan:
(i) Any claimant who believes he or she is entitled to
a benefit under this Plan shall submit a claim for such benefit in
writing to the Company.
(ii) Any decision by the Company denying a claim in
whole or in part shall be stated in writing by the Company and
delivered or mailed to the claimant within ninety (90) days after
receipt of the claim by the Company unless special circumstances
require an extension of time for processing, but in any event
within one hundred eighty (180) days after such receipt. If such
an extension of time is taken, the Company shall inform the
claimant of the delay in writing before the expiration of the
initial ninety (90) day period, including the reasons therefor and
the date by which the Company expects to render a decision. Any
decision denying a claim shall set forth the specific reasons for
the denial with specific references to Plan provisions on which the
denial is based, a description of any additional material or
information necessary to perfect the claim and the reasons
therefor, and an explanation of the Plan's claim review procedure
as provided for in Section 6.02(b)(iii), all written in a manner
calculated to be understood by the claimant. If the Company does
not notify the claimant of denial of the claim or the need for an
extension of time within the initial ninety (90) day period, the
claim shall be deemed denied.
(iii) If a claim is denied in whole or in part, the claimant
or his or her duly authorized representative may request a review
by the Company of the decision upon written application to the
Company within sixty (60) days after notification of the decision.
The
11
<PAGE>
claimant or his or her duly authorized representative may review
pertinent documents and submit issues and comments in writing. The
Company shall make its decision on review not later than sixty (60)
days after receipt of the request for review unless special
circumstances require an extension of time for processing, in which
case its decision shall be rendered as soon as possible, but not
later than one hundred twenty (120) days after receipt of the
request for review. If such an extension of time is taken, the
Company shall inform the claimant of the delay in writing before
the expiration of the initial sixty (60) day period. The decision
on review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood
by the claimant and specific references to the pertinent Plan
provisions on which the decision is based. If the Company does not
notify the claimant of its decision on review within the period
herein provided for, the claim shall be deemed denied on review.
(c) The Company may adopt such rules as it deems necessary,
desirable, or appropriate to carry out its duties under this Section 6.02.
All rules, decisions and determinations of the Company under this
Section 6.02 shall be uniformly and consistently applied. Any action or
determination or decision whatsoever taken or made by the Company
under this Section 6.02 in good faith shall be final, conclusive, and
binding upon all persons concerned, including, but not limited to,
the Company, all Participating Employers and all Participants and
beneficiaries.
(d) The procedure provided for in this Section 6.02 shall be the
sole, exclusive and mandatory procedure for resolving any dispute
under this Plan.
6.03. Books and Records.
(a) The Company shall keep such books, records, and other
data as it deems necessary for proper administration of the Plan,
including but not limited to records of each Participant's Base
Salary Rate and Bonus, elections, deferred amounts, Rates and
Terms, interest accrued, amounts payable to each Participant from
time to time, and amounts paid to each Participant or beneficiary
from time to time.
(b) The records of the Company shall be conclusive on all
persons unless proved incorrect to the satisfaction of the Company.
(c) The Company shall comply with all reporting and
disclosure requirements of the law and shall maintain all records
required by law.
6.04. Notices.
(a) Any notice from the Company to any Participant shall be
in writing and shall be given by delivery to the Participant, or by
mailing to the last known residence address of the Participant.
Any notice from a Participant to the Company shall be in writing
and shall be given by delivery to the Chief Financial Officer of
the Company at the Company's
12
<PAGE>
headquarters, except as otherwise designated by the Company.
Notices shall be effective on the date of actual delivery.
(b) Each Participant shall furnish all information, including
post office address and each change of post office address, proofs,
receipts and releases, as may be required by the Company.
(c) Any communication, statement or notice addressed to any
individual at the last post office address filed with the Company
shall be binding for all purposes of the Plan, and the Company
shall not be obligated to search for or ascertain the whereabouts
of any such individual.
(d) Except as provided in Section III, any notice required by
the Plan may be waived by the Company or any Participant.
NEW ARTICLE VII
VII. LIABILITIES TRANSFERRED FROM THE ANHEUSER-BUSCH EXECUTIVE
DEFERRED COMPENSATION PLAN
7.01. Establishment of Accounts for Eligible Employees.
The amount of liabilities transferred to this Plan from the
Anheuser-Busch Executive Deferred Compensation Plan (the "A-B
Plan") with respect to each individual who is an Eligible Employee
as of March 27, 1996 shall be determined under the provisions of
the A-B Plan as of March 31, 1996, and an account equal to the
liability so determined with respect to each affected Eligible
Employee shall be established as of April 1, 1996.
7.02. Treatment of Amounts Derived From A-B Plan.
With respect to each separate portion of each account
established pursuant Section 7.01, the Eligible Employee's prior
elections under the A-B Plan governing the remaining period of
deferral thereof, the form of distribution thereof, the Rates and
Terms elected with respect thereto, and the time payment thereof
begins shall remain in full force and effect, except as follows:
(a) The word Year shall mean the Company's fiscal year, and
not the calendar year as provided for in the A-B Plan, and the
particular Year referred to shall be the Year that begins during
the particular calendar year referred to the A-B Plan. For
example, the Year beginning January 1, 1996 under the A-B Plan
shall be treated as the Year beginning March 27, 1996 under this
plan.
(b) All provisions for payment occurring on any January 1 in
the A-B Plan shall refer to the first day of the Year commencing
after such January 1.
(c) The Rate applicable to the Term remaining with respect to
the liabilities transferred as of April 1, 1996 shall be the Rate
under this Plan for each Term that is nearest in length to the
remaining Term for the amount of each portion of the liability
under the A-B Plan as of March 31, 1996.
13
<PAGE>
7.03. Remaining Provisions of This Plan Control.
Except as expressly provided for in this Section VII, all
amounts governed by this Section VII shall be subject to the
provisions of this Plan and not the A-B Plan. For purposes of the
A-B Plan, this Plan shall be deemed to be an amendment and
restatement of the A-B Plan, effective April 1, 1996.
VIII.AMENDMENT AND TERMINATION
The Chief Executive Officer of the Company shall have
authority to amend or terminate the Plan on behalf of the Company
in his sole discretion at any time, except as follows:
(a) Amendments that provide for substantial increases in
benefits shall require approval by the Compensation Committee of
the Board of Directors of the Company.
(b) No amendment shall reduce the amount accrued for the
benefit of a Participant immediately prior to the effective date of
the amendment.
(c) No amendment shall reduce any Rate elected by a
Participant before expiration of the Term provided therefor when
the election was made unless the amount governed by the Rate and
Term is distributed to the Participant in connection with
termination of the Plan or otherwise pursuant to the Plan.
IX. PARTICIPATING EMPLOYERS OTHER THAN THE COMPANY
9.01. Adoption.
A Participating Employer other than the Company shall adopt
this Plan by written instrument executed by its proper officers,
subject to the written approval of the Company. Adoption of the
Plan by a Participating Employer shall constitute automatic
delegation of all rights and duties it might otherwise reserve to
itself under the Plan to the Company, including full authority to
amend or terminate the Plan.
9.02. Withdrawal.
A Participating Employer shall automatically withdraw from the
Plan if and when the Company ceases to have an equity interest of
at least fifty percent (50%) without the execution of any other
instrument. A Participating Employer may voluntarily withdraw from
the Plan on not less than thirty (30) days' written notice from its
proper officers.
9.03. Succession.
In the event of dissolution, merger, consolidation, or spin-
off involving a Participating Employer, the entity surviving the
transaction shall succeed to the rights and duties of the affected
Participating Employer without the execution of any other
instrument.
14
<PAGE>
X. MISCELLANEOUS
10.01. Company's Obligations Unsecured.
It is the intention of the Company and all Participants that
the Plan shall be unfunded for tax purposes and for purposes of
Title I of the Employee Retirement Income Security Act of 1974, as
amended from time to time. Amounts payable to Participants under
this Plan shall be paid solely from the general assets of the
Company as they come due from time to time. No Participant and no
successor of any Participant shall have any property interest
whatsoever in any asset of the Company on account of participation
in this Plan. Participants' rights under this Plan shall be no
greater than the right of an unsecured general creditor of the
Company. Nothing in this Plan shall require the Company to invest
any amount in any asset or type of asset.
10.02. No Alienation.
Except as required by law, amounts payable under this Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution, or levy of any kind, either voluntary or
involuntary; any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber, charge or otherwise dispose of any right
to payment hereunder shall be void, and the Company shall not in
any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements or torts of any Participant or other
person.
10.03. No Waiver of Rights.
Except as provided for in Section 6.02, no failure or delay by the
Company or any Participant to exercise any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege.
10.04. Severability.
The invalidity of any particular clause, provision or covenant
herein shall not invalidate all or any part of the remainder of
this Plan, but such remainder shall be and remain valid in all
respects as fully as the law will permit.
10.05. Legal Expenses.
In any proceeding to enforce rights and obligations hereunder,
the unsuccessful party shall pay the successful party an amount
equal to all reasonable out-of-pocket expenses (including
reasonable legal expenses and court costs) incurred by the
successful party.
15
<PAGE>
10.06. Presumption of Competence.
Every person receiving or claiming amounts payable under this
Plan shall be conclusively presumed to be mentally competent and of
legal age unless and until the Company receives proof satisfactory
to the Company that the person is incompetent or is a minor or that
a guardian or other person legally vested with the care of the
person's estate has been appointed.
10.07. Facility of Payment.
If any amount is payable hereunder to a minor or other person
under legal disability or otherwise incapable of managing his or
her own affairs, as determined by the Company in its sole
discretion, payment thereof shall be made in one (or any
combination) of the following ways, as the Company shall determine
in its sole discretion:
(i) Directly to said minor or other person;
(ii) To a custodian for said minor or other person
(whether designated by the Company or any other person) under the
Missouri Transfers to Minors Law, the Missouri Personal Custodian
Law or a similar law of any other jurisdiction;
(iii)To the conservator of the estate of said minor
or other person; or
(iv) To some relative or friend of such minor or
other person for the support, welfare or education of such minor or
other person.
The Company shall not be required to see to the application of
any payment so made, and payment to the person determined by the
Company shall fully discharge the Company from any further
accountability or responsibility with respect to the amount so
paid.
10.08. No Guarantee of Employment or Compensation.
No provision of this Plan shall restrict any Related Employer
from discharging a Participant from employment or restrict any
Participant from resigning from employment with any Related
Employer. No provision of this Plan shall restrict any Related
Employer from increasing or decreasing the compensation of any
Employee.
10.09. Plan Provisions Binding.
The provisions of the Plan shall be binding upon the Company,
all Participating Employers and all persons entitled to benefits
under the Plan and their respective successors, heirs and legal
representatives.
16
<PAGE>
10.10. Rules of Interpretation.
Words of gender shall include persons and entities of any
gender, the plural shall include the singular, and the singular
shall include the plural. Captions are intended to assist in
reference and shall not be interpreted as part of the Plan.
10.11. Missouri Law Controls.
Subject to the applicable provisions of the Employee
Retirement Income Security Act of 1974 which provide to the
contrary, this Plan shall be administered, construed, and enforced
according to the laws of the State of Missouri and in Courts
situated in that State.
10.12. Counterparts.
This Plan may be executed in two or more counterparts, any one
of which shall constitute an original without reference to the
others.
IN WITNESS WHEREOF, The Earthgrains Company has executed this
Plan this ____ day of March, 1996, effective as of March 27, 1996.
THE EARTHGRAINS COMPANY
By_____________________________
Barry H. Beracha
Chief Executive Officer
17
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the
Company's consolidated financial statements for the twelve weeks ended
June 17, 1997 included in this report on Form 10-Q and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000 <F1>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-25-1997
<PERIOD-END> JUN-17-1997
<CASH> 46,100
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 65,100
<CURRENT-ASSETS> 307,600
<PP&E> 1,271,400
<DEPRECIATION> 583,300
<TOTAL-ASSETS> 1,163,100
<CURRENT-LIABILITIES> 196,400
<BONDS> 1,500
0
0
<COMMON> 100
<OTHER-SE> 589,600
<TOTAL-LIABILITY-AND-EQUITY> 1,163,100
<SALES> 377,400
<TOTAL-REVENUES> 377,400
<CGS> 214,700
<TOTAL-COSTS> 214,700
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,500
<INCOME-PRETAX> 11,600
<INCOME-TAX> 4,700
<INCOME-CONTINUING> 6,900
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,900
<EPS-PRIMARY> 0.68
<EPS-DILUTED> 0
<FN>
<F1>Footnote to electronic filing only: as presented,
data is rounded to the nearest $100 except for per
share data.
</FN>
</TABLE>
