Registration No. 333-_________
As filed with the Securities and Exchange Commission on June 14, 1999
- -----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET, N.W.
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________
THE PEPSI BOTTLING GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-4038356
------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization
One Pepsi Way
Somers, New York 10589-2201
------------------------------------------------------------
(Address of Principal Executive Offices, including zip code)
PBG LONG TERM SAVINGS PROGRAM
-------------------------------------------------
(Full Title of the Plan)
Pamela C. McGuire
Senior Vice President, General Counsel and Secretary
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
(914) 767-7540
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number, including area code, of Agent for Service)
Copies to:
Martha Jo Wagner Steven M. Rapp
Kilpatrick Stockton LLP The Pepsi Bottling Group, Inc.
1100 Peachtree Street One Pepsi Way
Atlanta, Georgia 30309-4530 Somers, New York 10589-2201
(404) 815-6449 (914) 767-7971
<TABLE>
<CAPTION>
============================================================================================================
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered <F1> Per Share <F2> Offering Registration Fee
Price <F2>
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,000,000 Shares $22.00 $44,000,000 $12,232.00
- -------------------------------------------------------------------------------------------------------------
<FN>
<F1> In addition, pursuant to Rule 416 under the Securities Act of
1933, this Registration Statement also covers (a) an indeterminable
number of shares that may be offered and issued pursuant to stock
splits, stock dividends or similar transactions, and (b) an
indeterminable amount of interests to be offered or sold pursuant
to the employee benefit plan described herein.
<F2> Estimated solely for the purpose of determining the registration
fee.
</FN>
</TABLE>
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registration Information and Employee Plan Annual Information.*
____________
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended,
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
---------------------------------------
The Pepsi Bottling Group, Inc. (the "Registrant") hereby
incorporates by reference in this Registration Statement the following
documents previously filed with the Securities and Exchange Commission
(the "SEC"):
(1) the Registrant's Prospectus, dated March 30, 1999, filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"), in Registration
Statement No. 333-70291 on Form S-1 ("Form S-1"),
(2) the Registrant's Quarterly Report on Form 10-Q for the
period ended March 20, 1999, and
(3) the description of the Registrant's Common Stock, par value
$.01 per share, contained in the Registrant's Registration
Statement on Form 8-A, pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and all amendments and reports filed for the purpose of updating
such descriptions.
All documents subsequently filed by the Registrant with the SEC
under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. Description of Securities
-------------------------
Not applicable
ITEM 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the shares of Common Stock issuable under the
PBG Long Term Savings Program has been passed upon for
the Registrant by Pamela C. McGuire, Esq., Senior Vice President,
General Counsel and Secretary of the Registrant. Ms. McGuire holds
options to purchase shares of the Registrant's Common Stock.
2
ITEM 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that
a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any threatened,
pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a
director, officer, employee or agent to the Registrant. The Delaware
General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. Article Eighth of the Registrant's
Certificate of Incorporation provides for indemnification by the
Registrant of its directors, officers and employees to the fullest
extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits
a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
for unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions, or (iv) for any transaction from
which the director derived an improper personal benefit. Article
Ninth of the Registrant's Certificate of Incorporation provides for
such limitation of liability.
The Registrant maintains standard policies of insurance under
which coverage is provided (a) to its directors and officers against
loss rising from claims made by reason of breach of duty or other
wrongful act, and (b) to the Registrant with respect to payments which
may be made by the Registrant to such officers and directors pursuant
to the above indemnification provision or otherwise as a matter of
law.
ITEM 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
ITEM 8. Exhibits
--------
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 of Form S-1).
4.2 By laws (incorporated herein by reference to Exhibit
3.2 of Form S-1).
4.3 Amendments to Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.3 of
Form S-1).
4.4 Form of Common Stock Certificate (incorporated herein
by reference to Exhibit 4 of Form S-1).
4.5 PBG Long Term Savings Program
5 Opinion and consent of Pamela C. McGuire, Esq., Senior
Vice President, General Counsel and Secretary of the
Registrant.
23.1 Consent of KPMG LLP.
23.2 Consent of Pamela C. McGuire, Esq., Senior Vice
President, General Counsel and Secretary of the
Registrant (included in her opinion filed as Exhibit 5
hereto).
24 Powers of Attorney
3
<PAGE>
<PAGE>
ITEM 9. Undertakings
------------
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(b) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(c) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Somers, State
of New York, on June 14, 1999.
THE PEPSI BOTTLING GROUP, INC.
By: /s/ Pamela C. McGuire
Pamela C. McGuire
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Craig E. Weatherup
- ---------------------------------- Chairman, Chief Executive Officer June 14, 1999
Craig E. Weatherup and Director (Principal Executive
Officer)
/s/ John T. Cahill
- ---------------------------------- Executive Vice President, Chief June 14, 1999
John T. Cahill Financial Officer and Director
(Principal Financial Officer)
/s/ Peter A. Bridgman
- ----------------------------------- Senior Vice President and June 14, 1999
Peter A. Bridgman Controller (Principal Accounting
Officer)
- ----------------------------------- Director June 14, 1999
Linda G. Alvarado
*
- ----------------------------------- Director June 14, 1999
Barry H. Beracha
*
- ----------------------------------- Director June 14, 1999
Thomas W. Jones
*
- ----------------------------------- Director June 14, 1999
Thomas H. Kean
*
- ----------------------------------- Director June 14, 1999
Susan Kronick
*
- ----------------------------------- Director June 14, 1999
Robert F. Sharpe, Jr.
June 14, 1999
- -----------------------------------
Karl M. von der Heyden
</TABLE>
* By: Pamela C. McGuire, Attorney-In-Fact
/s/ PAMELA C. MCGUIRE
Pamela C. McGuire
5
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
4.5 PBG Long Term Savings Program
5 Opinion and consent of Pamela C. McGuire, Esq.,
Senior Vice President, General Counsel and
Secretary of the Registrant.
23.1 Consent of KPMG LLP.
23.2 Consent of Pamela C. McGuire, Esq., Senior Vice
President, General Counsel and Secretary of the Registrant
(included in her opinion filed as Exhibit 5 hereto).
24 Powers of Attorney.
PBG LONG TERM
SAVINGS PROGRAM
As effective July 12, 1999
Except as Otherwise Noted
<PAGE>
<PAGE>
FOREWARD
The PBG Long Term Savings Program (also known as the PBG 401(k)
Plan) has been established by The Pepsi-Bottling Group, Inc. ("PBG")
for the benefit of the eligible Employees of PBG and designated
affiliated employers which adopt this Plan as an Employer.
The PBG 401(K) Plan was adopted effective July 12, 1999, as a
successor by spin-off to the PepsiCo Long Term Savings Program (the
"Prior Plan"). The Prior Plan was amended and restated effective July
1, 1992. The rights and benefits with respect to persons who
terminated participation in the Prior Plan prior to July 12, 1999
shall be governed by the applicable provisions of the Prior Plan. The
provisions set forth in the following Articles apply to all
Participants on or after the Effective Date except to the extent
otherwise provided.
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Account . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Annual Compensation . . . . . . . . . . . . . . . . . . . 1
1.3 Authorized Leaves of Absence . . . . . . . . . . . . . . . 1
1.4 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Board . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.6 Break in Service . . . . . . . . . . . . . . . . . . . . . 1
1.7 Code . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.8 Company Stock . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Company . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Effective Date . . . . . . . . . . . . . . . . . . . . . . 2
1.11 Elective Deferral . . . . . . . . . . . . . . . . . . . . 2
1.12 Eligible Employee . . . . . . . . . . . . . . . . . . . . 2
1.13 Employee . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.14 Employee Rollover Contribution Account . . . . . . . . . . 2
1.15 Employer . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.16 Employer Contributions . . . . . . . . . . . . . . . . . . 2
1.17 Employer Contribution Account . . . . . . . . . . . . . . 2
1.18 Employment . . . . . . . . . . . . . . . . . . . . . . . . 3
1.19 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.20 Excess Contributions . . . . . . . . . . . . . . . . . . . 3
1.21 Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . 3
1.22 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . 3
1.23 Highly Compensated Employee . . . . . . . . . . . . . . . 3
1.24 Hour of Service . . . . . . . . . . . . . . . . . . . . . 4
1.25 Investment Expenses . . . . . . . . . . . . . . . . . . . 6
1.26 Non-Highly Compensated Employee . . . . . . . . . . . . . 6
1.27 Normal Retirement Date and Normal Retirement Age . . . . . 6
1.28 PBG . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.29 Participant . . . . . . . . . . . . . . . . . . . . . . . 6
1.30 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.31 Plan Administrator . . . . . . . . . . . . . . . . . . . . 6
1.32 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . 6
1.33 Pre-Tax Account . . . . . . . . . . . . . . . . . . . . . 6
1.34 Prior Plan . . . . . . . . . . . . . . . . . . . . . . . . 6
1.35 Regulations . . . . . . . . . . . . . . . . . . . . . . . 6
1.36 Retired Employee . . . . . . . . . . . . . . . . . . . . . 6
1.37 Rollover Contribution . . . . . . . . . . . . . . . . . . 7
1.38 Secretary . . . . . . . . . . . . . . . . . . . . . . . . 7
1.39 Service . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
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1.40 Severance from Service Date . . . . . . . . . . . . . . . . 7
1.41 Total Deferrals . . . . . . . . . . . . . . . . . . . . . 7
1.42 Total Disability . . . . . . . . . . . . . . . . . . . . . 7
1.44 Trust (or Trust Fund) . . . . . . . . . . . . . . . . . . 8
1.45 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.46 Valuation Date . . . . . . . . . . . . . . . . . . . . . . 8
1.47 Vested or Vested Interest . . . . . . . . . . . . . . . . 8
1.48 Year of Service . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . 9
2.1 Eligibility for Participation . . . . . . . . . . . . . . . 9
2.2 Participation . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Return to Employment . . . . . . . . . . . . . . . . . . . 10
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 11
3.1 Elective Deferrals . . . . . . . . . . . . . . . . . . . 11
3.2 Limitation of Total Deferrals: Return of Contributions. . 12
3.3 Limitation on Elective Deferrals . . . . . . . . . . . . . 12
3.4 Rollover Contributions . . . . . . . . . . . . . . . . . . 15
3.5 Contributions on Account of Veteran's Reemployment
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 Fund for Exclusive Benefit of Participants . . . . . . . . 16
3.7 Disposition of Forfeitures and Amounts Subject to
Buy-Back Option . . . . . . . . . . . . . . . . . . . . 17
3.8 Maximum Allocations . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV INTEREST OF PARTICIPANTS . . . . . . . . . . . . . . . . 23
4.1 Accounts of Participants . . . . . . . . . . . . . . . . . 23
4.2 Investment of Participant Accounts . . . . . . . . . . . . 23
4.3 Adjusting Account Balances . . . . . . . . . . . . . . . . 30
ARTICLE V BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . 32
5.1 Termination of Employment . . . . . . . . . . . . . . . . . 32
5.2 Death Benefits . . . . . . . . . . . . . . . . . . . . . . 32
5.3 Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . 32
5.7 Payment of Benefits . . . . . . . . . . . . . . . . . . . . 35
5.8 Directed Eligible Rollover Distributions . . . . . . . . . 36
5.9 Maintenance of Accounts Prior to Payout . . . . . . . . . . 37
5.10 Code Section 409(a)(9) Requirements . . . . . . . . . . . 37
5.12 Errors in Participant's Accounts . . . . . . . . . . . . . 38
5.13 No Other Benefits or Withdrawals . . . . . . . . . . . . . 38
5.13 Participants Who Cannot Be Located . . . . . . . . . . . . 39
ii
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ARTICLE VI PLAN LOANS . . . . . . . . . . . . . . . . . . . . . . . 40
6.1 Eligibility for Plan Loans . . . . . . . . . . . . . . . . 40
6.2 Application Procedure . . . . . . . . . . . . . . . . . . . 40
6.3 Loan Amount . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4 Maximum Number of Outstanding Loans . . . . . . . . . . . . 41
6.5 Effect on Participant's Investment . . . . . . . . . . . . 41
6.6 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.7 Interest Rate . . . . . . . . . . . . . . . . . . . . . . . 42
6.8 Term and Repayment . . . . . . . . . . . . . . . . . . . . 42
6.9 Loan Default . . . . . . . . . . . . . . . . . . . . . . . 43
6.10 Nondiscrimination . . . . . . . . . . . . . . . . . . . . 43
6.11 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VII DESIGNATION OF BENEFICIARY . . . . . . . . . . . . . . 45
7.1 In General . . . . . . . . . . . . . . . . . . . . . . . . 45
7.2 Married Participants . . . . . . . . . . . . . . . . . . . 45
7.3 No Designated Beneficiary or Beneficiaries . . . . . . . . 45
ARTICLE VIII ADMINISTRATION . . . . . . . . . . . . . . . . . . . . 46
8.1 Allocation of Responsibility Among Fiduciaries for
Plan and Trust Administration . . . . . . . . . . . . . . . 46
8.2 Records and Reports . . . . . . . . . . . . . . . . . . . . 46
8.3 Other Powers and Duties of the Plan Administrator . . . . . 46
8.4 Rules and Decisions . . . . . . . . . . . . . . . . . . . . 47
8.5 Authorization of Benefit Payments . . . . . . . . . . . . . 47
8.6 Application and Forms . . . . . . . . . . . . . . . . . . 48
8.7 Payment Benefits for Disabled or Incapacitated Person . . . 48
8.8 Notices to Trustee . . . . . . . . . . . . . . . . . . . . 48
8.9 Expenses of Plan . . . . . . . . . . . . . . . . . . . . . 48
8.10 Indemnification by the Company . . . . . . . . . . . . . . 48
ARTICLE IX CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE XI AMENDMENT OF THE PLAN . . . . . . . . . . . . . . . . . 51
ARTICLE XII DISCONTINUANCE OF CONTRIBUTIONS AND
TERMINATION OF PLAN . . . . . . . . . . . . . . . . . . . . 52
12.1 Intention to Continue Plan . . . . . . . . . . . . . . . . 52
12.2 Termination or Partial Termination of Plan . . . . . . . . 52
iii
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<PAGE>
12.3 Internal Revenue Service Approval . . . . . . . . . . . . 52
ARTICLE XIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 53
13.1 Participants' Rights; Acquittance . . . . . . . . . . . 53
13.2 Spendthrift Clause . . . . . . . . . . . . . . . . . . . 53
13.3 Qualification of Plan as a Condition . . . . . . . . . . 54
13.4 Successor Employer . . . . . . . . . . . . . . . . . . . 54
13.5 Transfer of Plan Assets . . . . . . . . . . . . . . . . 54
13.6 Necessary Parties . . . . . . . . . . . . . . . . . . . 55
13.7 Delegation of Authority by Company . . . . . . . . . . . 55
13.8 Construction of Agreement . . . . . . . . . . . . . . . 55
13.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . 55
13.10 Gender and Number . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIV TOP-HEAVY PLAN PROVISIONS . . . . . . . . . . . . . . 56
14.1 Application . . . . . . . . . . . . . . . . . . . . . . 56
14.2 Definitions . . . . . . . . . . . . . . . . . . . . . . 56
14.3 Allocation of Minimum Contribution . . . . . . . . . . . 57
14.4 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . 57
iv
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<PAGE>
ARTICLE I
DEFINITIONS
The following words and phrases have the meaning set forth below
unless a different meaning is plainly required by the context:
1.1 Account - With respect to each Participant, the combination
-------
of all accounts maintained on behalf of such Participant pursuant to
Section 4.1.
1.2 Annual Compensation - For purposes of determining the amount
-------------------
an Employee may elect to contribute to the Plan as an Elective
Deferral, Annual Compensation means only the Participant's base salary,
overtime/double overtime, overtime shift premiums, commissions and
value pay paid during the first through eighth payroll periods of the
previous calendar year (PBG operates on a thirteen payroll period
year), annualized (i.e., divided by 8 then multiplied by 13), plus any
regular bonuses paid during the first through eighth payroll periods.
For purposes of calculating the limitations in Sections 3.3 and 3.8
3.10, and any other similar limitations under the Code, the Company
may elect to use any method of determining Annual Compensation under
the Plan, provided that it is permissible under the Regulations. The
Annual Compensation of any Employee taken into account under the Plan
for any Plan Year cannot exceed $160,000, as adjusted under Code
Section 401(a)(17)(B). For purposes of determining the amount a
Participant may elect to contribute to the Plan as an Elective
Deferral, only Annual Compensation earned while the Participant is
eligible to participate in the Plan will be considered.
1.3 Authorized Leaves of Absence - Any absence authorized by the
----------------------------
Employer under the Employer's standard personnel practices during
which the individual's base pay is continued, provided that the
Employee returns to Employment within the period of authorized
absence. An absence due to service in the Armed Forces of the United
States will be considered an Authorized Leave of Absence, provided
that the Employee returns to Employment with the Employer within the
period during which his right to Reemployment is preserved by law.
1.4 Beneficiary - Subject to the provisions of Article VII, any
-----------
person or persons (natural or otherwise) designated by a Participant
on a form supplied by the Plan Administrator to receive benefits
payable in the event of the death of the Participant, or in the
absence of any designated person, such other person determined to be a
Beneficiary under Article VII.
1.5 Board - The Board of Directors of The Pepsi Bottling Group, Inc.
-----
1.6 Break in Service - A 12-month period beginning on an Employee's
----------------
Severance from Service Date during which the Employee is not credited with
a Hour of Service.
1.7 Code - The Internal Revenue Code of 1986, as amended. All
----
references to the Code are deemed to refer to the Internal Revenue
Code of 1986 and the Regulations as they now exist or as they may be
amended or modified. Any reference to a specific section or
subsection of the Code are deemed to refer to that section or
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subsection and the regulations as they now exist or as they may be
amended.
1.8 Company Stock - The common stock issued by the Company.
-------------
1.9 Company - The Pepsi Bottling Group, Inc. and any successor.
-------
1.10 Effective Date - The date which this Plan is effective,
--------------
namely July 12, 1999. Because this Plan is a successor by spin-off to
the Prior Plan, certain provisions from the Prior Plan effective prior
to July 12, 1999 may affect benefits under this Plan.
1.11 Elective Deferral - The portion of a Participant's Annual
-----------------
Compensation deferred pursuant to the election described in Section
3.1, contributed on the Participant's behalf to the Trust and credited
to the Participant's Pre-Tax Account. For tax purposes, including
Code Section 414(h), Elective Deferrals will be considered Employer
contributions to the Plan.
1.12 Eligible Employee - An Employee who, pursuant to Section
-----------------
2.1, is eligible to have Elective Deferrals made on his behalf to the
Plan for all or a portion of the Plan Year. An Employee will not
cease to be an Eligible Employee merely because he is suspended from
making Elective Deferrals due to a withdrawal of contributions,
because he elects not to participate or because he is prevented from
making Elective Deferrals by operation of Code Section 415.
1.13 Employee - Any person who is classified by the Employer as
--------
an Employee of the Employer and who is receiving remuneration for
personal services rendered to the Employer or who would be receiving
such remuneration except for an Authorized Leave of Absence. The term
Employee, to the extent mandated by law, includes leased employees
within the meaning of Code Section 414(n)(2) unless: (a) such leased
employees constitute less than twenty percent (20%) of the Employer's
non-highly compensated work force within the meaning of Code Section
414(n)(5)(C)(ii); and (b) such leased employees are covered by a plan
described in Code Section 414(n)(5). Leased Employees shall not be
eligible to participate in the Plan.
1.14 Employee Rollover Contribution Account - The account
--------------------------------------
maintained for a Participant to record his Rollover Contributions and
adjustments in accordance with Section 3.4.
1.15 Employer - The Company and any designated affiliated Employer
--------
which is authorized by the Company to participate herein and which adopts
the Plan for the exclusive benefit of its Eligible Employees and their
Beneficiaries in accordance with any conditions required by the Company.
Any designated affiliated Employer will be designated on Schedule 1
attached hereto.
1.16 Employer Contributions - The contributions, if any, made by the
----------------------
Employer on behalf of Participants pursuant to the terms of the Plan.
1.17 Employer Contribution Account - The account maintained for a
-----------------------------
Participant to record any Employer Contributions and adjustments made on
his behalf by the Employer. The Employer Contribution Account may have two
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or more subaccounts to reflect different types of Employer Contributions.
1.18 Employment - Service as an Employee of the Employer and any
----------
other employer. The term Reemployment means Employment following a
termination of active Employment. The terms Employed and Reemployed
will be used in the same sense as the terms Employment and
Reemployment, respectively.
1.19 ERISA - The Employee Retirement Income Security Act of 1974,
-----
as amended.
1.20 Excess Contributions - With respect to any Plan Year, the
--------------------
aggregate Employer contributions paid to the Plan as an Elective
Deferral (or any other contributions taken into account for purposes
of Section 3.3 of the Plan) on behalf of a Highly Compensated Employee
for such Plan Year, to the extent such aggregate contributions exceed
the maximum amount of such contributions permitted for such Highly
Compensated Employee for such Plan Year under the limitations of
Section 3.3. The amount is determined by reducing such contributions
made on behalf of Highly Compensated Employees beginning with the
Highly Compensated Employee(s) who has the greatest dollar amount of
Elective Deferrals for the Plan Year.
1.21 Fiduciaries - The named fiduciaries are the Company and the
-----------
Trustee and any other parties designated as fiduciaries by the named
fiduciaries in accordance with the powers provided by the terms of the
Plan, but only with respect to the specific responsibilities of each
in connection with the Plan and Trust.
1.22 Forfeiture -The portion of a Participant's Employer
----------
Contribution Account not Vested at termination of Employment and which
reverts to the Trust Fund and is used to reduce any Employer Contributions
to the Plan.
1.23 Highly Compensated Employee -
---------------------------
(a) General Definition - Any Employee who
------------------
(i) was a 5% owner at any time during the Plan Year or the
preceding Plan Year; or
(ii) for the previous Plan Year received compensation from
the Employer in excess of $80,000, which may be adjusted for
changes in the cost of living as provided in the Regulations
issued by the Secretary; and, at the Employer's election, was in
the group consisting of the most highly compensated 20% of the
Employees for the preceding Plan Year.
(b) Determination of Most Highly Compensated 20% of Employees and Officers
----------------------------------------------------------------------
- - For purposes of paragraph (a)(ii) of this Section the
following will be excluded when determining the number of Employees in
the most highly compensated 20% of Employees and the number of
officers:
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(i) Employees who have not completed 6 months of service;
(ii) Employees who normally work less then 17 1/2 hours per
week;
(iii) Employees who normally do not work more then 6 months
during a Plan Year;
(iv) Employees who have not attained age 21; and
(v) Employees who are included in a unit of Employees
covered by a collective bargaining agreement, provided 90% or
more of the Employees are covered under collective bargaining
agreements and the Plan only covers Employees who are not covered
under the collective bargaining agreements.
Except as provided by the Secretary, the Employer may elect to apply
subparagraphs (i), (ii), (iii), (iv), or (v) by substituting a shorter
period of service, a smaller number of hours or months, or a lower
age.
(c) Former Employees - For purposes of this Section, a former
----------------
Employee will be treated as a Highly Compensated Employee, as defined
at that time under the Plan, if (1) the former Employee was a Highly
Compensated Employee at the time the former Employee was separated
from service with the Employer; or (2) the former Employee was a
Highly Compensated Employee, as defined at that time under the Plan,
at any time after the former Employee attained age 55.
(d) Nonresident Aliens - For purposes of this Section, Employees
------------------
who are nonresident aliens and who receive no earned income as defined
under Code Section 911(d)(2) from the Employer or from sources within
the United States as defined under Code Section 861(a)(3) will not be
treated as Employees.
(e) Compensation - For purposes of this Section of the Plan,
------------
compensation means an individual's compensation as determined under
Code Section 415(c)(3), increased by elective contributions under a
cafeteria plan under Code Section 125, elective contributions to a
cash or deferred arrangement under Code Sections 401(k) and 402(g)(3),
and contributions to a SEP under Code Section 408(k)(3), and, in the
case of Employer contributions made pursuant to a salary reduction
agreement, increased by contributions to a tax-sheltered annuity under
Code Section 403(b).
(f) Application Order - Subsections (b), (c), (m), (n) and (o)
-----------------
of Code Section 414 will be applied before applying the foregoing
provisions.
1.24 Hour of Service - Each Employee will be credited with an
---------------
Hour of Service for:
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(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties during Employment. These hours
will be credited to the Employee for the computation period in which
the duties are performed; and
(b) Each hour for which an Employee is paid, or entitled to
payment, by the Employer on account of a period of time during which
no duties are performed (without respect to whether the Employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), jury duty, military duty or leave
of absence, provided, however, that under this paragraph (b):
(i) No hours will be credited if payment is made or due
under a plan maintained by the Employer solely for purposes of
complying with applicable workers' compensation, unemployment
insurance or disability insurance laws; and
(ii) No hours will be credited for a payment which
reimburses an Employee for medical or medically related expenses
incurred by the Employee; and
(c) Each hour for which back pay, with respect to mitigation of
damages, is either awarded or agreed to by the Employer. These hours
will be credited to the Employee for the computation period to which
the award or agreement pertains rather than the period in which the
award, agreement, or payment is made. The same Hours of Service will
not be credited under paragraphs (a) or (b) and this paragraph (c).
Crediting of hours for back pay awarded or agreed to with respect to
periods described in paragraph (b) will be subject to the limitations
of that paragraph.
(d) Hours of Service credited under the Plan will be calculated
and credited subject to the rules and restrictions set forth in
Department of Labor Regulations Section 2530.200b-2(b), (c) and (f)
which are incorporated by this reference.
(e) The method of determining Hours of Service under the Plan will be
in accordance with Department of Labor Regulations Section 2530.200b-3
and will be applied in a consistent and nondiscriminatory manner to
Employees or classes of Employees.
(f) In the case of an Employee who is absent from active Employment
with the Employer on account of (i) the Employee's pregnancy, (ii) the
birth of a child of the Employee, (iii) the placement of a child with the
Employee in connection with the adoption of the child by the Employee, or (iv)
an absence due to the need for caring for such child for a period beginning
immediately following the birth or placement, then the Plan shall count solely
for purposes of determining whether a Break in Service has occurred, the Hours
of Service which otherwise would normally have been credited to such Employee
but for such absence or, if such Hours of Service cannot be determined, then
eight (8) Hours of Service for each day of absence. The Hours of Service
credited under this provision will be credited in the Plan Year the absence
begins only to prevent an Employee from incurring a Break in Service in such
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Plan Year. In any other case, such hours will be credited in the immediately
following Plan Year. The Employee will not be entitled to receive credit for
maternity or paternity leave under this Section unless the Employee furnishes
to the Plan Administrator, within a reasonable time period as the Plan
Administrator may establish, evidence that the absence is on account of one
of the four (4) reasons specified above and evidence of the duration of the
absence.
1.25 Investment Expenses - All expenses related to the management
-------------------
and maintenance, on a separate basis, of the individual investment
options under the Plan, but excluding the general fees for management
and maintenance of the Trust as a whole.
1.26 Non-Highly Compensated Employee - An Employee who is not a
-------------------------------
Highly Compensated Employee.
1.27 Normal Retirement Date and Normal Retirement Age - The
------------------------------------------------
Normal Retirement Date is the first day of the month in which a
Participant reaches the age of sixty-five (65) (Normal Retirement
Age).
1.28 PBG - The Company.
---
1.29 Participant - Any Employee who is qualified to participate
-----------
in the Plan and remains qualified under the terms of the Plan.
1.30 Plan - The PBG Long Term Savings Program, also known as
----
the PBG 401(k) Plan, as set forth herein, as amended and/or restated
from time to time.
1.31 Plan Administrator - The Company, and its delegates,
------------------
administering the Plan in accordance with Article VIII.
1.32 Plan Year - The Plan Year will be January 1 through December
---------
31; provided that the initial Plan Year will be July 12, 1999 through
December 31, 1999.
1.33 Pre-Tax Account - The Account maintained for a Participant
---------------
to record Elective Deferrals as described in Section 3.1. A
Participant's Pre-Tax Account is fully Vested at all times.
1.34 Prior Plan - The PepsiCo Long Term Savings Program.
----------
1.35 Regulations - The regulations, including temporary and
-----------
proposed to the extent applicable, promulgated by the Secretary with
respect to the Code.
1.36 Retired Employee - Any person: (i) who has received a
----------------
qualifying lump sum distribution from a defined benefit pension plan
sponsored by an Employer and (ii) who was an Employee eligible to
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participate in this Plan immediately prior to his retirement from the
Employer. For purposes of this subsection, a qualifying lump sum
distribution shall refer to lump sums other than single sum
distributions with a value of $5,000 or less, determined in accordance
with Code section 417(e).
1.37 Rollover Contribution - Contributions to the Plan made
---------------------
pursuant to the provisions of Section 3.4.
1.38 Secretary - The Secretary of the Treasury.
---------
1.39 Service - A Participant's period of Employment with the
-------
Employer, and any predecessor of the Employer or any member of a controlled
group of corporations that includes the Employer, or is under common
control, or is a member of an affiliated service group that includes
the Employer, or is related through the leasing of employees, as
determined under Code Section 414(b), (c), (m) and (n).
Periods of Employment with any Predecessor Employer will also be
counted as service hereunder, provided that this Plan is a continuation of
a plan that the Predecessor Employer maintained. For purposes of this
Section, "Predecessor Employer" includes any entity absorbed by the
Employer by change of name, merger, acquisition or a change of
corporate status, or an entity of which the Employer was once a part.
Periods of Employment of former employees of PepsiCo, Inc. and its affiliates
who became employees of the Company in connection with the initial public
offering of the Company on or about March 31, 1999 shall be counted
for purposes of vesting hereunder, subject to the Break in Service
rules set forth herein.
1.40 - Severance from Servance Date - Am Employee's Severance
----------------------------
from Service Date shall occur on the earlier of:
(a) The date the Employee quits, retires, is discharged
or dies; or
(b) The first anniversary of the date the Employee is
absent from service with an Employer (with or without pay) for
any reason other than a quit, retirement, discharge or death,
such as vacation, holiday, sickness, disability, leave of absence
or layoff.
1.41 Total Deferrals - With respect to any taxable year of an
---------------
Employee, the total of (i) any Elective Deferrals to this Plan or any
pre-tax contributions to any other cash or deferred arrangement, as
defined in Code Section 401(k), in lieu of receipt of such amount as
compensation; (ii) any elective SEP contributions under Code Section
402(h); and (iii) any salary reduction contribution to any annuity
under Code Section 403(b).
1.42 - Total Disability - The total disability of a Participant
----------------
determined in accordance with the provisions of the applicable long
term disability program sponsored by an Employer in which the individual
participates. If the individual does not participate in an Employee
sponsored long term disability plan, the Plan Administrator of this Plan,
or its delegate, has the discretionary authority to determine whether
a Total Disability exists in any individual case.
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1.43 Trust (or Trust Fund) - The fund known as the PBG Master Trust
---------------------
maintained in accordance with the terms of the Trust agreement, as
amended, which constitutes a part of the Plan.
1.44 Trustee - The corporation or individuals appointed by PBG to
-------
administer and manage the Trust. The term Trustee also means any
successor Trustee(s) designated and accepting such Trust in the manner
provided in the Plan.
1.45 Valuation Date - Each business day, except the Trustee may
--------------
temporarily suspend valuations when it deems appropriate in accordance
with Section 4.2(b). The Annual Valuation Date will be December 31 of
each Plan Year.
1.46 Vested or Vested Interest - The percentage of the value of a
-------------------------
Participant's interest in his Account(s) that is or has become
nonforfeitable under the Plan and will be paid to the Participant or
his Beneficiary in accordance with the terms of the Plan. Because of
fluctuations in asset value, contribution and Forfeiture allocations,
and other changes in the value of a Participant's Account(s), the
dollar value of a Participant's Vested Interest is not fixed until it
is actually paid.
1.47 Year of Service - Each 12-month period of Service commencing
---------------
on an Employee's Employment commencement date and ending on his Severance
from Service Date, subject to the following special rules.
(a) If an Employee has a Severance from Service Date as a result
of a quit, discharge or retirement and then returns to Employment with
the Company or an affiliated Employer within 12 months from his Severance
from Service Date, the Employee's period of severance shall be counted as
part of his period of Service.
(b) If an Employee terminates Employment because of a quit, discharge
or retirement (during any other absence from Service of 12 months or less)
and then returns to Employment with the Company or an affiliated Employer
within 12 months from the date on which he was first absent, the Employee's
period of severance shall be counted as part of his period of Service.
Years of Service shall include periods of Service credited in
accordance with the terms of the Prior Plan in effect on the date immediately
before the Effective Date.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility for Participation
-----------------------------
(a) Eligible Employees - The following Employees shall be
------------------
eligible to participate in the Plan:
(i) Any Employee entitled to enroll in their
Employer's Benefits Plus program; or
(ii) Part-time Employees who are not eligible to enroll
in their Employer's Benefits Plus program but (A) who are
employed at a work location where full-time Employees
participate in the Benefits Plus program and (B) who have
completed a Year of Service.
(b) Ineligible Employees - The following individuals, for
--------------------
the period they are described in this subsection, are not eligible to
become or continue as Participants in the Plan:
(i) Any Employee whose terms and conditions of
employment are determined by collective bargaining with a
union or affiliate representing such persons and with
respect to whom inclusion in this Plan has not been provided
for in the collective bargaining agreement;
(ii) Any individual who is a leased employee within the
meaning of Code Section 414(n);
(iii) Any individual who is an independent contractor;
(iv) Any Highly Compensated Employee who has not
attained age 21 and completed a Year of Service;
(v) Any non-resident alien who has no earned income from
sources within the United States; or
(vi) Any Employee classified by the Employer as a
temporary employee.
An independent contractor who is recharacterized by the Internal
Revenue Service as a common law employee will not be considered as
described in paragraph (iii) for periods on and after the
recharacterization. The individual also will not be considered as
described in paragraph (iii) for periods before the
recharacterization, unless the Employer had classified the individual
as an independent contractor in good faith, and the individual was
part of a group of independent contractors identified by similar work
requirements. An individual's ineligibility under the previous
sentence has no bearing on whether the individual is an excludable
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employee for purposes of the nondiscrimination tests under Code
Sections 410(b) and 401(a)(4).
2.2 Participation - In order to participate in the Plan, an
-------------
Eligible Employee must enroll in the Plan in accordance with Section
3.1. If the date an Employee elects to defer a portion of his Annual
Compensation to the Plan (and indicates the manner in which such
amounts are to be invested) is later than the date he would otherwise
become a Participant, then his participation in the Plan shall
commence as soon as practical thereafter. A Participant will remain a
Participant until his Employment terminates or he is no longer
Employed in a classification eligible to participate in the Plan,
whichever first occurs. Upon the occurrence of either event, his
participation will cease.
2.3 Return to Employment - A Participant whose Employment is
--------------------
terminated and who is Reemployed in a classification eligible to
participate in the Plan will again be eligible to participate as soon
as practicable following the date on which he completes an Hour of
Service upon Reemployment.
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ARTICLE III
CONTRIBUTIONS
3.1 Elective Deferrals -
------------------
(a) Amount of Elective Deferrals - As described in
----------------------------
subsection (b) below, each Participant may defer under this Plan
in any Plan Year up to fifteen percent (15%) of his Annual
Compensation in one-half percent (1/2%) increments, in accordance with
the rules and regulations established by the Plan Administrator
and subject to the limitations in Sections 3.2 and 3.3. If a
Participant elects to defer a portion of his Annual Compensation
under this Plan, it will be designated for contribution by the
Employer to the Trust, on behalf of the Participant, for deposit
in his Pre-Tax Account. All amounts deposited to a Participant's
Pre-Tax Account will be fully vested at all times.
(b) Election to Defer - Subject to the provisions of
-----------------
subsection (d), Participants may elect each Plan Year to defer a
portion of their Annual Compensation. The Plan Administrator will
establish nondiscriminatory time requirements regarding deferral
elections as it deems necessary for the proper administration of
the Plan. Each election will continue in effect from year to
year until the earlier of the date the Participant making the
election ceases participation in the Plan or the date an adjustment
election described in subsection (c) becomes effective.
(c) Elective Deferral Adjustment - Subject to the
----------------------------
provisions of subsection (d), a Participant who has elected under
subsection (b) to defer a portion of his Annual Compensation for
a Plan Year may elect to increase or reduce the amount of his
deferral as provided in this subsection in one-half percent (1/2%)
increments. The Elective Deferral adjustments will be effective
as soon as administratively possible after the Participant's election
is made. Any change which becomes effective under this subsection
will remain in effect until the earlier of the date the Participant
making the election ceases participation in the Plan or the date a
subsequent adjustment election first becomes effective.
A Participant may elect to terminate his Elective Deferral
under the Plan at any time. Such Elective Deferral termination
election will be effective as soon as administratively possible
after the Participant's election.
(d) Method of Making Election - An election made under
-------------------------
subsections (b) or (c) of this Section 3.1 will be made through
a telephone enrollment system established by the Plan Administrator.
An election to begin, increase or decrease the amount of Elective
Deferrals must specify the amount of deferral desired in one-half
percent increments of Annual Compensation, subject to the limitation
in subsection (a) above. Any election deferring more than the
maximum percentage of Annual Compensation as specified in Section
3.1(a) will be treated as an election to defer the maximum percentage.
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(e) Payroll Deductions - The contribution of Elective
------------------
Deferrals will be accomplished through an automatic payroll
deduction arrangement and will commence as soon as
administratively practicable following receipt of the
Participant's deferral election. The amount to be withheld in
any pay period shall be a ratable share of the Participant's
currently effective Elective Deferral election for the entire
Plan Year. Elective Deferrals may not be withheld after they
have been actually or constructively received.
3.2 Limitation of Total Deferrals: Return of Contributions -
-------------------------------------------------------
In no event will the Total Deferrals of any individual with respect to
any taxable year of such individual exceed ten thousand dollars
($10,000.00), or an adjusted amount as is established by the Secretary
in accordance with cost of living adjustments under Code Section
402(g)(4), for all plans in which such individual is a participant,
whether or not maintained by the Employer. If the Total Deferrals of
a Participant or former Participant exceed this limitation for any
taxable year of a Participant, a Participant or former Participant
will, no later than March 1 following the close of, and with respect
to, the taxable year in which the excess Total Deferrals were made,
(i) notify the Plan Administrator in writing of the Total Deferrals
made under any plan other than this Plan; (ii) allocate in writing the
excess Total Deferrals between or among such other plans and this
Plan; and (iii) state in writing that if the excess Total Deferrals
allocable to the Plan is not distributed, the deferral limitations of
Code Section 402(g) will be exceeded for the Participant's taxable
year with respect to which the Total Deferrals occurred. Upon
notification, the Plan Administrator will distribute any excess Total
Deferrals, and any income, allocable to the Plan to the relevant
Participant no later than April 15 of the calendar year following the
close of the taxable year of the Participant with respect to which the
excess Total Deferrals were made. Solely for purposes of the
preceding sentence, the income deemed allocable to any excess Total
Deferrals will be determined in accordance with Regulations. The
amount of excess Total Deferrals to be distributed for a taxable year
will be reduced by any Excess Contributions previously distributed to
the Participant during the Plan Year beginning in such taxable year.
3.3 Limitation on Elective Deferrals -
--------------------------------
(a) Limitation - In any Plan Year the Average Deferral
----------
Percentage for Highly Compensated Employees cannot exceed the
greater of (i) or (ii) below:
(i) The Average Deferral Percentage of all other
Eligible Employees who are Non-Highly Compensated Employees,
multiplied by 1.25; or
(ii) The Average Deferral Percentage of all other
Eligible Employees who are Non-Highly Compensated Employees,
multiplied by 200%, provided, however, that in this case the
Average Deferral Percentage of the Highly Compensated
Employees does not exceed the Average Deferral Percentage of
the Non-Highly Compensated Employees by more than two (2)
percentage points, or a lesser amount as may be required by
Regulations to prevent the multiple use of this alternative
limitation with respect to any Employee who is a Highly
Compensated Employee.
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(b) Average Deferral Percentage - For purposes of
---------------------------
subsection (a) above, Average Deferral Percentage means the
average (expressed as a percentage) of the Actual Deferral
Percentages of a specified group of Participants. Actual
Deferral Percentage means a ratio (expressed as a percentage) of
the amount of Elective Deferrals made on behalf of a Participant
for the Plan Year to the Participant's Annual Compensation for
that Plan Year. The Average Deferral Percentage for Non-Highly
Compensated Employees will be determined based on the amount of
Elective Deferrals and Annual Compensation and an Employee's
status as a Non-Highly Compensated Employee for the previous Plan
Year.
For purposes of the preceding paragraph:
(i) the Employer may elect to include as an amount
contributed as an Elective Deferral on behalf of a Participant
for purposes of this Section any Employer contributions which
meet the Special Distribution Restrictions under Section 5.6(d)
and which are 100% Vested when contributed;
(ii) Elective Deferrals will be taken into account for
purposes of determining the Actual Deferral Percentage of a
Participant for a Plan Year only if allocated to the Participant
as of a date within that Plan Year, is not contingent on
participation or performance of services after such date, and is
actually paid to the Trust no later than twelve (12) months after
the Plan Year to which the contribution relates;
(iii) Actual Deferral Percentages and Average Deferral
Percentages shall be computed to the nearest one hundredth of one
percent (1/100%).
(c) Special Adjustments - For purposes of this Section, the
-------------------
following special rules shall apply:
(i) If any Highly Compensated Employee is eligible to have
Elective Deferrals (or other contributions treated as Elective
Deferrals) allocated to his account under two or more plans or
arrangements described in Code Section 401(k) maintained by the
Company or an affiliated Employer, all Elective Deferrals and
other such contributions will be aggregated as if made under a
single plan or arrangement.
(ii) If two (2) or more plans of the Company are treated as
one (1) plan for purposes of Code Section 410(b) and/or Section
401(a)(4) because they would not otherwise satisfy Code Section
410(b) and/or Section 401(a)(4), these plans will be treated as
one (1) plan for purposes of this Section. If a Highly
Compensated Employee participates in two (2) or more plans of the
Company to which contributions are made by or on behalf of the
Highly Compensated Employee, all contributions will be aggregated
for purposes of this Section.
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(d) Adjustment of Elective Deferrals - If during a Plan Year the
--------------------------------
Plan Administrator determines that there is a likelihood that the
Average Deferral Percentage of the Highly Compensated Employees will
exceed the limitation specified in subsection (a), then the Plan
Administrator in its sole discretion may prospectively reduce the
deferrals of the Highly Compensated Employees by an amount and at the
beginning of a pay period during the Plan Year as is deemed necessary
by the Plan Administrator to prevent the limitation in subsection (a)
from being exceeded for that Plan Year. The Plan Administrator may
terminate, in whole or in part, any reduction of deferrals under this
subsection which is no longer necessary to prevent the limitation
specified in subsection (a) from being exceeded for the Plan Year.
Whenever necessary during the Plan Year, the Plan Administrator may
institute further deferral reductions or reinstate deferral
reductions, to the extent required to prevent the limitation in
subsection (a) from being exceeded. Any adjustment in Participant
Elective Deferrals made under this subsection will, to the extent
possible, reduce the deferral of each affected Participant by an
identical percentage of Annual Compensation.
(e) Distribution of Excess Contributions and Income - If the
-----------------------------------------------
Elective Deferral feature of the Plan fails the limitations of
subsection (a) for any Plan Year, then except as may be otherwise
provided in this Section, any Excess Contributions for such Plan Year
and any allocable income will be distributed to the Highly Compensated
Employees no later than two and one-half (2-1/2) months following the
Plan Year in which the Excess Contributions were made. Alternatively,
any Excess Contributions may be distributed no later than the end of
the Plan Year following the Plan Year in which the Excess
Contributions were made, provided the Company pays any applicable
excise tax on such distribution. The Plan may use any reasonable
method for computing the income allocable to Excess Contributions,
provided that the method does not violate Code Section 401(a)(4), is
used consistently for all Participants and for all corrective
distributions under the Plan for the Plan Year, and is used by the
Plan for allocating income to Participant's Accounts. The amount of
Excess Contributions to be distributed with respect to an Employee for
a Plan Year will be reduced by any excess Elective Deferrals
previously distributed during the taxable year ending in the same Plan
Year.
Any distribution of Excess Contributions and income will be made
to Highly Compensated Employees on the basis of the respective
portions of the total Excess Contributions attributable to each Highly
Compensated Employee. Any such distribution may and will be made
without regard to any other provision of this Plan restricting
distributions. Any Excess Contributions distributed to a Highly
Compensated Employee including earnings will be distributed pro rata
from any Account which contains contributions used in computing
Average Deferral Percentages, based on contributions made to those
Accounts during a Plan Year.
(f) Determinations by Plan Administrator - Any determination
------------------------------------
required by this Section will be made by the Plan Administrator, and
the determination by the Plan Administrator of the method of
compliance with subsection (a) and reduction of deferrals in excess of
that permitted by subsection (a), in accordance with subsection (d),
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and the determination of the amount of any Excess Contribution to be
distributed pursuant to subsection (e), will be final, binding, and
conclusive as to all Participants, former Participants, Beneficiaries,
and any other person or entity associated with or benefiting from this
Plan.
(g) Multiple Use Limitation - If the multiple use limitations in
-----------------------
Section 1.401(m)-2(b) of the Regulations applies with respect to any
Highly Compensated Employee, the Actual Deferral Percentages of each
Highly Compensated Employee will be reduced (beginning with the Highly
Compensated Employee who has the greatest dollar amount of Elective
Deferrals for the Plan Year) so that the multiple use limitation is
not exceeded. The amount by which each Highly Compensated Employee's
Actual Deferral Percentage is reduced will be treated as an Excess
Contribution as provided under Section 3.3.
(h) Priority of Application of Sections - Section 3.2 will be
-----------------------------------
applied before this Section. Except to the extent provided in
Regulations, any amounts distributed under Section 3.2 will be deemed
not to have been distributed for purposes of this Section.
3.4 Rollover Contributions - At the request of a Participant, a
----------------------
Retired Employee or an Eligible Employee, the Plan may accept a
rollover of cash amounts from another qualified plan described in
section 401(a) of the Code, including an individual retirement account
or annuity whose assets came solely from a qualified plan. Any such
rollover amount will be held for the Participant, Eligible Employee,
or Retired Employee, as the case may be, in a Rollover Contribution
Account established for his benefit. The Plan Administrator and the
Trustee may request such information from the Participant, Eligible
Employee, or Retired Employee, as the case may be, or any documents or
opinion of counsel which it, in its discretion, deems necessary to
determine that a proper rollover contribution will be made. Amounts
in a Rollover Contribution Account shall be invested as designated by
the Participant pursuant to Section 4.2(c). The amounts in the
Rollover Contribution Account will be distributed in accordance with
the provisions of Article V.
3.5 Contributions on Account of Veteran's Reemployment Rights -
---------------------------------------------------------
(a) Repayment Amount - The Employee may make contributions
----------------
under this Section in one or more payments that total no more
than the total Elective Deferrals he would have been permitted to
contribute during his period of qualified military service if he
had been actively Employed subject to otherwise applicable
limitations contained in Code Sections 402(g), 403(b), 404(a),
404(h), 408, 415 or 457. Adjustment will be made for any
Elective Deferrals actually made during the period. Amounts
contributed under this Section will not include the crediting of
any earnings before the date the contribution actually is made.
Allocation of Forfeitures with respect to the period of qualified
military service is not required. In the absence of specific
designation by the Employee, payments will be first characterized
as Elective Deferrals up to the maximum amount permitted.
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(b) Repayment Period - The Employee must make contributions
----------------
under this Section to the Plan within a period beginning on his
date of Reemployment and ending on the earlier of (i) a period
equal to three times his period of qualified military service
under Code Section 414(u); or (ii) five years.
(c) Annual Compensation Assumption - For purposes of
------------------------------
determining the amount of contributions permitted under this
Section, the reemployed Employee will be treated as having
received the compensation included in Annual Compensation
determined under Section 1.2 for periods of qualified military
service.
(d) Matching Contributions - An Employee reemployed after
----------------------
a period of qualified military service in accordance with Code
Section 414(u) will be credited with matching contributions, if
any, for his period of qualified military service if the Employee
makes-up his Elective Deferrals as described in (a) above.
(e) Accounts - Once contributions by the Employer and
--------
Employee have been made under this Section, the contributions will
be allocated to the appropriate Participant Account.
(f) Compliance - Contributions by the Employer and an
----------
Employee rehired following qualified military service are
intended to comply with Code Section 414(u) and any Regulations
or rulings.
3.6 Fund for Exclusive Benefit of Participants - All assets of
------------------------------------------
the Trust Fund will be held for the exclusive benefit of the
Participants and their Beneficiaries for the purpose of distributing
to Participants and Beneficiaries both the corpus and income of the
Trust Fund in accordance with the provisions of Article V. No part of
the Trust Fund corpus or income will be used for or diverted to
purposes other than for the exclusive benefit of Participants and
Beneficiaries under the Plan, whether by operation of law or natural
termination of contracts, by the happening of a contingency, by
collateral arrangement or by any other means; provided that, the
Company reserves the right to amend or terminate the Plan at any time
as provided in Articles XI and XII.
To the extent permitted by the Code and the applicable rules and
Regulations, upon the Employer's request, a contribution which was
made by a mistake of fact, conditioned on the initial qualification of
the Plan, or conditioned on the deductibility of the contribution
under Code Section 404, will be returned to the Employer (with any
Elective Deferrals being refunded to the Employees on whose behalf the
contributions were made to the Trust) within one year after the
payment of the contribution, the denial of the qualified status of the
Plan, or the disallowance of the deduction for such contribution (to
the extent disallowed), whichever is applicable. All contributions by
the Employer to the Plan are expressly conditioned on their
deductibility and, if all or part of a contribution is determined not
to be deductible, the portion that is nondeductible will be returned
to the Employer.
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3.7 Disposition of Forfeitures and Amounts Subject to Buy-Back Option -
-----------------------------------------------------------------
(a) Participants Who Terminate Employment - In the case of
-------------------------------------
an Employee who has terminated Employment, the amount standing to
his credit in his Employer Contribution Account in which he has
no Vested Interest shall be forfeited and applied as provided in
Section 3.7(d) as of the Annual Valuation Date for the Plan Year
in which the earlier of the following occurs: (i) he incurs a
one-year Break in Service, or (ii) payment of the terminated
Participant's Vested Interest in his Employer Contribution
Account commences. If the Participant has no Vested Interest in
his Employer Contribution Account, his entire Employer
Contribution Account shall be forfeited and applied as provided
in Section 3.7(d) as of the Annual Valuation Date for the Plan
Year in which his Employment terminates, provided that his
Employer Contribution Account may later be restored in accordance
with Section 3.7(c). After termination of his Employment, a
former Employee's Vested Interest (if any) in his Employer
Contribution Account shall be distributed or held for
distribution in accordance with Article V hereof.
(b) Buy-Back Option - A Participant who received a
---------------
distribution of less than 100% of his Employer Contribution
Account and who is reemployed by the Employer prior to incurring
five (5) consecutive one (1) year Breaks in Service, shall have
an option to buy-back the amount which was subject to forfeiture
by paying to the Plan the full amount of the distribution paid to
him from his Employer Contribution Account. Repayment must be
made by the earlier of (i) the date which is five (5) years after
his first date of Reemployment, or (ii) the date the individual's
post-termination consecutive Break in Service period equals five
(5) consecutive years. Upon such repayment, the amount in his
Employer Contribution Account shall be restored, and such
restored amount shall not be less than the total of the amount
repaid and the amount forfeited. If such restored amount is less
than such minimum, the difference shall be credited to the
Participant's Employer Contribution Account, either out of
Forfeitures or Trust earnings attributable to the Plan Year in
which the Participant exercises his buy-back option, or by an
additional Employer contribution, as determined in the sole
discretion of the Plan Administrator.
(c) Participant With No Vested Interest - If a Participant
-----------------------------------
who has no Vested Interest in his Employer Contribution Account
incurs a Break in Service, and if the Participant is Reemployed
by the Employer prior to incurring five (5) consecutive one (1)
year Breaks in Service, upon such Reemployment, the amount in his
Employer Contribution Account at the time he terminated
Employment shall be restored, either out of Forfeitures or Trust
earnings attributable to the Plan Year in which he is reemployed,
or by an additional Employer contribution, as determined in the
sole discretion of the Plan Administrator.
(d) Allocation of Forfeitures - Forfeitures shall be used
-------------------------
to reduce the Employer Contributions to the Plan for the Plan
Year in which such Forfeiture occurs.
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3.8 Maximum Allocations -
-------------------
(a) The amount of Annual Additions (as defined in
subsection (d) below) which may be credited to the Participant
under this Plan during any Limitation Year shall not exceed the
lesser of $30,000 or 25% of the Participant's Section 415
Compensation (as defined in subsection (e) below) for the
applicable Limitation Year.
(b) For any Participant in the Plan who is also a
participant in one or more defined benefit plans (as defined in
section 414(j) of the Code) maintained by the Company or by the
Employer, the sum of the fractions in (1) and (2) below, computed
as of the close of the Limitation Year, may not exceed 1.0, where
the fractions are determined as follows:
(1) The Projected Annual Benefit (as defined in
subsection (d) below) of the Participant under such defined
benefit plans, divided by the lesser of:
(i) the product of the dollar limitation determined
for the Limitation Year under Code sections 415(b) and
(d) multiplied by 1.25 (or 1.0, if the Plan is a Top-
Heavy Plan, as defined by Section 14.2(d)), or
(ii) 140 percent of the Participant's Average
Compensation (as defined in subsection (d) below),
including any adjustments under Code section 415(b),
plus
(2) The sum of the Annual Additions to such
Participant's accounts under this Plan and all other defined
contribution plans maintained by the Employer for such
Limitation Year and for all Prior Years (as defined in
subsection (d) below) divided by the sum of the lesser of
the following amounts determined for such Plan Year and all
Prior Years:
(i) the product of the Dollar Limitation (as
defined in subsection (d) below) in effect for the year
multiplied by 1.25 (or 1.0, if the Plan is a Top Heavy
Plan, as defined by Section 14.2(d)), or
(ii) 35 percent of the Participant's Section 415
Compensation for the year.
(c) In the event that a Participant's Annual Addition under
this Plan, when added to the Annual Addition under any other
defined contribution plan (as defined in section 414(i) of the
Code) or the Projected Annual Benefit under any defined benefit
plan maintained by the Employer, exceeds the limitations
specified in Section 3.8(a) or (b), appropriate reductions in
such Annual Addition or Projected Annual Benefit shall be made in
the following order:
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(1) First, under any defined benefit plan(s)
maintained by the Employer,
(2) To the extent that additional reductions are still
necessary, under this Plan.
(d) For purposes of this Section 3.8, the following
definitions and rules of interpretation shall apply:
(1) Effective for years beginning after December 31,
1986, the "Annual Addition" of a Participant means the sum
credited to a Participant's account for any year of (i)
employer contributions; (ii) employee contributions; (iii)
forfeitures and (iv) amounts described in Code sections
415(1)(2) and 419A(d)(2). Notwithstanding the foregoing, for
years beginning prior to January 1, 1987, only that portion
of the employee's contributions equal to the lesser of: (A)
the portion of his employee contributions (if any) during
such year in excess of 6 percent of his annual compensation,
or (B) one half of his employee contributions during such
plan year shall be considered an "Annual Addition." The
Annual Addition for any year beginning prior to January 1,
1987, shall not be recomputed to treat all employee
contributions as an Annual Addition.
(2) "Projected Annual Benefit" means the Annual
Benefit (as defined in paragraph (3) below) to which a
Participant would be entitled under a defined benefit plan
(after giving effect to any limitation on such benefit
contained in such plan that may be applicable to the
Participant) on the assumptions that he continues employment
until his Normal Retirement Date thereunder, that his
compensation continues at the same rate as in effect for the
Limitation Year under consideration until such Normal
Retirement Date, and that all other relevant factors used to
determine benefits under such plan remain constant for all
future Limitation Years.
(3) The "Annual Benefit" of a Participant means the
annual amount payable under a defined benefit plan computed
in accordance with the following rules:
(i) Where the Annual Benefit payable under a
defined benefit plan is other than in the form of
either a single life annuity or a qualified joint and
survivor annuity within the meaning of Code section
417(b) it shall be adjusted to an actuarial equivalent
benefit in the form of a single life annuity.
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(ii) In the case of a benefit under a defined
benefit plan which begins prior to the Participant's
Social Security Retirement Age (as defined below), such
benefit shall be adjusted so that it is the actuarial
equivalent of a benefit commencing at the Participant's
Social Security Retirement Age for purposes of applying
the Code section 415(b) dollar maximum.
(iii) In the case of a benefit under a defined
benefit plan which begins after the Participant's
Social Security Retirement Age, such benefit shall be
adjusted to the actuarial equivalent of a benefit
commencing at the Participant's Social Security
Retirement Age for purposes of applying the Code
section 415(b) dollar maximum.
(iv) For years beginning prior to January 1, 1987,
subparagraph (B) shall be applied by substituting "age
62" for "the Participant's Social Security Retirement
Age," and subparagraph (C) shall be applied by
substituting "age 65" for "the Participant's Social
Security Age."
(4) "Average Compensation" means a Participant's
average compensation for the period of 3 consecutive Plan
Years (or the actual number of consecutive years of
employment for Participants employed by an Employer less
than 3 consecutive years) during which the Participant had
the greatest aggregate Section 415 Compensation.
(5) "Prior Year" means a year, preceding the current
Limitation Year, in which the Participant was in the service
of the Employer. For purposes of the preceding sentence,
"year" shall mean (in the event the Plan was in existence
during such year) a Limitation Year, or (in the event the
Plan was not in existence during such year) a 12 month
period which begins and ends on the same dates as the
Limitation Year.
(6) "Dollar Limitation" means the limitation provided
in Code section 415(c)(1)(A) (adjusted in accordance with
Internal Revenue Service Regulations) as in effect for the
particular Plan Year.
(7) "Social Security Retirement Age" means age 65 in
the case of a Participant who attains age 62 before January
1, 2000; age 66 in the case of a Participant who attains age
62 after December 31, 1999 but before January 1, 2017; and
age 67 in the case of a Participant who attains age 62 after
December 31, 2016.
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(8) For purposes of Section 3.8(b)(1)(i) above, if as
of the last Plan Year ending before January 1, 1983, a
Participant's accrued benefit (within the meaning of Section
235(g)(4) of the Tax Equity and Fiscal Responsibility Act of
1982) under the Employer's defined benefit plans is greater
than $90,000 (and also such other amount as may apply
pursuant to automatic adjustments of the $90,000 figure),
then Section 3.10(b)(1)(i) shall be applied by substituting
such accrued benefit for $90,000 where it appears therein.
(9) For purposes of computing the maximum allocation
under either subsection (a) or (b), all defined benefit
plans (whether or not terminated) of the Employer shall be
treated as one defined benefit plan, and all defined
contribution plans (whether or not terminated) of the
Employer shall be treated as one defined contribution plan.
(10) When the term "Employer" is used in this section,
it shall mean the Employer and any other corporation or
division which is a member of a controlled group of
corporations (within the meaning of Code Section 414(b), as
modified by Code section 415(h)) of which the Employer is
also a member.
(e) Section 415 Compensation - A Participant's compensation
------------------------
as determined solely for purposes of this section of the Plan.
(1) A Participant's Section 415 Compensation shall
include:
(i) The Participant's earned income, wages,
salaries, and fees for professional services, and
other amounts received for personal services
actually rendered in the course of employment with
the Employer maintaining the plan to the extent
that the amounts are includable in gross income
(including, but not limited to, commissions paid
salesmen, compensation for services on the basis
of a percentage of profits, commissions on
insurance premiums, tips and bonuses, fringe
benefits, reimbursements, and expense allowances);
(ii) Amounts described in Code sections
104(a)(3), l05(a) and 105(h), but only to the
extent that such amounts are includable in the
gross income of the Participant;
(iii) Amounts paid or reimbursed by the
Employer for moving expenses incurred by a
Participant, but only to the extent that such
amounts are not deductible by the Participant
under Code section 217;
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(iv) The value of a non-qualified stock
option granted to a Participant, but only to the
extent that the value of the option is includable
in the gross income of the Participant for the
taxable year in which granted; and
(v) The amount includable in the gross
income of a Participant upon making the election
described in Code section 83(b).
(2) A Participant's Section 415 Compensation shall not
include:
(i) Employer contributions to a plan of deferred
compensation which are not included in the
Participant's gross income for the taxable year in
which contributed or Employer contributions under a
simplified employee pension plan to the extent such
contributions are deductible by the Participant, or any
distributions from a plan of deferred compensation;
(ii) Amounts realized from the exercise of a
nonqualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which received special tax
benefits, or contributions made by the Employer
(whether or not under a salary reduction agreement)
towards the purchase of an annuity described in section
403(b) of the Code (whether or not the amounts are
actually excludable from the gross income of the
Participant).
Compensation for any Limitation Year is the compensation
actually paid or includable in gross income during such
year.
(f) Excess Allocations - In the event that pursuant to this
------------------
Section 3.8 there is an excess Annual Addition under this Plan
with respect to a Participant for a Limitation Year, such excess
Annual Addition shall be disposed of by distributing to the
Participant such Participant's Elective Deferrals for the
Limitation Year (and related earnings thereon) to the extent
necessary to eliminate such excess.
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ARTICLE IV
INTEREST OF PARTICIPANTS
4.1 Accounts of Participants - The Plan Administrator, or its
------------------------
agent, will, as applicable, maintain three separate accounts on its
books for each Participant: (i) Employee Rollover Contribution
Account; (ii) Pre-Tax Account; and (iii) Employer Contribution
Account. The maintenance of individual accounts is primarily for
accounting purposes, and segregation of the assets of the Trust Fund
to each account will not be required (except as the Trustee deems
necessary under the Brokerage Option). Distributions and withdrawals
made from an Account will be charged to the Account as of the date
paid. The Trustee may create one or more subaccounts for any Account.
4.2 Investment of Participant Accounts - The investment options
----------------------------------
under the Plan are described in subsection (a), subject to the
limitations set forth in subsection (b) and other provisions of the
Plan.
(a) Investment Options - In accordance with the rules
------------------
provided in subsection (c) below, a Participant shall direct the
investment of the amounts credited to his Account to any of the
following separate investment options within the Trust Fund for
which he is eligible at the time:
(1) The Security Plus Fund - This investment option is
----------------------
an investment portfolio comprised of investment funds and
contracts issued by highly rated banks and insurance
companies and short-term securities. The objective of the
Fund is to provide, over a period of time, a higher rate of
return than average money market funds, while preserving
principal and providing liquidity. The Fund's rate of
return will fluctuate and is not intended to provide a
guaranteed rate of return. The Participant's interest in
the fund will be denominated as "units". The number of
units credited to a Participant will fluctuate based upon
the performance of the Fund. The Fund is expected to invest
primarily in: (A) short-term investment funds (including
government short-term investment funds) that invest in
certificates of deposit, time deposits, bankers'
acceptances, commercial paper, U.S. Treasury and agency
securities, and mortgage and asset-backed securities; and
(B) new investment contracts issued by highly-rated
insurance companies, banks, and other financial
institutions. The transfer of funds invested in the
Security Plus Fund to other separate investment options
within the Trust Fund shall be subject to the following
restrictions:
(i) No amounts invested in the Security Plus Fund
may be transferred by a Participant directly to the
Brokerage Option. No amounts invested in the Security
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Plus Fund may be transferred by a Participant
indirectly to the Brokerage Option, i.e., by first
transferring the amounts to some other investment
option (or options) under the Plan, unless such amounts
remain invested in the intervening investment option
(or options) for at least 90 days;
(ii) A Participant can transfer amounts from the
Security Plus Fund into some other investment option
(or options) under the Plan no more than 12 times
during the Plan Year; and
(iii) Withdrawals of amounts invested in the
Security Plus Fund are subject to the limitations
specified in Section 5.6(c).
(2) The Equity Index Fund - This investment option is
---------------------
a diversified stock fund, invested primarily in the Vanguard
Institutional Index Fund. It is a passively managed fund
designed to mirror the performance of Standard and Poor's
500 Index, a broadly-based average of stock market
performance. Investments in this investment option are
subject to fluctuations, and there is no guarantee of future
performance. The Participant's interest in the Fund will be
denominated as "units". The value of a unit in this Fund
will fluctuate based on the performance of the Fund. The
number of units credited to a Participant will not fluctuate
based upon the performance of the Fund.
(3) The Equity-Income Fund - This Fund is primarily
----------------------
invested in the Fidelity Equity-Income Fund, which invests
primarily in income-producing stocks. The Fund's chief
objective is to provide reasonable income, although some
consideration is given to capital appreciation. Amounts
invested in this investment option are subject to
fluctuations, and there is no guarantee of future
performance. The Participant's interest in the Fund will be
denominated as "units". The value of a unit in this Fund
will fluctuate based on the performance of the Fund. The
number of units credited to a Participant will not fluctuate
based upon the performance of the Fund. Notwithstanding
anything to the contrary herein, if with respect to any
calendar quarter ("quarter") Fidelity Institutional
Retirement Services Company makes a payment pursuant to its
Plan Expense Reimbursement Agreement with the Company, such
payment shall be allocated to certain Participants who have
an interest in the Equity Income Fund as provided in (i) or
(ii) below, as applicable.
(i) The projected amount payable with respect to
each business day in a quarter shall be allocated on a
daily basis to Participants in proportion to their
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interest in the Fund on such business day. If the
actual amount of payment for a quarter differs from the
projected amount allocated, then as soon as practicable
after the actual payment is received appropriate
adjustments will be made in affected Participants'
Accounts that remain in the Plan.
(ii) Any such payment made with respect to an
earlier quarter shall be allocated to Participants who
have an interest in the Equity-Income Fund on the last
business day of such quarter in proportion to their
interest in the Fund on such date.
For purposes of (i) and (ii) above, a Participant's interest
in the Equity-Income Fund on a day shall be determined
before adjustments in Accounts are made for that day in
accordance with section 4.3.
(4) The PBG Stock Fund - This investment option is
------------------
invested primarily in Company Stock. Earnings will be
applied primarily to the purchase of additional shares of
Company Stock. The objective of the Fund is to parallel the
total return (stock price appreciation/depreciation plus
dividends) of Company Stock. Amounts invested in this
investment option are subject to fluctuations, and there is
no guarantee of future performance.
A Participant's interest in the Fund will be denominated as
"units". The value of a unit will fluctuate in response to
various factors including, but not limited to, the price of and
dividends paid on Company Stock, earnings and losses on other
investments in the Fund, the mix of assets in the Fund and Fund
expenses. The number of units credited to a Participant's
account will not fluctuate based upon the performance of the
Fund. Shares of PBG Common Stock held in the Fund and dividends
and other distributions on PBG Common Stock are not specifically
allocated to Participant accounts. Each Participant's investment
in the PBG Stock Fund will be based on the proportion of his
investment in the Fund to the total investment in the Fund of all
Plan Participants.
All dividends on shares of Company Stock in the Fund are
paid to the Fund. Dividends on these shares are added to the
Fund without the purchase of additional units in the Fund. The
Trustee shall use the dividend income to purchase additional
shares of Company Stock for the Fund or to meet the cash demands
of the Fund. Any Company Stock received by the Trustee as a
stock split or dividend, or as a result of a reorganization or
other recapitalization of PBG, will be added to the assets of the
Fund. Any other property (other than shares of Company Stock)
-25-
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received by the Trustee may be sold by the Trustee and the
proceeds added to the Fund. Any rights to subscribe to
additional shares of Company Stock shall be sold by the Trustee
and the proceeds credited to the Fund.
Participants who have invested in the Fund may direct the
Trustee how to vote (or tender, if applicable) Company Stock.
The Trustee will determine each Participant's proportional share
of the Company Stock in the Fund (based on the number of units
allocated to the Participant's Accounts) and solicit the
Participant's instructions. The Trustee shall vote (and/or
tender) this stock according to the Participant's directions.
The Trustee shall not vote stock in the Fund for which it does
not receive directions.
The Company shall assist the Trustee in furnishing
Participants investing in the PBG Stock Fund with proxy
materials, notices and information statements at the time voting
rights are to be exercised. In general, the materials to be
furnished Participants shall be the same as those provided to
security holders.
Shares of Company Stock will be purchased for the Fund in
the open market or in privately negotiated transactions, at
prices not in excess of the fair market value of the Company
Stock on the date of purchase. Sales of shares out of the Fund
will also be made in the open market or in privately negotiated
transactions at prices not lower than the fair market value of
Company Stock on the date of sale. The Trustee, or its designated
agent, may limit the daily volume of purchases and sales to the
extent it believes it will be in the interest of Participants to
do so.
(5) The Brokerage Option:
--------------------
(i) Description of Funds - This investment option
--------------------
will be administered by State Street Bank and the
agents it employs as securities brokers to execute
Participants' trades. This option permits certain
Participants and Beneficiaries to invest all or a
portion of their interest in the Plan in additional
choices for self-directed investment. The Plan
Administrator shall publish written rules and
procedures for the election of these additional choices
by Participants and Beneficiaries, and may revise such
rules and procedures at any time and for any reason.
The investments expected to be available under the
Brokerage Option are generally as follows: securities
traded on the New York Stock Exchange, the American
Stock Exchange, and the NASDAQ exchange, and certain
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mutual funds as specified by the Plan Administrator.
(A) The following investments will not be
available through the Brokerage Option: Non-
taxable bonds; options; futures; commodities;
limited partnerships which are unlisted on the New
York or American Stock Exchange or the NASDAQ
exchange; foreign securities which are unlisted on
the New York or American Stock Exchange or the
NASDAQ exchange; commercial paper; bank
investments (such as certificates of deposits and
bank investment contracts); physical assets (such
as coins, art, jewelry, and real estate);
insurance investment or insurance investment
funds; mutual funds not specified by the Plan
Administrator; and securities of the Company or
its subsidiaries (even if listed on the New York
or American Stock Exchange or the NASDAQ
exchange).
(B) The following trading practices are
prohibited under the Brokerage Option: Short
sales, margin trades, third party trades, direct
trades, and any trades occurring outside the
procedures established by the Plan Administrator.
(ii) Restrictions - Each Participant who
------------
participates in the Brokerage Option shall have his
interest in the Plan reduced by any brokerage
commissions and fees (including fees charged on account
of one or more investments in a mutual fund) payable on
their individual transactions and shall also have his
interest in the Plan reduced by an access fee for each
month or part thereof that the Participant participates
in the Brokerage Option. Such access fee will be taken
from the following funds on a prorated basis: Security Plus
Fund, Equity-Index Fund, Equity Income Fund, PBG Stock
Fund and the Brokerage Option. The Plan Administrator,
and its agent, are authorized to sell securities or
other assets held within a Participant's Account for
the purpose of paying the commissions and fees
described in this subsection. Investment in the
Brokerage Option is subject to the following
restrictions:
(A) To commence investing under this
program, the Participant must first be eligible to
enroll in the Brokerage Option. A Participant is
eligible to enroll if he has at least $1,000.00 in
his Participant Account; completes and returns the
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application as required by the Plan Administrator
or its agent; and his initial transfer election
into the Brokerage Option is at least $1,000.
Subsequent transfers to and from the Brokerage
Option must be at least $250 unless such transfer
is to close the Participant's account under the
Brokerage Option. All transfers to the Brokerage
Option must be from prior savings.
(B) No amounts invested in the Security Plus
Fund may be directly transferred to the Brokerage
Option, and no amounts invested in the Security
Plus Fund may be indirectly transferred to the
Brokerage Option, i.e., by first transferring the
amounts to some other investment fund (or funds)
under the Plan, unless such amounts remain
invested in the intervening fund (or funds) for at
least 90 days.
(C) Except as provided in the last sentence
of this clause (C), no security or investment held
by a Participant's account within the Brokerage
Option may be transferred or distributed directly
to the Participant. The Participant must
initially sell the security or investment. The
Trustee will place the proceeds of such sale in a
short-term investment fund, designed to generate a
money market rate of return, within the Brokerage
Option. The proceeds will remain in such account
until the Participant instructs the Plan
Administrator or its agent to transfer all or a
portion of such proceeds into one or more of the
other separate investment options within the Trust
Fund provided that the investment option chosen by
the Participant permits contributions. The
crediting of earnings within the short-term
investment fund and the transfer of funds to other
investment funds within the Trust Fund may be
delayed until after the settlement period for the
class of security sold by the Participant, ranging
from one to five business days. In-kind
distributions are permitted in the event of a
complete distribution of a Participant's interest
as specified under Sections 5.1, 5.2, 5.3, 5.4, or
5.5.
(b) Maintaining Liquidity - Notwithstanding subsection (a)
---------------------
above, for the purpose of providing liquidity in each of the
separate investment options (other than the Brokerage Option)
under the Plan, the Trustee may invest a portion of each fund or
investment option under the Plan in cash or short-term
securities. The percentage of assets held for this purpose is
normally expected to range from 2 to 10 percent, but under
extraordinary circumstances the percentages may be substantially
higher. Consequently, the mix of cash, securities and other
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investments in each of the investment funds could vary
significantly at any given time and the performance of any
particular fund may not match the performance of the fund or
stock, as the case may be, outside the Plan. In the unlikely
event that the amount of liquid assets held by these funds is
insufficient to satisfy the immediate demand for liquidity under
the Plan, the Trustee, in consultation with the Plan
Administrator, may temporarily limit or suspend transfers of any
type (including withdrawals and distributions) to or from the
investment options specified in subsection (a). In any such
case, the Plan Administrator shall temporarily change the Plan's
Valuation Date or, in its discretion, the Valuation Date for a
specified option. During this period, contributions to any
affected option may be redirected to substitute investments
chosen by the Trustee.
(c) Procedures for Investment Directions - A Participant may
------------------------------------
direct the investment of the amounts credited to him under the
Plan into the investment options described in subsection (a) only
in accordance with this subsection. A Participant shall direct
the investment, or change the direction of the investment, of his
future or existing investment by directing the Plan Administrator
through the telephone enrollment system provided by the Plan
Administrator for such purpose (or through any other method made
available by the Plan Administrator) and by specifying whether
the Participant's investment instructions apply to existing
savings, future contributions or both.
(1) The Participant will have sole responsibility for
the investment of his savings and for transfers among the
available investment funds, and no named fiduciary or other
person will have any liability for any loss or diminution in
value resulting from the Participant's exercise of such
investment responsibility. In addition, because
Participants control the investment of Participant Accounts,
the Plan is intended to be covered to the maximum extent
possible by section 404(c) of ERISA and related Department
of Labor regulations, which provide that Plan fiduciaries
may be relieved of liability for any losses that are the
result of investment instructions given by a Participant or
Beneficiary.
(2) In the case of an option other than the Brokerage
Option, a Participant's investment instruction or change in
investment instruction shall generally be processed by the
end of the day on which the Participant gives such
instruction or change to the Plan Administrator (or its
agent), provided the Participant executes such instruction
or change by 3:00 p.m. (Eastern time) on a business day. If
the Participant executes his instruction or change on a
Saturday, Sunday, holiday or after 3:00 p.m. (Eastern time)
on a business day, such instruction or change will be
processed on the next following business day.
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(3) In the case of the Brokerage Option, a
Participant's investment instruction or change within the
Brokerage Option or fund transfers into the Brokerage Option
shall be effective in accordance with rules set forth by the
Plan Administrator consistent with the rules that govern the
exchange or fund in which Participants invest.
Any investment direction submitted by a Participant must specify,
in whole percentages (1 to 100%), the percentage of his accounts
to be invested in any or all of the separate investment funds
maintained under the Plan. If a Participant fails to submit a
statement of direction properly directing the investment of 100
percent of his accounts, and such failure is not corrected, the
Participant shall not be eligible to participate actively, or to
continue to participate actively, in the Plan; provided, however,
that amounts previously invested pursuant to a properly executed
statement of investment direction shall continue to remain
invested in the Fund or Funds so elected. The rules for
transfers set forth in paragraphs (2) and (3) above are subject
to the last 3 sentences of subsection (b) above.
(d) Miscellaneous -
-------------
(1) It is expressly permissible under this Plan for
Trust assets to be invested in qualifying employer
securities, as that term is defined in section 407(d)(5) of
ERISA, up to and including 100 percent of the total Trust
assets. If Company Stock is purchased other than on the
open market, the Company Stock shall be valued in good faith
and based on all relevant factors, including the sales
prices of such stock, as reported on the New York Stock
Exchange, on the date of purchase.
(2) The separate investment funds made available under
the Trust Fund and their rules of operation and valuation
may be changed from time to time by agreement between the
Company and the Trustee.
(3) As of each Valuation Date, the Trustee will
determine the fair market value of the assets in each
separate investment fund of the Trust Fund, relying upon
such evidence of valuation as the Trustee deems appropriate.
4.3 Adjusting Account Balances - As of the close of business on
--------------------------
each Valuation Date (before adjusting for contributions, distributions
and investment transfers), Participants' Accounts shall be charged or
credited with:
(a) Investment Expenses,
(b) investment income, and
(c) gains and losses in asset values,
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to the extent they have occurred with respect to each separate option
(and each separate investment within the Brokerage Option) since the
preceding Valuation Date. Thereafter, the final Account balances as
of the Valuation Date will be determined by adjusting the amounts
determined under the preceding sentence for contributions,
distributions and investment transfers. The allocation of Investment
Expenses and investment results as of a Valuation Date shall be in
proportion to the final Account balances in the fund or investment as
of the preceding Valuation Date. Gains and losses in assets values as
of a Valuation date shall be determined in accordance with rules of
the Plan Administrator and may not reflect the closing values of the
assets on such Valuation Date.
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ARTICLE V
BENEFITS
5.1 Termination of Employment - A Participant who terminates
-------------------------
his Employment for any reason other than death will be entitled to
receive his Vested Interest in the Plan, payable in a lump sum distribution
commencing as soon as administratively practicable in accordance with
the provisions of Section 5.4.
5.2 Death Benefits - In the event of a Participant's death, the
--------------
Participant's designated Beneficiary will be entitled to receive his
Vested Interest in the Plan payable in a lump sum distribution commencing
as soon as administratively practicable in accordance with the provisions
of Section 5.4. Any payments made under subsections (a) and (b) above will
be distributed within five (5) years after the Participant's death. The
five year requirement will not apply if: (i) any portion of the Participant's
interest is payable to or for the benefit of a designated Beneficiary;
(ii) such portion will be distributed in accordance with Regulations over
the life of the designated Beneficiary or over a period not extending
beyond the life expectancy of such Beneficiary; and (iii) the distributions
begins no later than one year after the date of the Employee's death or
such later date as the Secretary may, under Regulations, prescribe. If
the designated Beneficiary referred to in this section is the Employee's
surviving spouse, the date on which distributions are required to begin will
be no earlier than the date the deceased Employee would have attained age
70-1/2. If the surviving spouse dies before the distributions begin, this
Section will be applied as if the surviving spouse were the Employee. A
distribution to a child will be treated as if it had been paid to the
Employee's surviving spouse if the amount will become payable to the
surviving spouse upon the child reaching majority (or such other event
designated and permitted under the Regulations).
5.3 Withdrawals - Subject to the restriction on direct
-----------
withdrawals from the Brokerage Option specified in Section 5.3 (c)
below, a Participant who has made Elective Deferrals or a Rollover
Contribution may withdraw certain amounts credited to his Pre-Tax
Account and Rollover Account to the extent permitted by this section.
(a) Hardship Withdrawals - In the case of a Participant who
--------------------
has not yet attained the age of 59-1/2, withdrawals shall only be
permitted on account of the Participant's hardship. For this
purpose, a withdrawal is made on account of hardship only if the
Plan Administrator (or its delegate) determines the withdrawal
is: (A) made on account of an immediate and heavy financial need
of the Participant, and (B) necessary to satisfy this financial
need. Such determinations are intended to follow applicable
regulations and rulings issued by the Internal Revenue Service.
(1) Immediate and Heavy Financial Need - The
----------------------------------
determination of whether a Participant has an immediate and
heavy financial need shall be based on all of the relevant
facts and circumstances. In addition, a distribution shall
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be deemed to be made on account of an immediate and heavy
financial need of the Participant if the distribution is on
account of:
(i) Expenses for medical care (within the meaning
of Code section 213(d)) incurred by the Employee, the
Employee's spouse or dependents;
(ii) A cost directly related to the purchase
(excluding mortgage payments) of a principal residence
for the Employee;
(iii) Payment of tuition and related educational
fees for the next 12 months of post-secondary education
for the Employee, the Employee's spouse, children or
dependents; or
(iv) The need to prevent the eviction of the
Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence.
For purposes of this paragraph, "dependent" means an Employee's
dependent within the meaning of Code section 152.
(2) Necessary for the Need - A withdrawal shall be
----------------------
considered necessary to satisfy a need described in
paragraph (1) only to the extent:
(i) the amount of the withdrawal is not in excess
of the amount required to relieve such need, and
(ii) the need cannot be satisfied from other
resources that are reasonably available to the
Participant.
Determinations under this paragraph shall be based on all of
the relevant facts and circumstances. A distribution
generally may be treated as necessary to satisfy a financial
need if the Plan Administrator (or its delegate) relies upon
the Participant's written representation (unless the Plan
Administrator has actual knowledge to the contrary) that the
need cannot reasonably be relieved:
(A) Through reimbursement or compensation by
insurance or otherwise;
(B) By liquidation of the Participant's
assets;
(C) By cessation of Elective Deferrals;
(D) By other distributions or nontaxable
loans from plans maintained by an Employer, or by
borrowing from commercial sources on reasonable
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commercial terms, in an amount sufficient to
satisfy the need.
For this purpose, a need cannot be treated as reasonably
relieved from the sources listed above if the effect would
be to increase the amount of the need.
(3) Maximum Withdrawal - The amount that may be made
------------------
available to a Participant for hardship withdrawal may not
exceed:
(i) The sum of:
(A) the Participant's total Elective
Deferral contributions,
(B) any earnings on the Participant's
Elective Deferral contributions credited to
the Participant's Pre-Tax Account on December
31, 1988, and
(C) the Participant's total Rollover
Contributions plus any earnings thereon;
reduced by
(ii) The amount of any prior withdrawals and
distributions to or on behalf of the Participant.
The amounts specified in this paragraph (except that
specified in subparagraph (i)(B)) are to be determined as of
the Valuation Date on which the withdrawal is processed.
(4) Administrative Procedures - A withdrawal request
-------------------------
under this subsection shall be made on the form specified
for this purpose by the Plan Administrator. For a
withdrawal to be approved, this form must be fully completed
and the Participant must provide such additional information
as the Plan Administrator (or its delegate) shall request.
The hardship withdrawal shall be paid to the Participant as
promptly as practicable after its approval and shall not
exceed the value of the Participant's distributable
interest.
(b) Post-Age 59-1/2 Withdrawals - In the case of a
---------------------------
Participant who has attained age 59-1/2, such Participant shall
be eligible to withdraw all or a portion of his Vested Interest
by submitting to the Plan Administrator a request in such form
and manner as the Plan Administrator may provide, specifying the
amount to be withdrawn; provided, however, that a Participant
shall be ineligible to make a withdrawal under this subsection
more than 2 times within the same calendar year. Distribution
shall be made to the Participant as soon as practicable after the
withdrawal request is received by the Plan Administrator, based
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upon the Participant's balance in his Account as of the Valuation
Date the withdrawal is processed.
(c) Order of Asset Liquidation for all Withdrawals - In the
----------------------------------------------
event the Participant's Account is invested in more than one
investment option, a partial withdrawal will be distributed pro-
rata from each of the investment options from which withdrawals
are available. In addition, withdrawals directly from the
Brokerage Account are not permitted.
5.4 Payment of Benefits -
-------------------
(a) Form of Distributions - Subject to subsection (b) of
---------------------
this Section 5.4, the benefits to which a retiring, disabled, or
otherwise terminated Participant is entitled upon retirement,
disability or other termination of Employment will be paid in a
single lump sum cash payment, except to the extent that a Participant
elects to receive: (i) his interest in the PBG Stock Fund in whole
shares of Company Stock or (ii) securities held in his Brokerage Option
as permitted in Section 4.2(a)(5)(ii)(C). An election to receive an
in-kind distribution shall not apply to fractional shares, uninvested
cash or amounts invested for liquidity purposes, and shall not be
available with respect to hardship withdrawals under Section 5.3.
(b) Payment of Benefits Exceeding $5,000 - If the
------------------------------------
Participant's Vested Interest exceeds $5,000, no distribution as
described in subsection (a) above may be made prior to
Participant's Normal Retirement Date or death without the consent
of the Participant. If the Participant consents to a single lump
sum payment, the Plan Administrator will direct the payment of
the Vested Interest to Participant. Payments will be computed as
of the Valuation Date on which the Participant's Employment terminates
and paid as soon as administratively possible after the later of the
date the Participant becomes eligible for payment or the date the
Participant consents to such a distribution.
(c) Lump Sum Payment of Benefits Less than $5,000 - If the
---------------------------------------------
Participant's Vested Interest does not exceed $5,000, the Plan
Administrator will pay a Participant's Vested Interest in the
Plan as a lump sum payment without the consent of the
Participant. Payments will be computed as of the Valuation Date
on which the Participant's Employment terminates and paid as
soon as administratively practicable.
(d) Special Distribution Restrictions - Contributions to a
---------------------------------
Participant's Pre-Tax Account are not distributable to
Participants merely by reason of any stated period of
participation or the lapse of any fixed number of years.
Furthermore, no distribution may be made earlier than the
earliest of:
(i) Separation from Employment by the Participant;
(ii) Death of the Participant;
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(iii) Permanent and Total Disability of the
Participant;
(iv) Attainment of age 59-1/2 by the Participant;
(v) Hardship of the Participant, but only if and to
the extent permitted by the Code and Regulations.
(vi) To the extent permitted by the Code and
Regulations in the following circumstances:
(1) termination of the Plan without establishment
or maintenance of a successor defined contribution
plan;
(2) sale of substantially all assets used by the
Employer in the trade or business in which the
Participant is Employed; or
(3) the sale of an incorporated Affiliated
Employer's interest in a subsidiary.
5.5 Directed Eligible Rollover Distributions -
----------------------------------------
(a) A Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover
in accordance with procedures established by the Plan
Administrator.
(b) The Plan Administrator will provide the Distributee a
written notice as required by Code Section 402(f) which provides
a general description of the Distributee's distribution options
and notice of the Distributee's other rights, if any, to defer
receipt of the distribution. This notice will be given within
the time period specified in Regulation Section 1.411(a)-11(c);
provided, however, that if the distribution is one to which Code
Sections 401(a)(11) and 417 do not apply, such distribution may
begin less than 30 days after the required notice is given,
provided that
(i) the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of
at least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a Participant distribution option), and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
(c) For the purposes of this Section 5.5, the following
definitions apply:
(i) Eligible Rollover Distribution means any
distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
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Distribution cannot include any distribution that is one of
a series of substantially equal periodic payments made not
less frequently than annually for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under Code Section 401(a)(9); and
the portion of any distribution that is not includable in
gross income determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities.
(ii) Eligible Retirement Plan means an individual
retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a), or
a qualified trust described in Code Section 401(a), that
accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to
the surviving spouse, an Eligible Retirement Plan means only
an individual retirement account or individual retirement
annuity.
(iii) Distributee means an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's
spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Code
Section 414(p), are Distributees with regard to the interest
of the spouse or former spouse.
(iv) Direct Rollover means a payment to the Eligible
Retirement Plan specified by the Distributee either by
direct transfer from the Plan, or by delivery of the
distribution check by the Distributee, provided the check is
made out to ensure that it is negotiable only by the trustee
of the Eligible Retirement Plan.
5.6 Maintenance of Accounts Prior to Payout - After a
---------------------------------------
Participant's Employment terminates and before the distribution of all
of his benefits to him or to his Beneficiary(ies), the balance of his
Account, as it may exist from time to time, will be maintained,
subject to Section 5.4, in the following manner:
(a) The amount in his Employer Contribution Account which
were not Vested at termination of his Employment, if any, will be
forfeited in accordance with the provisions of Section 3.7.
(b) The former Participant's Account(s) balance will remain
invested as a part of the Trust Fund pending distribution.
5.7 Code Section 409(a)(9) Requirements -
-----------------------------------
(a) In General - Unless a Participant elects in a writing
----------
delivered to the Plan Administrator, subject to the requirements
of subsection (b) of this Section, benefit payments will begin no
later than sixty (60) days after the later of (i) the date on
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which a Participant reaches his Normal Retirement Date, (ii) the
Plan Year in which occurs the tenth anniversary of the year in
which the Participant began participating, or (iii) the Plan Year
in which the Participant's Employment with the Employer
terminates.
(b) Required Commencement Date - Payment of a Participant's
--------------------------
entire interest will begin on the April 1 of the calendar year
following the year in which the Participant reaches age 70 1/2.
(c) Period of Distribution - The entire interest of a
----------------------
Participant will be distributed to the Participant either:
(i) as of the required commencement date as described
in subsection (b) of this Section; or
(ii) beginning no later than the required commencement
date, in accordance with Regulations prescribed by the
Secretary of the Treasury:
(1) over the life of the Participant; or
(2) over the lives of the Participant and a
designated Beneficiary or;
(3) over a period not exceeding the life
expectancy of the Participant or;
(4) over a period not exceeding the life
expectancy of the Participant and a designated
Beneficiary.
The life expectancy of an Employee and Employee's spouse
(other than in the case of a life annuity) may be redetermined,
but not more frequently than annually. The provisions of Code
Section 401(a)(9) and Regulations including but not limited to
Section 1.401(a)(9) - (2) will override any distribution
provision of the Plan to the extent such provision is
inconsistent with any Code Section.
5.8 Errors in Participant's Accounts - When an error or omission
--------------------------------
is discovered in a Participant's Account, the Trustee is authorized to
make appropriate equitable adjustments as of the Plan Year in which
the error or omission is discovered.
5.9 No Other Benefits or Withdrawals - Except as expressly
--------------------------------
provided in this Article, as long as this Plan continues in effect, no
individual, whether a Participant, former Participant, Beneficiary or
otherwise, is entitled to any payment or withdrawal of funds from the
Trust Fund. This prohibition applies to Trust funds attributable to
individual contributions as well as those attributable to other
sources.
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5.10 Participants Who Cannot Be Located - If the Plan
----------------------------------
Administrator after the passage of a period of time (which period
shall be established by the Plan Administrator in accordance with
reasonable administrative practices) and reasonable due diligence is
unable to locate an inactive Participant or Beneficiary to whom a
payment is due under this Article V, the amount of the Account due
such person shall be treated as a Forfeiture hereunder, provided that
any such forfeited benefits shall be subject to reinstatement if the
inactive Participant or Beneficiary ever makes a valid claim for the
benefit. If a claim is made for a benefit that was forfeited under
this Section 5.10, the benefit to be restored shall be the dollar
value of the Account that was forfeited, determined as of the date the
forfeiture occurred without any interest, earnings or adjustments in
value occurring after the date of Forfeiture. This Section 5.10 shall
be administered by the Plan Administrator in accordance with any
restrictions mandated by law. Forfeitures occurring pursuant to this
Section 5.10 shall be applied as described in Section 3.7(d).
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ARTICLE VI
PLAN LOANS
6.1 Eligibility for Plan Loans - Subject to the restrictions
--------------------------
set forth in this Article VI, the opportunity to take a Plan loan
shall be made available to any Participant who, at the time such loan
is to be made:
(a) is actively employed by an Employer who has agreed to
participate in the loan program;
(b) has a minimum account balance of $2,000 in the Plan;
(c) has not defaulted on a Plan loan within the prior two
years;
(d) consents to and authorizes repayment of the loan
through payroll deductions; and.
(e) does not already have outstanding the maximum number
of loans specified pursuant to Section 6.4.
Employers that are not participating in the loan program may be
designated by the Plan Administrator from time to time. The
requirement of subsection (a) above shall be deemed satisfied in the
case of a Participant who is not currently employed if the Participant
is a party in interest within the meaning of ERISA Section 3(14). For
purposes of subsection (c) above, the time of default shall be
determined under Section 6.9.
6.2 Application Procedure - A Participant shall apply for a loan
---------------------
by calling into the telephone system established by the Plan
Administrator and providing the requested information ("Telephone
Application"). Provided that the Participant satisfies the requirements
for a loan as specified in this Article VI, the loan proceeds will be
disbursed by check as soon as administratively practicable and immediately
thereafter charged against the Participant's Account. The Plan Administrator
shall adopt such procedures as may be required for the proper and efficient
administration of loans.
6.3 Loan Amount - A Plan loan shall not be less than $1,000 nor,
-----------
when aggregated with all other outstanding loans to such borrowing
Participant from qualified retirement plans of the Company and any
affiliated companies, exceed the least of (rounded down to the nearest
hundred):
(a) $50,000 (reduced by the excess of (i) the Participant's
highest outstanding loan balance during the preceding one-year
period ending on the day before the date the loan was made, over
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(ii) the outstanding balance of loans from the Plan on the date
the loan is made);
(b) 50% of the Participant's account balance under the
Plan;
(c) 100% of the value of the Participant's investments in
the following "Core" Funds: PBG Stock, Security Plus, Equity-
Index and Equity Income; or
(d) the maximum loan amount that can be amortized by the
Participant's net pay (determined under Section 6.8).
The value of the Participant's account balance and investment in the
Core Funds shall be based on the market values of such items at the
time of the Participant's Telephone Application or the issuance of the
loan, whichever is less.
6.4 Maximum Number of Outstanding Loans - A Participant shall
-----------------------------------
not have more than two loans outstanding from the Plan at any time.
6.5 Effect on Participant's Investment - A loan shall constitute
----------------------------------
a segregated investment solely of the Account of the borrowing
Participant.
(a) When initially made, a loan shall be funded from the
borrowing Participant's Core Fund investments, prorated based on
the Participant's balance in each Core Fund.
(b) All repayments of principal and related interest and
any gains and losses on a loan shall be credited to the borrowing
Participant's Account. Loan repayments shall be invested in
accordance with the Participant's current investment direction
for Elective Deferral contributions. If the Participant does not
have an investment direction in effect on the date of the
Participant's Loan Application, the Participant must provide an
investment direction as part of his loan application. When a
selected investment is no longer available, or when otherwise
necessary, loan repayments shall be invested in the manner
specified by the Plan Administrator from time to time.
(c) A loan shall be adequately secured at all times. All loans
are secured by the portion of the borrowing Participant's Account that
is invested in the Participant's loan. If the principal amount of a
loan immediately after its issuance does not exceed 50 percent of the
Participant's Account as of such time, the loan shall be deemed
adequately secured at all times hereunder.
6.6 Fees - Following the issuance of a loan, the borrowing
----
Participant shall pay a one-time origination fee. For each month or
part thereof the loan remains outstanding the borrowing Participant
shall pay a monthly administration fee. Such fee shall be deducted
from the Participant's Account at the end of the applicable month.
They shall be charged against the portion of the Account that is not
invested in the loan, in accordance with rules adopted by the Plan
Administrator. The fees applicable to a Participant's loan shall be
determined on the date of the Participant's Telephone Application and
shall not change while such loan is outstanding.
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<PAGE>
<PAGE>
6.7 Interest Rate - Plan loans shall bear a reasonable rate of
-------------
interest that provides the Plan with a return commensurate with the
interest rates charged by persons in the business of lending money for
loans which would be made under similar circumstances as part of a
similar nationwide loan program. To this end, the Plan Administrator
shall adopt rules and procedures for redetermining on a monthly basis
the interest rate applicable to new Plan loans. The interest rate for
any loan shall be fixed for the period of the loan and shall be
determined as of the date of the related Telephone Application. No
interest rate shall be less than the applicable federal rate in effect
under Section 1274(d) of the Code, as of the day on which the loan was
initiated, compounded annually.
6.8 Term and Repayment.
------------------
(a) Term - Subject to subsections (c) through (e), the term
----
of a loan shall be not less than 1 year nor greater than 4 years,
measuring from the date of issuance.
(b) Repayment - Subject to subsections (c) through (e), a
---------
borrowing Participant shall repay his outstanding loan by making
substantially level amortization payments at the interval
determined by the Plan Administrator. When a Participant is
receiving net pay, this shall be the interval of the
Participant's regular payroll checks from the Employer, and loan
repayments (and any outstanding loan amounts that are due and
payable) shall be withheld from the Participant's net pay to the
extent possible. For this purpose, "net pay" shall mean a
Participant's pay from an Employer, reduced by applicable taxes
and such other payroll deductions that are accorded priority by
the Plan Administrator. Notwithstanding the preceding
provisions, direct payment to the Plan Administrator shall be
required in the case of a Participant who is on an authorized
leave of absence or long term disability, or a Participant who
becomes a foreign service employee. For purposes of this
subsection, a loan is not considered outstanding following its
default.
(c) Prepayment - A Participant may prepay his entire
----------
outstanding loan balance without penalty after first notifying
the Plan Administrator. Upon notification, the Plan
Administrator shall make the necessary administrative
arrangements to permit repayment and shall advise the Participant
of the payment-in-full amount and its due date. No partial
prepayments are permitted, and no payment-in-full amount will be
accepted after its due date.
(d) Terminating Employees - Notwithstanding subsections (a)
---------------------
and (b), an outstanding loan shall become immediately due and
payable in full if the borrowing Participant retires, dies or
otherwise terminates employment.
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<PAGE>
<PAGE>
(e) Termination of Loan Program - In the event the Plan
---------------------------
terminates or the portion of the Plan applicable to a Participant
terminates, the Participant's loan shall become due and payable
in full immediately.
6.9 Loan Default - A loan shall be in default if:
------------
(a) the borrowing Participant is delinquent on more than 12
weeks of scheduled loan repayment amounts;
(b) the loan becomes due and payable and the Participant
fails to pay the outstanding principal amount plus accrued
interest within 60 days;
(c) the term of the loan has been extended to more than 56
months as a result of the Participant's failure or inability to
make timely loan payments; or
(d) there occurs such other circumstances as the Plan
Administrator considers to be a default in order to protect the
interests of the Plan.
A default on a Plan loan occurs on the date the first of the preceding
conditions is met. If a default on a Participant's Plan loan occurs,
the Plan shall have the right to foreclose on the Participant's
security interest in his Account, and shall do so on or after the
first distributable event for such Participant described in Article V
(other than a hardship distribution event pursuant to Section 5.6(a)).
6.10 Nondiscrimination - Loans shall be made available to all
-----------------
Participants who met the requirements set forth in section 6.1 on a
reasonably equivalent basis, except that the Plan Administrator may
make reasonable distinctions based on other obligations of the
Participant, state law requirements affecting payroll deductions and
other factors that may adversely affect the ability to assure
repayment through payroll deduction. The Plan Administrator may
refuse a requested loan where it determines that timely repayment of
the loan through payroll deduction is not assured.
6.11 Miscellaneous
-------------
(a) Additional Documentation - A Participant shall execute
------------------------
any additional documents as required by the Plan Administrator
that correct ministerial errors in the Application Forms, or that
are required for proper administration of the loan.
(b) Agent of Plan Administrator - The Plan Administrator
---------------------------
may designate an exclusive agent for purposes of administration
of some or all of the loan program, and to such extent any
references in this Article VI to the Plan Administrator shall
mean the designated agent.
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<PAGE>
<PAGE>
(c) Power to Amend Outstanding Loans - It is specifically
--------------------------------
intended that the Company's power to amend the Plan set forth in
Article XI applies to loans from this Plan that are outstanding
(including loans in default) at the time of the amendment.
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<PAGE>
<PAGE>
ARTICLE VII
DESIGNATION OF BENEFICIARY
7.1 In General - Each Participant will designate in writing, in
----------
the form and manner as prescribed by the rules and regulations the
Plan Administrator promulgates, a Beneficiary or Beneficiaries of any
interest under this Plan which may be payable with respect to the
Participant in the event of his death before or after retirement, or
otherwise after termination of Employment. This designation may
include an alternate Beneficiary or Beneficiaries. Subject to the
rules and regulations the Plan Administrator promulgates, a
Participant may change the designation of his Beneficiary or
Beneficiaries or alternate Beneficiary or Beneficiaries.
7.2 Married Participants - A Participant's entire interest in
--------------------
the Plan at his death, if any, will be paid to the Participant's
surviving spouse unless before the Participant's death, the spouse
consents in a writing witnessed by a Plan representative or a notary
public to permit the Participant to designate a person other than the
spouse as the Participant's Beneficiary. This consent may expressly
permit designations of Beneficiary(ies) by the Participant without any
requirement of further consent by the spouse. This provision will not
apply where it is established to the Plan Administrator's satisfaction
that consent cannot be obtained because there is no spouse, because
the spouse cannot be located, or because of other circumstances as may
be permitted by the Regulations.
7.3 No Designated Beneficiary or Beneficiaries - If benefits
------------------------------------------
become payable upon the Participant's death and no Beneficiary has
been properly designated, or if the designated Beneficiary or
Beneficiaries predeceased the Participant, benefits will be paid in
full to the surviving spouse of the Participant, and if he has no
surviving spouse, to the Participant's estate.
-45-
<PAGE>
<PAGE>
ARTICLE VIII
ADMINISTRATION
8.1 Allocation of Responsibility Among Fiduciaries for Plan and
-----------------------------------------------------------
Trust Administration - The Fiduciaries have only those powers, duties,
- --------------------
responsibilities and obligations as specifically given to them under
this Plan and Trust. In general, the Employer has the sole
responsibility for making the contributions provided under Article
III, and the Company has the sole authority to appoint and remove the
Trustee, the Plan Administrator and any Investment Manager or Managers
which it may select to provide for managing all or any portion of the
Trust, and to amend or terminate, in whole or in part, this Plan and
Trust. The Plan Administrator has the sole responsibility for the
administration of the Plan, except where an agent is appointed to
perform administrative duties as specifically agreed to by the Plan
Administrator and the agent. The Trustee has the sole responsibility
for management of the assets held under the Trust except where an
Investment Manager has been appointed or where Participants direct the
investment of their Accounts as provided in Section 4.2. Each
Fiduciary warrants that any directions given, information furnished,
or action taken by it will be in accordance with the terms of the Plan
authorizing or providing for such direction, information or action.
Each Fiduciary may rely on any direction, information or action of
another Fiduciary in the exercise of the latter's respective powers,
duties, responsibilities and obligations, as being proper under this
Plan and Trust, and is not required under this Plan and Trust to
inquire into the propriety of any such direction, information or
action. It is intended under this Plan and Trust that each Fiduciary
is responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under this Plan and Trust and is not
responsible for any act or failure to act of another Fiduciary. No
Fiduciary guarantees the Trust Fund in any manner against investment
loss or depreciation in asset value.
8.2 Records and Reports - The Plan Administrator, or its delegate,
-------------------
will exercise the authority and responsibility it deems appropriate to
comply with ERISA and governmental regulations relating to records of
Participants, service, Account balances and the percentage of such
Account balances which are nonforfeitable under the Plan; notifications
to Participants; annual registration with the Internal Revenue Service;
annual reports to the Department of Labor; and other documents or reports
as may be required by ERISA. From time to time the Employer will make
available to the Plan Administrator information with respect to the
Employees, their dates of Employment, their compensation, and other
matters as may be necessary in connection with the Plan Administrator's
performance of its duties with respect to the Plan. The Plan Administrator
will, in turn, furnish the Trustee information, rulings and decisions as the
Trustee may require or may request in connection with its performance of its
duties as Trustee of the Trust Fund.
8.3 Other Powers and Duties of the Plan Administrator - The Plan
-------------------------------------------------
Administrator, or its delegate, has the duties and powers as may be
necessary to discharge its duties under the Plan, including, but not
limited to, the following:
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<PAGE>
(a) to construe and interpret the Plan, decide all
questions of eligibility; determine the factual basis necessary
for all benefit determinations; and determine the amount, manner
and time of payment of any benefits;
(b) to prescribe procedures to be followed by Participants
or Beneficiaries filing applications for benefits;
(c) to prepare and distribute information explaining the
Plan including at least annually providing Participants with
annual periodic statements of their Accounts.
(d) to receive from the Employer and from Participants
information to properly administer the Plan;
(e) to furnish the Employer, upon request, such annual
reports with respect to the administration of the Plan as it
deems reasonable and appropriate;
(f) to receive, review and keep on file (as it deems
convenient or proper) reports of the financial condition of the
Trust Fund, receipts and disbursements from the Trust Fund from
the Trustee or any Investment Manager, and to make
recommendations to the Trustee and take such actions as the Plan
Administrator deems advisable;
(g) to appoint or employ individuals or other parties to
assist in the administration of the Plan and any other agents it
deems advisable, including accountants and legal and actuarial
counsel;
(h) to delegate to an individual or entity any of the Plan
Administrator's fiduciary duties or responsibilities under the Plan;
and
(i) to direct the Trustee as to the voting of stock held in
the Trust Fund, or as to any other actions that may be
appropriate. In the absence of any such direction, the Trustee
has the right to vote the stock and take the other actions in its
sole discretion.
8.4 Rules and Decisions - The Plan Administrator may adopt
-------------------
by-laws, rules and regulations as it deems necessary or appropriate,
provided that they are not inconsistent with or contrary to the
express terms of the Plan. All by-laws, rules, regulations and
decisions of the Plan Administrator must be uniformly and consistently
applied to all Participants in similar circumstances. When making a
determination or calculation, the Plan Administrator is entitled to
rely upon information furnished by a Participant or Beneficiary, the
Employer, the legal or actuarial counsel of the Employer, or the
Trustee.
8.5 Authorization of Benefit Payments - The Plan Administrator
---------------------------------
will issue directions to the Trustee concerning all benefits which are
to be paid from the Trust Fund pursuant to the provisions of the Plan.
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<PAGE>
<PAGE>
8.6 Application and Forms - The Plan Administrator may require a
---------------------
Participant or Beneficiary to complete and file with the Plan
Administrator an application for benefits and any other forms approved
by the Plan Administrator, and to furnish all pertinent information
requested by the Plan Administrator. The Plan Administrator may rely
upon all such information so furnished it, including but not limited
to, the Participant's current mailing address.
8.7 Payment of Benefits for Disabled or Incapacitated Person -
--------------------------------------------------------
Whenever, in the Plan Administrator's discretion, a person entitled to
receive payment of benefits is under a legal disability or is incapacitated
in any way so as to be unable to manage his financial affairs, the Plan
Administrator may direct the Trustee to make payments to that person; to
his legal representative; or to a relative or friend of the person for
his benefit. The Plan Administrator may direct the Trustee to apply the
payment for the benefit of the person in a manner the Plan Administrator
considers advisable. Any payment of a benefit in accordance with the
provisions of this Section will completely discharge any liability for the
making of payment under the provisions of the Plan.
8.8 Notices to Trustee - All notices from the Plan Administrator
------------------
or any Investment Manager to the Trustee will be in writing, and the
Trustee may rely on these notices in carrying out its duties and
responsibilities.
8.9 Expenses of Plan - All usual and reasonable expenses of
----------------
maintaining, operating and administering the Plan, including the
expenses of the Plan Administrator and the Trustee, will be paid from
the Trust whether directly or by reimbursement to the Company or the
Employer, except to the extent the Employer or the Company elects to
pay any expenses.
8.10 Indemnification by the Company - The Company will indemnify
------------------------------
and hold harmless the Plan Administrator and any Employee of the
Company or an Employer performing duties with respect to the Plan from
and against any and all claims, losses, damages, expenses and
liabilities (including, without limitation, reasonable attorneys'
fees) arising from their responsibilities in connection with the Plan,
unless the liability arises from the person's gross negligence or
dishonesty in the performance of his or her duties, or unless the
indemnification is not permissible under ERISA.
-48-
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<PAGE>
ARTICLE IX
CLAIMS PROCEDURE
The Plan Administrator, or its delegate (hereinafter referred to as the
"decisionmaker"), has the exclusive discretionary power to construe and
interpret the Plan, and to determine all questions relating to the
eligibility of individuals to participate in the Plan; the amount of benefits
to which any Participant or Beneficiary may be entitled; and any situation not
specifically covered by the provisions of the Plan. The decisionmaker's
decisions on such matters will be final and binding on all parties. Any
interpretation or determination made pursuant to the decisionmaker's
discretionary authority will be upheld on judicial review, unless it is
shown to be an abuse of discretion or arbitrary and capricious.
If a request for a Plan benefit by a Participant or Beneficiary is
wholly or partially denied, the decisionmaker will provide the
claimant a comprehensible written notice setting forth:
(a) The specific reason or reasons for the denial;
(b) Specific reference to the applicable Plan provisions on
which the denial is based;
(c) A description of any additional material or information
necessary for the claimant to submit to perfect the claim and an
explanation of why such material or information is necessary;
(d) A description of the Plan's claim review procedure.
If a Participant disagrees with the decisionmaker's initial
determination, the Participant may request a review within 60 days of
the date of denial. The request for review should be in writing and
include the reasons the Participant believes the decision was
incorrect as well as any other information or documentation in support
of the request. The review procedure also includes the right to
examine pertinent documents. The decision on review will be made
within 60 days after the decisionmaker receives the request for
review unless circumstances warrant an extension of time not to exceed
an additional 60 days. The determination will be in writing and
drafted in a manner calculated to be understood by the claimant, and
include specific reasons for the decision with references to the
specific Plan provisions on which the decision is based. If no
determination is received within the time allowed, the claim is
considered denied.
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<PAGE>
ARTICLE X
TRUST FUND
All contributions made by the Employers, or the Company on behalf of
the Employers, under this Plan shall be paid to the Trustee and
deposited in the Trust Fund or with an insurance company or a
financial institution pursuant to a contract to be held and invested
in accordance with the Trust instrument. Assets or other plans
maintained by the controlled group of corporations (as defined in Code
Section 414(b)) of which the Company is a member, which meet the
requirements of Code section 401, may be commingled, for investment
purposes only, through one or more master trust arrangements with the
assets of this Plan. The Company shall have the right to appoint an
investment manager or investment managers (as defined in section 3(38)
of ERISA) to manage all or any part of the assets of the Trust Fund.
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<PAGE>
ARTICLE XI
AMENDMENT OF THE PLAN
The Company has the right at any time by an instrument in writing, duly
executed and acknowledged and delivered to the Trustee, to modify, alter
or amend this Plan in whole or in part. The duties, powers and liability
of the Trustee may not be substantially modified without its written
consent. No amendment will be made which causes or authorizes any
part of the Trust Fund to revert or be refunded to the Company or to
be used for or diverted to purposes other than the exclusive and sole
benefit of the Participants or their Beneficiaries (other than such
part as is required to pay taxes and expenses of administration)
before all Participants and Beneficiaries have been paid their Vested
Interest. The Company has the limited right to amend this Plan at any
time, retroactively or otherwise, in such respects and to the extent
as may be necessary to qualify it under existing and applicable laws
and regulations so as to permit the full deduction for tax purposes of
the Company's contributions, and if and to the extent necessary to
accomplish this purpose, the Company may by an amendment decrease or
otherwise affect the rights of Participants to benefits which have
actually accrued and become payable.
No amendment to the Plan will reduce a Participant's Account balance
or eliminate an optional form of distribution except to the extent
permissible under Code Sections 411, 412 or any other relevant Code
Section or Regulations. No amendment to the Plan will have the effect
of decreasing a Participant's Vested Interest determined without
regard to an amendment as of the later of the date the amendment is
adopted or the date it becomes effective.
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<PAGE>
ARTICLE XII
DISCONTINUANCE OF CONTRIBUTIONS
AND
TERMINATION OF PLAN
12.1 Intention to Continue Plan - The Plan has been established
--------------------------
by the Company with the bona fide intention that it will be continued
in operation and that contributions will continue. However, the
Company reserves the right at any time to discontinue any or all
contributions or to terminate the Plan.
12.2 Termination or Partial Termination of Plan - If the Company
------------------------------------------
decides to terminate or partially terminate the Plan, the Accounts of
all affected Participants who are active Employees will become fully
Vested and nonforfeitable. The Trustee will be notified of any
termination or partial termination in writing and will proceed at the
direction of the Plan Administrator to make distributions from the
Trust Fund, if appropriate. Upon termination of the Plan by an
Employer, the Employer will not make any further contributions under
the Plan, and no amount will be payable under the Plan to or in
respect of any Participants then Employed by the Employer, except as
provided in this Article or except as amounts may become payable under
the Plan as a result of such Participants continuing their
participation in the Plan as a result of being Employed by other
participating Employers.
In the event of a partial termination of the Plan, the actions
described above also will be taken, but only with respect to the
portion of the Plan being terminated and only with respect to the
affected Participants.
In the event of a complete discontinuance by the Company or an
Employer of its contributions, the rights of each affected Participant
to amounts credited to his Account at that time will become 100%
nonforfeitable. The mere suspension of a contribution for a year or
years during which the Company and the Employer earns profits shall
not in itself be deemed or discontinuance within the meaning of this
Section, unless such suspension shall be deemed to have ripened into a
discontinuance under the applicable provisions of the Code, any valid
regulations promulgated thereunder or any rulings properly
interpreting and applying same.
Termination or partial termination of the Plan will not affect
the payment of benefits, in accordance with Article V, from the Trust
Fund except as specifically provided, nor will such funds be divested
by reason of any provision.
12.3 Internal Revenue Service Approval - The Trustee will not be
---------------------------------
required to make any distribution from the Trust if the Plan is
terminated or contributions are completely discontinued until the
Internal Revenue Service determines in writing that the termination or
discontinuance will not adversely affect the prior qualification of
the Plan.
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<PAGE>
ARTICLE XIII
MISCELLANEOUS
13.1 Participants' Rights; Acquittance - Except to the extent
---------------------------------
required by law as in effect and applicable, neither the establishment
of the Trust, nor any modification, nor the creation of any fund or
account, nor the payment of any benefits, will be construed as giving
to any Participant or other person any legal or equitable right
against the Employer, or any officer or Employee, or the Trustee or
the Plan Administrator except as provided by the Plan. No Participant
has any legal right, title or interest in this Trust or any of its
assets, except in the event and to the extent that benefits may
actually accrue, and the same limitations apply to death benefits
which may be payable to the Beneficiaries of the Participant. Under
no circumstances will the terms of Employment of any Participant be
modified or in any way affected by the Plan or Trust. This Plan and
Trust do not constitute a contract of Employment or afford any
individual any right to be retained in the employ of any Employer.
13.2 Spendthrift Clause -
------------------
(a) In General - To the extent permitted by law,
----------
Participants are prohibited from anticipating, encumbering,
alienating or assigning any of their rights, claims or interest
in this Trust or in any Trust assets, and no undertaking or
attempt to do so will bind the Plan Administrator or the Trustee
or be of any force or effect. Furthermore, to the extent
permitted by law, no rights, claims or interest of a Participant
in this Trust or in any of the Trust assets will be subject to a
Participant's debts, contracts or engagements, attachments,
garnishment, levy or other legal or equitable process. If the
Trustee receives certified notice or confirmation of the amount
of a Participant's indebtedness to the Plan from the Plan
Administrator, the Trustee will first pay the indebtedness to the
Plan and distribute the remainder of the benefit to the
Participant or Beneficiary.
(b) Qualified Domestic Relations Orders - The provision
-----------------------------------
against the assignment of a Participant's right in the Plan will
not apply in the case of a qualified domestic relations order
which is determined by the Plan Administrator to meet the
requirements of Code Section 414(p). The Plan Administrator will
establish reasonable procedures to administer distributions under
qualified domestic relations orders which are submitted to it.
If a qualified domestic relations order, otherwise determined by
the Plan Administrator as meeting the requirements of Code
Section 414(p), specifically provides for an immediate lump sum
distribution to the alternate payee, the distribution may be made
notwithstanding that the Participant has not attained the
Participant's earliest retirement age, as defined in Code Section
414(p)(4)(B). If the terms of a qualified domestic relations
order do not permit an immediate cash-out payment, the benefits
will be paid to the alternate payee in accordance with the terms
of the order and the applicable Plan terms.
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<PAGE>
13.3 Qualification of Plan as a Condition - This amendment and
------------------------------------
restatement of the Plan is based upon the condition subsequent that it
shall be approved and qualified by the Internal Revenue Service as
meeting the requirements of the Internal Revenue Code and regulations
issued thereunder with respect to employees' plans and trusts,
including a salary reduction arrangement, so as to permit, among other
incidents to such qualified plans, the Company and the Employer to
deduct for income tax purposes the amount of its contributions to the
Plan as set forth herein, and so that such contributions will not be
taxable at the time of contribution to the Participants as income.
Therefore, if when this amended and restated Plan is submitted for
qualification and approval by the Internal Revenue Service, the
Internal Revenue Service rules that the Plan does not meet the
qualification requirements of the Internal Revenue Code for the
purposes specified in the preceding sentence, and the deficiencies
precluding qualification may not be corrected by amendment effective
as of the Effective Date, then regardless of any other provision
herein contained, this amended and restated Plan shall be and become
null and void ab initio, and any contributions under the Plan for any
fiscal year of the Company commencing on or after the Effective Date
shall be returned to the Company or the Employer for the benefit of
the Employees on whose behalf the contribution was made to the Trust.
13.4 Successor Employer - In the event of the dissolution,
------------------
merger, consolidation or reorganization of the Company, provision may
be made by which the Plan and Trust will be continued by the
successor; and, in that event, the successor will be substituted for
the Company under the Plan. The substitution of the successor will
constitute an assumption of Plan liabilities by the successor, and the
successor will have all the powers, duties and responsibilities of the
Company under the Plan.
13.5 Transfer of Plan Assets - In the event of any merger or
-----------------------
consolidation of the Plan with, or transfer in whole or in part of the
assets and liabilities of the Trust Fund to, another trust fund held
under any other plan of deferred compensation maintained or to be
established for the benefit of all or some of the Participants of this
Plan, the assets of the Trust Fund applicable to each Participants
will be transferred to the other trust fund only if:
(c) Each Participant would, if either this Plan or the
other plan terminated, receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater
than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer if the
Plan had then terminated;
(d) Resolutions of the Board of Directors of the Employer
of the affected Participants, will authorize such transfer of
assets, and, in the case of the new or successor Employer of the
affected Participants, its resolutions will include an assumption
of liabilities with respect to such Participant's inclusion in
the new Employer's plan; and
(e) Such other plan and trust are qualified under Code
Sections 401(a) and 501(a).
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<PAGE>
13.6 Necessary Parties - In any action or proceeding involving
-----------------
the Trust Fund, or any property constituting part or all of the Trust
Fund, or the administration of the Trust Fund, the Company, the Plan
Administrator, and the Trustee are the only necessary parties and no
Employees or former Employees of an Employer or their Beneficiaries or
any other person having or claiming to have an interest in the Trust
Fund or under the Plan is entitled to any notice or service of
process.
Any final judgment which is not appealed or appealable that may be
entered in any action or proceeding will be binding and conclusive on
the parties, the Plan Administrator and all persons having or claiming
to have any interest in the Trust Fund or under the Plan.
13.7 Delegation of Authority by Company - Whenever the Company
----------------------------------
under the terms of this Plan is permitted or required to do or perform
any act or matter or thing, it will be done and performed by any employee,
officer or committee authorized by the Company.
13.8 Construction of Agreement - This Plan and Trust Agreement
-------------------------
will be construed and administered according to the provisions of
ERISA, and its validity and enforceability will be determined under
such law. In the event ERISA is not applicable or does not preempt
state law on a matter, the laws of the State of New York will apply.
13.9 Headings - The headings of Articles, Sections, Subsections,
--------
and Paragraphs are for ease of reference only and do not limit or
modify the detailed Plan provisions.
13.10 Gender and Number - The masculine gender wherever used
-----------------
will be deemed to include the feminine. Words in the singular will be
read and construed as though used in the plural in all cases where
they would apply and vice versa.
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<PAGE>
ARTICLE XIV
TOP-HEAVY PLAN PROVISIONS
14.1 Application - If the Plan is determined to be a Top-Heavy
-----------
Plan, this Article will become effective as of the first day of the
Plan Year in which the Plan is a Top-Heavy Plan.
14.2 Definitions -
-----------
(a) Compensation - Compensation as defined by Code Section
------------
414(q)(4).
(b) Key Employee - During any year that the Plan is a
------------
Top-Heavy Plan, an Employee who is a Key Employee within the
meaning of Code Section 416, including any Employee or
Beneficiary of an Employee who at any time during the Plan Year
or any of the four (4) preceding Plan Years, is or was:
(i) an officer of the Employer whose Compensation is
greater than 50% of the dollar limitation in effect under
Code Section 415(b)(1)(A) for any Plan Year, provided that
Employees described in Code Section 414(q)(8) will be
excluded;
(ii) 1 of the 10 employees having Annual Compensation
of more than the dollar limitation in Code Section 415(c)(1)
(A) and owning (or considered as owning within the meaning
of Code Section 318) more than a one-half percent (1/2%)
interest and the largest interests in the Employer;
(iii) a one percent (1%) owner of the Employer having
Compensation from the Employer of more than $150,000; or
(iv) a five percent (5%) owner of the Employer.
Ownership will be determined according to Code Section 416(i)
(1)(B). For purposes of (i) above, no more than fifty (50)
Employees (or if less, the greater of three (3) or ten percent
(10%) of the Employees) will be treated as officers. For
purposes of (ii) above, if two Employees have the same ownership
interest, the Employee with the higher Annual Compensation will
be treated as having the larger interest. For purposes of this
Plan a "non-Key Employee" will include any Employee who is not a
Key Employee.
(c) Minimum Contribution - For a Plan Year, the lesser of
--------------------
three percent (3%) of a Participant's compensation (within the
meaning of Code Section 415) or a percentage of a Participant's
compensation equal to the percentage at which contributions are
made (or required to be made) under the Plan and all other plans
in the Required Aggregation Group for the Key Employee for whom
such percentage is highest. The percentage of a Key Employee's
compensation at which contributions are made will be determined
by dividing the contributions for each such Employee by the
amount of his compensation for the Plan Year as does not exceed
-56-
<PAGE>
<PAGE>
$160,000, as adjusted pursuant to Code Section 401(a)(17)(B).
For Plan Years beginning on and after January 1, 1989, Elective
Deferrals on behalf of a non-key Employee will not be considered
in determining such Minimum Contribution.
(d) Top-Heavy Plan - For any Plan Year, a plan that is
--------------
required in such year to satisfy the requirements of Code Section
416 because the aggregate of the accounts of all Key Employees in
the Plan exceeds sixty percent (60%) of the aggregate of the
accounts of all Participants in the Plan, such determination to
be made in accordance with the procedures described in Code
Section 416(g) and the Regulations as of the Annual Valuation
Date immediately before such Plan Year (or in the case of the
first Plan Year, as of the last day of such Plan Year) (the
determination and valuation date) and will include distributions
made in the last five years. The Account balance of any
Participant who has not received any compensation from the
Employer in the last five years will not be taken into account.
For purposes of determining whether the Plan is a Top-Heavy Plan,
the Plan will be aggregated with all other plans maintained by
the Employer which are required to be aggregated with the Plan in
order for the Plan to meet the requirements of Code Sections
401(a)(4) and 410, and all other plans maintained by the Employer
in which a Key Employee is a Participant (the Required
Aggregation Group). In addition, the Plan also may be aggregated
with any other plans maintained by the Employer (the Permissive
Aggregation Group), so long as such aggregation would not prevent
the aggregated group from satisfying the requirements of Code
Sections 401(a)(4) and 410.
14.3 Allocation of Minimum Contribution - For any year in which
----------------------------------
the Plan is a Top-Heavy Plan, the Minimum Contribution as defined in
Section 14.2(c) will be made to the Account of each Participant who is
a non-Key Employee, unless the Participant accrues the defined benefit
minimum contribution required by Code Section 416 for such Plan Year
under a defined benefit plan maintained by the Employer. Such Minimum
Contribution will be made to the Account of each non-Key Employee
Participant who is Employed on the last day of the Plan Year without
regard to the Participant's Hours of Service during the Plan Year.
The Employer and Plan Administrator will determine under which plan a
Participant will receive the Minimum Contribution if the Employee is a
Participant in more than one plan, maintained by the Employer. Such
Minimum Contribution shall be made without consideration of the
Employer's contributions under Code Section 3111.
14.4 Vesting - If for any Plan Year or Years the Plan is a Top-Heavy
-------
Plan, the following vesting schedule in accordance with Sections 416(b) of
the Code shall apply;
-57-
<PAGE>
<PAGE>
Years of Service Vested Percentage Forfeited Percentage
---------------- ----------------- --------------------
Less than 3 0% 100%
3 or more 100% 0%
-58-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized corporate officers and its corporate
seal to be affixed the day and year first above written.
COMPANY:
(CORPORATE SEAL) THE PEPSI BOTTLING GROUP, INC.
By: /s/ Kevin Cox
Title: Senior Vice President -
Human Resources
APPROVED:
/s/ Steven M. Rapp
Law Department
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<PAGE>
<PAGE>
APPENDIX
--------
The following Appendix Articles modify particular terms of the
Plan as it applies to certain Employee groups. Except as specifically
modified in this Appendix, the foregoing provisions of the Plan shall
fully apply. In the event of a conflict between this Appendix and the
foregoing provisions of the Plan, the Appendix shall govern with
respect to the conflict.
Appendix
<PAGE>
<PAGE>
ARTICLE A
INITIAL PUBLIC OFFERING OF PBG
This Article sets forth provisions that apply in connection with
the individuals transferred in connection with the initial public offering
of the Company.
A.1 Definitions - When used in this Article, the following
-----------
underlined terms shall have the meanings set forth below. Except as
otherwise provided in this Article, all terms that are defined in
Article I of the Plan shall have the meaning assigned to them by
Article I.
(a) Employee Programs Agreement - The Employee Programs
---------------------------
Agreement between PepsiCo and PBG (dated as of March 30, 1999).
(b) PepsiCo Account Holder - A Participant who had an
----------------------
interest in the PepsiCo Capital Stock Account under the Prior
Plan immediately prior time to time the Effective Date.
(c) Tricon Account Holder - A Participant who had an
---------------------
interest in the Tricon Common Stock Account under the Prior Plan
immediately prior to the Effective Date.
(d) Transferred Individual - A "Transferred Individual" as
----------------------
that term is defined in the Employee Programs Agreement.
A.2 Assumption of Benefits and Liabilities - Effective as of the
--------------------------------------
beginning of the day on the Effective Date, all interests in the Prior
Plan of (and Prior Plan liabilities with respect to) Transferred
Individuals shall be assumed by this Plan.
(a) In the case of a Transferred Individual, effective as
of the beginning of the day on the Effective Date, his Account
shall be credited with the amount that stood to his credit under
the Prior Plan immediately prior to the Effective Date, and the
allocation of this amount to investment options under this Plan
shall mirror the allocation then in effect for the Transferred
Individual under the Prior Plan.
(b) Any deferral election made under the Prior Plan for a
Transferred Individual shall be carried over and continued under
this Plan. Any designation to have some or all of his deferrals
invested in the PepsiCo Capital Stock Account under the Prior Plan
shall be converted to a designation for investment in a investment
option under this Plan (other than the PepsiCo Capital Stock Account
or Tricon Common Stock Account) which is designated by the Plan
Administrator for this purpose.
A.3 PepsiCo Capital Stock Fund - As of the Effective Date, the
--------------------------
Plan Administrator shall establish a temporary investment option under
the Plan, the PepsiCo Capital Stock Fund. Participant shall have any
rights as a shareholder of PepsiCo Capital Stock on account of an
A-1
<PAGE>
<PAGE>
interest in the PepsiCo Capital Stock Account that are comparable to
those granted with respect to PBG Common Stock under the PBG Stock
Fund.
(a) Valuation and Loans: - A Participant's interest in the
-------------------
PepsiCo Capital Stock Account is valued as of a Valuation Date in
a manner comparable to how the PBG Stock Fund is valued. Loans
are permitted from the PepsiCo Capital Stock Fund to the same
extent as they are permitted from the PBG Stock Fund.
(b) Investment Reallocations - A PepsiCo Account Holder may
------------------------
reallocate amounts standing to his credit under the PepsiCo
Capital Stock Fund to other investment options under the Plan
that are available for this purpose. No Participant may
reallocate amounts into the PepsiCo Capital Stock Fund.
(c) Distributions - A Participant entitled to a distribution
-------------
in accordance with the terms of the Plan may elect to receive an
in-kind distribution of his interest in the PepsiCo Capital Stock
Fund to the same extent permitted with respect to the PBG Stock Fund.
(d) Termination of the PepsiCo Capital Stock Account -
------------------------------------------------
Effective as of the end of the day on December 31, 2000 (or such
later date as the Plan Administrator shall specify), the PepsiCo
Capital Stock Fund shall cease to be available under the Plan.
Any amount under the Plan still standing to the credit of a
PepsiCo Account Holder on such date shall automatically be
reallocated to the investment option designated for this purpose
by the Plan Administrator unless the Participant selects a
different replacement option in accordance with such requirements
as the Plan Administrator may apply.
A.4 Tricon Common Stock Fund - As of the Effective Date, the
------------------------
Plan Administrator shall establish a temporary investment option under
the Plan, The Tricon Common Stock Fund. Participant shall have any
rights as a shareholder of Tricon Common Stock on account of an
interest in the Tricon Common Stock Account that are comparable to
those granted with respect to PBG Common Stock under the PBG Stock
Fund.
(a) Valuation and Loans - A Participant's interest in the
-------------------
Tricon Common Stock Account is valued as of a Valuation Date in a
manner comparable to how the PBG Stock Fund is valued. Loans are
permitted from the Tricon Common Stock Fund to the same extent as
they are permitted from the PBG Stock Fund.
(b) Investment Reallocations - Tricon Account Holder may
------------------------
reallocate amounts standing to his credit under the Tricon Common
Stock Fund to other investment options under the Plan that are
available for this purpose. No Participant may reallocate
amounts into the Tricon Common Stock Fund.
(c) Distributions - A Participant entitled to a distribution
-------------
in accordance with the terms of the Plan may elect to receive an
in-kind distribution of his interest in the Tricon Common Stock
A-2
<PAGE>
<PAGE>
Fund to the same extent permitted with respect to the PBG Stock
Fund.
(d) Termination of the Tricon Common Stock Account -
----------------------------------------------
Effective as of the end of the day on December 31, 1999 (or such
later date as the Plan Administrator shall specify), the Tricon
Common Stock Fund shall cease to be available under the Plan.
Any amount under the Plan still standing to the credit of a
Tricon Account Holder on such date shall automatically be
reallocated to the investment option designated for this purpose
by the Plan Administrator unless the Participant selects a
different replacement option in accordance with such requirements
as the Plan Administrator may apply.
A-3
<PAGE>
<PAGE>
Schedule 1
----------
Designated Affiliated Employers Authorized to Participate
---------------------------------------------------------
Name of Subsidiary Date of Participation
------------------ ---------------------
Schedule 1
EXHIBIT 5
THE PEPSI BOTTLING GROUP
1 PEPSI WAY
SOMERS, NEW YORK 10589-2201
OPINION AND CONSENT OF PAMELA C. MCGUIRE
June 14, 1999
The Board of Directors
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
Dear Ladies and Gentlemen:
I have acted as general counsel to The Pepsi Bottling Group,
Inc., a Delaware corporation (the "Company'), in connection with the
registration on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), of 2,000,000 shares
of common stock (the "Shares") of the Company to be issued in the
future in accordance with the terms of the PBG Long Term Savings Program
(the "Plan").
I, or other attorneys employed by the Company, have reviewed such
corporate records, other documents and such questions of law and fact
as we have considered necessary or appropriate for the purposes of
this opinion.
Based on such review, I am of the opinion that the Shares
registered pursuant to the Registration Statement to which this
opinion is an exhibit, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable.
I consent to the filing of this opinion letter as an exhibit to
the Registration Statement. In giving this consent, I do not admit
that I am in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
This opinion letter is rendered as of the date first written
above and I disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought
to our attention and which may alter, affect or modify the opinion
expressed herein. My opinion is expressly limited to the matters set
forth above and we render no opinion, whether by implication or
otherwise, as to any other matters relating to the Company, the Plan
or the Shares.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
/s/ Pamela C. McGuire
Pamela C. McGuire
EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
The Pepsi Bottling Group, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of The Pepsi Bottling Group, Inc. for the PBG
Long Term Savings Program of our report dated March 8, 1999, relating
to the combined balance sheets of The Pepsi Bottling Group, Inc. as
of December 26, 1998 and December 27, 1997, and the related combined
statement of operations, cash flows, and accumulated other
comprehensive loss for each of the fiscal years in the three-
year period ended December 26, 1998, including the related financial
statement schedule, which report appears in the Form S-1 registration
statement of The Pepsi Bottling Group, Inc.
New York, New York
June 14, 1999
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them severally,
the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in any
one of them, to sign for the undersigned and in the name of the undersigned
as director of the Company, Registration Statements to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of the shares of Common Stock of the
Company that are issuable under each of the plans listed below, and to
sign any and all amendments to such Registration Statement:
* PBG Directors' Stock Plan,
* PBG Stock Incentive Plan,
* PBG 1999 Long Term Incentive Plan
* PBG Executive Income Deferral Program, and
* PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ BARRY H. BERACHA
Barry H. Beracha, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them severally,
the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in any
one of them, to sign for the undersigned and in the name of the undersigned
as director of the Company, Registration Statements to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of the shares of Common Stock of the
Company that are issuable under each of the plans listed below, and to
sign any and all amendments to such Registration Statement:
* PBG Directors' Stock Plan,
* PBG Stock Incentive Plan,
* PBG 1999 Long-Term Incentive Plan
* PBG Executive Income Deferral Program, and
* PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ THOMAS W. JONES
Thomas W. Jones, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them severally,
the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in any
one of them, to sign for the undersigned and in the name of the undersigned
as director of the Company, Registration Statements to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of the shares of Common Stock of the
Company that are issuable under each of the plans listed below, and to
sign any and all amendments to such Registration Statement:
* PBG Directors' Stock Plan,
* PBG Stock Incentive Plan,
* PBG 1999 Long-Term Incentive Plan
* PBG Executive Income Deferral Program, and
* PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ THOMAS H. KEAN
Thomas H. Kean, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them severally,
the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in any
one of them, to sign for the undersigned and in the name of the undersigned
as director of the Company, Registration Statements to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of the shares of Common Stock of the
Company that are issuable under each of the plans listed below, and to
sign any and all amendments to such Registration Statement:
* PBG Directors' Stock Plan,
* PBG Stock Incentive Plan,
* PBG 1999 Long-Term Incentive Plan
* PBG Executive Income Deferral Program, and
* PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ SUSAN KRONICK
Susan Kronick, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them severally,
the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in any
one of them, to sign for the undersigned and in the name of the undersigned
as director of the Company, Registration Statements to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of the shares of Common Stock of the
Company that are issuable under each of the plans listed below, and to
sign any and all amendments to such Registration Statement:
* PBG Directors' Stock Plan,
* PBG Stock Incentive Plan,
* PBG 1999 Long-Term Incentive Plan
* PBG Executive Income Deferral Program, and
* PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ ROBERT F. SHARPE, JR.
Robert F. Sharpe, Jr., Director
