<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarter Ended September 30, 1996
Commission file number 1-7823
ANHEUSER-BUSCH COMPANIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 43-1162835
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Busch Place, St. Louis, Missouri 63118
(Address of principal executive offices) (Zip Code)
314-577-2000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
$1 Par Value Common Stock - 499,326,884 shares as of September 30, 1996
<PAGE>2
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF INCOME AND RETAINED EARNINGS
Anheuser-Busch Companies, Inc., and Subsidiaries (Unaudited)
3rd Quarter ended Nine months ended
September 30, September 30,
-------------------------------------
(In millions, except per share data) 1996 1995 1996 1995
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Sales........................................ $3,541.8 $3,428.0 $9,727.2 $9,403.3
Less federal and state excise taxes........ (478.3) (461.5) (1,330.8) (1,295.4)
--------------------------------------
Net sales.................................... 3,063.5 2,966.5 8,396.4 8,107.9
Cost of products and services.............. (1,885.7) (1,878.5) (5,270.1) (5,215.3)
--------------------------------------
Gross profit................................. 1,177.8 1,088.0 3,126.3 2,892.6
Gain on sale of St. Louis National Baseball
Club (Cardinals)......................... -- -- 54.7 --
Marketing, distribution and administrative
expenses................................. (522.3) (485.5) (1,387.6) (1,290.0)
--------------------------------------
Operating income............................. 655.5 602.5 1,793.4 1,602.6
Other income and expenses:
Interest expense........................... (58.6) (54.6) (178.5) (168.6)
Interest capitalized....................... 7.1 5.7 23.4 16.3
Interest income............................ 3.5 2.2 8.1 6.2
Other income, net.......................... 6.1 9.8 1.4 16.5
--------------------------------------
Income before income taxes................... 613.6 565.6 1,647.8 1,473.0
Provision for income taxes................. (236.4) (221.7) (641.7) (577.4)
--------------------------------------
Income from continuing operations............ 377.2 343.9 1,006.1 895.6
Income (Loss) from discontinued operations... -- (4.2) 33.8 (10.6)
--------------------------------------
Net income................................... 377.2 339.7 1,039.9 885.0
Retained earnings, beginning of period....... 6,631.2 6,996.6 6,869.6 6,656.7
Common stock dividends (per share: 3rd
quarter, 1996--$.24; 1995--$.22; nine
months, 1996--$.68; 1995--$.62)............ (118.6) (112.2) (339.7) (317.6)
Spin-off of The Earthgrains Company.......... -- -- (680.0) --
--------------------------------------
Retained earnings, end of period............. $6,889.8 $7,224.1 $6,889.8 $7,224.1
======== ======== ======== ========
Primary earnings (loss) per share:
Continuing operations...................... $ .75 $ .67 $ 1.99 $ 1.73
Discontinued operations.................... -- (.01) .07 (.02)
--------------------------------------
Net income................................. $ .75 $ .66 $ 2.06 $ 1.71
======== ======== ======== ========
Fully diluted earnings (loss) per share:
Continuing operations...................... $ .74 $ .66 $ 1.97 $ 1.72
Discontinued operations.................... -- (.01) .07 (.02)
--------------------------------------
Net income................................. $ .74 $ .65 $ 2.04 $ 1.70
======== ======== ======== ========
</TABLE>
See accompanying Notes to Consolidated Financial Statements on Page 3.
2
<PAGE>3
Notes to Consolidated Financial Statements
1. Unaudited Financial Statements: The accompanying unaudited financial
statements have been prepared in accordance with generally accepted
accounting principles and applicable SEC guidelines pertaining to
interim financial information. In the opinion of the company's
management, all adjustments, consisting of normal recurring
adjustments necessary for a fair presentation of the financial
statements, have been included therein. These statements should be
read in conjunction with the Consolidated Financial Statements and
Notes thereto included in the company's Annual Report to shareholders
for the year ended December 31, 1995.
2. Earnings Per Share: Primary earnings per share of common stock are
based on the weighted average number of shares of common stock
outstanding during the period. Fully diluted earnings per share of
common stock reflect the conversion of the company's convertible
debentures as of September 30, 1996 and the elimination of related
after-tax interest expense through that date.
3. Sale of St. Louis National Baseball Club (Cardinals): During the
first quarter 1996, the company completed its previously announced
sale of the St. Louis National Baseball Club (Cardinals), Busch
Memorial Stadium and several nearby parking garages and properties in
downtown St. Louis. The sale resulted in a $54.7 million, or $.06 per
share, pretax gain, which is reported as a separate line item in the
Consolidated Statement of Income and Retained Earnings.
4. Discontinued Operations: Through the tax-free spin-off of The
Earthgrains Company and the sale of Eagle Snacks, Anheuser-Busch has
divested its food products segment. Accordingly, all Earthgrains and
Eagle Snacks related financial results are reported in the company's
Consolidated Financial Statements as discontinued operations.
During the second quarter 1996, the company completed the sale of the
majority of the assets of Eagle Snacks. Accordingly, Anheuser-Busch
adjusted its previously estimated loss provision for the disposition
of the food products segment and recognized a $33.8 million, or $.07
per share, after-tax gain.
3
<PAGE>4
CONSOLIDATED BALANCE SHEET
Anheuser-Busch Companies, Inc., and Subsidiaries (Unaudited)
SEPTEMBER 30,
-------------------
(In millions) 1996 1995
- -----------------------------------------------------------------
ASSETS
CURRENT ASSETS:
Cash and marketable securities........... $ 122.5 $ 89.5
Receivables, less allowance for
doubtful accounts...................... 649.2 718.2
Inventories:
Raw materials and supplies............. 293.4 349.1
Work in progress....................... 84.0 87.7
Finished goods......................... 150.0 136.9
Total inventories.................... 527.4 573.7
Other current assets..................... 263.2 318.8
------------------------
Total current assets................... 1,562.3 1,700.2
INVESTMENTS AND OTHER ASSETS............. 1,783.9 1,524.8
INVESTMENT IN DISCONTINUED OPERATIONS.... -- 1,037.2
PLANT AND EQUIPMENT, NET................. 7,047.3 6,754.8
------------------------
TOTAL ASSETS........................... $10,393.5 $11,017.0
========= =========
4
<PAGE>5
LIABILITIES AND SHAREHOLDERS EQUITY
SEPTEMBER 30,
-------------------
(In millions) 1996 1995
- -----------------------------------------------------------------
CURRENT LIABILITIES:
Accounts payable....................... $ 624.7 $ 630.2
Accrued salaries, wages and benefits... 215.9 259.8
Accrued taxes, other than
income taxes......................... 97.6 105.9
Estimated income taxes................. 172.4 41.3
Other current liabilities.............. 255.3 287.9
------------------------
Total current liabilities............ 1,365.9 1,325.1
------------------------
POSTRETIREMENT BENEFITS.................. 538.3 511.7
------------------------
LONG-TERM DEBT........................... 3,235.3 3,144.8
------------------------
DEFERRED INCOME TAXES.................... 1,191.2 1,254.5
------------------------
SHAREHOLDERS EQUITY:
Common stock........................... 704.9 345.9
Capital in excess of par value......... 891.2 937.9
Retained earnings...................... 6,889.8 7,224.1
Foreign currency translation adjustment (13.2) (9.1)
------------------------
8,472.7 8,498.8
Treasury stock, at cost................ (4,094.5) (3,370.8)
ESOP debt guarantee offset............. (315.4) (347.1)
------------------------
4,062.8 4,780.9
------------------------
COMMITMENTS AND CONTINGENCIES............ -- --
------------------------
TOTAL LIABILITIES AND SHAREHOLDERS
EQUITY................................. $10,393.5 $11,017.0
========= =========
5
<PAGE>6
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF CASH FLOWS
Anheuser-Busch Companies, Inc., and Subsidiaries (Unaudited)
Nine months ended Sept. 30,
---------------------------
(In millions) 1996 1995
- -----------------------------------------------------------------------------
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income........................................ $1,039.9 $ 885.0
Discontinued operations........................... (33.8) 10.6
----------------------
Income from continuing operations................. 1,006.1 895.6
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization................. 438.6 413.7
Increase in deferred income taxes............. 58.4 173.0
After-tax gain on sale of St. Louis National
Baseball Club (Cardinals)................... (33.4) --
Decrease (Increase) in noncash working capital 101.0 (372.6)
Other, net.................................... (50.2) 61.2
----------------------
Cash provided by operating activities............. 1,520.5 1,170.9
Net cash provided by (provided to) discontinued
operations...................................... 66.4 (50.6)
----------------------
Total cash provided by operating activities....... 1,586.9 1,120.3
----------------------
CASH FLOW FROM INVESTING ACTIVITIES:
Proceeds from sale of St. Louis National
Baseball Club (Cardinals)....................... 116.6 --
Capital expenditures.............................. (774.3) (668.5)
New business acquisitions......................... (135.7) (52.4)
-----------------------
Cash (used for) investing activities.............. (793.4) (720.9)
-----------------------
CASH FLOW FROM FINANCING ACTIVITIES:
Increase in long-term debt........................ 277.1 108.7
Decrease in long-term debt........................ (127.4) --
Dividends paid to stockholders.................... (339.7) (317.6)
Acquisition of treasury stock..................... (658.5) (328.2)
Shares issued under stock plans and conversion
of convertible debentures...................... 83.9 83.2
----------------------
Cash (used for) financing activities.............. (764.6) (453.9)
----------------------
Net increase (decrease) in cash and marketable
securities during the period.................... 28.9 (54.5)
Cash and marketable securities, beginning of
period.......................................... 93.6 144.0
----------------------
Cash and marketable securities, end of period..... $ 122.5 $ 89.5
======== ========
<FN>
A more adequate understanding of the company's financial position and
business can be gained by reference to the Anheuser-Busch Companies, Inc.
Annual Report on Form 10-K for the year ended December 31, 1995.
</TABLE>
6
<PAGE>7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
This Discussion summarizes the significant factors affecting the
consolidated operating results, financial condition and liquidity/cash
flows of Anheuser-Busch Companies, Inc. for the third quarter and nine
months ended September 30, 1996 compared to the third quarter and nine
months ended September 30, 1995, and the year ended December 31, 1995.
This discussion should be read in conjunction with the Consolidated
Financial Statements and Notes thereto included in the company's Annual
Report to Shareholders for the year ended December 31, 1995. Additional
information concerning the company's consolidated financial and operating
results is contained in the Letter to Shareholders section of the Third
Quarter Financial Report contained in the quarterly Anheuser-Busch
publication HORIZONS.
During the first quarter 1996, the company completed the
tax-free 100% spin-off of The Earthgrains Company (formerly known as
Campbell Taggart, Inc.) to shareholders. Earthgrains common stock began
trading on the New York Stock Exchange as a separate company on March 27,
1996.
As a result of the spin-off of Earthgrains and the sale of
Eagle Snacks, Inc., Anheuser-Busch divested its food products segment. In
accordance with generally accepted accounting principles, Anheuser-Busch
restated all prior period financial information to remove the historical
combined financial results of Earthgrains and Eagle Snacks from detailed
financial statement components. All Earthgrains and Eagle Snacks related
financial results are reported as Discontinued Operations.
7
<PAGE>8
During the second quarter 1996, Anheuser-Busch completed the
sale of the majority of the assets of Eagle Snacks, Inc. to Frito-Lay, a
subsidiary of PepsiCo. Accordingly, Anheuser-Busch adjusted its previously
estimated loss provision for the disposition of the food products segment
and recognized a $33.8 million, or $.07 per share, after-tax gain in the
second quarter. This gain is reported in Discontinued Operations and has
no impact on financial results from Continuing Operations.
- ---------
During the first quarter 1996, the company completed the sale
of the St. Louis National Baseball Club (Cardinals), Busch Memorial Stadium
and several nearby parking garages and other properties in downtown St.
Louis. The sale price was $150 million resulting in a $54.7 million, or
$.06 per share, pretax gain, which is shown as a separate line item in the
Consolidated Statement of Income and Retained Earnings. Due to the
nonrecurring nature of this gain, certain financial comparisons for the
nine months of 1996 are shown both including the gain and excluding the
------------------ -------------
gain in order to facilitate a more complete understanding of the company's
- ----
operating results.
CONTINUING OPERATIONS
- ---------------------
Gross sales were $3.54 billion during the third quarter 1996,
an increase of 3.3% over 1995 third quarter gross sales of $3.43 billion.
Gross sales for the nine months of 1996 were $9.73 billion compared to
$9.40 billion for the nine months of 1995, an increase of $324 million, or
3.4%.
Net sales were $3.06 billion during the third quarter 1996, an
increase of 3.3% over the same period in 1995. Net sales for the nine
months of 1996 were $8.40 billion, an increase of $288 million, or
8
<PAGE>9
3.6% compared to net sales of $8.11 billion for the nine months of 1995.
The difference between gross and net sales represents federal and state
excise taxes paid by the company on beer sales.
The increase in gross and net sales during the third quarter
and nine months of 1996 is primarily attributable to higher beer sales
volume and higher revenue-per-barrel. Reported consolidated sales growth
for the third quarter and nine months of 1996 was adversely impacted by
lower sales by the company's recycling operations due to lower recycling
materials pricing, and the loss of revenue from having sold the Cardinals
in the first quarter 1996. Normalizing for these factors, consolidated net
sales would have grown 5.4% for both the third quarter and nine months of
1996.
In October 1996, the company initiated the first phase of a
planned two-phase nationwide price increase by raising prices approximately
3% in seven states, with plans to raise prices in the remainder of the
country in February 1997.
Anheuser-Busch reported record beer sales volume of 24.9
million barrels during the third quarter 1996. This volume level
represents an increase of 660,000 barrels, or 2.7%, over the 24.2 million
barrels sold during the third quarter 1995. Sales for the nine months of
1996 were a record 70.0 million barrels, compared to 68.1 million barrels
during the corresponding period in 1995, an increase of 2.8%.
Anheuser-Busch's market share for the nine months of 1996 was
44.8% of total U.S. brewing industry sales (including imports, exports,
nonalcohol brews and other malt beverages), as estimated based on
9
<PAGE>10
information provided by the Beer Institute. This compares to a market
share of 44.1% for the same period last year, an increase of .7 share
points. Anheuser-Busch has led the brewing industry in sales volume and
market share each quarter since 1957.
Wholesaler inventories at September 30, 1996 remain well below
last year's levels. By lowering its wholesaler inventory levels and
delivering fresher beer to the marketplace, Anheuser-Busch has obtained a
significant competitive advantage. The company is aggressively
communicating this advantage to consumers through its "Born On" freshness
dating campaign.
Sales-to-retailers were up 2.4 % for the nine months of 1996
compared to the nine months of 1995. This improvement was led by Bud
Light, the second-largest domestic brand and the market leader of the
important light beer category. Bud Light sales continue to grow at an
annualized double-digit pace. Overall, Bud Family sales increased 2.1 %
for the nine months of 1996 compared to the nine months of 1995.
Cost of products and services for the third quarter 1996 was
$1.89 billion, a .4% increase compared to the $1.88 billion reported for
the third quarter 1995. This slight increase in cost of products and
services is attributable to increased beer sales volume and increased raw
material costs being largely offset by productivity improvements and lower
scrap aluminum prices related to recycling operations.
Gross profit as a percentage of net sales was 38.4% for the
third quarter 1996 compared to 36.7% for the third quarter 1995, an
increase of 1.7 percentage points. For the nine months of 1996 and 1995,
10
<PAGE>11
the gross profit percentages were 37.2% and 35.7%, respectively, an
increase of 1.5 percentage points. The increase in these measures is
primarily due to approximately 3% higher net revenue per barrel and
increased production efficiency savings, partially offset by higher raw
material prices.
Marketing, distribution and administrative expenses for the
third quarter 1996 were $522.3 million compared with $485.5 million for the
third quarter 1995, an increase of 7.6%. For the nine months of 1996 and
1995, these expenses were $1.39 billion and $1.29 billion respectively, an
increase of $97.6 million, or 7.6%.
These increases are primarily related to increased marketing
and distribution spending to support accelerated volume growth for premium
brands and international expansion, and include promotional spending in
support of "Born On" freshness dating and incremental promotional spending
for the 1996 Centennial Olympic Games in Atlanta.
Operating income was $655.5 million for the third quarter 1996,
an increase of $53.0 million, or 8.8%, compared to $602.5 million for the
third quarter 1995. Excluding the Cardinal gain, operating income was
$1.74 billion for the nine months of 1996, an increase of $136.1 million,
or 8.5%, compared to $1.60 billion for the nine months of 1995. Including
the Cardinal gain, operating income increased $190.8 million, or 11.9%, for
the nine months of 1996 versus the similar period in 1995. Operating
income was favorably impacted by higher beer sales volume, higher beer
margins and continued productivity improvements.
11
<PAGE>12
Excluding the Cardinal gain, consolidated operating profit
margin for the nine months of 1996 expanded .9 percentage points, to 20.7%,
compared with the nine months of 1995.
Third quarter operating performance for Busch Entertainment
Corporation, the company's theme park subsidiary, was adversely impacted by
lower attendance due to an unusually active hurricane season and a
disruption in normal attendance patterns due to the Centennial Olympics in
Atlanta. Nevertheless, Busch Entertainment continues to anticipate its
fifth consecutive year of record profitability in 1996.
Additionally, Metal Container Corporation, the company's can
manufacturing subsidiary, reported lower profits during the period
primarily due to start-up costs associated with the opening of a new can
plant in Mira Loma, California and weaker can pricing in the soft drink
market.
Net interest cost (interest expense less interest income) was
$55.1 million for the third quarter 1996, an increase of $2.7 million, or
5.2%, compared to net interest cost of $52.4 million for the third quarter
1995. Net interest cost for the nine months of 1996 was $170.4 million, an
increase of $8.0 million, or 4.9% over net interest cost of $162.4 million
for the corresponding period in 1995. The increase is due primarily to an
increase in debt during the period. The net change in debt is summarized
in the Financial Condition section of this Discussion.
Interest capitalized increased $1.4 million and $7.1 million
for the third quarter and nine months of 1996, respectively, compared to
the same periods in 1995. The increase in interest capitalized in 1996
12
<PAGE>13
is primarily related to higher construction-in-progress balances due to
ongoing modernization projects at the company's breweries.
Other income, net includes numerous items of a nonoperating
nature which do not have a material impact on the company's consolidated
results of operations, either individually or in the aggregate. The
significant change in this category for the nine months of 1996 versus the
comparable period in 1995 is due to the reclassification into costs of
products and services of certain purchase discounts received by the company
that have historically been accounted for as other income.
The effective income tax rate was 38.5% of pretax earnings for
the third quarter 1996, a decrease of .7 percentage points compared to
third quarter 1995. The effective tax rate for the nine months of 1996 was
38.9, a .3 percentage point decline versus the nine months of 1995. The
decrease in the effective rate is due to lower state taxes and certain
lower non-deductible costs.
Income from continuing operations for the third quarter 1996
was $377.2 million, a 9.7% increase over $343.9 million for the comparable
period in 1995. Income from continuing operations (excluding the Cardinal
gain) was $972.7 million for the nine months of 1996, an increase of $77.1
million, or 8.6%, compared to $895.6 million for the nine months of 1995.
Including the Cardinal gain, income from continuing operations increased
12.3%, or $110.5 million, for the nine months of 1996 versus the nine
months of 1995.
Fully diluted earnings per share from continuing operations for
the third quarter 1996 were $.74, an increase of 12.1% as compared to the
third quarter 1995. Fully diluted earnings per share from continuing
13
<PAGE>14
operations (excluding the Cardinal gain) for the nine months of 1996 were
$1.91, an 11.0% increase over the comparable period in 1995. Including the
Cardinal gain, fully diluted earnings per share from continuing operations
increased $.25, or 14.8% for the nine months of 1996 as compared to the
nine months of 1995.
Fully diluted earnings per share reflect the conversion of the
remainder of the company's convertible debentures as of September 30,
1996, and the elimination of related after-tax interest expense through
that date. Earnings per share for the third quarter and nine months
benefited from the company's ongoing share repurchase program. The
company has repurchased approximately 19 million shares (on a
split-adjusted basis) through the nine months of 1996.
FINANCIAL CONDITION
- -------------------
Cash and marketable securities at September 30, 1996 were
$122.5 million, an increase of $33.0 million from the September 30, 1995
level and an increase of $28.9 million from the December 31, 1995 level.
The increase in cash and marketable securities at September 30, 1996
compared to the September 30, 1995 level is primarily related to cash
generated from operations, the sale of the assets of Eagle Snacks, Inc.,
the sale of the Cardinals, the spin-off of Earthgrains, and the increase in
long-term debt, partially offset by cash used for capital expenditures,
share repurchases, dividends and new business acquisitions.
Total long-term debt increased $90.5 million during the twelve
month period ended September 30, 1996. The change in debt during this
period is detailed below, by key component. Included in the reduction
14
<PAGE>15
in long-term debt for the period is the conversion of the remainder of the
company's 8% Convertible Debentures Due 1996.
Debt Issuances . . . $433.7 million of long-term notes and debentures
--------------
(interest rates ranging from 5.9% to 7.0%).
Debt Reduction . . . $343.2 million, comprised of the following:
--------------
- $305.5 million of long-term notes and debentures (interest rates
ranging from 8.0% to 10%).
- $6.0 million net reduction of commercial paper.
- $31.7 million reduction of the ESOP debt guarantee.
At September 30, 1996, $638.6 million of commercial paper borrowings
were outstanding and classified as long-term, as this debt is intended to
be maintained on a long-term basis and is supported by the company's $1
billion credit agreement.
Capital expenditures during the third quarter 1996 were $243.6
million compared to $239.1 million for the third quarter 1995. Capital
expenditures for the nine months of 1996 were $774.3 million versus $668.5
million for the same period in 1995. The company expects that total capital
expenditures in 1996 will approximate $1.0 billion.
In June 1993, the company purchased a 17.7% interest in Grupo Modelo,
Mexico's largest brewer, and its subsidiaries for $477 million. Anheuser-
Busch also acquired options to increase its investment to an approximate
50% interest in Grupo Modelo and its subsidiaries. The option exercise
price is derived from a formula based upon Grupo Modelo's reported earnings
and is below the current market price for Grupo Modelo securities. The
options are currently exercisable, and they will expire on December 31,
15
<PAGE>16
1997. Although the company has made no definitive determination concerning
its exercise of the options or the timing or amount of any exercise, the
company currently expects to exercise in whole or in part the options
prior to their expiration.
ENVIRONMENTAL MATTERS
- ---------------------
The company is subject to federal, state and local environmental
protection laws and regulations and is operating within such laws or is
taking action aimed at assuring compliance with such laws and regulations.
Compliance with these laws and regulations is not expected to materially
affect the company's competitive position. None of the Environmental
Protection Agency (EPA) designated clean-up sites for which Anheuser-Busch
has been identified as a Potentially Responsible Party (PRP) would have a
material impact on the company's consolidated financial statements.
PART II - OTHER INFORMATION
Item 5. Other Information
On October 23, 1996, the Board of Directors declared a regular
quarterly dividend on the company's common stock of $.24 per share. This
dividend rate is payable December 9, 1996 to shareholders of record on
November 8, 1996.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
--------
4.1 - Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan, as amended and restated effective April 1, 1996
16
<PAGE>17
4.2 - Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan (For Employees Covered by a Collective Bargaining
Agreement), as amended and restated effective April 1, 1996
4.3 - Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan (For Certain Hourly Employees of Anheuser-Busch
Companies, Inc. and its Subsidiaries), as amended and restated
effective April 1, 1996
4.4 - No instruments defining the right of holders of long-term
debt are filed since the total amount of securities
authorized under any such instrument does not exceed 10% of
the assets of the Company on a consolidated basis. The
Company agrees to furnish copies of such instruments to the
Securities and Exchange Commission upon request.
12 - Ratio of Earnings to Fixed Charges
27 - Financial Data Schedule
(b) Reports on Form 8-K
-------------------
No reports on Form 8-K were filed during the three months period
ending September 30, 1996.
17
<PAGE>18
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ANHEUSER-BUSCH COMPANIES, INC.
(Registrant)
/s/W. Randolph Baker
-----------------------------------------
W. Randolph Baker
Vice President and Chief Financial Officer
(Chief Financial Officer)
November 8, 1996
/s/John F. Kelly
-----------------------------------------
John F. Kelly
Vice President and Controller
(Chief Accounting Officer)
November 8, 1996
18
<PAGE>19
INDEX TO EXHIBITS
Exhibit No. Exhibit
----------- -------
4.1 Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan, as amended and restated effective April 1, 1996
4.2 Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan (For Employees Covered by a Collective Bargaining
Agreement), as amended and restated effective April 1, 1996
4.3 Anheuser-Busch Deferred Income Stock Purchase and Savings
Plan (For Certain Hourly Employees of Anheuser-Busch
Companies, Inc. and its Subsidiaries), as amended and
restated effective April 1, 1996
12 Ratio of Earnings to Fixed Charges
27 Financial Data Schedule
<PAGE>
EX-4.1
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
As Amended and Restated
Effective April 1, 1996
<PAGE>
TABLE OF CONTENTS
Anheuser-Busch Deferred Income
Stock Purchase and Savings Plan
-------------------------------
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ESTABLISHMENT OF PLAN . . . . . . . . . . . . . . . . . . . .1
1.1. Action By Company . . . . . . . . . . . . . . . . .1
1.2. Named Plan Fiduciaries. . . . . . . . . . . . . . .2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFINITIONS OF GENERAL APPLICABILITY. . . . . . . . . . . . .3
2.1. "Account".. . . . . . . . . . . . . . . . . . . . .3
2.2. "After-Tax Contributions".. . . . . . . . . . . . .3
2.3. "Before-Tax Contributions". . . . . . . . . . . . .3
2.4. "Beneficiary".. . . . . . . . . . . . . . . . . . .3
2.5. "Base Pay". . . . . . . . . . . . . . . . . . . . .3
2.6. "Board".. . . . . . . . . . . . . . . . . . . . . .5
2.7. "Closing Price".. . . . . . . . . . . . . . . . . .5
2.8. "Code". . . . . . . . . . . . . . . . . . . . . . .5
2.9. "Committee".. . . . . . . . . . . . . . . . . . . .5
2.10. "Company". . . . . . . . . . . . . . . . . . . . .5
2.11. "Company Matching Contributions".. . . . . . . . .5
2.12. "Company Stock Fund".. . . . . . . . . . . . . . .5
2.13. "Company Year".. . . . . . . . . . . . . . . . . .5
2.14. "Consolidated Net Income For Plan Purposes". . . .5
2.15. "Effective Date".. . . . . . . . . . . . . . . . .6
2.16. "Eligible Employee". . . . . . . . . . . . . . . .6
2.17. "Employee".. . . . . . . . . . . . . . . . . . . .6
2.18. "Employing Companies". . . . . . . . . . . . . . .7
2.19. "Equity Index Fund". . . . . . . . . . . . . . . .7
2.20. "ERISA". . . . . . . . . . . . . . . . . . . . . .7
2.21. "ESOP Loan". . . . . . . . . . . . . . . . . . . .7
2.22. "ESOP Loan Payment Accumulation Account".. . . . .7
2.23. "ESOP Loan Suspense Account".. . . . . . . . . . .7
2.24. "Fund".. . . . . . . . . . . . . . . . . . . . . .8
2.25. "Highly Compensated Employee". . . . . . . . . . .8
2.26. "Hour of Service". . . . . . . . . . . . . . . . .9
2.27. "Indexed Balanced Fund". . . . . . . . . . . . . .13
2.28. "Managed Balanced Fund". . . . . . . . . . . . . .13
2.29. "Medium-Term Fixed Income Fund". . . . . . . . . .13
2.30. "Non-Highly Compensated Employee". . . . . . . . .13
2.31. "Participant". . . . . . . . . . . . . . . . . . .13
2.32. "Participating Employer".. . . . . . . . . . . . .13
2.33. "Personal Contributions".. . . . . . . . . . . . .14
i
<PAGE>
2.34. "Plan".. . . . . . . . . . . . . . . . . . . . . .14
2.35. "Plan Year". . . . . . . . . . . . . . . . . . . .14
2.36. "Processing Period". . . . . . . . . . . . . . . .14
2.37. "Related Plans". . . . . . . . . . . . . . . . . .14
2.38. "Share". . . . . . . . . . . . . . . . . . . . . .14
2.39. "Share Equivalents". . . . . . . . . . . . . . . .14
2.40. "Short-Term Fixed Income Fund".. . . . . . . . . .15
2.41. "Subsidiary".. . . . . . . . . . . . . . . . . . .15
2.42. "Supplemental Contributions".. . . . . . . . . . .15
2.43. "Taxable Compensation".. . . . . . . . . . . . . .15
2.44. "Trust Agreement". . . . . . . . . . . . . . . . .15
2.45. "Trustee". . . . . . . . . . . . . . . . . . . . .15
2.46. "Unallocated Shares".. . . . . . . . . . . . . . .15
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . . .16
3.1. Eligibility.. . . . . . . . . . . . . . . . . . . .16
3.2. Becoming a Participant. . . . . . . . . . . . . . .16
3.3. Re-employment Following a Break in Service. . . . .16
3.4. Year of Service; Break in Service.. . . . . . . . .16
3.5. Transfers of Participants and Lay-Offs. . . . . . .17
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
MATCHED CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . .19
4.1. Before-Tax Matched Contributions. . . . . . . . . .19
4.2. After-Tax Matched Contributions.. . . . . . . . . .19
4.3. Limitation on Total Matched Contributions.. . . . .19
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
UNMATCHED CONTRIBUTIONS . . . . . . . . . . . . . . . . . . .20
5.1. Contributions Permitted.. . . . . . . . . . . . . .20
5.2. Before-Tax Unmatched Contributions. . . . . . . . .20
5.3. After-Tax Unmatched Contributions.. . . . . . . . .20
5.4. Limitation on Total Unmatched Contributions.. . . .20
5.5 Rollover Contributions. . . . . . . . . . . . . . .20
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . .22
6.1. Required Contributions. . . . . . . . . . . . . . .22
6.2. Contribution Rate For Company Matching
6.3. Determination of Supplemental Contribution. . . . .23
6.4. Payment and Payment Date. . . . . . . . . . . . . .25
6.5. Allocation to Participants' Accounts. . . . . . . .25
ii
<PAGE>
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . .26
PROCEDURES AND LIMITATIONS ON PERSONAL CONTRIBUTIONS AND
ELECTIONS. . . . . . . . . . . . . . . . . . . . . . . .26
7.1. Election Procedures.. . . . . . . . . . . . . . . .26
7.2. Special Dollar Limitation on Before-Tax
Contributions.. . . . . . . . . . . . . . . . . . .26
7.3. Required Adjustment of Before-Tax Personal
Contributions.. . . . . . . . . . . . . . . . . . .27
7.4. Required Adjustment of After-Tax and Company
Matching Contributions. . . . . . . . . . . . . . .29
7.5. Suspension and Reinstatement of Matched
Personal Contributions After Withdrawal.. . . . . .31
7.6. Payroll Deductions. . . . . . . . . . . . . . . . .31
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . .32
ESOP LOANS. . . . . . . . . . . . . . . . . . . . . . . . . .32
8.1. Terms of ESOP Loan. . . . . . . . . . . . . . . . .32
8.2. Acquisition of Shares with proceeds of ESOP
Loan. . . . . . . . . . . . . . . . . . . . . . . .32
8.3. Shares to be Unrestricted.. . . . . . . . . . . . .33
8.4. Release from ESOP Loan Suspense Account.. . . . . .33
8.5. Use of Company and Personal Contributions for
ESOP Loan Payments.. . . . . . . . . . . . . . . .33
8.6. Use of Dividends for ESOP Loan Payments.. . . . . .34
8.7. ESOP Loan Payments. . . . . . . . . . . . . . . . .34
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
INVESTMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . . . .36
9.1. Investment of Company Matching and
Supplemental Contributions. . . . . . . . . . . . .36
9.2. Investment of the Matched Contributions Part
of an Account.. . . . . . . . . . . . . . . . . . .36
9.3. Investment of the Unmatched Contributions
Part of an Account. . . . . . . . . . . . . . . . .36
9.4. A Participant's Investment Direction for
Current Contributions.. . . . . . . . . . . . . . .36
9.5. A Participant's Investment Direction for
Accumulated Account Balances. . . . . . . . . . . .36
9.6. Special Diversification After Attainment of
Age 55. . . . . . . . . . . . . . . . . . . . . . .37
9.7. The Company Stock Fund. . . . . . . . . . . . . . .37
9.8. The Short-Term Fixed Income Fund. . . . . . . . . .38
9.9. The Medium-Term Fixed Income Fund.. . . . . . . . .38
9.10. The Equity Index Fund. . . . . . . . . . . . . . .39
9.11. The Indexed Balanced Fund. . . . . . . . . . . . .40
9.12. The Managed Balanced Fund. . . . . . . . . . . . .41
9.13. The Earthgrains Stock Fund.. . . . . . . . . . . .41
iii
<PAGE>
9.14. Earnings, etc. . . . . . . . . . . . . . . . . . . . . 41
9.15. Reports to Participants. . . . . . . . . . . . . . . . 42
9.16. Voting of Shares.. . . . . . . . . . . . . . . . . . . 42
9.17. Tendering of Shares and Rights.. . . . . . . . . . . . 43
9.18. Plan Mergers.. . . . . . . . . . . . . . . . . . . . . 44
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
MAINTENANCE AND VALUATION OF ACCOUNTS . . . . . . . . . . . . . . 45
10.l. Separate Accounts. . . . . . . . . . . . . . . . . . . 45
10.2. Company Stock Fund Portion.. . . . . . . . . . . . . . 45
10.3. Other Investment Fund Portions.. . . . . . . . . . . . 45
10.4. Transfers Between Funds. . . . . . . . . . . . . . . . 46
10.5. Valuation of the Fund. . . . . . . . . . . . . . . . . 46
10.6. Effect of Valuations.. . . . . . . . . . . . . . . . . 46
10.7. No Liability for Fluctuations in Value.. . . . . . . . 46
10.8. Adjustments to Accounts. . . . . . . . . . . . . . . . 47
10.9. Ordering of Distributions. . . . . . . . . . . . . . . 47
10.10.Unallocated Accounts.. . . . . . . . . . . . . . . . . 47
10.11.Special Valuation of Company Stock in
Extraordinary Circumstances.. . . . . . . . . . . . . . 48
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.1. Amounts Contributed by the Participant.. . . . . . . . 49
11.2. Company Matching and Supplemental
Contributions. . . . . . . . . . . . . . . . . . . . . 49
11.3. Vesting Rules. . . . . . . . . . . . . . . . . . . . . 49
11.4. Change in Control of the Company.. . . . . . . . . . . 51
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . 52
12.1. Distributions Upon Termination of
Employment.. . . . . . . . . . . . . . . . . . . . . . 52
12.2. Time and Method of Distribution. . . . . . . . . . . . 52
12.3. Eligible Rollover Distributions. . . . . . . . . . . . 55
12.4. Determination of Disability. . . . . . . . . . . . . . 55
12.5. Distributions to Reporting Persons.. . . . . . . . . . 55
12.6. Transfer of Accounts.. . . . . . . . . . . . . . . . . 56
12.7. Early Distribution under Domestic Relations
Order. . . . . . . . . . . . . . . . . . . . . . . . . 56
12.8. Absolute Right to Receive Stock
Distribution.. . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
WITHDRAWALS WHILE EMPLOYED. . . . . . . . . . . . . . . . . . . . 57
iv
<PAGE>
13.1. Elective Right to Make Certain Withdrawals . . . . . . 57
13.2. Protected Withdrawal Rights. . . . . . . . . . . . . . 58
13.3. Withdrawal Procedure.. . . . . . . . . . . . . . . . . 58
13.4. Frequency of Withdrawals.. . . . . . . . . . . . . . . 58
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
HARDSHIP WITHDRAWALS. . . . . . . . . . . . . . . . . . . . . . . 59
l4.l. Eligibility and Procedure. . . . . . . . . . . . . . . 59
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
LOANS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . 61
l5.l. Procedure and Terms. . . . . . . . . . . . . . . . . . 61
ARTICLE XVI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
DESIGNATION OF A BENEFICIARY. . . . . . . . . . . . . . . . . . . 64
16.1. Procedure and Effect.. . . . . . . . . . . . . . . . . 64
16.2. Renunciation of Death Benefit. . . . . . . . . . . . . 66
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
LOST DISTRIBUTEES . . . . . . . . . . . . . . . . . . . . . . . . 68
17.1. Disposition of Accounts Payable to Persons
Who Cannot Be Located. . . . . . . . . . . . . . . . . 68
17.2. Efforts To Locate Distributees.. . . . . . . . . . . . 68
ARTICLE XVIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
AMENDMENT OR TERMINATION. . . . . . . . . . . . . . . . . . . . . 69
18.1. Company's Power to Amend or Terminate. . . . . . . . . 69
18.2. Termination by a Participating Employer. . . . . . . . 70
18.3. Disposition of Assets on Termination.. . . . . . . . . 70
18.4. Effect of Termination by the Company.. . . . . . . . . 71
18.5. Effect of Termination of ESOP Loan.. . . . . . . . . . 72
ARTICLE XIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ADMINISTRATIVE COMMITTEE. . . . . . . . . . . . . . . . . . . . . 73
19.1. Appointment. . . . . . . . . . . . . . . . . . . . . . 73
19.2. Organization.. . . . . . . . . . . . . . . . . . . . . 73
19.3. Powers.. . . . . . . . . . . . . . . . . . . . . . . . 73
19.4. Forms and Procedures.. . . . . . . . . . . . . . . . . 75
19.5. Meetings.. . . . . . . . . . . . . . . . . . . . . . . 76
19.6. Records. . . . . . . . . . . . . . . . . . . . . . . . 76
19.7. Applications for Benefits; Appeal From
Denial of Benefits. . . . . . . . . . . . . . . . . . 76
19.8. Liability of Committee.. . . . . . . . . . . . . . . . 77
v
<PAGE>
19.9. Standard of Review.. . . . . . . . . . . . . . . . . . 78
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
PROHIBITION AGAINST VOLUNTARY OR INVOLUNTARY
ASSIGNMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 80
20.1. No Liability for Participants' Debts.. . . . . . . . . 80
ARTICLE XXI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
COMPETENCY OF DISTRIBUTEES. . . . . . . . . . . . . . . . . . . . 81
21.1. Distributees Presumed Competent.. . . . . . . . . . . . . . 81
21.2. Facility of Payment.. . . . . . . . . . . . . . . . . . . . 81
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
BECOMING A PARTICIPATING EMPLOYER . . . . . . . . . . . . . . . . 82
22.1. Authorization and Procedure. . . . . . . . . . . . . . 82
22.2. Effect of Being a Participating Employer.. . . . . . . 82
22.3. Pooled Funds.. . . . . . . . . . . . . . . . . . . . . 82
22.4. Costs and Expenses.. . . . . . . . . . . . . . . . . . 83
22.5. Adoption of Plan Conditional.. . . . . . . . . . . . . 83
ARTICLE XXIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
LIMITATIONS APPLICABLE TO ALL CONTRIBUTIONS TO THIS
PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
23.1. Special Limitation on Annual Additions For
Any Participant For Any Year.. . . . . . . . . . . . . 84
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SPECIAL RULES FOR YEARS WHEN PLAN IS TOP-HEAVY. . . . . . . . . . 86
24.1. Special Definitions and Rules of
Construction.. . . . . . . . . . . . . . . . . . . . . 86
24.2. Special Rules Applicable to Top-Heavy Years. . . . . . 88
24.3. Operating Rules. . . . . . . . . . . . . . . . . . . . 89
ARTICLE XXV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 91
25.1. Return of Contributions. . . . . . . . . . . . . . . 91
25.2. Limitations of Liability and Rights. . . . . . . . . . 91
25.3. General Administration and Expenses. . . . . . . . . . 92
25.4. Notice of Address. . . . . . . . . . . . . . . . . . . 92
25.5. Data.. . . . . . . . . . . . . . . . . . . . . . . . . 92
25.6. Trust Agreement Related. . . . . . . . . . . . . . . . 93
25.7. Severability Clause. . . . . . . . . . . . . . . . . . 93
25.8. Situs. . . . . . . . . . . . . . . . . . . . . . . . . 93
vi
<PAGE>
25.9. Succession.. . . . . . . . . . . . . . . . . . . . . . 93
25.10. Execution.. . . . . . . . . . . . . . . . . . . . . . 93
25.11. Merger of Plan or Transfer of Trust Assets. . . . . . 93
25.12. Miscellaneous Rules of Construction.. . . . . . . . . 93
25.13. Delayed Payments. . . . . . . . . . . . . . . . . . . 94
25.14. Mistakes in Benefit Payments. . . . . . . . . . . . . 94
25.15 Reporting Persons.. . . . . . . . . . . . . . . . . . 94
vii
<PAGE>
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
-------------------------------
ARTICLE I
ESTABLISHMENT OF PLAN
---------------------
1.1. Action By Company. Effective as of April l, 1976,
-----------------
Anheuser-Busch, Inc., a Missouri corporation, established the
Anheuser-Busch Employee Stock Purchase and Savings Plan. The Plan
was subsequently amended from time to time and the position of
Anheuser-Busch, Inc. as the Plan Sponsor was assumed by
Anheuser-Busch Companies, Inc., a Delaware corporation (the
"Company"). The Company reserved the right to amend the Plan in
any way not expressly prohibited by the Plan. Pursuant to such
reserved right, effective January 1, 1985, the Company divided the
Plan into two separate plans, with employees covered by a
collective bargaining agreement being covered by a separate but
substantially similar plan. This Plan is a continuation of the
former Anheuser-Busch Employee Stock Purchase and Savings Plan
though its name has been changed to the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan.
Also pursuant to such reserved right, effective April 1,
1992, the Company again divided the Plan into two separate plans,
with hourly employees of Busch Entertainment Corporation and
certain of its subsidiaries covered by a separate but
substantially similar plan. The Plan has subsequently been
amended from time to time, most recently in the form of a complete
restatement effective April 1, 1994, with two subsequent
amendments thereto. The Company hereby adopts this current
amendment and restatement of the Plan, effective as of April 1,
1996, in order to make certain other changes consistent with
administrative practice and the Company's spin-off of the
Earthgrains Company. The provisions of this amendment and
restatement are effective as of April 1, 1996, unless otherwise
expressly provided.
The Plan is intended to be an employee stock ownership plan
within the meaning of Section 4975(e)(7) of the Code, designed to
invest primarily in "qualifying employer securities" as defined in
Sections 4975(e)(8) and 409(l) of the Code and also is intended to
constitute a cash or deferred arrangement pursuant to Section
401(k) of the Code. The Plan permits investment in Company stock
to be made with the proceeds of loans involving funds borrowed by
the Company or Trustee. It is the intention of the Company that
loans entered into by the Trustee shall be repaid with
contributions under the Plan, dividends on Company stock and
earnings thereon.
<PAGE>
1.2. Named Plan Fiduciaries. The authority to control and
----------------------
manage the operation and administration of this Plan, and,
generally, the investment of its funds, shall be vested in the
Plan's named fiduciaries. The Plan's named fiduciaries are the
Company, as Plan Sponsor and Plan Administrator, the Trustee, and,
for certain limited purposes, Participants. As Plan Sponsor, the
Company shall have the right to amend the Plan, to designate the
Plan's named fiduciaries, and to exercise all fiduciary functions
necessary to the operation of the Plan except those which are
assigned to another named fiduciary under this Plan. As Plan
Administrator, the Company shall have the authority and
responsibility for the general administration of the Plan,
including discretionary authority to determine eligibility for
benefits and to construe the terms thereof. The Company shall
have the right to appoint an Administrative Committee to exercise
such authority and responsibility. The Trustee shall have the
exclusive authority and discretion to invest, manage and control
the assets of the Trust by which the Plan is funded, subject to
and in accordance with the provisions hereof and of the separate
Trust Agreement, and subject to the rights of Participants to
direct the investment of their Accounts as permitted hereby. For
purposes of voting and tendering Shares as to which no
instructions have been received by the Trustee, and Unallocated
Shares as described in Sections 9.16 and 9.17, the Participants
shall be deemed named fiduciaries.
The rights and responsibilities of each named fiduciary shall
be exercised severally and not jointly, but any party may serve in
more than one fiduciary capacity with respect to the Plan.
2
<PAGE>
ARTICLE II
DEFINITIONS OF GENERAL APPLICABILITY
2.1. "Account". The separate record of the interest of
-------
each Participant in this Plan which will be established in
accordance with Section 10.1.
2.2. "After-Tax Contributions". A Participant's Personal
-----------------------
Contributions which are not subject to deduction or exclusion from
gross income for federal income tax purposes. After-Tax
Contributions are of two types:
(a) "After-Tax Matched Contributions", which are
-------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "After-Tax Unmatched Contributions", which are
---------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.3. "Before-Tax Contributions". A Participant's Personal
------------------------
Contributions which are properly excluded from gross
income pursuant to Section 40l(k) of the Code. Before-Tax
Contributions are of two types:
(a) "Before-Tax Matched Contributions", which are
--------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "Before-Tax Unmatched Contributions", which are
----------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.4. "Beneficiary". Any person designated by a Partic-
-----------
ipant pursuant to Article XVI to receive benefits hereunder or any
other person deemed to be a Beneficiary by any other provision of
this Plan or by law.
2.5. "Base Pay". A Participant's regular salary, wages or
--------
other remuneration for services paid by a Participating Employer
and determined before subtracting Before-Tax Contributions or
salary reductions pursuant to a plan designed to comply with
Section 125 of the Code. Base Pay is used in computing the amount
of Personal Contributions to the Plan and shall be determined as
follows:
(a) Participants Paid on an Hourly Basis. Base Pay
------------------------------------
is straight-time gross wages for the standard work week, including
productivity pay (for Employees of St. Louis
3
<PAGE>
Refrigerator Car Company only) and leadman pay, but excluding any
over-time pay, supplemental unemployment benefits, or supplemental
workers' compensation benefits. Base Pay includes vacation pay at
straight-time rates (or such other rates as are established by
local facility practice) and amounts paid, at straight-time rates,
for periods not worked because of holiday time off, furlough, sick
leave, bereavement, military leave, jury duty, or with respect to
relief or lunch periods. In situations where work schedules are
not arranged so that 40 regular hours are worked each work week,
the Committee shall determine an appropriate method to compute
Base Pay.
(b) Participants Paid on a Salary Basis. Base Pay
-----------------------------------
is gross salary for the standard pay period, not including any
over-time pay. Base pay includes, at regular salary rates,
amounts paid for periods not worked because of vacation, holiday
time off, furlough, sick leave, bereavement, military leave, jury
duty or with respect to relief or lunch periods.
(c) Other Items Included In Base Pay For All
----------------------------------------
Participants. Base Pay includes commissions paid to persons who
- ------------
are compensated wholly or partially by way of commission, reported
tips for persons who are compensated wholly or partially by way of
tips, and also includes back pay, but only
to the extent that the back pay would have been Base Pay had it
been paid in a timely manner (i.e., disregarding back pay awards
for such items as over-time pay). Back pay shall be included in
Base Pay at the time payment is actually made.
(d) Other Items Excluded from Base Pay For All
------------------------------------------
Participants. Base Pay does not include any bonus, pay in lieu of
- ------------
vacation, service allowance, severance pay, premium pay for shift
or other specialized work, Company Matching or Supplemental
Contributions to this Plan, Company contributions to any other
pension, retirement, group insurance, health and welfare or
similar plan, cash payments pursuant to a plan designed to comply
with Section 125 of the Code, any other so-called "fringe
benefits," any income attributable to the award or exercise of a
stock option or the premature disposition of stock option stock,
any other amount which does not constitute "compensation" within
the meaning of Section 4l5 of the Code, any type of remuneration
not otherwise described in this Section, or any expense allowance
or reimbursements of expenses paid on behalf of a Participant
(even if subsequently not allowed as such and treated as addi-
tional compensation for federal income tax purposes). Base Pay
does not include any vacation pay which becomes payable on account
of termination of employment nor does it include payments for any
unused sick day, whether before or after termination of
employment.
4
<PAGE>
(e) Limit On Base Pay Considered. In no event shall
----------------------------
the Base Pay taken into account for a Participant under this Plan
exceed the amount specified in Section 401(a)(17) of the Code as
adjusted for any applicable increases in the cost of living.
2.6. "Board". The Board of Directors of the Company.
-----
2.7. "Closing Price". The price at which Shares shall be
-------------
valued for some purposes under the Plan. The Closing Price is the
closing price of a Share or group of Shares on The New York Stock
Exchange for the last trading day (on which there was at least one
sale of a Share) of a Processing Period, or on such other date as
may be specified in the Plan or determined by the Committee
pursuant to the Plan.
2.8. "Code". The United States Internal Revenue Code of
----
1986, as amended (Title 26 of the United States Code). All
references to specific sections of the Code shall be deemed to be
references to such sections as they may be amended or superseded,
and to the corresponding sections or provisions of any subsequent
United States Internal Revenue Code, as appropriate at the time of
reference.
2.9. "Committee". The Committee appointed under the
---------
provisions of Section 19.1 to administer this Plan.
2.10. "Company". Anheuser-Busch Companies, Inc., a
-------
corporation organized and existing under the laws of the State of
Delaware, and any successor corporation which assumes this Plan
and agrees to be bound by the terms and provisions hereof.
2.11. "Company Matching Contributions". The amounts
------------------------------
contributed to this Plan by Participating Employers pursuant to
Section 6.1(a), including forfeitures which are applied to reduce
the contributions otherwise payable by them.
2.12. "Company Stock Fund". The separate portion of the
------------------
Fund which is to be invested in accordance with Section 9.7.
2.13. "Company Year". The fiscal year of the Company as in
------------
effect from time to time. On the Effective Date the fiscal year
of the Company is the calendar year.
2.14. "Consolidated Net Income For Plan Purposes". The
-----------------------------------------
consolidated net income of all of the Employing Companies for any
Company Year as shown in the Company's annual report to its
shareholders for such Company Year after extraordinary items of
and charges to income, but before taxes on income and earnings of,
5
<PAGE>
and direct and indirect expenses attributable to, any Subsidiary
acquired after October 1, 1982 that is not a Participating
Employer under this Plan or a Related Plan. For purposes of the
foregoing all determinations of earnings and expenses shall be
made in accordance with rules of uniform application adopted by
the Committee; the incorporation of a Subsidiary at the direction
of the Company shall not be treated as an acquisition of such
Subsidiary, even though one of the Employing Companies may
purchase the shares thereof; and a Subsidiary will be deemed to be
acquired when the percentage of voting capital stock or equity
interest owned by the Company or another Subsidiary or any
combination of the Company and/or one or more Subsidiaries first
equals 80%.
2.15. "Effective Date". When used with respect to this
--------------
amended and restated Plan, April 1, 1996 except where otherwise
expressed in this document. This Plan is a continuation, in part,
of the Anheuser-Busch Employee Stock Purchase and Savings Plan,
and the term "Effective Date", when used with respect to that Plan
as originally adopted, means April l, 1976.
2.16. "Eligible Employee". An Employee of any
-----------------
Participating Employer who has satisfied the service requirement
for eligibility to participate in this Plan set forth in Article
III hereof.
2.17. "Employee". Any common law employee employed by any
--------
of the Employing Companies in any capacity other than
(a) A person employed outside the United States or
Puerto Rico, except that the following persons shall be considered
"Employees" unless excluded from participation in the Plan by
individual agreement, requirements of law or practical impediment
as determined by the Committee; provided that confirmation of the
identity of persons to be considered "Employees" under this
Section 2.19(a) shall be provided to the Committee in writing from
time to time:
(i) a United States citizen or permanent
resident initially employed in the United States and transferred
outside the United States under the Company's International
Assignment Policy;
(ii) a United States citizen initially employed
outside the United States or Puerto Rico, unless hired for
assignment to the host country with no plan for transfer to the
United States; or
(iii) a foreign national initially employed in
the United States and transferred outside the United States under
the Company's International Assignment Policy;
6
<PAGE>
(b) A person employed in a branch operation of
Anheuser-Busch Investment Capital Corporation; or
(c) A person employed by Anheuser-Busch, Inc. at its
wholesale operations division in Canton, Ohio who is compensated
on an hourly basis as shown on records of the employer. This
subsection (c) shall no longer be effective after December 31,
1995.
2.18. "Employing Companies". The Company and any
-------------------
corporation or other business entity that is a member of a
controlled group of corporations or other business entities, as
defined in Sections 414(b) and 414(c) of the Code, that includes
the Company, or is a member of an affiliated service group that
includes the Company as defined in Section 414(m) of the Code, all
as determined from time to time. A business entity is an
Employing Company only while a member of such a controlled group
of corporations or other business entities or such an affiliated
service group. All determinations required by this Section shall
be made pursuant to and consistent with Sections 414(b), (c), (m)
and (o) of the Code and regulations thereunder.
2.19. "Equity Index Fund". The separate portion of the
-----------------
Fund which is to be invested in accordance with Section 9.10.
2.20. "ERISA". The Employee Retirement Income Security Act
-----
of 1974, Pub. L. No. 93-406, 88 Stat. 829, which amended both the
Code and Title 29 of the United States Code (captioned "Labor").
ERISA sections contained in the Code are cited by references to
the Code. ERISA sections not contained in the Code are cited in
sections of ERISA as enacted. All references to specific ERISA
sections shall be deemed to be references to such sections as
originally enacted or as subsequently amended or superseded, as
appropriate at the time of reference.
2.21. "ESOP Loan". A loan described in Section
---------
404(a)(9)(A) of the Code and which otherwise satisfies the
requirements of Article VIII, which is used by the Trustee to
finance the acquisition of Shares, or to refinance an existing
ESOP Loan.
2.22. "ESOP Loan Payment Accumulation Account". The
--------------------------------------
Account established pursuant to Section 10.10(b) in which the
Trustee will accumulate, pursuant to Section 8.5, Plan
contributions, dividends and related earnings.
2.23. "ESOP Loan Suspense Account". The account
--------------------------
established pursuant to Section 10.10(a) to hold Unallocated
Shares.
7
<PAGE>
2.24. "Fund". All securities, cash and other assets held
----
by the Trustee with respect to this Plan from time to time subject
to the provisions of this Plan. As of April 1, 1996, there are
seven separate Investment Funds within the Fund: the Company
Stock Fund, the Equity Index Fund, the Indexed Balanced Fund, the
Managed Balanced Fund, the Medium-Term Fixed Income Fund, the
Short-Term Fixed Income Fund and the Earthgrains Stock Fund.
2.25. "Highly Compensated Employee". (a) The term Highly
---------------------------
Compensated Employee includes Highly Compensated Employees who are
active and certain former Highly Compensated Employees as
described in this Section.
(b) An active Highly Compensated Employee includes
any individual who performs service for any of the Employing
Companies during the determination year and who, during the
look-back year: (i) received compensation from the Employing
Companies in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code); (ii) received compensation from the Employing
Companies in excess of $50,000 (as adjusted pursuant to Section
415(d) of the Code) and was a member of the top-paid group for
such year; or (iii) was at any time an officer of an Employing
Company and received compensation during such year that is greater
than 50 percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such year.
(c) The term Highly Compensated Employee also
includes: (i) individuals who are both described in the preceding
subsection (b) if the term "determination year" is substituted for
the term "look-back year" and the individual is one of the one
hundred employees who received the most compensation from the
Employing Companies during the determination year; and (ii)
employees who are five-percent owners at any time during the
look-back year or determination year.
(d) If no officer has satisfied the compensation
requirement of (b)(iii) above during either a determination year
or look-back year, the highest paid officer for such year shall be
treated as a Highly Compensated Employee.
(e) For purposes of this Section, (i) the determina-
tion year shall be the Plan Year; (ii) the look-back year shall be
the twelve-month period immediately preceding the determination
year; and (iii) compensation shall mean compensation as defined in
Section 414(q)(7) of the Code and regulations thereunder.
(f) A former Highly Compensated Employee includes
any individual who separated from service with an Employing
8
<PAGE>
Company (or was deemed to have separated) prior to the
determination year, performs no service for an Employing Company
during the determination year, and was an active Highly
Compensated Employee for either the separation year or any
determination year ending on or after the employee's 55th
birthday.
(g) If an individual is, during a determination year
or look-back year, a family member of either a five-percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the ten most highly compensated employees
during such year, then the family member and the five-percent
owner or top-ten highly compensated employee shall be treated as a
single employee receiving compensation and plan contributions or
benefits equal to the sum of such compensation and contributions
or benefits of the family member and five-percent owner or top-ten
highly compensated employee.
(h) For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the
employee or former employee and the spouses of such lineal
ascendants and descendants.
(i) The determination of who is a Highly Compensated
Employee, including the determinations of the number and identity
of employees in the top-paid group, any five-percent owner, the
top one hundred employees, the number of employees treated as
officers and the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and applicable Treasury
Regulations.
2.26. "Hour of Service". (a) An Hour of Service is:
---------------
(i) each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Employing Company;
(ii) each hour for which an Employee is paid,
or entitled to payment, by an Employing Company on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence; and
(iii) each hour (if not already credited) for
which back pay (irrespective of mitigation of damages) has been
either awarded or agreed to by an Employing Company; provided the
Hours of Service derived from back pay shall be credited to the
computation period or periods to which the award or agreement per-
tains, and not to the computation period in which payment is made.
9
<PAGE>
(iv) in the case of an Employee (or former
Employee) who is on an authorized leave of absence or on active
duty with any branch of the military service of the United States
and who is not directly or indirectly paid or entitled to payment
by any of the Employing Companies during such period, an Hour of
Service is every regular working hour of every regular working day
for which such person would have been credited with an Hour of
Service (based on the person's normal work schedule in effect at
the time of the beginning of such leave or military service) had
the person been actively at work during the period of such leave
or military service, but only if such person returns to work at
the end of such leave or (in the case of military service) during
the period in which such person's re-employment rights are
protected by Federal law.
(b) The following rules shall apply to
determinations of Hours of Service credited under this Plan:
(i) A payment shall be deemed to be made by or
due from an Employing Company regardless of whether such payment
is made by or due from an Employing Company directly, or indi-
rectly through (among others) a trust fund or insurer to which the
Employing Company contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
(ii) An Employee who is compensated by way of a
salary which is payable semi-monthly shall be credited with 95
Hours of Service for each semi-monthly payroll period for which
the Employee is compensated for the performance of duties (the
number of Hours of Service to be credited to such Employee because
of compensation for reasons other than the performance of duties
shall be determined in the manner hereafter specified). If a
semi-monthly salary period falls into two different computation
periods, the entire number of Hours of Service attributable to
such period shall be credited to the second computation period.
(iii) The number of Hours of Service to be
credited to an Employee for reasons other than performance of
duties, and the Plan Year or Plan Years to which Hours of Service
will be credited in appropriate instances, shall be determined,
respectively, pursuant to the United States Department of Labor's
Regulations Section 2530.200b-2(b) and (c), which are incorporated
herein by this reference.
(iv) Notwithstanding the provisions of subsec-
tion (a) requiring that Hours of Service be credited because of
payments made for reasons other than the performance of duties, no
more than 501 Hours of Service shall be credited to an Employee on
10
<PAGE>
account of any single continuous period (whether occurring in one
or more computation periods) during which such Employee performs
no duties, and no Hour of Service shall be credited on account of
a period during which no duties are performed if the payment
therefor is made under a plan maintained solely for the purpose of
complying with applicable workmen's compensation, unemployment
compensation, or disability insurance laws.
(v) No Hours of Service will be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by such Employee.
(vi) For purposes of determining the number of
Hours of Service credited to an Employee who is not yet eligible
to be a Participant in this Plan, the computation period shall be
the eligibility computation period specified in Section 3.4
hereof.
(vii) These provisions shall be liberally
construed in favor of Employees.
(viii) Solely for the purposes of determining
whether a break in service for eligibility under Section 3.3(a)
has occurred, any Employee who is absent from work (A) by reason
of the pregnancy of the Employee, (B) by reason of the birth of a
child of the Employee, (C) by reason of the placement of a child
with the Employee in connection with the adoption of such child by
the Employee, or (D) for purposes of caring for such child for a
period beginning immediately following such birth or placement,
shall receive credit for the Hours of Service which would
otherwise have been credited but for such absence, or in any case
in which such hours cannot be determined, eight Hours of Service
for each day of such absence. The Hours of Service credited under
this paragraph shall be credited in the computation period in
which the absence begins if the crediting is necessary to prevent
a break in service in that period, or, in all other cases, in the
following computation period. Notwithstanding the foregoing, no
more than 501 Hours of Service shall be credited under this
paragraph for any single maternity or paternity leave. The
Committee shall have the right to require such timely information
from an Employee as it deems reasonably necessary to establish
that the absence is for reasons referred to in this paragraph and
the number of days for which there was such an absence. If an
Employee does not comply with any such request, the rules of this
paragraph shall not apply to the absence.
(c) Hours of Service credited under a Related Plan
shall be Hours of Service under this Plan for all purposes.
11
<PAGE>
(d) In determining the Hours of Service of any
individual employed by Sea World of Florida, Inc., Florida Cypress
Gardens, Inc., Busch Properties of Florida, Inc., Sea World, Inc.,
Sea World of Texas, Inc., or Boardwalk and Baseball, Inc. as of
December 1, 1989, hours of service with any of such corporations
shall be considered Hours of Service in accordance with this Sec-
tion. In addition, if an individual worked for Harcourt, Brace,
Jovanovich, Inc. immediately prior to December 1, 1989 and became
employed by a Participating Employer on or before January 1, 1990,
such individual's hours of service with such company shall be
considered Hours of Service under this Plan.
(e) In determining the Hours of Service of any
individual employed by Vesper Corporation as of May 29, 1992, who
becomes an Employee in connection with the acquisition of the LG
Potato Chip Company division of Vesper Corporation on or about May
29, 1992, hours of service with Vesper Corporation prior to May
30, 1992 shall be considered Hours of Service in accordance with
this Section. This provision shall be effective for purposes of
both Article III and Article XI.
(f) In determining the Hours of Service of any
individual employed by Precision Printing and Packaging, Inc. as
of December 31, 1994, hours of service with such corporation or
with International Label Company shall be considered Hours of
Service in accordance with this Section. This provision shall be
effective for purposes of both Article III and Article XI.
(g) In determining the Hours of Service of any
individual employed by Anheuser-Busch Sales of South Bay, Inc. or
Anheuser-Busch, Inc. as of March 1, 1996, hours of service with
Bay Distributors, Inc., shall be considered Hours of Service in
accordance with this Section. This provision shall be effective
for purposes of both Article III and Article XI.
(h) In determining the Hours of Service of any
individual employed by Eagle Distributors, Inc. as of July 26,
1996, who becomes an employee of Anheuser-Busch Sales of Hawaii,
Inc. hours of service with Eagle Distributors, Inc. shall be
considered Hours of Service in accordance with this Section. This
provision shall be effective for purposes of both Article III and
Article XI.
(i) An Employee who is placed on a special leave of
absence because such Employee's spouse is transferred outside the
United States under the Company's International Assignment Policy
shall, upon returning to work at the expiration of such leave,
receive credit for eight Hours of Service for each day of such
absence. This provision shall be effective for purposes of both
Article III and Article XI.
12
<PAGE>
2.27. "Indexed Balanced Fund". The separate portion of the
---------------------
Fund which is to be invested in accordance with Section 9.11.
2.28. "Managed Balanced Fund". The separate portion of the
---------------------
Fund which is to be invested in accordance with Section 9.12.
2.29. "Medium-Term Fixed Income Fund". The separate
-----------------------------
portion of the Fund which is to be invested in accordance with
Section 9.9.
2.30. "Non-Highly Compensated Employee". An Employee who
-------------------------------
is neither a Highly Compensated Employee nor a family member of a
Highly Compensated Employee within the meaning of Section
414(q)(6)(B) of the Code.
2.31. "Participant". Any Eligible Employee who has elected
-----------
to participate in this Plan in the manner provided in Section 3.2
and any former Eligible Employee who has assets credited to an
Account.
2.32. "Participating Employer". (a) As of April 1, 1996,
----------------------
the Company and the following Subsidiaries:
Anheuser-Busch Distributors of Consolidated Farms, Inc.
New York, Inc. Fairfield Transport, Inc.
Anheuser-Busch Europe, Inc. Golden Eagle Distributing
Anheuser-Busch, Incorporated Company
Anheuser-Busch International, Inc. Innervision Productions, Inc.
Anheuser-Busch Investment Capital Kingsmill Realty, Inc.
Corporation Manufacturers Cartage Company
Anheuser-Busch Mexico, Inc. Manufacturers Railway Company
Anheuser-Busch Recycling Metal Container Corporation
Corporation Metal Container Corporation
Anheuser-Busch Sales of Hawaii, of California
Inc. (effective October 1, 1996) Metal Container
International, Inc.
Anheuser-Bush Sales of Metal Container Service
South Bay, Inc. Corporation
August A. Busch & Co. of MRS Transport Company
Massachusetts Nutri-Turf, Inc.
Boardwalk & Baseball, Inc. Optimus, Inc.
Busch Agricultural Resources, Inc. Pacific International Rice
Busch Agricultural Resources Mills, Inc.
International, Inc. Precision Printing and
Busch Biotech, Inc. Packaging, Inc.
Busch Creative Services St. Louis Refrigerator Car
Corporation Company
Busch Entertainment Corporation Sea World, Inc.
Busch Media Group, Inc. Sea World of Florida, Inc.
Busch Mechanical Services, Inc. Sea World of Texas, Inc.
Busch Properties, Inc. SP Parks, Inc.
Busch proeprties of Florida, Inc. Williamsburg, Transport, Inc.
13
<PAGE>
(b) Any other Subsidiary which may hereafter become
a party hereto in the manner provided in Article XXII.
(c) Any corporation(s) into which or with which any
of the foregoing Participating Employers may be liquidated, merged
or consolidated, if such successor(s) or (in the event of a
liquidation, merger or consolidation) surviving corporation(s) is
a Subsidiary and is or becomes a Participating Employer hereunder.
2.33. "Personal Contributions". A generic term referring,
----------------------
collectively, to all amounts contributed to this Plan by a
Participant. Such amounts will be either After-Tax Contributions
or Before-Tax Contributions, and may be either matched by a
Company Matching Contribution or unmatched.
2.34. "Plan". This Anheuser-Busch Deferred Income Stock
----
Purchase and Savings Plan as herein established and as it may be
amended from time to time.
2.35. "Plan Year". The fiscal year adopted by the Company
---------
for this Plan. The Plan Year is the twelve consecutive month
period beginning each April 1 and ending each March 31.
2.36. "Processing Period". The seven consecutive day
-----------------
period beginning each Wednesday and ending the following Tuesday
or such other period as may be designated by the Committee from
time to time.
2.37. "Related Plans". The Anheuser-Busch Deferred Income
-------------
Stock Purchase and Savings Plan (for Employees Covered by A
Collective Bargaining Agreement) and the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (for Certain Hourly
Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries).
2.38. "Share". A share of common stock of the Company.
-----
2.39. "Share Equivalents". The portion of a Participant's
-----------------
Account which is invested in the Company Stock Fund but measured
in terms of the number of Shares that would be equivalent in value
to such investment. Share Equivalents that a Participant or
Beneficiary shall be entitled to vote or tender pursuant to
Sections 9.16 and 9.17 shall be equal to the number of full and
fractional Shares held in the Company Stock Fund as of a Valuation
Date, divided by the number of Company Stock Fund units as of such
Valuation Date, multiplied by the number of Company Stock Fund
units in the Participant's Account as of such Valuation Date. For
purposes of this Section, the term "Valuation Date" shall mean any
14
<PAGE>
date as of which Share value or unit value is determined under an
Investment Fund as directed by the Committee.
2.40. "Short-Term Fixed Income Fund". The separate portion
----------------------------
of the Fund which is to be invested in accordance with Section
9.8.
2.41. "Subsidiary". Any corporation or other form of
----------
business enterprise created or organized in the United States
under the law of any State or Territory thereof, the issued and
outstanding voting capital stock or equity interest of which is,
in the aggregate, 80% or more owned by the Company, another
Subsidiary or any combination of the Company and/or one or more
Subsidiaries.
2.42. "Supplemental Contributions". Amounts contributed to
--------------------------
this Plan by Participating Employers pursuant to Section 6.1(b).
2.43. "Taxable Compensation". The amount of compensation
--------------------
determined under the provisions of Section 414(s) of the Code and
regulations thereunder, but including amounts otherwise excluded
from gross income under Sections 402(e)(3) and 125 of the Code.
In no event shall an Employee's Taxable Compensation exceed the
amount specified in Section 401(a)(17) of the Code as adjusted for
any applicable increases in the cost of living.
2.44. "Trust Agreement". The separate Master Defined
---------------
Contribution Trust Agreement entered into by and between the
Company and the Trustee, as well as all other agreements and
documents relating to the operation of the Master Defined
Contribution Trust including, but not limited to, agreements
appointing investment managers and agreements joining plans into
the Master Defined Contribution Trust Agreement. The Master
Defined Contribution Trust Agreement, as may be amended from time
to time, governs the establishment, investment and maintenance of
the Fund. The Master Defined Contribution Trust Agreement shall
be deemed to be a part of this Plan as if all of the terms and
provisions thereof were fully set forth herein.
2.45. "Trustee". The corporation designated by the Company
-------
from time to time to act as Trustee under the Trust Agreement.
2.46. "Unallocated Shares". Shares held in the ESOP Loan
------------------
Suspense Account which have not been allocated to the Account of a
Participant.
15
<PAGE>
ARTICLE III
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.1. Eligibility. (a) An Employee of a Participating
-----------
Employer shall be eligible to participate in the Plan at the end
of the eligibility computation period during which the Employee
completes one Year of Service.
(b) Notwithstanding the foregoing, no Employee will
be eligible to participate in this Plan if (i) such person's
employment is covered by a collective bargaining agreement which
does not expressly provide for participation in this Plan and
under which retirement benefits have been the subject of good
faith collective bargaining, (ii) such person is eligible to
participate in a Related Plan, or (iii) such person is deemed to
be a leased employee (within the meaning of Section 414(n) of the
Code) of an Employing Company.
3.2. Becoming a Participant. Participation in the Plan is
----------------------
entirely voluntary, but to become a Participant an Eligible
Employee must agree to make Personal Contributions, as hereinafter
set out. Notwithstanding anything, an Eligible Employee's
election to make Personal Contributions shall not become effective
before the first day of the calendar month following expiration of
the eligibility computation period during which such person
completes one Year of Service.
3.3. Re-employment Following a Break in Service. (a) An
------------------------------------------
Employee who incurs a break in service before becoming eligible
to participate in this Plan and who is subsequently re-employed by
a Participating Employer shall be treated as a new Employee and
shall be required to satisfy the eligibility requirements set out
in Section 3.1 following such person's re-employment date before
such person becomes an Eligible Employee.
(b) An Eligible Employee who has one or more breaks
in service and who is subsequently re-employed by a Participating
Employer shall be eligible to participate in this Plan immediately
upon re-employment.
3.4. Year of Service; Break in Service. (a) A Year of
---------------------------------
Service for determining eligibility to participate is an
eligibility computation period during which an Employee performs
at least 1,000 Hours of Service.
(b) The initial eligibility computation period for
an Employee shall be the twelve-month period beginning on the
first date (the "initial employment date") such Employee performs
an Hour of Service. In the case of an Employee who performs more
than 500 but less than 1,000 Hours of Service during the initial
16
<PAGE>
eligibility computation period, each succeeding twelve-month
period beginning on the anniversary of the Employee's initial
employment date shall be an eligibility computation period until
the Employee either becomes an Eligible Employee or incurs a break
in service.
(c) An Employee's failure to perform more than 500
Hours of Service during any eligibility computation period before
the Employee becomes an Eligible Employee shall constitute a break
in service.
(d) The eligibility computation period for an
Employee who has incurred five consecutive breaks in service and
who is subsequently re-employed shall be the twelve-month period
beginning on the first date (the "re-employment date") on which
such Employee performs an Hour of Service following such breaks in
service. In the case of such an Employee who performs more than
500 but less than 1,000 Hours of Service during such eligibility
computation period, each succeeding twelve-month period beginning
on each anniversary of the Employee's re-employment date shall be
an eligibility computation period until the Employee either
becomes an Eligible Employee or incurs five consecutive breaks in
service.
3.5. Transfers of Participants and Lay-Offs. (a) No
--------------------------------------
transfer or other change in the employment of a Participant from
the employ of a Participating Employer to the employ of another of
the Employing Companies which is not a Participating Employer, and
no transfer from an employment classification in which the
Participant is an Employee to a classification in which the
Participant is not an Employee, shall be deemed to be either a
break in service or a termination of employment, whether or not
the transferred employee is reported as having resigned or other-
wise ceased to have been employed in such employee's former
employment classification or by such employee's former employer.
After such transfer, the transferred Participant shall no longer
be entitled to make Personal Contributions to this Plan or to have
any Company Matching Contributions made on such Participant's be-
half. If eligible to participate in a Related Plan after such
transfer, a Participant's Account may be transferred to such Re-
lated Plan.
(b) So long as there is any unwithdrawn or
undistributed balance in the Account of a transferred Participant,
the Account shall not be affected by such transfer and shall not
be segregated from or within the Fund, but shall continue to be
commingled therewith and be subject to appropriate increases or
decreases to reflect the results of the valuations made in
accordance with Section 10.5.
17
<PAGE>
(c) A Participant who may no longer actively
participate in this Plan because of a lay-off or a job transfer
and who is thereafter again transferred to the employ of a
Participating Employer or is recalled from lay-off shall
automatically and immediately become eligible to resume
participation in this Plan upon compliance with rules adopted by
the Committee and the timely filing of the requisite forms, if
any.
(d) If, as a result of an employment transfer, an
individual who was a Participant in a Related Plan becomes
eligible to participate in this Plan, this Plan shall accept the
transfer of such Participant's Account from such other Plan. Any
Account so transferred shall be combined with the Participant's
Account under this Plan, if any, in accordance with procedures
established by the Committee. Any Participant described in this
subsection who was making Personal Contributions to a Related Plan
at the time of transfer shall be deemed to have made identical
elections regarding the rate, type and investment of contributions
to this Plan.
18
<PAGE>
ARTICLE IV
MATCHED CONTRIBUTIONS
---------------------
4.1. Before-Tax Matched Contributions. A Participant who
--------------------------------
wishes to make Before-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received,
in the percentage indicated by the Participant, but subject to the
limitations set out in Sections 7.2 and 7.3, on the condition that
the amount so deferred be delivered to the Trustee as a Personal
Contribution. All Before-Tax Matched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either 1, 2, 3, 4, 5 or 6% of Base Pay.
4.2. After-Tax Matched Contributions. A Participant who
-------------------------------
wishes to make After-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, but subject
to the limitations set out in Section 7.4, and to deliver the
amounts so withheld to the Trustee as a Personal Contribution.
All After-Tax Matched Contributions shall be expressed in full
percentage points of Base Pay, and shall be either 1, 2, 3, 4, 5
or 6% of Base Pay.
4.3. Limitation on Total Matched Contributions. The sum
-----------------------------------------
of a Participant's Before-Tax Matched Contributions and After-Tax
Matched Contributions may not be less than 1% nor more than 6% of
the Participant's Base Pay.
19
<PAGE>
ARTICLE V
UNMATCHED CONTRIBUTIONS
-----------------------
5.1. Contributions Permitted. Whether or not a
-----------------------
Participant is making matched Personal Contributions, such
Participant may make unmatched Personal Contributions pursuant to
this Article and subject to the limitations set out in this
Article and Article VII. Such unmatched Personal Contributions
may either be on a before-tax or after-tax basis.
5.2. Before-Tax Unmatched Contributions. A Participant
----------------------------------
who wishes to make Before-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received
in the percentage indicated by the Participant, on the condition
that the amount so deferred be delivered to the Trustee as a
Personal Contribution. All Before-Tax Unmatched Contributions
shall be expressed in full percentage points of Base Pay, and
shall be either 1, 2, 3, 4, 5, 6, 7, 8, 9 or 10% of Base Pay.
5.3. After-Tax Unmatched Contributions. A Participant who
---------------------------------
wishes to make After-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, and to
deliver the amounts so withheld to the Trustee as a Personal
Contribution. All After-Tax Unmatched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either l, 2, 3, 4, 5, 6, 7, 8, 9 or l0% of Base Pay.
5.4. Limitation on Total Unmatched Contributions. If a
-------------------------------------------
Participant making Before-Tax Unmatched Contributions is
concurrently making After-Tax Unmatched Contributions, the sum of
the Participant's unmatched contribution rates may not be more
than 10% of the Participant's Base Pay.
5.5 Rollover Contributions. (a) The Trustee may accept
----------------------
an Eligible Rollover Contribution from an Employee in accordance
with rules and procedures established by the Committee. Any
Eligible Rollover Contribution made by an Employee shall be
treated as a Before-Tax Unmatched Contribution for all purposes
under the Plan.
(b) The term "Eligible Rollover Contribution" means
any part of a distribution which meets the requirements of Section
20
<PAGE>
402(c)(4) of the Code and which is made to an Employee
from:
(i) A plan maintained by Precision Printing and
Packaging, Inc. in accordance with Section 401(k) of the Code, or
(ii) If approved by the Committee, a plan
maintained by any company whose stock or assets are acquired by an
Employing Company.
21
<PAGE>
ARTICLE VI
COMPANY CONTRIBUTIONS
---------------------
6.1. Required Contributions. (a) Each Participating
----------------------
Employer shall contribute, as its share of Company Matching
Contributions, for each Plan Year (or portion thereof) of its
participation in this Plan, either directly or indirectly by way
of (i) release of available Unallocated Shares having an
equivalent value, or (ii) the access or use of any funds held in
the ESOP Loan Payment Accumulation Account, the "formula amount",
less the aggregate amount of forfeitures attributable to
Participants employed by it. The "formula amount" is that amount
determined by multiplying (i) the total amount of matched Personal
Contributions actually deferred or withheld during such period
from the Base Pay of all Participants employed by such
Participating Employer, by (ii) the contribution rate in effect
for such period.
(b) Each Participating Employer shall also
contribute, directly or indirectly by way of (i) release of
available Unallocated Shares having an equivalent value, or (ii)
the access or use of any funds held in the ESOP Loan Payment
Accumulation Account, for each Plan Year (or portion thereof) of
its participation in this Plan, its proportionate share of any
Supplemental Contribution for any Plan Year. Supplemental
Contributions shall be determined by the Committee under Section
6.3.
(c) If so directed by the Company from time to time,
each Participating Employer shall also contribute for each Plan
Year (or portion thereof) of its participation in this Plan,
either directly or indirectly by access or use of any funds held
in the ESOP Loan Payment Accumulation Account, its proportionate
share of the amount, if any, by which dividends transferred to the
ESOP Loan Payment Accumulation Account for such year exceeds the
value of Shares available for release from the ESOP Loan Suspense
Account in connection with such transfer.
(d) If so directed by the Company from time to time,
each Participating Employer shall make its proportionate share of
any additional contributions determined by the Company, in its
absolute discretion.
(e) For purposes of this Section 6.1, the value of
such Shares released from the ESOP Loan Suspense Account shall be
the Closing Price on the last trading day prior to the date of re-
lease or such other date as may be determined by the Committee for
this purpose.
22
<PAGE>
6.2. Contribution Rate For Company Matching Contributions.
----------------------------------------------------
The contribution rate for Company Matching Contributions is a
decimal fraction, expressed to four places, determined by the
Committee prior to the beginning of each Plan Year, which shall
not change during a Plan Year. Such contribution rate shall be
established by dividing (a) 2-1/2% of the Company's Consolidated
Net Income for Plan Purposes for the Company Year most recently
ended, by (b) 6% of the eligible payroll for such Company Year,
but shall never be less than .3333 nor more than .7500.
Notwithstanding the foregoing, the Company, in its sole discretion
as Plan sponsor, may establish a contribution rate for a Plan Year
which is greater than the rate determined in accordance with the
preceding sentence.
The "eligible payroll" for any Company Year shall be the sum
of (c) the total Base Pay accrued for that Company Year for all
Employees of all of the Employing Companies which will be
Participating Employers for the Plan Year for which the
contribution rate is being established and, without duplication,
and (d) the total "Base Pay" accrued for such Plan Year for all
"employees" of all of the "employing companies" which will be
"participating employers" in all the Related Plans except
employees of The Earthgrains Company and its Subsidiaries. For
purposes of this paragraph, the quoted terms shall have the
meanings set out in such other plans.
Consolidated Net Income and payroll shall be determined by
excluding the earnings and payroll of Sea World, Inc. and The
Earthgrains Company and their respective subsidiaries until such
time as the Company determines that such exclusion is no longer
appropriate, in part or in full.
6.3. Determination of Supplemental Contribution. (a) As
------------------------------------------
soon as practicable after the close of each Plan Year, the
Committee shall determine the amount of the Supplemental
Contribution, if any, for such Plan Year. The Supplemental
Contribution shall be computed by first computing a Tentative
Supplemental Contribution and then adjusting such figure as set
forth herein. The Tentative Supplemental Contribution shall be
computed as follows: first, the average Closing Price of Shares
released from the ESOP Loan Suspense Account for the Plan Year for
this Plan and each Related Plan shall be determined. Second, the
ESOP Share Cost of such released Shares shall be increased by (i)
five percent (5%) for the first Plan Year, and (ii) ten percent
(10%) compounded annually for each full Plan Year which has
elapsed since the ESOP Loan proceeds were received by the Trustee,
or for any Plan Year, such other percentage as may be determined
by the Committee from time to time. (For partial years, a
proportional part of the applicable percentage increase shall be
used based on the number of full months in the Plan Year during
which the ESOP Loan is outstanding). The ESOP Share Cost so
23
<PAGE>
increased shall be referred to as the Hurdle ESOP Share Price for
such Plan Year. If the average Closing Price of the Shares re-
leased from the ESOP Loan Suspense Account for the Plan Year is
equal to or less than the Hurdle ESOP Share Price for the Plan
Year, there shall be no Tentative Supplemental Contribution for
such Year. If such average Closing Price is greater than the
Hurdle ESOP Share Price for the Plan Year, the difference shall be
computed and multiplied by the number of Shares actually released
from the ESOP Loan Suspense Account for this Plan and each Related
Plan during the Plan Year. The figure so obtained shall be
apportioned among this Plan and the Related Plans based on the
ratio that the aggregate formula amount (as defined in Section
6.1(a)) of each plan attributable to those Participants eligible
to have a Supplemental Contribution allocated to their Accounts
for such Plan Year, bears to the combined aggregate formula amount
of all plans attributable to those Participants eligible to have a
Supplemental Contribution allocated to their Accounts for such
Plan Year, and the portion allocated to this Plan shall be this
Plan's Tentative Supplemental Contribution for the Plan Year. If
there is more than one ESOP Loan outstanding for any Plan Year,
the Tentative Supplemental Contribution shall be the sum of the
amounts computed under this Section with respect to the Shares in
the separate ESOP Loan Suspense Accounts. This Plan's Tentative
Supplemental Contribution shall then be reduced by the amount of
this Plan's "Carryover Amount", if any, for the Plan Year, and
increased by the amount of its "Surplus Amount", if any, for such
Plan Year, as such terms are described in subsection (b).
(b) For purposes of this Section, the "Carryover
Amount" shall be equal to the excess, if any, of (i) the total
Supplemental Contributions of this Plan for all prior Plan Years
(without regard to forfeitures) over (ii) the total Tentative
Supplemental Contributions of this Plan for all prior Plan Years
(without regard to forfeitures). The "Surplus Amount" shall be
the excess, if any, of (iii) the Closing Price as of the last
trading day prior to the end of the Plan Year of all Suspense
Shares required to be released from this Plan's ESOP Loan Suspense
Account for such Plan Year but which were otherwise not released
throughout such Plan Year multiplied by the number of such Shares,
over (iv) the Tentative Supplemental Contribution of this Plan for
such Plan Year (without regard to forfeitures).
(c) For purposes of this Section, the "ESOP Share
Cost" shall be the average price at which the Trustee acquires
Shares with the proceeds of an ESOP Loan. For each ESOP Loan
entered into by the Trustee there shall be a separate ESOP Share
Cost which shall be uniform for each Share acquired with the
proceeds of such loan.
24
<PAGE>
6.4. Payment and Payment Date. Each Participating
------------------------
Employer's Company Matching, Supplemental, and any other type of
contribution for the Plan Year, to the extent actually required to
be contributed under Section 6.1, shall be delivered to the
Trustee as and when determined by the Committee but not later than
180 days after the end of such Plan Year. Such delivery shall be
either in cash or in Shares (from authorized but unissued Shares
or out of Shares held in the Company's treasury), or a combination
of both, and if delivered wholly or partially in Shares, such
Shares shall be valued at the Closing Price on the date of
delivery or on the last business day prior to the date of delivery
as determined by the Committee on a uniform and consistent basis.
6.5. Allocation to Participants' Accounts. (a) Company
------------------------------------
Matching Contributions shall be allocated to the Accounts of
Participants as of the end of each Processing Period in accordance
with the contribution rate in effect for the Plan Year in which
such Processing Period falls. Thus, if the contribution rate for
a Plan Year is .3500, each Participant shall have allocated to
such Participant's Account from the Company Matching Contributions
for any Processing Period of such Plan Year an amount equal to
thirty-five percent of such Participant's matched Personal
Contributions actually withheld during such Processing Period.
(b) Supplemental Contributions shall be allocated to
the Accounts of Participants as of the end of each Plan Year in
accordance with the ratio that the sum of the individual
Participant's Company Matching Contributions allocated (and not
then forfeited) for such Plan Year bears to the total Company
Matching Contributions allocated (and not then forfeited) for such
Plan Year. In order to receive a Supplemental Contribution
allocation for a Plan Year, a Participant (or the Participant's
Beneficiary) must have an existing Account balance in the Plan as
of the last day of such Plan Year. Notwithstanding anything to
the contrary in this Plan, no Supplemental Contribution shall be
allocated to the Account of an alternate payee under a qualified
domestic relations order (as described in Section 414(p) of the
Code) unless otherwise specifically required under such order.
25
<PAGE>
ARTICLE VII
PROCEDURES AND LIMITATIONS
ON PERSONAL CONTRIBUTIONS AND ELECTIONS
---------------------------------------
7.1. Election Procedures. (a) An election to make
-------------------
Personal Contributions must be delivered to the Employee Stock
Plans Department at such time prior to the effective date of the
election as the Committee may determine. A Participant may change
the rate or type of Personal Contributions, or cease making
Personal Contributions altogether, by delivering such an
instruction to the Employee Stock Plans Department prior to the
effective date of such change. A direction concerning rate and
type of Personal Contributions shall continue in effect until
changed in the manner provided above.
(b) All elections concerning rate and type of
Personal Contributions shall be implemented after the election is
delivered to the Employee Stock Plans Department on so much
advance notice as may be required by the Committee, but shall
always become effective as of the first paycheck dated in a month.
(c) All elections concerning rate and type of
Personal Contributions must be made in accordance with all
applicable rules and procedures adopted by the Committee.
7.2. Special Dollar Limitation On Before-Tax Contribu-
-------------------------------------------------
tions. (a) A Participant's total Before-Tax Contributions
- -----
(Matched and Unmatched) for any calendar year shall not exceed the
amount in effect under Section 402(g) of the Code for such
calendar year ($9,500 for 1996). If such limit would be exceeded
under a Participant's deferral election as in effect at any time
(whether because of a mid-year Base Pay increase or otherwise),
the Participant's contribution rate for Before-Tax Contributions
shall automatically be reduced by the Plan before the end of the
calendar year so that such limit is not exceeded. In addition,
the Committee may make such projections and adopt such procedures
as it shall deem advisable to insure satisfaction of this limit at
the end of the Plan Year. Payroll deductions shall be adjusted as
necessary to comply with this paragraph.
(b) If the Committee is notified, pursuant to
Section 402(g)(2) of the Code and prior to April 15, that a
Participant has made deferrals in the immediately preceding
calendar year under two or more qualified plans which, in the
aggregate, would exceed the limitations of subsection (a), a
portion of such excess deferrals, as directed by the Participant,
shall be handled in accordance with subsection (c) of this
Section.
26
<PAGE>
(c) If, notwithstanding the provisions of this
Section, it is determined that a Participant's Before-Tax
Contributions in fact exceeded the limit set out in subsection
(a), by administrative error or otherwise, or if the Participant
so directs under subsection (b), the amount of Before-Tax
Contributions actually made for the calendar year in excess of the
permitted amount, plus applicable earnings or less applicable
loss, may be refunded to the Participant. Any refund under this
paragraph shall be made after the excess deferral was received by
the Plan but, if feasible, on or before the April 15th following
the end of the calendar year in which the excess deferral
occurred. Earnings attributable to an excess deferral hereunder
shall be computed under a method selected by the Committee and
permitted under applicable Treasury Regulations. Any excess
deferral otherwise distributable hereunder shall be reduced by the
amount of any excess Before-Tax Contributions distributed under
Section 7.3 prior to the distribution hereunder and made with
respect to the Plan Year commencing within such calendar year.
Refunds under this Section shall be apportioned first to
Before-Tax Unmatched Contributions, including earnings, and then
to Before-Tax Matched Contributions, including earnings.
(d) A refund under this Section shall not subject a
Participant to any suspension penalty.
7.3. Required Adjustment of Before-Tax Personal
------------------------------------------
Contributions. Inasmuch as applicable federal law and regulations
- -------------
establish certain limitations on amounts which may be excluded
from income by certain Employees, each election to make Before-Tax
Contributions shall be subject to automatic adjustment in
accordance with the rules set forth in this Section. This Section
shall be administered in a manner consistent with Sections 401(k)
and 401(m) of the Code and applicable Treasury Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual Before-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who are
Highly Compensated Employees, and (ii) individuals who are Non-
Highly Compensated Employees. The actual Before-Tax Contribution
rate for each of these groups is the average of the ratios for
such Plan Year, calculated separately to the nearest one-
hundredth of one percent for each Eligible Employee in the group,
of (x) the amount of Before-Tax Contributions for such person, to
(y) such person's Taxable Compensation.
(b) One of the following tests shall be satisfied
each Plan Year: (i) the actual Before-Tax Contribution rate for
the Highly Compensated group shall not exceed one and one-quarter
times the rate of the Non-Highly Compensated group; or (ii) the
rate of the Highly Compensated group shall be neither more than
27
<PAGE>
two percentage points higher than, nor more than two times, the
rate of the Non-Highly Compensated group. If neither of these
tests is met, the excess Before-Tax Contributions of each affected
Participant in the Highly Compensated group shall be refunded to
the Participant, with income attributable thereto, within twelve
months after the close of the Plan Year in which such excess
Before-Tax Contributions were made. In making refunds hereunder,
unmatched contributions shall be completely refunded before any
matched contribution is refunded. Income attributable to such
refunded contributions shall be determined in accordance with a
method selected by the Committee and permitted under applicable
Treasury Regulations. A refund under this Section shall not
subject a Participant to any suspension penalty.
(c) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.3(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
Before-Tax Contributions of Highly Compensated Employees.
(d) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.3(b), the Committee
may, at its option and if permitted by law, aggregate pertinent
data from this Plan and any other plan maintained by any of the
Employing Companies which contains provisions intended to be
qualified under Section 401(k) of the Code.
(e) The determination of the amount of excess
Before-Tax Contributions for each Highly Compensated Participant
under subsection (b) shall be made by reducing the contribution
rates of Highly Compensated Participants in order of highest
actual deferral ratios, using the leveling method provided in
Treasury Regulations.
(f) If the test under clause (ii) of Section 7.3(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.4(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(g) Excess Before-Tax Contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by applicable Treasury Regulations.
28
<PAGE>
(h) In determining the actual Before-Tax
Contribution rate for any Highly Compensated Employee, (i) salary
deferral contributions under each plan maintained by an Employing
Company shall be aggregated, and (ii) the Before-Tax Contributions
and Taxable Compensation of certain family members shall be taken
into account as provided in Section 2.25(g).
7.4. Required Adjustment of After-Tax and Company Matching
-----------------------------------------------------
Contributions. Inasmuch as applicable Federal law and regulations
- -------------
establish certain limitations on amounts which may be contributed
to this Plan, each election to make After-Tax Contributions shall
be subject to automatic adjustment in accordance with the rules
set forth in this Section. This Section shall be administered in
a manner consistent with Sections 401(k) and 401(m) of the Code
and applicable Treasury Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual After-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who are
Highly-Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual After-Tax
Contribution rates for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one-hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of After-Tax, Company Matching and
Supplemental Contributions for such person, to (y) such person's
Taxable Compensation.
(b) One of the following tests shall be satisfied
for each Plan Year: (i) the actual After-Tax Contribution rate
for the Highly Compensated group shall not exceed one and
one-quarter times the rate of the Non-Highly Compensated group; or
(ii) the rate of the Highly Compensated Group shall be neither
more than two percentage points higher than, nor more than two
times, the rate of the Non-Highly Compensated Group.
(c) If the actual After-Tax Contribution rate for
the Highly Compensated group should exceed the limits in the
preceding subsection, then excess After-Tax Contributions and
income attributable thereto shall be refunded as set out in this
Section. For purposes hereof, excess After-Tax Contributions
shall mean the excess of (i) the aggregate amount of the
After-Tax, Company Matching and Supplemental Contributions of
Highly-Compensated Employees made for the Plan Year, over (ii) the
maximum amount of such contributions permitted under subsection
(b). Such excess contributions shall be refunded on the basis of
the respective portions of such amount attributable to each such
Participant, in accordance with the following:
29
<PAGE>
(aa) First, such Participant's After-Tax
Unmatched Contributions will be refunded.
(bb) Next, After-Tax Matched Contributions
shall be refunded.
Income attributable to excess After-Tax Contributions to be
refunded shall be computed under a method selected by the
Committee and permitted under applicable Treasury Regulations.
(d) All refunds of excess contributions and
applicable earnings under this Section shall be completed not
later than the close of the Plan Year following the Plan Year in
which the excess contributions were made.
(e) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.4(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
After-Tax Contributions of Highly Compensated employees.
(f) The determination of the amount of excess After-
Tax Contributions shall be made after excess Before-Tax
Contributions under Section 7.3 have been determined.
(g) The determination of the amount of excess
After-Tax Contributions for each Highly Compensated Participant
under subsection (c) shall be made by reducing the contribution
rates of the Highly Compensated Participants in order of highest
actual contribution percentages, using the leveling method
provided in Treasury Regulations.
(h) If the test under clause (ii) of Section 7.4(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.3(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(i) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.4(b), the Committee
may, at its option and if permitted by law, aggregate pertinent
data from this Plan and any other plan maintained by any of the
Employing Companies which contains provisions intended to be
qualified under Section 401(m) of the Code.
30
<PAGE>
(j) In determining the actual After-Tax Contribution
rate for any Highly Compensated Employee, the After-Tax Company
Matching and Supplemental Contributions, and the Taxable
Compensation, of certain family members shall be taken into
account as provided in Section 2.25(g). Excess After-Tax
Contributions shall be allocated to Participants who are subject
to the family member aggregation rules of Section 414(q)(6) of the
Code in the manner prescribed by applicable Treasury Regulations.
7.5. Suspension and Reinstatement of Matched Personal
------------------------------------------------
Contributions After Withdrawal. (a) A Participant who has made a
- ------------------------------
withdrawal pursuant to Article XIII and is thereby prevented
from making any Personal Contributions to this Plan for six months
shall, upon the expiration of such period, be eligible to resume
making Personal Contributions upon delivering appropriate
instructions in accordance with Section 7.1.
(b) A Participant who has made a withdrawal pursuant
to Section 14.1 and is thereby prevented from making any Personal
Contributions to this Plan for twelve months shall, upon the
expiration of such period, be eligible to resume making Personal
Contributions upon delivering appropriate instructions in
accordance with Section 7.1.
7.6. Payroll Deductions. All Personal Contributions from
------------------
Participants shall be made by way of payroll deductions. A
Participant's election made in accordance with Section 7.1 shall
constitute full authority to the Participating Employer to deduct
the percentage of Base Pay indicated by the Participant. Personal
Contributions so deducted shall be transmitted to the Trustee no
less frequently than monthly, in cash or, in the case of contri-
butions to be invested in the Company Stock Fund, either in cash
or in Shares (from authorized but unissued Shares or out of Shares
held in the Company's treasury), or a combination of both. If
contributions are transmitted in Shares, such shares shall be
valued at the Closing Price on the date of delivery.
31
<PAGE>
ARTICLE VIII
ESOP LOANS
----------
8.1. Terms of ESOP Loan. The Trustee will be specifically
------------------
empowered to borrow funds (including a borrowing from the Company
or any other of the Employing Companies) to acquire Shares or
repay a prior ESOP Loan, subject to the conditions set forth in
this Section 8.1. The terms of each ESOP Loan must, at the time
the loan is made, be at least as favorable to the Trust as the
terms of a comparable loan resulting from arm's length
negotiations between independent parties. Each ESOP Loan shall be
for a specific term, shall bear a reasonable rate of interest, and
shall be without recourse against the Trust or the Participants'
Accounts, except that an ESOP Loan may be guaranteed by the
Company and may be secured by a pledge of the Shares acquired with
the proceeds of the ESOP Loan (or acquired with the proceeds of a
prior ESOP Loan which is being refinanced). No other Trust assets
may be pledged as collateral for an ESOP Loan, and no lender shall
have recourse against Trust assets other than (a) collateral given
for the ESOP Loan, (b) amounts held under the ESOP Loan Payment
Accumulation Account (other than Company Matching or Supplemental
Contributions of Shares), and (c) earnings attributable to such
collateral. An ESOP Loan shall not be payable on demand except in
the event of default. In the event of default, the value of Plan
assets transferred in satisfaction of the ESOP Loan shall not
exceed the amount of the default plus any applicable prepayment or
similar penalties or premiums. If the lender is a disqualified
person within the meaning of Code Section 4975(e)(2), the ESOP
Loan must provide for a transfer of Trust assets on default only
upon and to the extent of the failure of the Trust to meet the
payment schedule of the ESOP loan. Payments of principal and/or
interest on any ESOP Loan shall be made by the Trustee in
accordance with Section 8.7. The Committee shall direct the
Trustee to enter into any loan transaction approved by the Board
and conforming with the provisions hereof.
8.2. Acquisition of Shares with proceeds of ESOP Loan.
------------------------------------------------
The ESOP Loan proceeds shall be used by the Trustee within a
reasonable time after receipt to acquire Shares or to repay a
prior ESOP Loan. In acquiring Shares, the Trustee shall take all
appropriate and necessary measures to ensure that the Trust pays
no more than "adequate consideration" (within the meaning of
Section 3(18) of ERISA) for such securities. All Shares acquired
with the proceeds of an ESOP Loan shall be placed in an ESOP Loan
Suspense Account established by the Trustee pursuant to Section
10.10(a). To the extent required for the purpose of pledging such
Shares as collateral for the ESOP Loan, the Shares held as
collateral in the ESOP Loan Suspense Account may be physically
segregated from other Trust assets. Any pledge of Shares must
32
<PAGE>
provide for the release of Shares not later than as payments on
the ESOP Loan are made by the Trustee and for Shares so released
to be transferred as appropriate for allocation to Participants'
Accounts pursuant to Sections 8.4 and 8.6 and regulations
promulgated under ERISA and the Code.
8.3. Shares to be Unrestricted. No Shares acquired with
-------------------------
the proceeds of an ESOP Loan shall be subject to any put, call or
other option or any buy-sell or similar agreement while held by or
when distributed from the Trust, whether or not the Plan
constitutes an "employee stock ownership plan" within the meaning
of Section 4975(e)(7) of the Code at such time and whether or not
the ESOP Loan has been repaid at such time.
8.4. Release from ESOP Loan Suspense Account. Each year a
---------------------------------------
number of Shares shall be released from the ESOP Loan Suspense
Account. Such number shall be determined as follows: the number
of Shares held in the ESOP Loan Suspense Account at the beginning
of the applicable Plan Year shall be multiplied by a fraction, the
numerator of which shall be the amount of principal and interest
due under the loan amortization payment schedule for the current
Plan Year, and the denominator shall be the numerator plus the
principal and interest to be paid on the loan amorti-zation
payment schedule for all future Plan Years. Unless otherwise
determined by the Committee, a substantially equal number of
Shares shall be released from the ESOP Loan Suspense Account for
each calendar quarter during the Plan Year. Such Shares shall be
deemed acquired by the Company Stock Fund at the Closing Price on
the last trading day prior to the date of release or such other
date as may be determined by the Committee for this purpose, and
Company Stock Fund units representing the Participant's interest
in such released Shares shall be allocated to the accounts of
Participants in substitution for Company Stock Fund units
otherwise required to be allocated. In connection with such
releases, it is intended that the Trustee will transfer funds to
the ESOP Loan Payment Accumulation Account for each month equal to
the total value of Shares released from the ESOP Loan Suspense
Account for such month. Such transferred funds shall represent
Company Contributions, Personal Contributions and dividends that
are required to be invested in the Company Stock Fund and allo-
cated to the Accounts of Participants.
8.5. Use of Company and Personal Contributions for ESOP
--------------------------------------------------
Loan Payments. In order to accumulate the necessary funds for
- -------------
ESOP loan repayment, all Company and Personal Before-Tax
Contributions to this Plan which are to be invested in the Company
Stock Fund shall be available for ESOP loan repayment. It is
intended that Company Contributions under Section 6.1, Company
Matching Contributions and Personal Before-Tax Contributions,
together with earnings thereon, shall be applied to ESOP loan
repayment as provided under Section 8.7.
33
<PAGE>
8.6. Use of Dividends for ESOP Loan Payments. In the
---------------------------------------
event a dividend on Company stock is paid and an ESOP loan is
outstanding, such dividend shall, except where directed otherwise
by the Committee, be applied to ESOP loan repayment. It is
intended that dividends on Company stock be deemed applied to ESOP
loan repayment to the extent that such dividends, if so applied,
would be tax deductible to the Company under Section 404(k) of the
Code, and that the Committee will direct that dividends be applied
to purposes other than ESOP loan repayment only where such a tax
deduction would not be available. In any case in which dividends
on Shares held in the Company Stock Fund are applied for ESOP Loan
repayment, Shares ("Dividend Replacement Shares") with a fair
market value equal to such dividends shall be substituted for such
dividends. For this purpose, fair market value of Unallocated
Shares released from the ESOP Loan Suspense Account shall be the
Closing Price on the last trading day prior to the date of release
or such other date as may be determined by the Committee for this
purpose, and for other Dividend Replacement Shares, shall be the
replacement cost to the Trust. Dividend Replacement Shares shall
be applied to increase the value of Company Stock Fund units.
8.7. ESOP Loan Payments. The Trustee shall, from time to
------------------
time, transfer sufficient funds to the ESOP Loan Payment
Accumulation Account or ESOP Loan Suspense Account to provide
funds for ESOP Loan payments required for the Plan Year. Such
transfers (including the transfers described in Section 8.4) and
the corresponding ESOP loan payments, shall be treated as derived
from the following sources in the following order to the extent of
assets available from such sources at the time of transfer:
(a) First, if directed by the Committee, proceeds
from the sale, exchange, or disposition of Shares or other assets
held in the ESOP Loan Suspense Account and earnings thereon;
(b) Second, from dividends on Shares in accordance
with Section 8.6 and, to the extent permitted under applicable
law, earnings thereon;
(c) Third, from Company Contributions under Section
6.1(d) and earnings thereon;
(d) Fourth, from Company Matching Contributions and
earnings thereon;
(e) Fifth, from Supplemental Contributions and
earnings thereon; and
(f) Sixth, from Before-Tax Personal Contributions
made by Participants and earnings thereon.
34
<PAGE>
This provision shall not be construed to preclude the
transfer of funds out of the ESOP Loan Payment Accumulation
Account or ESOP Loan Suspense Account for other Plan purposes,
provided that no such transfer shall alter the order of priority
established by this provision. Further, any funds remaining in
the ESOP Loan Payment Accumulation Account or ESOP Loan Suspense
Account at the end of the Plan Year and not applied to ESOP loan
repayment shall be used as otherwise provided in this Plan.
35
<PAGE>
ARTICLE IX
INVESTMENT OF CONTRIBUTIONS
---------------------------
9.1. Investment of Company Matching and Supplemental
-----------------------------------------------
Contributions. All Company Matching and Supplemental
- -------------
Contributions shall be invested in the Company Stock Fund at all
times except to the extent that any of such contributions are held
by the Trustee in the ESOP Loan Payment Accumulation Account or
ESOP Loan Suspense Account.
9.2. Investment of the Matched Contributions Part of an
--------------------------------------------------
Account. At least one-half of a Participant's matched Personal
- -------
Contributions for each Plan Year shall be invested in the Company
Stock Fund. The remaining one-half shall be invested, as the
Participant may direct, in 1% increments in any Investment Fund
other than the Earthgrains Stock Fund. Except as provided in
Section 9.6, all Company Stock Fund units required under this
Section to be purchased for any Plan Year with a Participant's
matched Personal Contributions must be held in the Company Stock
Fund for at least one full Plan Year beginning after the date of
contribution and thereafter the Participant shall be permitted to
direct the investment of such units and all earnings thereon, in
1% increments, in any Investment Fund other than the Earthgrains
Stock Fund.
9.3. Investment of the Unmatched Contributions Part of an
----------------------------------------------------
Account. A Participant's unmatched Personal Contributions shall
- -------
be invested, as the Participant may direct in 1% increments, in
any Investment Fund other than the Earthgrains Stock Fund.
9.4. A Participant's Investment Direction for Current
------------------------------------------------
Contributions. In connection with an initial election to
- -------------
participate in the Plan, each Participant shall indicate how
current contributions credited to such Participant's Account which
are subject to the Participant's investment direction are to be
invested. A Participant may change investment direction, but not
more than once in any Processing Period by delivering such
instructions to the Employee Stock Plans Department at the time
and in the manner prescribed by the Committee. Any change in
investment direction for current contributions shall be effective
as of the first day of a Processing Period.
9.5. A Participant's Investment Direction for Accumulated
----------------------------------------------------
Account Balances. (a) Either with or without changing investment
- ----------------
direction for contributions to be credited thereafter, a Partici-
pant may, by delivery of instructions to the Employee Stock Plans
36
<PAGE>
Department at the time and in the manner prescribed by the
Committee, direct that the accumulated balance in the Personal
Contributions portion of the Participant's Account be transferred
pursuant to Section 10.4 between or among available Investment
Funds (other than transfers into the Earthgrains Stock Fund), in
1% increments, provided that all Company Stock Fund units required
under Section 9.2 to be purchased for any Plan Year with a
Participant's matched Personal Contributions must remain invested
in the Company Stock Fund for at least one full Plan Year
beginning after the date of contribution. Except as provided in
Section 9.6 below, no investment direction may be given under this
subsection more frequently than once in any Processing Period,
effective October 17, 1995.
(b) The Participant's Account as of the end of the
Processing Period in which the change of investment is intended to
become effective shall be controlling for purposes of implementing
the change order. Any change of investment of the accumulated
balance in a Participant's Account shall be effective as of the
end of a Processing Period.
9.6. Special Diversification After Attainment of Age 55.
--------------------------------------------------
Each Participant shall be permitted, during the 90-day period
following the close of each Plan Year occurring after attainment
of age 55, to diversify the investment of all Company Stock Fund
units in the Participant's Account, other than those attributable
to Company Matching and Supplemental Contributions, by directing
the transfer thereof, in 1% increments, into any other fund estab-
lished for investments under this Plan. The right to transfer
investments hereunder shall be in addition to any other investment
or transfer right under this Plan. A request hereunder shall be
submitted, on forms provided by the Committee, within such 90-day
period and shall be effective June 30 of the following Plan Year.
9.7. The Company Stock Fund. Except for interim
----------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment in Shares, and for amounts held to meet
contemplated payments, the Company Stock Fund shall be invested by
the Trustee only in Shares; provided, the Trustee may receive and
retain in such Company Stock Fund any warrant, right, option or
similar instrument which gives the holder the right to acquire any
Shares under any circumstances, distributed on or in respect of
any Shares held in such Company Stock Fund (and shall sell any
other instrument or property so received which does not give the
holder the right to acquire Shares). Cash contributions to the
Company Stock Fund and any proceeds from any Shares held therein
which were tendered or exchanged in a tender or exchange offer
shall be applied by the Trustee to the purchase of Shares or other
Qualifying Employer Securities if such securities are available
for purchase at a price determined to be appropriate by the
Trustee, as soon as reasonably possible after the Trustee's
receipt thereof except to the extent such contributions and
proceeds are held in cash for purposes of liquidity. Shares may
be acquired by the Trustee in any of the following transactions:
37
<PAGE>
(i) purchases from the Company or otherwise, at
a price not greater than the Closing Price on the date of
purchase;
(ii) purchases on the open market; or
(iii) deemed purchases from an ESOP Loan
Suspense Account, at a price not greater than the Closing Price on
the last trading day prior to the date of release from the Sus-
pense Account or such other date as may be determined by the
Committee for this purpose.
9.8. The Short-Term Fixed Income Fund. The Short-Term
--------------------------------
Fixed Income Fund shall be invested by the Trustee only in the
following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any short-
term fixed income fund maintained by, any national or state bank,
trust company (including the Trustee or any bank affiliated with
it), savings and loan association or regulated insurance company;
or
(c) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Short-Term Fixed Income Fund other
than United States Government or agency obligations shall be rated
A or higher by Moody's Investors Service or another equivalent
recognized rating agency. All investments of the Short-Term Fixed
Income Fund (other than readily marketable or redeemable units of
participation in any fund) shall mature on demand or on a date not
later than three years after the date of acquisition thereof.
Investments for the Short-Term Fixed Income Fund may be purchased
on the open market or otherwise, or by direct subscription with
the issuer.
9.9. The Medium-Term Fixed Income Fund. Except for
---------------------------------
interim investments of the type permitted by the Short-Term Fixed
Income Fund pending investment, and for amounts held to meet
contemplated payments, the Medium-Term Fixed Income Fund shall be
invested by the Trustee only in the following securities:
38
<PAGE>
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any
medium-term fixed income fund or guaranteed interest contracts
fund maintained by, any national or state bank, trust company
(including the Trustee or any bank affiliated with it), savings
and loan association or regulated insurance company;
(c) Guaranteed interest contracts issued by
regulated insurance companies; or
(d) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Medium-Term Fixed Income Fund other
than United States Government or agency obligations shall be rated
A or higher by Moody's Investors Service or another equivalent
recognized rating agency. All investments of the Medium-Term
Fixed Income Fund (other than readily marketable or redeemable
units of participation in any fund) shall mature not later than
ten years after the date of acquisition thereof. Investments for
the Medium-Term Fixed Income Fund may be purchased on the open
market or otherwise, or by direct subscription with the issuer.
9.10. The Equity Index Fund. Except for interim
---------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Equity Index Fund shall be invested only in units of
participation in one or more funds, managed by an investment
manager selected by the Committee from time to time. The primary
objective of such fund(s) shall be the realization of dividends
and capital growth closely approximating the results of the group
of stocks comprising the Standard & Poor's 500 Composite Index
from time to time. Such fund(s) may be a mutual fund, an
investment trust or any other type of investment vehicle. During
any period of time when the Equity Index Fund is invested through
the medium of a common, collective or commingled trust fund which
is qualified under the provisions of Section 401(a) of the Code
and exempt from income tax under the provisions of Section 501(a)
of the Code, the Declaration of Trust of such fund, as theretofore
or thereafter amended, may be incorporated by reference into the
Trust Agreement of this Plan. The investment manager of the
39
<PAGE>
Equity Index Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund, including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment manager
which is fully independent of the Trustee and shall be subject to
the terms of any prohibited transaction exemption (class or
otherwise) issued by the U.S. Department of Labor. As used herein
the term "investment manager" means only (a) a party registered as
an investment manager under the Investment Advisers Act of 1940,
(b) a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.11. The Indexed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Indexed Balanced Fund shall be invested only in
units of participation in two or more funds managed by an invest-
ment manager selected by the Committee from time to time. The
primary objective of such funds shall be to achieve a total return
which approximates the performance of a 50/50 mix of stocks and
bonds, as reflected in the Standard & Poor's 500 Composite Index
and the Lehman Brothers Government Corporate Bond Index,
respectively. During any period of time when the Indexed Balanced
Fund is invested through the medium of a common, collective or
commingled trust fund which is qualified under the provisions of
Section 401(a) of the Code and exempt from income tax under the
provisions of Section 501(a) of the Code, the Declaration of Trust
of such fund, as theretofore or thereafter amended, may be
incorporated by reference into the Trust Agreement of this Plan.
The investment manager of the Indexed Balanced Fund shall have and
may exercise all powers and discretions granted by the
organizational instruments governing the fund, including, without
limitation, the power to eliminate investments which in its
judgment involve an unacceptable risk of loss, the power to
respond to tender offers as it deems to be in the best interests
of the fund, and the power to lend securities of the fund;
provided, that any loan of securities shall be pursuant to a
written instrument approved by an investment manager which is
fully independent of the Trustee and shall be subject to the terms
of any prohibited transaction exemption (class or otherwise)
issued by the U.S. Department of Labor. As used herein, the term
"investment manager" means only (a) a party registered as an
40
<PAGE>
investment manager under the Investment Advisers Act of 1940, (b)
a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.12. The Managed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Managed Balanced Fund shall be invested only in
units of participation in two or more funds, managed by an
investment manager selected by the Committee from time to time.
The primary objective of such funds shall be to achieve higher
returns than a 60/40 mix of the Standard & Poor's 500 Composite
Index and the Lehman Brothers Government Corporate Bond Index,
respectively. During any period of time when the Managed Balanced
Fund is invested through the medium of a common, collective or
commingled trust fund which is qualified under the provisions of
Section 401(a) of the Code and exempt from income tax under the
provisions of Section 501(a) of the Code, the Declaration of Trust
of such fund, as theretofore or thereafter amended, may be
incorporated by reference into the Trust Agreement of this Plan.
The investment manager of the Managed Balanced Fund shall have and
may exercise all powers and discretions granted by the
organizational instruments governing the fund including, without
limitation, the power to eliminate investments which in its
judgment involve an unacceptable risk of loss, the power to
respond to tender offers as it deems to be in the best interests
of the fund, and the power to lend securities of the fund;
provided, that any loan of securities shall be pursuant to a
written instrument approved by an investment manager which is
fully independent of the Trustee and shall be subject to the terms
of any prohibited transaction exemption (class or otherwise)
issued by the U.S. Department of Labor. As used herein, the term
"investment manager" means only (a) a party registered as an
investment manager under the Investment Advisers Act of 1940, (b)
a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.13. The Earthgrains Stock Fund. Except for amounts held
--------------------------
to meet contemplated payments, the Earthgrains Stock Fund shall be
invested by the Trustee only in shares of common stock of The
Earthgrains Company. Neither cash contributions nor transfers
from any Investment Fund shall be permitted to be made to the
Earthgrains Stock Fund.
9.14. Earnings, etc. Except as provided in Section 8.6,
-------------
dividends, interest and other cash distributions received by
the Trustee in respect of any Investment Fund shall be reinvested
in the same Investment Fund. If the Company so directs, the
Trustee shall purchase from the Company (from authorized but
unissued Shares or out of Shares held in the Company's treasury)
all or some of the Shares which are to be purchased with cash
41
<PAGE>
dividends received on Shares held in the Fund, and in any such
case, the purchase price per Share payable by the Trustee shall be
the Closing Price on the date of purchase. Alternatively, the
Trustee may obtain Shares from other sources, including Shares
released from the ESOP Loan Suspense Account.
9.15. Reports to Participants. The Committee shall furnish
-----------------------
each Participant, at least semi-annually, a statement of the
Participant's Account showing, at a minimum, the market value
thereof as of the end of such period, the portions invested in
each Investment Fund, and the portions thereof which are vested
and unvested. Notwithstanding the foregoing, the Committee need
not furnish a statement of account to an individual who has
separated from the service of the Employing Companies unless such
individual so requests.
9.16. Voting of Shares. (a) Each Participant (or, if
----------------
deceased, the Participant's Beneficiary), as a named fiduciary
within the meaning of Section 403(a)(1) of ERISA, shall be
entitled to vote, at any meeting of shareholders of the Company,
all of the full and fractional Share Equivalents credited to the
Participant's Account in the Plan, as shown on the records of the
Plan as of the most recent valuation date for which information is
available prior to the record date for determining shareholders
entitled to vote at such meeting. To enable them to do so, and to
be fully informed of all matters on which they are entitled to
vote, arrangements have been made for the Company or the Committee
promptly to deliver or cause to be delivered to each Participant
(or Beneficiary) who is entitled to vote any Share Equivalents a
copy of all proxy solicitation materials, before each annual or
special meeting of shareholders of the Company, together with a
form requesting confidential instructions on how the Shares which
such Participant is entitled to vote are to be voted at such
meeting.
(b) Each Participant (or Beneficiary) entitled to
vote on any matter presented for a vote by the stockholders and
who provides timely instructions to the Trustee hereunder shall
also be considered to have voted, as a named fiduciary, in
proportion to the vote of such Participant's (or Beneficiary's)
Share Equivalents, a pro rata portion of the votes attributable to
the aggregate number of (i) any Share Equivalents as to which
voting instructions have not been timely received from Partici-
pants (or Beneficiaries), and (ii) all Unallocated Shares. Such
pro rata portion shall be equal to the aggregate number of votes
attributable to Shares and Share Equivalents described in clauses
(i)-(ii) of the preceding sentence multiplied by a fraction, the
numerator of which is the number of votes attributable to Share
Equivalents for such Participant (or Beneficiary) and the denomi-
nator of which is the total number of votes attributable to Share
42
<PAGE>
Equivalents of all Participants (and Beneficiaries) who have
provided timely instructions to the Trustee under this Section.
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide voting instructions to the Trustee at least three
business days before the shareholders' meeting. Voting
instructions from individual Participants (or Beneficiaries) shall
be held by the Trustee in strictest confidence and neither the
name of, nor the voting instructions given by, any individual
Participant (or Beneficiary) who chooses to give voting
instructions shall be divulged by the Trustee to any of the
Employing Companies or to any director, officer or employee
thereof, or to the Committee; provided, however, that to the
extent necessary for the operation of the Plan, such instructions
may be relayed by the Trustee to an independent recordkeeper,
auditor or other person providing services to the Plan if such
person agrees not to divulge such directions to any other person,
including employees, officers and directors of the Company or its
affiliates.
9.17. Tendering of Shares and Rights. (a) Each Participant
------------------------------
(or, if deceased, the Participant's Beneficiary), as a named
fiduciary within the meaning of Section 403(a)(1) of ERISA, shall
be entitled, to the extent of full and fractional Share
Equivalents credited to the Participant's (or Beneficiary's)
Account in the Plan, as shown on the records of the Plan as of the
most recent valuation date for which information is available, to
direct the Trustee in writing as to the manner in which to respond
to a tender or exchange offer, including but not limited to a
tender or exchange offer within the meaning of the Securities
Exchange Act of 1934, as amended, with respect to Shares, related
rights, or both, and the Trustee shall respond in accordance with
the instructions so received. The Committee shall utilize its
best efforts to timely distribute or cause to be distributed to
each Participant (or Beneficiary) such information as will be
distributed to shareholders of the Company in connection with any
such tender or exchange offer, together with a form requesting
confidential instructions on whether or not such Shares or rights
will be tendered or exchanged.
(b) Each Participant (or Beneficiary) who has Share
Equivalents shall also be considered to have directed the Trustee,
as a named fiduciary, in proportion to the direction given or
deemed to have been given with respect to such Participant's (or
Beneficiary's) Share Equivalents, as to the sale, exchange or
transfer of a pro rata portion of the aggregate number of (i)
Share Equivalents to which directions have not been timely
received from Participants (or Beneficiaries) and (ii) all
Unallocated Shares. Such pro rata portion shall be equal to the
Shares and Share Equivalents described in clauses (i)-(ii) of the
43
<PAGE>
preceding sentence multiplied by a fraction, the numerator of
which is the number of Share Equivalents of such Participant (or
Beneficiary) and the denominator of which is the total number of
Share Equivalents of all Participants (or Beneficiaries).
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide instructions to the Trustee by the date established by
the Trustee and calculated to provide sufficient time to compile
instructions and a timely response to the tender or exchange
offer. If the Trustee shall not receive timely instructions from
a Participant (or Beneficiary) as to the manner in which to
respond to such a tender or exchange offer, the Participant (or
Beneficiary) shall be deemed to have directed the Trustee not to
tender or exchange such Participant's (or Beneficiary's) Share
Equivalents and the Trustee shall not tender or exchange such
Share Equivalents with respect to which such Participant (or
Beneficiary) has the right of direction. The instructions
received by the Trustee from individual Participants shall be held
in the strictest confidence and neither the name of, nor the
instructions given by, any individual Participant (or Beneficiary)
who chooses to give instructions shall be divulged by the Trustee
to any of the Employing Companies or to any director, officer or
employee thereof, or to the Committee; provided, however, that to
the extent necessary for the operation of the Plan, such
instructions may be relayed by the Trustee to an independent
recordkeeper, auditor or other person providing services to the
Plan if such person agrees not to divulge such directions to any
other person, including employees, officers and directors of the
Company or its affiliates.
9.18. Plan Mergers. In the event that this Plan is a party
------------
to a merger with or accepts a transfer of assets from any other
qualified employee benefit plan, the Committee shall be authorized
to waive any of the investment restrictions of Section 9.1, 9.2 or
9.5 with respect to existing balances in any employee account
which is transferred to this Plan in connection with such merger,
if in the Committee's absolute discretion such waiver is
appropriate under the circumstances.
44
<PAGE>
ARTICLE X
MAINTENANCE AND VALUATION OF ACCOUNTS
-------------------------------------
10.l. Separate Accounts. The Committee shall establish a
-----------------
separate Account for each Participant, which shall be a record of
all contributions made by or for such Participant, by source and
type, and all investments thereof, separately accounted for with
respect to each part of such Account and each Investment Fund.
The fact that allocations shall be made and credited to individual
Accounts shall not give the Participant any vested or other right
in or to the assets of the Fund except as expressly provided by
this
Plan.
10.2. Company Stock Fund Portion. The number of units to
--------------------------
be credited to each part of a Participant's Account which has been
invested in the Company Stock Fund shall be determined as follows:
(a) Such part shall be credited as of the end of
each Processing Period with a number of units (including fraction-
al units to the fourth decimal place) determined by dividing
(i) the sum of the contributions made (directly
or indirectly through, for example, release of Unallocated Shares
from the ESOP Loan Suspense Account) to such part for such
Participant (regardless of type or source) which were applied
toward the acquisition of units for that Processing Period, by
(ii) the fair market value of each unit as of
the end of the Processing Period.
(b) Such part shall be debited as of the end of each
Processing Period with the number of units distributed or sold
from the part as of the end of such Processing Period (even though
the distribution or sale might not be completed until some
subsequent date).
(c) Except as provided in Section 8.6, dividends and
other cash distributions received on Shares held in the Company
Stock Fund shall be reinvested in the Company Stock Fund.
10.3. Other Investment Fund Portions. The Committee may
------------------------------
adopt any method of accounting it believes appropriate (unit,
dollar or otherwise) for each of the other Investment Funds. As
of the end of each Processing Period, there shall be credited to
each Participant's Account additional units or interests, as
appropriate, of each Investment Fund in which the Participant's
Account is invested, as determined by dividing the contributions
to each such Investment Fund for such Processing Period by the
45
<PAGE>
value of a unit or interest therein as of the end of the prior or
current Processing Period as determined by the Committee on a
uniform and consistent basis. In making valuations of the
Investment Funds, the Trustee shall be entitled to accept the most
recent valuations received from their managers.
10.4. Transfers Between Funds. All transfers of
-----------------------
investments between Investment Funds to comply with a
Participant's investment direction or to comply with Section 12.8
shall be deemed a sale of the assets which must be disposed of,
and a purchase of the assets which must be purchased, to effect
such transfer. In the case of a sale or purchase of interests in
an Investment Fund, such interests shall be valued at the end of
the Processing Period for which such deemed sale or purchase
occurs.
10.5. Valuation of the Fund. As soon as practicable after
---------------------
the end of each Processing Period the Trustee shall determine, in
accordance with generally accepted valuation methods and
practices, the fair market value of the assets then constituting
the Fund (giving effect to income, expenses and realized and
unrealized gains and losses experienced during such Processing
Period), separately valuing each Investment Fund, as of the end of
such Processing Period (such determination being called a "valua-
tion"), and shall separately adjust the value of each Investment
Fund's portion of all existing Accounts in the ratio that the
balance of each such portion of each such Account bears to the
total of the combined balances of such portions of all Accounts.
In making its valuations of the Fund, the Trustee shall have the
absolute right to rely on the valuations of units of participation
in any Investment Fund, or the underlying investments of any
Investment Fund, furnished by the fund manager.
10.6. Effect of Valuations. The Trustee's valuations of
--------------------
the Fund or any portion thereof in accordance with the foregoing,
and its determination of the value of the Participants' Accounts
based thereon, shall be conclusive and binding upon the Company,
all other Participating Employers, the Committee, and all
Participants and their respective Beneficiaries.
10.7. No Liability for Fluctuations in Value. The benefits
--------------------------------------
provided by this Plan shall be payable solely from the Fund. Each
Participant and all persons who may derive rights under this Plan
through or from a Participant are hereby charged with actual
notice that all Accounts will increase or decrease in value from
time to time as the assets of the Fund fluctuate in value. The
fact that a particular amount was credited to a Participant's
Account at some time is no assurance that such amount will
46
<PAGE>
ultimately be distributable hereunder and neither the Company, any
Participating Employer, the Committee, the Trustee, nor any fund
manager, guarantees in any way that the amount ultimately
distributable to or on behalf of any Participant will be equal to
any amount at any time credited to such Participant's Account.
Each Participant, by electing to participate in this Plan, assumes
the risk of possible declines in the market value of the
Participant's Account.
10.8. Adjustments to Accounts. If an adjustment to any
-----------------------
Participant's Account is required to correct any error (such as an
incorrect payroll deduction or an incorrect allocation of any
contribution), or for any other reason (such as a delay in the
start of payroll deductions), such adjustment shall be made as
soon as administratively feasible after the Committee first learns
of the circumstances which require adjustment. Any such
adjustment shall be made in accordance with the Plan characteris-
tics (including, but not limited to, the price of Shares and
units) in effect during the Processing Period in which the adjust-
ment is posted to the Participant's Account, except that adjust-
ments of Company Matching Contributions shall be at the rate(s) in
effect during the Processing Period(s) in which the error oc-
curred. No adjustment shall be made for any interest, dividend or
other gain or loss not realized because of a delay in contri-
butions.
Under extraordinary circumstances as determined by the
Committee in its absolute discretion, error adjustments may be
made based on Plan characteristics in effect during the Processing
Period(s) in which the error(s) occurred or on such other terms as
the Committee shall determine. In exercising its discretion under
this paragraph, the Committee shall consider such circumstances as
it shall deem appropriate, including but not limited to (a) the
nature of the error, (b) the ability of the Participant reasonably
to detect the error, and (c) the time elapsed between discovery of
the error and the reporting of same.
All necessitated Participant make-up contributions shall be
on an after-tax basis and shall be made by way of cashiers check
or money order. In no event shall adjustments be made for any
period exceeding twelve (12) months prior to the date the
Participant notifies a Plan representative of the error.
10.9. Ordering of Distributions. A distribution on
-------------------------
termination of employment shall take precedence over any other
distribution or withdrawal which (but for this provision) would
otherwise be made from the Account of a Participant as of the
distribution date.
10.10. Unallocated Accounts. The Trustee shall establish
--------------------
and maintain in the Trust the following accounts for purposes of
holding and investing amounts not allocated to the individual
accounts of Participants:
47
<PAGE>
(a) An account to be designated the "ESOP Loan
Suspense Account" to hold Unallocated Shares acquired with the
proceeds of an ESOP Loan until such time as they are released and
allocated to the Company Stock Fund in accordance with Section
8.4. If so directed by the Committee, the ESOP Loan Suspense
Account may also hold contributions, dividends and related
accumulations under the ESOP for application to payment of
principal and interest on an ESOP loan in lieu of maintaining an
ESOP Loan Payment Accumulation Account as described in (b) below.
(b) An account to be designated the "ESOP Loan
Payment Accumulation Account" to hold and accumulate such funds as
are transferred thereto pursuant to Sections 8.4 and 8.7 to make
future ESOP Loan amortization payments or for use as provided in
Section 8.7. Pending application of funds to ESOP Loan payment or
other Plan purposes, the ESOP Loan Payment Accumulation Account
shall be invested in the Short-Term Fixed Income Fund or in a
separate but similar fund invested in the manner described in
Section 9.8.
10.11. Special Valuation of Company Stock in Extraordinary
---------------------------------------------------
Circumstances. Notwithstanding anything in this Plan to the
- -------------
contrary, if the Committee determines that the volume of distribu-
tions, withdrawals, transfers between Investment Funds, or
Participant loans as of the last day of a Processing Period
pursuant to other provisions of the Plan requires sales or
purchases of Shares at levels greater than can be accommodated in
an orderly fashion in a single day on the New York Stock Exchange,
the Processing Period shall be extended so that the sales or
purchases shall be spread over a period of days and the price
shall be established at the end of the period in accordance with
procedures adopted by the Committee from time to time.
48
<PAGE>
ARTICLE XI
VESTING
-------
11.1. Amounts Contributed by the Participant. The portions
--------------------------------------
of a Participant's Account which are attributable to the
Participant's Personal Contributions, with all earnings thereon,
shall be fully vested and non-forfeitable at all times.
11.2. Company Matching and Supplemental Contributions. The
-----------------------------------------------
portion of a Participant's Account which is attributable to
Company Matching and Supplemental Contributions for any Plan Year
(including earnings thereon) shall vest and become non-forfeitable
when such Participant completes two years of Vesting Service.
11.3. Vesting Rules. (a) Vesting Service shall be that
-------------
period of employment with the Employing Companies commencing on an
individual's Employment Commencement Date and ending on the
individual's Severance from Service Date. In the event that
non-successive periods of Vesting Service are restored pursuant to
this Section, such periods shall be aggregated into completed
twelfths of a year on the basis that thirty days of service equal
one twelfth of a year.
(b) The Employment Commencement Date shall be the
date on which an individual first performs an Hour of Service for
an Employing Company.
(c) The Severance from Service Date of an individual
shall be the earlier of the date the individual quits, is
discharged, retires or dies, or the first anniversary of the date
the individual is absent from service for any reason, unless
otherwise provided in subsection (d) or (h) of this Section.
(d) The Vesting Service of an individual shall not
be considered severed by an Absence from Service, and, except as
otherwise provided above, shall be deemed to include such Absence
from Service. An Absence from Service means one of the following:
(i) Any approved non-disability leave of
absence not exceeding two years in length; provided, however, that
Service shall not include any portion of the leave of absence
which is in excess of twelve (12) months unless the individual
returns to regular employment within thirty (30) days after
expiration of the leave of absence. If the individual fails to
return within such period, such individual's Severance from
Service Date shall be the earlier of the expiration of the
individual's leave of absence or the first anniversary of the date
on which the individual's leave of absence began.
49
<PAGE>
(ii) Absence for any period while in the
service of the government of the United States under circum-
stances such that the individual has re-employment rights granted
by Federal law, provided a written application for re-employment
is filed within the period after discharge from such government
service during which such re-employment rights are guaranteed,
failing which such individual's Severance from Service Date shall
be the first day of the period during which the individual no
longer performs services for the Employing Companies because of
such governmental service.
(iii) A leave of absence because of physical or
mental disability up to a maximum of twenty-four (24) months.
(iv) Lay-off of up to twelve (12) months.
(e) Period of Severance shall mean the period of
time commencing on an individual's Severance from Service Date and
ending on the date on which the individual again performs an Hour
of Service.
(f) If an individual has a Severance from Service by
reason of a quit, discharge or retirement and again performs an
Hour of Service for an Employing Company within twelve months of
the Severance from Service Date, such Period of Severance shall be
disregarded and shall constitute Vesting Service.
(g) If an individual has a Severance from Service by
reason of a quit, discharge, or retirement during an absence of
twelve months or less for any reason other than a quit, discharge
or retirement, and again performs an Hour of Service with an
Employing Company within twelve months of the date on which the
individual was first absent from Service, such Period of Severance
shall be disregarded and shall constitute Vesting Service.
(h) The Severance from Service Date of an individual
who is absent from service beyond the first anniversary of the
first date of absence by reason of a maternity or paternity
absence described in Section 2.26(b)(viii) is the second
anniversary of the first date of absence. The period between the
first and second anniversaries of the first date of absence is not
a Period of Severance nor a period of Vesting Service unless
otherwise provided in subsection (d).
(i) If a Participant has a Period of Severance and
is thereafter re-employed, all years of Vesting Service prior to
the Period of Severance shall be taken into account in determining
the Participant's vested interest in the Company Matching and
Supplemental Contributions portion of the Participant's Account,
50
<PAGE>
as accumulated prior to such severance. The foregoing sentence
shall not apply to any Participant whose entire account balance is
not vested on the Participant's Severance from Service Date and
who incurs a Period of Severance exceeding five years. During the
period when any unvested amount is being held pending a
determination of whether a Period of Severance exceeding five
years occurs, the Participant's interest in such amount shall be
immediately terminated subject to reinstatement if the Participant
is re-employed by an Employing Company prior to incurring a
five-year Period of Severance. If the amount does not subsequently
vest, it shall be treated as a forfeiture. Any amount reinstated
hereunder shall be the fair market value of the forfeited amount
on the date of forfeiture, without any interest or other addition
thereto for the period prior to reinstatement. Forfeitures shall
be applied to reduce the Company's Contributions to this Plan.
(j) A transferred Participant whose participation
has become inactive under Section 3.5 and who continues to be
employed by an Employing Company without incurring a Period of
Severance shall be credited with Vesting Service for so long as
the Participant remains so employed.
11.4. Change in Control of the Company. Notwithstanding
--------------------------------
the foregoing provisions of this Article XI, in the event of a
"Change in Control of the Company" (as defined herein), the
nonvested portion of a Participant's Account which is attributable
to Company Matching and Supplemental Contributions for any Plan
Year or part thereof (including earnings thereon) shall
immediately vest and become nonforfeitable. The portion of the
Participant's Account which shall vest and become nonforfeitable
under this Section shall be determined as of the end of the month
during which the Change in Control of the Company occurs. For
purposes hereof, a "Change in Control of the Company" shall occur
if any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Act")) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act) of more than fifty percent (50%) of the then
outstanding voting stock of the Company. This Section shall not
apply to any Participant who is not employed by an Employing
Company at the time the Change in Control of the Company occurs.
51
<PAGE>
ARTICLE XII
DISTRIBUTIONS
-------------
12.1. Distributions Upon Termination of Employment. A
--------------------------------------------
Participant who ceases to be an Employee of any Employing Company
because of death, total and presumably permanent disability, entry
into active duty with any branch of the military services of the
United States, or who has been laid off for a period exceeding
twelve consecutive months, or who has attained the age of 60 years
at the time the Participant ceases to be an Employee, or who has
completed two years of Vesting Service or is otherwise vested
under the provisions of Article XI, shall receive (or if not then
living, the Participant's Beneficiary shall receive), at the time
provided in Section 12.2 hereof, in a single distribution, the
Participant's entire Account. A cessation of employment with all
Employing Companies for any reason or at any time described in the
preceding sentence is referred to as a "vested termination." A
Participant who ceases to be an Employee of any Employing Company
under any other circumstances shall receive (or if the Participant
is not living at the time of distribution the Participant's
Beneficiary shall receive), at the time provided in Section 12.2
hereof, in a single distribution, the portions of the
Participant's Account attributable to Personal Contributions.
Such Participant shall forfeit the portion of the Participant s
Account which is attributable to Company Matching and Supplemental
Contributions in accordance with Section 11.3(i).
12.2. Time and Method of Distribution. (a) Except as
-------------------------------
provided otherwise in this Section, every distribution under
Section 12.1 shall be made as soon as is administratively feasible
after, but as of, the end of the Processing Period which ends on
or after the date on which the Committee learns that an event
requiring distribution has occurred and is advised of the identity
or identities, and location(s) of, the party or parties entitled
to such distribution. In any event payment of such distribution
shall be commenced no later than the 60th day after the close of
the Plan Year in which falls the last to occur of the following
dates:
(i) The date on which the Participant attains
the age of 65 years;
(ii) The tenth anniversary of the year in which
the Participant first became a Participant in this Plan; or
(iii) The date on which the Participant ceased
to be an Employee.
52
<PAGE>
Notwithstanding anything to the contrary herein,
distributions under this Plan shall commence not later than
April 1 following the calendar year in which the Participant
attains age 70-1/2.
Whole numbers of Shares which are to be distributed shall be
distributed in kind (subject, however, to transfer taxes), except
that amounts required to be distributed under the preceding
paragraph after age 70-1/2 may be distributed in cash at the
Participant's election. Subject to Section 12.8, the value of all
other interests shall be distributed in cash. Interests in the
Investment Funds shall be valued as of the end of the Processing
Period as of which a distribution is to be made; provided that,
with respect to interests in the Company Stock Fund which are to
be distributed in cash, the value of a fractional Share shall be
based on the value of a full Share, which shall be the Closing
Price on the last business day of the Processing Period or on the
next prior business day as determined by the Committee on a
uniform and consistent basis.
(b) Each Participant (and, in the case of a deceased
Participant, the Participant's Beneficiary) entitled to a distri-
bution hereunder may elect to defer such distribution to the end
of the Plan Year during which the Participant's Account would
otherwise be distributed, so as to participate in the allocation
of any Supplemental Contribution for such Plan Year. Such
Participant shall indicate, in accordance with procedures
promulgated by the Committee, whether the Participant or
Beneficiary elects to defer such distribution or receive it
immediately. If the value of such distribution is less than
$3,500 and if the Participant or Beneficiary fails to elect to
defer such distribution, the Participant or Beneficiary shall be
deemed to have elected immediate distribution.
(c) Notwithstanding any other provision of the Plan,
if a Participant's vested Account balance exceeds $3,500 or has
exceeded $3,500 at the time of any previous distribution to the
Participant, amounts payable to such Participant shall not be
distributed before the Participant attains age 62 without the
consent of the Participant. The Participant's consent to
distribution must be made in accordance with procedures
promulgated by the Committee after the Participant receives a
notice as described in subsection (d) below and must be made
within the 90-day period ending on the last day of the Processing
Period as of which the amount of the distribution is determined
and made.
(d) No less than 30 days and no more than 90 days
before the last day of the Processing Period as of which a
distribution to a Participant is determined and made in accordance
with this Article or Article XIII, the Committee shall provide to
53
<PAGE>
the Participant a notice describing the right to defer receipt of
the distribution until age 62. Notwithstanding the preceding
sentence, distribution to a Participant may be made less than 30
days after the notice is provided if (i) the notice 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 (ii)
the Participant affirmatively elects a distribution after
receiving the notice.
(e) Any Participant not consenting to a distribution
hereunder shall become an inactive Participant, but notwithstand-
ing any provision of this Plan to the contrary, such Participant
shall have only the following rights under this Plan:
(i) the right to receive a distribution of all
(but not less than all) of the vested portion of the Participant's
Account as of the end of any Processing Period permitted under
this Section;
(ii) the right to make changes in the
investments of the Participant's Account in accordance with
Article IX;
(iii) the right to vote and tender Share
Equivalents held in the Participant's Account in accordance with
Sections 9.15 and 9.16, respectively;
(iv) the right to change the Participant's
designated Beneficiary or Beneficiaries from time to time in
accordance with Section 16.1;
(v) the right to have Supplemental Contribu-
tions allocated to the Participant's Account for the Plan Year in
which the Participant's termination occurred; and
(vi) any other right required by law to be
given to an inactive Participant with an undistributed vested
account in a defined contribution plan qualified under Section
401(a) of the Code.
(f) The consent to distribution required by subsec-
tion (c) above shall not be applicable in the event of a termina-
tion distribution arising from the death of a Participant. In
addition, if an inactive Participant dies, the distribution of
such Participant's Account shall be made as soon as
administratively feasible after the Committee learns of such
event.
(g) Nothing in this Section shall be construed to
increase the vested portion of any Participant's Account whose
54
<PAGE>
termination was not a "vested termination" within the meaning of
Section 12.1. An Account held hereunder for later distribution
shall, subject to the inactive Participant's right to direct a
change in investments as herein set forth, remain invested in the
manner in effect on the Participant's termination date, and shall
continue to fluctuate in value as the respective Investment Funds
in which such Account is invested so fluctuate.
12.3. Eligible Rollover Distributions. (a) A Participant
-------------------------------
may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the Participant (a "direct rollover"). In addition,
the Participant's surviving spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, may elect a direct
rollover.
(b) An eligible rollover distribution is any
distribution of all or any portion of a Participant's Account,
except that an eligible rollover distribution does not include any
distribution required under Section 401(a)(9) of the Code 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 Shares).
(c) An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, that
accepts the eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
12.4. Determination of Disability. For purposes of
---------------------------
determining whether a Participant has had a Vested Termination
because of total and presumably permanent disability, a
Participant shall be deemed to be totally and presumably
permanently disabled if the Participant is unable to perform the
duties of such Participant's position as an Employee because of a
physical or mental impairment which can be expected to result in
death or to be of long continued or indefinite duration, as
conclusively determined by a competent doctor selected by the
Participant and approved by the Committee or its delegate, who
shall certify the result of the examination of the Participant to
the Committee.
12.5. Distributions to Reporting Persons. Any Participant
----------------------------------
who, by virtue of the Participant's position as an officer of the
55
<PAGE>
Company, is subject to the reporting requirements of Section 16(a)
of the Securities Exchange Act of 1934 ("Reporting Person") shall
have the right to elect to receive a cash distribution in an
amount equal to the fair market value of the Shares which the
Participant would otherwise be entitled to receive under this
Article or Article XIII, in lieu of any distribution of Shares.
In such case, the fair market value shall be the Closing Price at
the end of the Processing Period as of which a distribution is
made. Any notice of a cash election of amounts distributable
pursuant to this Article or Article XIII shall be valid only if
such Reporting Person files a written notice of such cash election
in the time and manner prescribed by the Committee. Any election
under this Section 12.5 must be made, if at all, with respect to
all Shares available for distribution, and once made may not be
revoked. If and when distribution of Shares to Reporting Persons
is considered to be exempt from the short swing profit recovery
provisions under Rule 16b-3 of the Securities and Exchange
Commission, this Section 12.5 shall be null and void and of no
further force or effect.
12.6. Transfer of Accounts. Once per year or at such other
--------------------
times as it shall determine, the Committee shall arrange for the
transfer of the Accounts of individuals who are no longer eligible
to participate in this Plan and who are currently eligible and
have an Account in a Related Plan to such Related Plan to be
combined with the Participant's active Account under such Related
Plan. After such transfer is accomplished, this Plan shall have
no further liability to the Participant with respect to the trans-
ferred Account.
12.7. Early Distribution under Domestic Relations Order.
-------------------------------------------------
If the Committee shall receive an order that is finally determined
to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code, and if such order shall so permit, the
Committee may authorize the early distribution under the
provisions of this Article XII of any amount distributable to the
alternate payee under the order.
12.8. Absolute Right to Receive Stock Distribution.
--------------------------------------------
Notwithstanding any provision of this Plan to the contrary,
whenever it is specified that a distribution will be made in cash,
the Participant shall nonetheless have the right to elect to have
Shares purchased and distributed to him. If such election is made,
the Participant's non-Share investments shall be deemed
transferred, pursuant to Section 10.4, to the Company Stock Fund
and thereafter distributed. Under no circumstances will a
fractional Share be distributed.
56
<PAGE>
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
--------------------------
13.1. Elective Right to Make Certain Withdrawals. (a) Any
------------------------------------------
Participant may withdraw any part of the Participant's Account
which is attributable to
(i) After-Tax Unmatched Contributions,
(ii) After-Tax Matched Contributions which have
been in the Participant's Account for at least one full Plan Year
after the contributions were made, and
(iii) Company Matching Contributions
attributable to Personal After-Tax Contributions made before
April 1, 1994, which have been in the Participant's Account for at
least two full Plan Years after the contributions were made;
provided that, if any part of a Participant's Account described in
this paragraph (iii) is withdrawn, the Participant shall not be
permitted to make any Personal Contributions to the Plan or to
have any Company Matching Contributions credited to the
Participant's Account for a period of six months.
Any withdrawals under this subsection (a) shall be deemed
made in the order listed above.
(b) In addition to the rights set forth in
subsection (a), any Participant may withdraw any part of the
Participant's Account which is attributable to
(i) Company Matching Contributions attributable
to Personal Before-Tax Contributions made before April 1, 1994,
which have been in the Participant's Account for at least two full
Plan Years after the contributions were made, and
(ii) after a Participant has attained age
59-1/2,
(A) Before-Tax Matched Contributions which
have been in the Participant's Account for at least one full
Plan Year after the contributions were made,
(B) Before-Tax Unmatched Contributions, and
(C) Company Matching Contributions which have
been in the Participant's Account for at least one full Plan
Year after the contributions were made.
Withdrawals under this subsection (b) shall be deemed made in
the order listed above.
57
<PAGE>
(c) Subject to Section 12.8, amounts withdrawn under
this Section shall be distributed in cash. Amounts which are to
be distributed in cash shall be expressed in whole dollars unless
the entire amount of the part of the Account subject to withdrawal
is being withdrawn. Interests in the Investment Funds which are
to be distributed shall be valued as of the end of the Processing
Period as of which a distribution is made.
(d) A Participant who has attained age 55 and for
whom the diversification requirements of Section 401(a)(28) of the
Code cannot be satisfied for any Plan Year by a change of
investments under Article IX shall be permitted to withdraw so
much of the vested Company Matching and Supplemental Contribution
portions of the Participant's Account as may be necessary to
satisfy such diversification requirements. To request a
withdrawal under this Section, a Participant must deliver the
appropriate withdrawal form, properly completed, on or before the
90th day following the close of such Plan Year. Withdrawals under
this subsection shall be distributed within 180 days following the
end of the Plan Year to which the withdrawal relates.
13.2. Protected Withdrawal Rights. Any Participant with an
---------------------------
Account balance as of March 31, 1994 shall be entitled to any
elective distribution or withdrawal right under the Plan as in
effect on such date with respect to such Account balance; provided
that any limitations or suspension penalties on such elective
distribution or withdrawal rights in effect on March 31, 1994 may
be reduced or eliminated in accordance with rules promulgated by
the Committee. For any period of suspension after March 31, 1994,
the Participant will not be permitted to make any Personal
Contributions to the Plan.
13.3. Withdrawal Procedure. A Participant may request a
--------------------
withdrawal under this Article XIII by delivering such request to
the Employee Stock Plans Department in accordance with procedures
prescribed by the Committee. Withdrawals shall be effective as of
the last day of a Processing Period and shall be distributed as
soon as administratively feasible after the end of such Processing
Period. For purposes of determining the amount to be withdrawn,
the value of the withdrawable portion of the Account as of the
effective date of the withdrawal shall govern. Except as may be
required for certain withdrawals made pursuant to Section 13.2,
withdrawals shall be distributed in Shares or cash at the
Participant's election.
13.4. Frequency of Withdrawals. No more than two
------------------------
withdrawals may be made under this Article in any period of twelve
consecutive months.
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ARTICLE XIV
HARDSHIP WITHDRAWALS
--------------------
l4.l. Eligibility and Procedure. This Article is
-------------------------
applicable only to the portions of a Participant's vested Account
which cannot be withdrawn under Article XIII excluding any
earnings on Before-Tax Contributions accumulated after
December 31, 1988.
(a) Any Participant who has suffered a hardship may
withdraw all or any part of such portions of the Participant's
Account upon application to the Committee and demonstration to the
Committee's satisfaction that a hardship exists.
(b) For purposes of this Article, a distribution
will be on account of hardship if the distribution is necessary in
light of immediate and heavy financial needs of the Participant.
A distribution based upon financial hardship cannot exceed the
amount required to meet the immediate financial need created by
the hardship and not reasonably available from other resources of
the Participant. The determination of the existence of financial
hardship and the amount required to be distributed to meet the
need created by the hardship shall be made in accordance with
uniform and non-discriminatory rules promulgated by the Committee.
The Committee shall require exhaustion of all other resources
reasonably available to the Participant, including loans and
distributions from the Plan, before granting an application
hereunder. A loan shall not be required if repayment thereof
would constitute a hardship.
(c) Subject to Section 12.8 the amount of a
withdrawal under this Article shall be delivered to the
Participant in cash from investments of the Participant's Account
other than Shares except as (and only to the extent) necessary to
realize sufficient cash to fund the withdrawal.
(d) In administering this Article the Committee
shall be entitled to act in reliance on any applicable U. S.
Treasury Regulations.
(e) No more than one withdrawal under this Article,
may be made in any consecutive period of twelve months.
(f) No withdrawal will be permitted which will
reduce the amount of a Participant's Account which is then held as
collateral to secure a loan under Article XV.
(g) If a Participant shall have a hardship
withdrawal approved, the Participant shall be suspended from Plan
participation for twelve months from the date of distribution.
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<PAGE>
Such suspension shall run concurrently with any other suspension
then in effect.
(h) Withdrawals under this Article shall be
distributed as soon as administratively feasible after the end of
the Processing Period during which the Committee approves the
Participant's application.
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ARTICLE XV
LOANS TO PARTICIPANTS
---------------------
l5.l. Procedure and Terms. A Participant may apply to the
-------------------
Committee for a loan from the Participant's Account and the
Committee shall grant such a loan, but only on the following
conditions:
(a) Maximum loan amounts are the lesser of (i)
$50,000 less the highest outstanding loan balance under the Plan
during the one-year period ending on the day before the loan is
made, or (ii) 50% of the vested portion of the Account. In
computing the maximum amount of a loan, any Company Matching or
Supplemental Contributions which have not been in the Plan for one
full Plan Year shall not be considered.
(b) A Participant may have no more than two loans
outstanding at any time.
(c) The minimum amount of any loan shall be $1,000.
(d) The loan shall be evidenced by a note on a form
approved by the Committee and shall bear interest at a rate of one
percentage point above the "prime rate" published by Morgan
Guaranty Trust Company of New York at the close of business on the
last business day of the prior calendar quarter, as determined by
the Committee for each calendar quarter. The loan shall be
secured by a portion of the Participant's Account equivalent to
the amount of the loan, and shall be repayable in level
installments of principal and interest over a period not to exceed
five years from the date of such loan. Notwithstanding the
foregoing sentence, if the proceeds of a loan are to be used to
acquire a dwelling unit which is to be used, within a reasonable
period of time after the loan is made, as the principal residence
of the Participant, the loan shall be repayable over such a
period, not to exceed ten years, as the Committee shall determine.
The note shall be subject to prepayment at any time, but only in
full, and not in part, without premium or penalty. Except as the
Committee shall otherwise determine, payments on the note shall be
made only by way of payroll deductions and shall be invested in
accordance with the Participant's current investment election for
the type(s) of contribution which were the source of the loan;
provided that with respect to the portion of the loan attributable
to Before-Tax Contributions, payments shall be invested in
accordance with the current method of investment for the
Participant's current Before-Tax Unmatched Contributions. If no
Before-Tax Unmatched Contributions are then being made, the
Participant shall direct how loan payments are to be invested.
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(e) After the Participant shall be 90 days in
arrears on loan payments, the Committee shall determine the loan
to be in default. The Trustee shall thereafter have the right to
take recourse against the collateral securing the same, with full
right to exercise all remedies granted a secured party under the
applicable laws (including the Uniform Commercial Code) as in
effect in the various jurisdiction(s) in which the collateral may
be located; provided: (i) in no event shall the Trustee file a
claim under any bankruptcy proceeding for the debt represented by
the note; (ii) if an event occurs whereby the Participant would
receive a distribution of the Participant's Account balance, such
distribution shall consist of the defaulted note and the remainder
of the assets of the Account; and (iii) in no event shall the de-
faulted note be distributed until the Participant would be
eligible to elect to receive distribution of the Participant's
Account balance pursuant to Section 12.1, even though a taxable
distribution may be deemed to have occurred at an earlier time
under applicable provisions of the Code.
(f) Any such loan shall be treated as a segregated
investment for the appropriate portion of the Account of the
borrowing Participant, the interest thereon shall be credited only
to such portion of the Participant's Account (and not to the
general earnings of the Fund), and for the purposes of allocating
income of the Fund or any other appreciation or depreciation of
the Fund for any Plan Year the Account of such borrowing
Participant shall be treated as not including the unpaid amount of
such borrowing (but for all other purposes of this Plan, including
the provisions dealing with the allocation of contributions and
the valuation of the corpus of the Trust, the amount of such
borrowing shall continue to be treated as part of the borrowing
Participant's Account, having a fair market value exactly equal to
the unpaid principal balance thereof at any time when it is
necessary to determine its fair market value).
(g) An application for a loan must be submitted and
shall be processed and disbursed in accordance with procedures
established by the Committee.
(h) The loan will be made in cash from the
investments of the Participant's Account other than Shares, except
as (and only to the extent) necessary to realize sufficient cash
to fund the loan.
(i) If a Participant becomes entitled to a
termination distribution before the loan has been repaid in full,
the Trustee will distribute the Participant's note, endorsed
without recourse, as part of the resulting distribution of the
Participant's Account unless the loan is repaid at that time or
the termination distribution is deferred as provided in Section
12.2.
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(j) If so determined by the Committee, a Participant
requesting a loan shall pay all out-of-pocket administrative and
filing fees incurred in processing the Participant's loan.
(k) A waiting period of two full calendar months is
required after a loan is repaid in any manner before a new loan
may be effective.
(l) Any Participant with respect to whom a loan has
been determined by the Committee to be in default shall not be
permitted to commence another loan of any type until five years
have elapsed from the end of the month in which the loan was
determined to be in default.
(m) Other than to determine whether an extended term
is available under Section 15.1(d), the Committee shall not take
into consideration the purpose for which the Participant intends
to use the proceeds.
(n) If a Participant directs that payroll deductions
for loan payments are to be discontinued prior to the full
repayment of a loan, the Participant shall be prohibited from
making another loan from the Plan for ten years from the date of
such direction, and shall be suspended from participation for five
years from the date of such direction.
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ARTICLE XVI
DESIGNATION OF A BENEFICIARY
----------------------------
16.1. Procedure and Effect. (a) Except as otherwise
--------------------
provided in this Article or by law, any amount distributable under
this Plan as a result of or following the death of a Participant
shall be applied only for the benefit of the Beneficiary or
Beneficiaries designated pursuant to this Article by the
Participant on whose behalf the amount payable was accumulated.
Each Participant shall specifically designate, by name, on forms
provided by the Committee, the Beneficiary(ies) to whom such
payment shall be made. Such designation may be made at any time
satisfactory to the Committee. Except as provided in subsection
(b) hereof, a designation of a Beneficiary may be changed or
revoked without the consent of the Beneficiary at any time by
filing a new Beneficiary designation form with the Committee. The
filing of a new form shall automatically revoke any forms
previously filed with the Committee. A Beneficiary designation
form not properly filed with the Committee prior to the death of
the Participant shall have no validity under the Plan.
Any such designation shall be contingent on the designated
Beneficiary surviving the Participant, and if the designated
Beneficiary survives the Participant but dies before receiving the
entire amount distributable to the Beneficiary hereunder, the
amount which would otherwise have been so distributed shall be
paid to the estate of the deceased Beneficiary unless a contrary
direction was made by the Participant, in which case such
direction shall control. More than one Beneficiary, and
alternative or contingent Beneficiaries, may be designated, in
which case the Participant shall specify the shares, terms and
conditions upon which amounts shall be paid to such multiple or
alternative or contingent Beneficiaries, all of which must be
satisfactory to the Committee. All payments and distributions to
a Beneficiary or Beneficiaries shall always be of the total amount
of the Participant's Account which is then subject to
distribution, and no such payments or distributions shall be made
in installments or as an annuity.
(b) In any situation where a married Participant
wishes to designate a Beneficiary other than the Participant's
spouse to receive benefits upon the Participant's death, such a
designation shall not be a qualified Beneficiary designation, and
shall not be recognized under this Plan, unless it is accompanied
by one of the following:
(i) a written consent, in form satisfactory to
the Committee, whereby the spouse to whom the Participant is
married at the time of the Participant's death consents to the
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<PAGE>
designation of the Beneficiary and acknowledges the effect of the
designation, and which is witnessed by either a notary public, a
member of the Committee or other plan representative; or
(ii) proof satisfactory to the Committee that
such a written consent cannot be obtained because the spouse
cannot be located or such other circumstances as U.S. Treasury
Regulations may prescribe.
Spousal consent to the designation of a non-spouse
Beneficiary shall not be valid unless such consent is executed and
filed with the Committee prior to the Participant's death.
(c) If (i) no such designation is on file with the
Committee at the time of the Participant's death, or (ii) if a
designation on file is not valid, based upon the Participant's
marital status on the Participant's date of death, the
Participant's surviving spouse (if the Participant is married at
the time of the Participant's death) or the Participant's estate
(if it is established to the satisfaction of the Committee that
the Participant is not then married) shall be conclusively deemed
to be the Beneficiary designated to receive any amounts
distributable under this Plan. In determining any question
concerning a Participant's beneficiary, the latest designation
filed with the Committee shall control and intervening changes in
circumstances shall be ignored.
By way of example, if a Participant designates the
Participant's spouse as Beneficiary but thereafter is divorced
from such spouse and is not remarried on the Participant's date of
death, such designation shall remain valid unless the Participant
filed a later beneficiary designation form with the Committee.
Further, if a Participant at any time files a beneficiary
designation form which, because of other provisions of this Plan
or applicable federal law, is not effective at the time it is
filed or later becomes ineffective for any period of time (this
could occur, for example, by reason of an intervening marriage
during which the current spouse would automatically be entitled to
benefits under this Article or as otherwise required by law), and
such individual's marital status or other circumstances change so
that, on the date of death such designation would be effective,
such designation shall be controlling notwithstanding any
intervening period of ineffectiveness.
(d) In addition to the foregoing limitations on a
Participant's right to have this Plan recognize a Beneficiary
designation, a Participant's designation shall automatically be
modified to the extent necessary to comply with the terms of any
Qualified Domestic Relations Order (within the meaning of Section
414(p) of the Code) received by the Plan affecting the
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<PAGE>
Participant's benefits under this Plan. In interpreting this
Section, any applicable U.S. Treasury or Department of Labor
Regulations shall be complied with.
(e) If any amount distributable hereunder is payable
to a minor or other person under legal disability, distributions
thereof shall be made in one (or any combination) of the following
ways, as the Committee shall determine in its sole discretion:
(i) directly to said minor or other person;
(ii) to the legal representatives of said minor
or other person; or
(iii) to some relative of such minor for the
support, welfare or education of such minor.
Neither the Company, any Participating Employer, the
Committee nor the Trustee shall be required to see to the
application of any distribution so made, and the receipt by the
person to whom such distribution is actually made shall fully
discharge the Company, each Participating Employer, the Committee
and the Trustee from any further accountability or responsibility
with respect to the amount so distributed.
(f) The amount payable to the Participant's
Beneficiaries shall be all amounts remaining in the Trust Fund on
the Participant's date of death. If the Participant, prior to
death, had requested any withdrawal or if any type of distribution
had otherwise commenced, and a check or stock certificate was
issued on or prior to the Participant's date of death, such funds
shall remain payable to the Participant, as opposed to the
Participant's Beneficiaries, even if not received prior to the
Participant's death. Any check or stock certificate issued after
the Participant's date of death shall be the property of the
Participant's Beneficiaries determined in accordance with this
Section.
(g) A Participant's Beneficiary designation on file
with the Committee under a Related Plan shall be valid and binding
under this Plan unless and until superseded as provided in this
Article.
16.2. Renunciation of Death Benefit. A Beneficiary of a
-----------------------------
Participant entitled to a benefit under this Plan may disclaim the
right to all or any portion of such benefit by filing with the
Committee, a written irrevocable and unqualified refusal to accept
the benefit. Such disclaimer must be filed before payment to the
Beneficiary of any part of the benefit to which the Beneficiary is
otherwise entitled, but no later than nine months after the death
66
<PAGE>
of such a Participant. Any benefit so disclaimed shall be
distributable to the person or persons (and in the proportions) to
which such benefit would have been distributable if the
disclaiming Beneficiary had predeceased the Participant.
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<PAGE>
ARTICLE XVII
LOST DISTRIBUTEES
-----------------
17.1. Disposition of Accounts Payable to Persons Who Cannot
-----------------------------------------------------
Be Located. If the Committee is unable to locate any person
- ----------
entitled to receive a distribution hereunder, or the estate of
such person if the person is deceased and if, under this Plan, the
estate is entitled to receive any amount distributable, within two
years after the same becomes distributable, during which period
the Committee shall have made a reasonable search for such person
and/or the person's estate, the right and interest of such
distributee in and to the amount distributable shall terminate on
the last day of such two-year period, and the amount so
distributable shall be applied to reduce the administrative
expenses of the Plan; provided, however, that if the Participant
or the Participant's Beneficiary(ies) or estate should later make
a claim for benefits hereunder or otherwise be located, the
amounts so applied shall be reinstated and used and applied only
for the benefit of such Participant, the Participant's
Beneficiary(ies) or estate, as otherwise provided by this Plan.
17.2. Efforts To Locate Distributees. In its search for
------------------------------
any distributee, the Committee (or the Trustee, at the direction
of the Committee) shall mail a notice, postage prepaid, by U.S.
registered or certified mail, return receipt requested and return
postage guaranteed, to the last known address of such distributee
or (if the distributee is not the Participant and if the address
of the distributee is not known or if the notice sent to such
distributee is returned unclaimed or addressee unknown) to such
distributee in care of the last known address of the Participant
for whose benefit the Account to be distributed was accumulated.
Such action shall constitute a reasonable search for such
distributee.
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<PAGE>
ARTICLE XVIII
AMENDMENT OR TERMINATION
------------------------
18.1. Company's Power to Amend or Terminate. (a) The
-------------------------------------
Company, for itself and for each other Participating Employer,
reserves the absolute right to modify, amend or terminate this
Plan in whole or in part, at any time and from time to time, by
action of (i) the Board; (ii) subject to the limitations stated in
Section 19.3(c), the Committee; or (iii) any officer of the
Company authorized from time to time by the Board. A copy of the
instrument by which any such action is taken shall promptly be
delivered to the Trustee and to the corporate secretary of the
Company. This Plan shall not, however, be modified or amended in
any manner which would
(i) reduce the amount credited to a
Participant's Account unless such reduction is required in order
to prevent the issuance by the Internal Revenue Service of an
adverse determination letter as to the qualified status of the
Plan under Section 401 of the Code, or shall be necessary to bring
the provisions of this Plan into conformity with any applicable
law or regulation so that contributions of the Participating
Employers hereunder and dividend payments shall
be deductible for federal income tax purposes, or so that interest
paid on any ESOP Loan shall be subject to the exclusion available
under Section 133 of the Code, or to satisfy the prohibited
transaction exemption requirements under the Code and ERISA, or
shall be necessary in order to qualify the Trust by which this
Plan is funded as exempt from tax under Section 501 of the Code,
or to continue the qualified status of such Trust; or
(ii) permit any portion of the Fund to be used
for or diverted to purposes other than (A) for the exclusive
benefit of Participants, their Beneficiaries or estates, and (B)
for the administrative expenses of this Plan; or
(iii) cause any part of the Fund to revert to
any of the Employing Companies (except as provided in paragraph
(i) above or in Section 25.1); or
(iv) increase the duties or liabilities of the
Trustee without its consent;
provided, that any modification or amendment which would result in
the loss by the Plan of its qualified status under Section 401 of
the Code, or in the loss by the Trust of its tax exempt status
under Section 501 of the Code, shall be retroactively null and
void as if such amendment had never been made.
69
<PAGE>
(b) All Participating Employers and their Employees,
and all Participants and their Beneficiaries and estates, shall be
bound by any amendment effected by the Company pursuant to this
Section.
18.2. Termination by a Participating Employer. Every
---------------------------------------
Participating Employer reserves the right to terminate its
participation in this Plan voluntarily as of any specified current
or future date (or, if no date be specified, as of the date of
delivery of the certified copy of the authorizing resolution to
the Trustee as hereinafter required) by action of its Board of
Directors and by delivering a certified copy of the resolution by
which such action is taken to the Committee and to the Trustee.
In addition, the participation of any Participating Employer in
this Plan shall be automatically terminated upon a dissolution of
such Participating Employer (but not upon a merger, consolidation,
reorganization or recapitalization thereof if the surviving
corporation therein is a Subsidiary and is already a Participating
Employer or specifically assumes this Plan and agrees to be bound
by the terms hereof), or upon such Participating Employer being
legally adjudicated a bankrupt, or upon the appointment of a
receiver or trustee in bankruptcy with respect to such Partici-
pating Employer's assets and business if such appointment is not
set aside within 90 days thereafter, or upon the making by such
Participating Employer of a general assignment for the benefit of
creditors, or if such Participating Employer ceases to be a
Subsidiary. Upon a termination of participation as aforesaid, or
in the event of a complete and permanent discontinuance of
contributions to this Plan by a Participating Employer (whether or
not pursuant to action by its Board of Directors and whether or
not, if pursuant to such action, a certified copy of the
authorizing resolution is delivered to the Trustee), no additional
Employees of such Participating Employer shall become eligible to
participate herein, and any undistributed balance in any Account
shall immediately and fully vest in favor of the person for whom
such Account was established and shall become non-forfeitable.
Should a partial termination of this Plan occur, as determined in
accordance with Federal law and regulation, such partial
termination shall have the same effect as, and shall be treated
the same as, a termination of the Plan, except that in such case
the provisions of Sections 18.3(b) and (c) governing termination
shall be applied only to those persons affected by such partial
termination, whose undistributed Account balances shall thereupon
be immediately fully vested and non-forfeitable.
18.3. Disposition of Assets on Termination. (a)
------------------------------------
Notwithstanding that the participation of a Participating Employer
in this Plan may be terminated pursuant to Section 18.2, the Trust
by which this Plan is funded shall continue in full effect, but
the Trustee shall make a valuation of the Fund as of the date of
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<PAGE>
such termination of participation in the manner provided with
respect to regular valuations, and shall segregate from the Fund
all Shares and other investments attributable to the Accounts of
all Participants then or theretofore employed by such terminating
Participating Employer which have vested and become
non-forfeitable.
(b) If the terminating Participating Employer has
ceased doing business or has been dissolved, or if any other event
has occurred as a result of which no Participant continues to be
employed by such Participating Employer (so that all such
Participants shall be deemed to have severed their employment with
such Participating Employer within the meaning of Section
402(d)(4)(A)(iii) of the Code), the Trustee shall distribute to
each Participant formerly employed by such Participating Employer
the Participant's proportionate share of the assets segregated
from the Fund in the manner provided above, as reflected by the
Participant's adjusted Account balance, less distribution
expenses. Until the segregated assets have been fully
distributed, the Trustee shall continue to possess all powers,
rights, privileges and immunities with which it was invested by
the Trust Agreement, and shall have all such other powers as are
necessary or appropriate to the completion of such distribution,
and all expenses of administration of the segregated assets shall
be charged to and paid out of such assets.
(c) If, notwithstanding the termination, all or any
of the Participants shall continue in the employ of such
terminating Participating Employer or of an entity so related to
such terminating Participating Employer that such Participants
shall be deemed not to have severed their employment with it
within the meaning of Section 402(d)(4)(A)(iii) of the Code, the
assets which would otherwise be distributable to them shall be
retained by the Trustee, which shall continue to administer such
assets subject to the provisions of the Trust, until such time as
the same shall be otherwise distributable under this Plan, and
during such administration, all expenses of administration of such
amounts shall be charged to and paid out of such assets.
(d) Notwithstanding anything to the contrary in this
Section, distributions may be made to the former employees of the
terminating Participating Employer if permitted under Section
401(k)(10) of the Code.
18.4. Effect of Termination by the Company. If the Company
------------------------------------
terminates its participation in this Plan, such termination shall
result in the immediate termination of this Plan in its entirety,
as to all Participating Employers, whereupon every Account which
contains an undistributed balance shall immediately and fully vest
in favor of the person for whom it was established, and shall
become non-forfeitable.
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<PAGE>
18.5. Effect of Termination of ESOP Loan. If for any
----------------------------------
reason it shall be necessary or desirable to terminate or
partially terminate an outstanding ESOP Loan prior to its original
termination date, including but not limited to (a) the termination
of the ESOP Loan provisions of this Plan or the Plan otherwise
ceasing to qualify to maintain any ESOP Loan, (b) the occurrence
of a default under such loan, or (c) the occurrence of any event
which increases the interest rate payable on such loan or results
in the Company purchasing or assuming such loan, the Trustee shall
repay any outstanding ESOP Loan (or the part thereof to be
terminated) first using the assets (if any) then held in the ESOP
Loan Suspense Account and then using assets held in the ESOP Loan
Payment Accumulation Account, as directed by the Committee and
permitted under the terms of the ESOP Loan and Section 4975 of the
Code and the regulations promulgated thereunder. Unless the Plan
is also terminated at such time, termination of all or part of an
ESOP Loan shall not affect the operation of other Plan provisions.
72
<PAGE>
ARTICLE XIX
ADMINISTRATIVE COMMITTEE
------------------------
19.1. Appointment. The actual administration of this Plan
-----------
shall be conducted by a Committee of not less than three (3)
persons appointed from time to time by, and to serve at the
pleasure of, the Chief Financial Officer of the Company. The
number of persons constituting the Committee may be increased or
decreased (but not below three) at any time and from time to time
by such Officer. Any officer, director or Employee of any of the
Employing Companies may be appointed to the Committee, but
Committee members need not be either Employees or Participants.
Any member of the Committee may resign by delivering a written
resignation to the Chief Financial Officer of the Company and to
the then-acting Secretary of the Committee. The members of the
Committee shall serve as such without compensation.
19.2. Organization. The members of the Committee shall
------------
elect a Chairman (who shall be a member of the Committee) and a
Secretary (who may, but need not, be a member of the Committee),
who shall have the powers and duties usually incident to their
respective offices. The Committee may appoint from its membership
such subcommittees, and delegate such of its powers thereto, as it
may determine, and may authorize one or more of its members, or
any agent, to execute and deliver any instrument, or, on its
behalf, to authorize or direct any payment or distribution
permitted or required by this Plan. The Committee may delegate to
any agents such duties and powers, both ministerial and
discretionary, as it deems appropriate, by an instrument in
writing which specifies which such duties are so delegated and to
whom each such duty is so delegated.
19.3. Powers. The Committee shall have full power and
------
authority to administer this Plan in all respects, including
without limitation, full power and authority:
(a) To construe the Plan and to determine all
questions which may arise thereunder relating to the
administration of the Plan, including questions relating to the
eligibility of Employees to participate in the Plan and the status
and rights of Participants, Beneficiaries, and other persons
hereunder; provided, however, that if the Committee deems any
language of this Plan so ambiguous or unclear that its reasonable
meaning or application cannot be determined, the Committee may, if
it so desires and in its sole discretion, submit such language to
the Board with a request that it adopt a resolution interpreting
such language or establishing rules for its application, and any
such resolution adopted by it shall be binding upon all parties
interested in the Plan. If the Committee so desires, it may (but
need not) submit such language to counsel for interpretation prior
73
<PAGE>
to requesting action by the Board. Unless the Board has adopted a
particular interpretation of specific Plan language, or has
established rules for its application, any decision of, or action
taken by, the Committee shall be final and binding upon all
parties interested in the Plan. Any discretionary actions taken,
or rules adopted by the Committee or the Board, shall be adminis-
tered uniformly and applied with equal effectiveness and in a
non-discriminatory manner to all persons similarly situated.
(b) To establish limitations on changes in
investments by Participants as may be necessary to assure
compliance with any contractual restrictions governing any fund,
guaranteed interest contract or other investment, and, in its sole
discretion, to establish rules and regulations governing, and to
administer, loans and hardship withdrawals hereunder, including
all necessary processing and the exercise of any discretion
associated therewith.
(c) To modify or amend this Plan and the Trust
Agreement, at any time and from time to time, effective as of any
specified current, prior or future date, provided, however, that
the Committee shall have no authority to:
(i) Add or remove any Participating Employer;
or
(ii) Except as provided in subsection (d)
below, change any provision relating to the Company Matching
Contribution formula, participation, eligibility to participate,
vesting, withdrawals, distributions, or limitations on
contributions or benefits, except in regard to procedural or
technical matters in a way calculated to lessen administrative
burdens or as necessary to comply with applicable law.
(d) To implement the ESOP Loan provisions of this
Plan, including but not limited to (i) directing the Trustee with
regard to any ESOP Loan, and (ii) determining the Supplemental
Contribution under Section 6.3 for any Plan Year and the
Participants to whom it shall be allocated.
(e) To appoint an agent for service of process in
any action or proceeding involving this Plan, who may (but need
not) be either a member of the Committee, an Employee or a
Participant.
(f) To employ such counsel, accountants and agents
(who may serve any of the Employing Companies in a similar
capacity) and to contract for such clerical and accounting
assistance, and to delegate ministerial authority (including the
authority to instruct the Trustee respecting the amount and time
74
<PAGE>
for payment of any benefit hereunder, and the identity of the
payee(s) thereof) to such person(s) selected by it, as it may deem
necessary or desirable, and all fees, charges and costs incurred
thereby shall be treated as an expense of the Plan and paid in the
manner provided for other expenses of the Plan.
(g) The Committee shall have no obligation or right
to manage or direct the investment of the Fund, except the right
to direct the Trustee as to which, if any, collective investment
funds shall be selected for the Investment Funds.
(h) To require such information from Participants as
it may deem necessary, in its absolute discretion, to make
determinations as to the status of paternity or maternity leaves,
marital status or the location of a Participant's spouse, or the
adequacy of any hardship circumstance as contemplated under
Article XIV.
(i) To make such determinations concerning the
qualified status of domestic relations orders affecting
Participants as are required by law and to adopt such rules and
procedures relating thereto as the Committee deems appropriate in
its absolute discretion.
(j) To direct the Trustee to enter into ESOP Loans
approved by the Board and otherwise meeting the criteria set out
in Article VIII.
(k) To adopt procedures designed to safeguard the
confidentiality of information relating to the purchase, holding,
and sale of Shares and the exercise of voting, tender and similar
rights with respect to such Shares by Participants and Beneficia-
ries. The Committee shall be responsible for insuring that such
procedures are sufficient to safeguard the confidentiality of such
information, that such procedures are being followed, and that an
independent fiduciary is appointed to carry out activities
relating to any situations which the Committee determines involve
a potential for undue Company influence upon Participants and
Beneficiaries with regard to the direct or indirect exercise of
shareholder rights.
19.4. Forms and Procedures. The Committee shall adopt all
--------------------
forms and procedures it deems necessary or appropriate for the
administration of this Plan and may change such forms and
procedures from time to time as it sees fit. In instances in
which no time period is stated in this Plan, the Committee shall
adopt reasonable time periods for the doing of any act, which may
take the form of a required notice period in advance of the date
on which an action is to become effective or of a period after
some event during which, or upon the expiration of which, an
action may be timely taken. The Committee shall have the power,
75
<PAGE>
under uniform and non-discriminatory rules, and for good cause or
administrative convenience, to waive strict adherence to any time
period or other requirement stated in this Plan or established by
the Committee.
19.5. Meetings. The Committee shall hold meetings upon
--------
such notice, at such place or places, and at such time or times as
it may from time to time determine, and may, if it so desires, by
resolution, provide for regular meetings. In lieu of any meeting,
the Committee may act by written consent signed by a majority of
the members of the Committee and filed with the Secretary thereof,
whether executed before or after the stated effective date
thereof, and such consent shall have the same effect as if the
action thereby taken had been taken at a meeting duly called and
held.
19.6. Records. The Secretary of the Committee shall keep
-------
records of all meetings of the Committee and shall forward all
necessary communications to the Trustee. The Committee shall
preserve the accounts of the fiscal transactions of the Plan
submitted by the Trustee, and shall keep in convenient form such
data as may be necessary for calculating the financial condition
of the Plan and for determining any benefit or other right
hereunder.
19.7. Applications for Benefits; Appeal From Denial of
------------------------------------------------
Benefits. Any application for any payment, distribution,
- --------
withdrawal or loan under this Plan, whether by a Participant or by
a Beneficiary, shall be submitted in accordance with procedures
prescribed by the Committee. Any properly completed application
submitted to the Committee shall constitute a claim under the
Plan, and the Committee shall then grant or deny such claim as
soon as is reasonably practicable. The Committee shall render its
decision on the claim not later than 90 days after receipt of the
claim, and shall notify the claimant of its decision; provided,
however, that in special circumstances, as found by the Committee,
the Committee may by notice to the claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 180 days after
the receipt of the claim. In any instance where a claim is denied
in whole or in part by the Committee, the Committee shall
forthwith furnish a copy of its decision to the claimant, in
writing, setting forth the following:
(a) The specific reason or reasons for the denial of
the claim;
(b) Specific reference to the pertinent Plan
provision(s) on which such denial is based;
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<PAGE>
(c) If the denial was occasioned by the failure of
the claimant to furnish any necessary information, a description
of the additional information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and
(d) Appropriate information as to the steps to be
taken if the claimant wishes to submit the claim for review.
Any claimant whose application for payment, distribution,
loan or withdrawal has been denied may appeal such denial by
filing an appeal and request for review with the Committee not
later than 60 days after receipt of the notice of denial of the
claim. The Committee shall then promptly review its decision,
reconsidering the facts of the case and taking into account any
new or additional information which may be submitted by the
claimant, and shall render its decision not later than 60 days
after receipt of the appeal and request for review; provided,
however that in special circumstances, as found by the Committee,
the Committee may by notice to the Claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 120 days after
the receipt of the request for review. In connection with such
review, the claimant or a duly authorized representative may
review all pertinent documents and records and may submit issues
and comments in writing. The Committee's decision on the appeal
shall be reported to the claimant, in writing, in the same manner
as an original decision, and no further appeal to the Committee
shall be permitted under this Plan.
19.8. Liability of Committee. (a) The Committee shall be
----------------------
responsible only for its own acts and omissions, and except as
provided in ERISA Section 405 (29 U.S.C. Section 1105) shall have no
liability to any person or party whomsoever for the acts or
omissions of others. The Company shall indemnify any person who
is, or is threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that such person is or was a member of the Committee, against
expenses (including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, to the extent
and under the circumstances permitted by ERISA, but not as to any
matter in which such person shall be finally adjudged in such
action, suit or proceeding (i) to be liable for misconduct in the
performance of such person's duties as such member or (ii) to have
breached with respect to the Plan or its Trust any fiduciary duty
imposed on such person by ERISA for which personal liability is
imposed on such person and, in either instance, for which
77
<PAGE>
indemnification would be contrary to public policy, as set forth
in any applicable statute or judicial decision. The foregoing
right of indemnification shall extend to any action, suit or
proceeding which may be settled or compro-mised prior to final
judgment, and shall not be exclusive of any other rights to which
any such Committee member may be entitled as a matter of law.
(b) Such indemnification (unless ordered by a court)
shall be made as authorized in a specific case upon a
determination that indemnification of the Committee member is
proper in the circumstances because such person has met the
applicable standards of conduct set forth in ERISA. Such
determination shall be made (i) by the Board by a majority vote of
a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Company. Expenses
incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final
disposition of the action, suit or proceeding as authorized by the
Board in a specific case, upon receipt of an undertaking by or on
behalf of the Committee member to repay such amount unless it
shall ultimately be determined that such person is entitled to be
indemnified by the Company as authorized by ERISA and this
Article.
(c) The foregoing right of indemnification shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, or vote
of stockholders or disinterested members of the Board, both as to
action in the person's official capacity as a member of the
Committee and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
Committee member and shall inure to the benefit of the heirs,
executors and administrators of such person.
(d) The Board may authorize, to the extent permitted
by ERISA, the purchase and maintenance of insurance on behalf of
any person who is or was a member of the Committee against any
liability asserted against such person and incurred by such person
in such capacity or arising out of such person's status as such.
(e) Except as otherwise required by law, no bond or
other security shall be required of any member of the Committee
for the faithful performance of such person's duties as such.
19.9. Standard of Review. The Committee shall perform its
------------------
duties as the Committee in its sole discretion shall determine is
78
<PAGE>
appropriate in light of the reason and purpose for which the Plan
is established and maintained. In particular, the interpretation
of all plan provisions, and the determination of whether a
Participant or Beneficiary is entitled to any benefit pursuant to
the terms of the Plan, shall be exercised by the Committee in its
sole discretion. Any construction of the terms of the Plan for
which there is a rational basis that is adopted by the Committee
shall be final and legally binding on all parties.
Any interpretation of the Plan or other action of the Committee
made in its sole discretion shall be subject to review only if
such an interpretation or other action is without a rational
basis. Any review of a final decision or action of the Committee
shall be based only on such evidence presented to or considered by
the Committee at the time it made the decision that is the subject
of the review. Any Participating Employer and any Employee who
performs services for an Employer that are or may be compensated
for in part by benefits payable pursuant to this Plan, hereby
consents to actions of the Committee made in its sole discretion
and agrees to the narrow standard of review prescribed in this
Section.
79
<PAGE>
ARTICLE XX
PROHIBITION AGAINST VOLUNTARY OR INVOLUNTARY ASSIGNMENTS
--------------------------------------------------------
20.1. No Liability for Participants' Debts. Except as
------------------------------------
otherwise required by law or provided in Article XV, neither this
Plan nor the Trust by which it is funded shall be liable for or
subject to the debts or liabilities of any Participant or
Beneficiary hereunder, and no amount payable hereunder shall at
any time or in any manner be subject to alienation, sale,
transfer, assignment, pledge or encumbrance of any kind.
Notwithstanding the foregoing, this Plan shall comply with the
terms of any domestic relations order which is found by the
Committee to be "qualified" in accordance with Section 414(p) of
the Code. Any such order which is found by the Committee not to
be so qualified shall not be complied with. The Committee shall
adopt written procedures for making determinations concerning the
qualified status of domestic relations orders.
80
<PAGE>
ARTICLE XXI
COMPETENCY OF DISTRIBUTEES
--------------------------
21.1. Distributees Presumed Competent. Every person
-------------------------------
receiving or claiming any benefit under this Plan shall be
conclusively presumed to be mentally competent and of legal age
until the Committee and/or Trustee receives a written notice, in
form and substance acceptable to them, that any such person is
incompetent, is a minor or that a guardian or other individual
legally vested with the care of the person's estate has been
appointed.
21.2. Facility of Payment. (a) If any amount is payable
-------------------
hereunder to a minor or other person under legal disability or
otherwise incapable of managing such person's own affairs, as
determined by the Committee, payment thereof shall be made in one
(or any combination) of the following ways, as the Committee shall
determine in its sole discretion:
(i) directly to said minor or other person;
(ii) to a custodian for said minor or other
person (whether designated by the Committee or any other person)
under the Missouri Transfers to Minors Law, the Missouri Personal
Custodian Law or a similar law of any other jurisdiction;
(iii) to the conservator of the estate of said
minor or other person; or
(iv) to some relative or friend of such minor
or other person for the support, welfare or education of such
minor or other person.
(b) If the Committee determines that any amount
shall be paid to a relative or friend of such minor or other
person for the support, welfare or education of such minor or
other person, and the amount would otherwise be required to be
distributed in the form of Shares, the relative or friend to whom
such amount is payable shall have the right to elect that the
entire distribution be made in the form of cash rather than
Shares.
(c) The Committee shall not be required to see to
the application of any payment made pursuant to this Section 21.2,
and the receipt of the person to whom such payment is actually
made shall fully discharge the Committee from any further
accountability or responsibility with respect to the amount so
paid.
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<PAGE>
ARTICLE XXII
BECOMING A PARTICIPATING EMPLOYER
---------------------------------
22.1. Authorization and Procedure. (a) Any Subsidiary
---------------------------
may, with the consent of the Chief Financial Officer of the
Company, adopt this Plan and become a Participating Employer
hereunder. Any such Subsidiary which desires to become a
Participating Employer shall deliver to the Committee an executed
participation agreement which is satisfactory to the Committee in
form and substance. Thenceforth such entity shall be a
Participating Employer hereunder for all purposes and shall be
bound by each and every provision of this Plan and of the Trust
Agreement.
(b) Each new Participating Employer shall deliver or
cause to have delivered to the Committee such information as the
Committee may request for purposes of implementing the Plan as
regards such Participating Employer and such of its Employees as
are or may become eligible to participate herein.
22.2. Effect of Being a Participating Employer. Except as
----------------------------------------
hereinafter provided in this Section, the contributions made by
each Participating Employer shall be credited, and forfeitures
reducing its contributions shall be reallocated, only to the
Accounts of those Participants who are employed by it. The
transfer of a Participant from the employ of one Participating
Employer to the employ of another Participating Employer shall not
result in the termination of such Participant's participation in
this Plan. However, in the event of any such transfer, the
Committee shall thereupon annotate such Participant's Account so
as to clearly identify it with the Participating Employer by which
such Participant is then employed. If any such transferred
Participant thereafter terminates employment with the Employing
Companies under any circumstance giving rise to a forfeiture, any
such forfeiture shall be allocated among the Participating
Employers whose contributions were credited to such Participant's
Account, in the ratio that the unvested amounts contributed for
such Participant by each such Participating Employer bears to the
total unvested amounts contributed for such Participant by all
Participating Employers.
22.3. Pooled Funds. Notwithstanding that there may be more
------------
than one Participating Employer, there shall be but a single
Trust, consisting of such separate Investment Funds as are
required under this Plan, and the Trustee shall invest and
reinvest each of such Investment Funds as a single investment
pool. The Trustee shall not be required to segregate the Account
of any Participant for separate investment or otherwise, though
separate records of all Participant's Accounts shall be maintained
as required by Article X hereof.
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<PAGE>
22.4. Costs and Expenses. Any costs and expenses of
------------------
operating and administering this Plan that are to be paid by the
Participating Employers may be paid in full by the Company, and
each Participating Employer shall then reimburse the Company for
its equitable share thereof, as determined by the Committee in its
sole discretion.
22.5. Adoption of Plan Conditional. The adoption of this
----------------------------
Plan by a Participating Employer shall be conditioned on such
action not adversely affecting the qualified status of the Plan,
or the tax exempt status of the Trust by which it is funded,
whether determined with respect to the Plan and Trust as existing
prior to the participation of such Participating Employer or as
regards the participation thereof.
83
<PAGE>
ARTICLE XXIII
LIMITATIONS APPLICABLE TO
ALL CONTRIBUTIONS TO THIS PLAN
------------------------------
23.1. Special Limitation on Annual Additions For Any
----------------------------------------------
Participant For Any Year. (a) No Participant shall have an
- ------------------------
annual addition to the Participant's Account for any calendar year
in excess of the amount then permitted under Section 415 of the
Code.
(b) If a Participant shall, as a result of errors in
estimating compensation or in determining the amount of elective
deferrals (within the meaning of Code Section 402(a)(3)) that may
be made with respect to any individual under the limits of Code
Section 415, have allocated to accounts under this Plan and all
other defined contribution plans maintained by the Employing
Companies which are "qualified" under Section 401(a) of the Code,
an annual addition greater than the limit set out under Section
415 of the Code, such Participant's account under any other such
defined contribution plan shall be reduced before any reductions
are made to such Participant's account under this Plan. If such
other defined contribution plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions are
required under this Plan, such Participant's Personal and Company
Contributions under this Plan shall be reduced or refunded as
necessary in accordance with procedures established by the
Committee.
(c) In the case of a Participant who also
participates in a defined benefit plan(s) which is maintained by
the Employing Companies and which is "qualified" under Section
401(a) of the Code, the sum of such Participant's "defined benefit
plan fraction" and such Participant's "defined contribution plan
fraction" for any year shall not exceed the limit provided in
Section 415 of the Code. If such fractions would exceed this
limit, benefits shall be reduced or eliminated under such defined
benefit plan, to the extent necessary to comply with Section 415
of the Code, before any reduction of benefits shall be made under
this Plan. If such other plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions are
required under this Plan, such Participant's Personal and Company
Contributions under this Plan shall be reduced in accordance with
procedures established by the Committee.
(d) For purpose of this Section, "annual addition"
shall mean the sum of the Before-Tax Contributions, After-Tax
Contributions, Company Matching and Supplemental Contributions
allocated to the account of a Participant for the limitation year.
The terms compensation, defined benefit plan fraction and defined
84
<PAGE>
contribution plan fraction shall have the meanings provided in
Section 415 of the Code. Section 415 of the Code, as in effect
from time to time, and regulations promulgated thereunder, are
incorporated herein by reference.
85
<PAGE>
ARTICLE XXIV
SPECIAL RULES FOR YEARS
WHEN PLAN IS TOP-HEAVY
----------------------
24.1. Special Definitions and Rules of Construction. For
---------------------------------------------
purposes of applying the special rules set out in this Article the
following terms shall have the following meanings:
(a) "Top-Heavy". Unless the Plan is required to be
---------
included in an aggregation group, this Plan will be a top-heavy
plan with respect to any Plan Year if, as of the determination
date, the aggregate of the Accounts of Key Employees under the
Plan exceeds 60 percent of the aggregate of the Accounts of all
Employees under the Plan. If the Plan is required to be included
in an aggregation group for any Plan Year, the Plan will be
top-heavy with respect to such Plan Year if the aggregation group
is a top-heavy group.
(b) "Aggregation Group". Each plan of the Employing
-----------------
Companies in which a Key Employee is a Participant, and each other
plan of the Employing Companies which enables any plan in which a
Key Employee participates to meet the requirements of Sections
401(a)(4) or 410 of the Code. The Company may at its option treat
any plan not required to be included in an aggregation group
pursuant to the preceding sentence as being part of such group if
such group would continue to meet the requirements of such
Sections 401(a)(4) and 410 with such plan being taken into
account.
(c) "Top-Heavy Group". Any aggregation group if:
---------------
(i) the sum (as of the determination date) of:
(A) the present value of the cumulative
accrued benefits for Key Employees under all defined benefit
plans included in such group, and
(B) the aggregate of the accounts
(adjusted to include contributions due as of such determina-
tion date) of Key Employees under all defined contribution
plans included in such group,
(ii) exceeds 60 percent of a similar sum
determined for all employees under such plans.
For purposes of determining the present value of the cumulative
accrued benefit for any Employee or the amount of the account of
any Employee,
(iii) such present value or amount shall be
increased by the aggregate distributions made with respect to such
86
<PAGE>
employee under the plan during the 5-year period ending on the
determination date (including distributions under any terminated
plan which, if it had not been terminated, would have been
required to be included in an aggregation group) and (iv) the
valuation date shall be the most recent valuation date occurring
within a twelve-month period ending on the determination date.
(d) "Determination Date". With respect to any plan
------------------
year, the last day of the preceding plan year or, in the case of
the first plan year of a plan, the last day of such first plan
year. In the case of an aggregation group, a separate
determination shall be made each calendar year for each plan
within such aggregation group, as of each such plan's
determination date which falls within such calendar year. The
results of the separate determinations within the same calendar
year shall then be added to determine the status of the
aggregation group.
(e) "Key Employee". An Employee who, at any time
------------
during the Plan Year in question or any of the four preceding Plan
Years, is or was:
(i) an officer of the Employing Companies
having an annual compensation from the Employing Companies greater
than 150 percent of the amount in effect under Section
415(c)(1)(A) of the Code for such Plan Year;
(ii) one of the ten employees having annual
compensation from the Employing Companies of more than the
limitation in effect under Section 415(c)(1)(A) of the Code and
owning (or considered as owning, within the meaning of Section 318
of the Code) the largest interests in the Employing Companies;
(iii) a 5-percent owner of the Employing
Companies; or
(iv) a 1-percent owner of the Employing
Companies having aggregate annual compensation from the Employing
Companies combined in excess of $150,000; provided, however, that
--------
no more than 50 Employees in the aggregate (or, if less, the
greater of 3 or 10 percent of the Employees of the Employing
Companies) shall be treated as officers. For purposes of clause
(ii), if two or more Employees have the same interest in the
Employing Companies, the Employee having greater annual compensa-
tion from the Employing Companies shall be treated as having a
larger interest.
(f) "5-percent Owner". Any person who owns (or is
---------------
considered as owning within the meaning of Section 318 of the
87
<PAGE>
Code) more than 5 percent of the outstanding stock of the
Employing Companies or stock possessing more than 5 percent of the
total combined voting power of all stock of the Employing Compa-
nies.
(g) "1-percent Owner". Any person who owns (or is
---------------
considered as owning within the meaning of Section 318 of the
Code) more than 1 percent of the outstanding stock of the
Employing Companies or stock possessing more than 1 percent of the
total combined voting power of all stock of the Employing Compa-
nies.
(h) "Non-Key Employee". Any Employee who is not a
----------------
Key Employee.
(i) For purposes of this Article, subparagraph (C)
of Section 318(a)(2) of the Code shall be applied by substituting
"5 percent" for "50 percent," and the rules of subsections (b),
(c), and (m) of Section 414 of the Code shall not apply for
purposes of determining ownership.
(j) The terms Employee and Key Employee include
their Beneficiaries.
(k) This Article shall not apply with respect to any
Employee included in a unit of Employees covered by an agreement
which the Secretary of Labor finds to be a collective bargaining
agreement between Employee representatives and one or more
employers if there is evidence that retirement benefits were the
subject of good faith bargaining between such employee
representatives and such employer or employers.
(l) If any individual is a Non-Key Employee with
respect to the Plan for any Plan Year, but was a Key Employee with
respect to the Plan for any prior Plan Year, the Account of such
individual shall not be taken into consideration in making the
determinations hereunder.
(m) If any individual has not received any
compensation from the Employing Companies (other than benefits
under this Plan) at any time during the five-year period ending on
the applicable determination date, the Account of such individual
shall not be taken into consideration in making the determination
hereunder.
24.2. Special Rules Applicable to Top-Heavy Years. If this
-------------------------------------------
Plan is a top-heavy plan for any Plan Year, then:
(a) Notwithstanding any provisions herein to the
contrary, no Key Employee may have allocated to the Key Employee's
88
<PAGE>
Account for such Plan Year Before-Tax, Company Matching or
Supplemental Contributions which, expressed as a percentage of the
Key Employee's Compensation, exceed the Company Matching and
Supplemental Contribution also expressed as a percentage of
Compensation, of that Non-Key Eligible Employee whose Company
Matching and Supplemental Contribution is the lowest percentage.
The percentage calculations required by this subsection shall be
made treating all defined contribution plans of the Company
included in the aggregation group of plans as if they were a
single plan, and any reduction in Before-Tax, Company Matching and
Supplemental Contributions required by this provision shall be
effected out of Before-Tax, Company Matching and Supplemental
Contributions to this Plan first, before being allocated to any
other plan. If the Before-Tax, Company Matching and Supplemental
Contributions which would otherwise be allocated to a Key Employee
are reduced by operation of this provision, excess Personal
Contributions shall be refunded to the Participant without
penalty, to the end that the Participant's Personal Contributions
for the Plan Year in question do not exceed the amount the Key
Employee would have contributed in order to receive only the
recalculated Company Matching and Supplemental Contribution
amount;
(b) The provision in (a) above shall not apply to
any Non-Key Eligible Employee to the extent the Non-Key Eligible
Employee is covered under any other plan or plans of an Employing
Company if any such other plan is a defined benefit plan under
which the Non-Key Eligible Employee shall receive the minimum
accrued benefit required by Section 416(c) of the Code; and
(c) Paragraphs (2)(b) and (3)(b) of Section 415(e)
of the Code shall be applied by substituting "1.0" for "1.25" if
the aggregate value of the accounts of Key Employees exceeds 90%
of the aggregate value of the accounts of all Employees under the
Plan or if the sum referred to in Section 23.1(c)(i) above exceeds
90% of a similar sum determined for all employees under all plans
in the aggregation group.
(d) For purposes of this Article, the term
"compensation" shall be the amount of compensation determined
under the provisions of Section 415(c)(3) of the Code.
24.3. Operating Rules. (a) Contributions or benefits
---------------
under chapter 2 (relating to tax on self-employment income),
chapter 21 (relating to Federal Insurance Contributions Act) of
the Code, or title II of the Social Security Act, or any other
Federal or State law shall not be taken into account in applying
Section 24.2.
(b) This Article shall be applied to all plans
maintained by the Employing Companies in a manner consistent with
89
<PAGE>
regulations promulgated by the Secretary of the Treasury under the
authority granted by Section 416(f) of the Code.
(c) This Article is included solely to permit the
Plan to comply with Section 416 of the Code. Should this Plan
ultimately be excused or exempted from the operation of such
Section, either by statutory amendment or by any regulation or
ruling of the U.S. Treasury or the Internal Revenue Service, this
Article shall immediately and automatically be null and void and
of no further force or effect.
90
<PAGE>
ARTICLE XXV
MISCELLANEOUS
-------------
25.1. Return of Contributions. (a) It is the objective
-----------------------
and intention of each Participating Employer that this amended and
restated Plan shall continue to be a qualified plan within the
meaning of Section 401 of the Code, the Trust of which continues
to be exempt from Federal income tax under Section 501 of the
Code. If the Internal Revenue Service rules, upon application to
it for a favorable determination, that this Plan and its related
Trust are so qualified and exempt, all contributions theretofore
made by any Participating Employer shall be subject to the
provisions of this Plan in all respects and may not be diverted to
purposes other than the exclusive benefit of Participants and
their Beneficiaries and estates and the payment of the
administrative expenses of this Plan, and may not be returned to
any Participating Employer.
(b) Notwithstanding the foregoing or any other
contrary provision herein contained, any erroneous Company
Matching or Supplemental Contribution which is made by a mistake
of fact may be returned to the Participating Employer which made
such contribution if the mistake of fact is discovered and the
return of such contribution is completed within one year after the
payment of such contribution to the Plan. Furthermore, if after
the Internal Revenue Service rules that the Plan and Trust are
qualified and exempt, as contemplated by subsection (a) above, any
deduction for any Company Contribution hereto is denied as not
allowable under Section 404(a)(3) of the Code, then such
contribution, to the extent of such disallowed deduction, may be
returned to the Participating Employer which made such contribu-
tion within one year after the disallowance of such deduction.
Each and every Company contribution made pursuant to this Plan is
contingent upon the allowance of a deduction for such contribution
under Section 404 of the Code.
25.2. Limitations of Liability and Rights. (a)
-----------------------------------
Participation in this Plan shall not give any Participant any
rights to any amounts hereunder except as specifically provided in
this Plan, and no one in the employ of any Participating Employer,
and no Participant or Beneficiary, shall be entitled to any
amounts hereunder except to the extent that a right thereto is
specifically fixed by the terms of this Plan and the assets of the
Trust by which this Plan is funded are sufficient therefor.
(b) Except as provided in ERISA Section 405 (29
U.S.C. Section 1105), no Participating Employer, no officer, director or
stockholder of any Participating Employer, and no member of
91
<PAGE>
the Committee, shall be liable for any act or omission of the
Trustee with respect to its investment or administration of the
Trust which is a part of this Plan.
(c) The establishment of this Plan shall not give
any person any right to be continued in the employ of any
Participating Employer or any of the Employing Companies, nor
shall it interfere with or limit any right of any of the Employing
Companies to terminate the employment of any person at any time.
25.3. General Administration and Expenses. Except with
-----------------------------------
respect to such duties as have specifically been delegated to the
Committee, the Trustee or others hereunder, or which require the
exercise of discretion, the Company or its nominees (who may be
Employees) may perform all ministerial activities necessary to the
efficient administration of this Plan, may maintain all proper
files and records, and may provide all forms, notices and other
documents in connection herewith. All notices, requests,
directions and other orders or elections for which the Committee
has adopted an official administrative form shall be effective
only if submitted to the Committee on a properly completed and
signed official form. All brokerage fees, commissions, stock
transfer taxes and similar acquisition costs incurred on the
purchase of any security (including any Shares) shall be treated
as additional purchase price and all brokerage fees, commissions,
stock transfer taxes and similar disposition costs incurred on the
sale of any security (including any Shares) shall be treated as a
reduction in sale proceeds, except that stock transfer taxes on
Shares distributable in kind shall be charged against the Account
of the distributee. Except as otherwise provided in the Trust
Agreement, all other expenses of the Plan and its administration
may be paid by the Participating Employers, in such proportions as
the Company shall determine.
25.4. Notice of Address. It is the duty of every
-----------------
Participant to keep the employer informed of the Participant's
current post office address. Any communication, statement or
notice addressed to a Participant at the latest post office
address on file with the Employing Companies shall be binding upon
such Participant for all purposes, and neither the Committee, the
Trustee nor the Company shall be obligated to search for or
attempt to ascertain the whereabouts of any person, except as
provided in Article XVII.
25.5. Data. Every person entitled to payments hereunder
----
shall furnish such documents, evidence or other information to the
Committee as the Committee may consider necessary or desirable for
the administration of this Plan or for the protection of the Plan,
the Committee or the Trustee. Each such person must furnish such
92
<PAGE>
information promptly and must sign such documents as the Committee
may reasonably require before the person shall receive any payment
or distribution hereunder.
25.6. Trust Agreement Related. The Trust Agreement and
-----------------------
each of the provisions thereof shall be deemed a part of the this
Plan for all purposes, and in case of a conflict between the
provisions of the Trust Agreement and the provisions of this Plan,
the provisions of this Plan shall control.
25.7. Severability Clause. In case any provision of this
-------------------
Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining provisions
of the Plan, and the Plan shall be construed and enforced as if
such illegal and invalid provision had never been included herein.
25.8. Situs. This Plan shall be construed, regulated and
-----
administered according to ERISA.
25.9. Succession. Except as otherwise provided herein,
----------
this Plan and each of the provisions hereof shall be binding upon
each Participating Employer and any corporation(s) resulting from
or surviving any merger, consolidation, reorganization or recap-
italization of a Participating Employer or of a Participating
Employer and one of more other corporations, and any corporation
into which a Participating Employer may be liquidated.
25.10. Execution. This Plan may be executed in any number
---------
of counterparts, each of which so executed shall be deemed to be
an original, and such counterparts shall together constitute one
and the same instrument.
25.11. Merger of Plan or Transfer of Trust Assets. If this
------------------------------------------
Plan is merged or consolidated with any other plan, or if the
assets or liabilities of the Plan are transferred to any other
plan or trust, then each Participant in the Plan shall (if the
Plan shall then be terminated) receive a benefit immediately after
such merger, consolidation or transfer which is equal to or
greater than the benefit the Participant would have been entitled
to receive immediately before such merger, consolidation or
transfer (if the Plan had then terminated).
25.12. Miscellaneous Rules of Construction. (a) Masculine
-----------------------------------
pronouns include the feminine, the singular includes the plural,
and the plural includes the singular, as the context or applica-
tion demands. The words "herein", "hereunder", "hereof" and
similar compounds of the word "here" refer to this entire Plan
unless expressly limited to a particular article, section,
sentence or other subdivision of this Plan or the context
otherwise requires.
93
<PAGE>
(b) Titles to articles and headings of sections in
this Plan are for convenience of reference only, and in case of
conflict, the text of this Plan rather than such titles or
headings shall control.
25.13. Delayed Payments. Notwithstanding any other
----------------
provision of the Plan, if the amount of a payment required to be
paid on a date determined under this Plan cannot be ascertained by
such date, or if it is not possible to make such payment on such
date because the Committee has been unable to locate the
Participant, spouse or Beneficiary (if applicable) after making
reasonable efforts to do so, a payment retroactive to such date
may be made no later than 60 days after the earliest date on which
the amount of such payment can be ascertained or the date on which
such Participant, spouse or Beneficiary is located (whichever is
applicable).
25.14. Mistakes in Benefit Payments. In the event and to
----------------------------
the extent that any payment to a Participant, spouse or
Beneficiary is determined by the Committee to have been in error,
the Committee and the Trustee shall determine the extent of the
error, and shall take action to correct the error in an equitable
manner, as determined in the sole discretion of the Committee,
consistent with the following:
(a) In the event that an amount paid in error is
less than the amount which should have been paid, the Committee
shall direct the Trustee to distribute the difference between the
amount paid and the amount which should have been paid to the
Participant, spouse or Beneficiary;
(b) In the event that the amount paid in error
exceeds the amount which should have been paid, the Committee, to
the extent possible, shall reduce any benefit then remaining
payable to the Participant, spouse or Beneficiary by the excess of
the amount paid over the amount which should have been paid, and
shall make other reasonable efforts to recover such excess from
the Participant, spouse or Beneficiary.
25.15. Reporting Persons. Any Participant who, by virtue
-----------------
of the Participant's position as an officer of the Company, is
subject to the reporting requirements of Section 16(a) of the
Securities Exchange Act of 1934 ("Reporting Person") shall be
expected to report his or her transactions under the Plan as may
be required by such Act. No transaction by a Reporting Person
shall be permitted under the Plan, if such transaction does not
meet the requirements for exemption from the short swing profit
recovery provisions under Rule 16b-3 of the Securities and
Exchange Commission.
94
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Plan by and
through its authorized agents, this 4th day of October, 1996,
--- -------
effective as of the 1st day of April, l996.
ANHEUSER-BUSCH COMPANIES, INC.
By /s/ Jacquelyn G. Johnson
-----------------------------
Jacquelyn G. Johnson
Chair, Administrative
Committee
95
<PAGE>
EX-4.2
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT)
As Amended and Restated Effective April 1, 1996
<PAGE>
<PAGE>
Table of Contents
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(For Employees Covered by a Collective Bargaining Agreement)
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Establishment of Plan . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Action By Company.. . . . . . . . . . . . . . . . . . . . .1
1.2. Named Plan Fiduciaries. . . . . . . . . . . . . . . . . . .2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Definitions of General Applicability. . . . . . . . . . . . . . . . .3
2.1. "Account".. . . . . . . . . . . . . . . . . . . . . . . . .3
2.2. "After-Tax Contributions".. . . . . . . . . . . . . . . . .3
2.3. "Before-Tax Contributions". . . . . . . . . . . . . . . . .3
2.4. "Beneficiary".. . . . . . . . . . . . . . . . . . . . . . .3
2.5. "Base Pay". . . . . . . . . . . . . . . . . . . . . . . . .3
2.6. "Board".. . . . . . . . . . . . . . . . . . . . . . . . . .4
2.7. "Closing Price".. . . . . . . . . . . . . . . . . . . . . .4
2.8. "Code". . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.9. "Committee".. . . . . . . . . . . . . . . . . . . . . . . .5
2.10. "Company". . . . . . . . . . . . . . . . . . . . . . . . .5
2.11. "Company Matching Contributions".. . . . . . . . . . . . .5
2.12. "Company Stock Fund".. . . . . . . . . . . . . . . . . . .5
2.13. "Company Year".. . . . . . . . . . . . . . . . . . . . . .5
2.14. "Consolidated Net Income For Plan Purposes". . . . . . . .5
2.15. "Effective Date".. . . . . . . . . . . . . . . . . . . . .6
2.16. "Eligible Employee". . . . . . . . . . . . . . . . . . . .6
2.17. "Employee".. . . . . . . . . . . . . . . . . . . . . . . .6
2.18. "Employing Companies". . . . . . . . . . . . . . . . . . .6
2.19. "Equity Index Fund". . . . . . . . . . . . . . . . . . . .6
2.20. "ERISA". . . . . . . . . . . . . . . . . . . . . . . . . .6
2.21. "ESOP Loan". . . . . . . . . . . . . . . . . . . . . . . .6
2.22. "ESOP Loan Payment Accumulation Account".. . . . . . . . .7
2.23. "ESOP Loan Suspense Account".. . . . . . . . . . . . . . .7
2.24. "Fund".. . . . . . . . . . . . . . . . . . . . . . . . . .7
2.25. "Highly Compensated Employee". . . . . . . . . . . . . . .7
2.26. "Hour of Service". . . . . . . . . . . . . . . . . . . . .8
2.27. "Indexed Balanced Fund". . . . . . . . . . . . . . . . . 11
2.28. "Managed Balanced Fund". . . . . . . . . . . . . . . . . 11
2.29. "Medium-Term Fixed Income Fund". . . . . . . . . . . . . 12
2.30. "Non-Highly Compensated Employee". . . . . . . . . . . . 12
2.31. "Participant". . . . . . . . . . . . . . . . . . . . . . 12
2.32. "Participating Employer".. . . . . . . . . . . . . . . . 12
2.33. "Personal Contributions".. . . . . . . . . . . . . . . . 12
i
<PAGE>
2.34. "Plan".. . . . . . . . . . . . . . . . . . . . . . . . . 12
2.35. "Plan Year". . . . . . . . . . . . . . . . . . . . . . . 13
2.36. "Processing Period". . . . . . . . . . . . . . . . . . . 13
2.37. "Related Plans". . . . . . . . . . . . . . . . . . . . . 13
2.38. "Share". . . . . . . . . . . . . . . . . . . . . . . . . 13
2.39. "Share Equivalents". . . . . . . . . . . . . . . . . . . 13
2.40. "Short-Term Fixed Income Fund".. . . . . . . . . . . . . 13
2.41. "Subsidiary".. . . . . . . . . . . . . . . . . . . . . . 13
2.42. "Supplemental Contributions".. . . . . . . . . . . . . . 13
2.43. "Taxable Compensation".. . . . . . . . . . . . . . . . . 14
2.44. "Trust Agreement". . . . . . . . . . . . . . . . . . . . 14
2.45. "Trustee". . . . . . . . . . . . . . . . . . . . . . . . 14
2.46. "Unallocated Shares".. . . . . . . . . . . . . . . . . . 14
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Eligibility and Participation . . . . . . . . . . . . . . . . . . . 15
3.1. Eligibility.. . . . . . . . . . . . . . . . . . . . . . . 15
3.2. Becoming a Participant. . . . . . . . . . . . . . . . . . 15
3.3. Re-Employment Following a Break in Service. . . . . . . . 15
3.4. Year of Service; Break in Service.. . . . . . . . . . . . 15
3.5. Transfers of Participants and Lay-Offs. . . . . . . . . . 16
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Matched Contributions . . . . . . . . . . . . . . . . . . . . . . . 18
4.1. Before-Tax Matched Contributions. . . . . . . . . . . . . 18
4.2. After-Tax Matched Contributions.. . . . . . . . . . . . . 18
4.3. Limitation on Total Matched Contributions.. . . . . . . . 18
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Unmatched Contributions . . . . . . . . . . . . . . . . . . . . . . 19
5.1. Contributions Permitted.. . . . . . . . . . . . . . . . . 19
5.2. Before-Tax Unmatched Contributions. . . . . . . . . . . . 19
5.3. After-Tax Unmatched Contributions.. . . . . . . . . . . . 19
5.4. Limitation on Total Unmatched Contributions.. . . . . . . 19
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Company Contributions . . . . . . . . . . . . . . . . . . . . . . . 20
6.1. Required Contributions. . . . . . . . . . . . . . . . . . 20
6.2. Contribution Rate For Company Matching
Contributions.. . . . . . . . . . . . . . . . . . . . . . 21
6.3 Determination of Supplemental Contribution. . . . . . . . 21
6.4. Payment and Payment Date. . . . . . . . . . . . . . . . . 23
6.5. Allocation to Participants' Accounts. . . . . . . . . . . 23
ii
<PAGE>
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Procedures and Limitations. . . . . . . . . . . . . . . . . . . . . 24
7.1. Election Procedures.. . . . . . . . . . . . . . . . . . . 24
7.2. Special Dollar Limitation On Before-Tax
Contributions.. . . . . . . . . . . . . . . . . . . . . . 24
7.3. Required Adjustment of Before-Tax Personal
Contributions.. . . . . . . . . . . . . . . . . . . . . . 25
7.4. Required Adjustment of After-Tax and Company
Matching Contributions. . . . . . . . . . . . . . . . . . 27
7.5. Suspension and Reinstatement of Matched
Personal Contributions After Withdrawal.. . . . . . . . . 29
7.6. Payroll Deductions. . . . . . . . . . . . . . . . . . . . 29
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ESOP Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.1. Terms of ESOP Loan. . . . . . . . . . . . . . . . . . . . 30
8.2. Acquisition of Shares with proceeds of ESOP
Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.3. Shares to be Unrestricted.. . . . . . . . . . . . . . . . 31
8.4. Release from ESOP Loan Suspense Account.. . . . . . . . . 31
8.5. Use of Company and Personal Contributions for
ESOP Loan Payments.. . . . . . . . . . . . . . . . . . . 31
8.6. Use of Dividends for ESOP Loan Payments.. . . . . . . . . 32
8.7. ESOP Loan Payments. . . . . . . . . . . . . . . . . . . . 32
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Investment of Contributions . . . . . . . . . . . . . . . . . . . . 34
9.1. Investment of Company Matching and
Supplemental Contributions. . . . . . . . . . . . . . . . 34
9.2. Investment of the Matched Contributions Part
of an Account.. . . . . . . . . . . . . . . . . . . . . . 34
9.3. Investment of the Unmatched Contributions
Part of an Account. . . . . . . . . . . . . . . . . . . . 34
9.4. A Participant's Investment Direction for
Current Contributions.. . . . . . . . . . . . . . . . . . 34
9.5. A Participant's Investment Direction for
Accumulated Account Balances. . . . . . . . . . . . . . . 34
9.6. Special Diversification After Attainment of
Age 55. . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.7. The Company Stock Fund. . . . . . . . . . . . . . . . . . 35
9.8. The Short-Term Fixed Income Fund. . . . . . . . . . . . . 36
9.9. The Medium-Term Fixed Income Fund.. . . . . . . . . . . . 37
9.10. The Equity Index Fund. . . . . . . . . . . . . . . . . . 37
9.11. The Indexed Balanced Fund. . . . . . . . . . . . . . . . 38
9.12. The Managed Balanced Fund. . . . . . . . . . . . . . . . 39
9.13. The Earthgrains Stock Fund.. . . . . . . . . . . . . . . 39
9.14. Earnings, etc. . . . . . . . . . . . . . . . . . . . . . 40
iii
<PAGE>
9.15. Reports to Participants. . . . . . . . . . . . . . . . . 40
9.16. Voting of Shares.. . . . . . . . . . . . . . . . . . . . 40
9.17. Tendering of Shares and Rights.. . . . . . . . . . . . . 41
9.18. Plan Mergers.. . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Maintenance and Valuation of Accounts . . . . . . . . . . . . . . . 44
10.l. Separate Accounts. . . . . . . . . . . . . . . . . . . . 44
10.2. Company Stock Fund Portion.. . . . . . . . . . . . . . . 44
10.3. Other Investment Fund Portions.. . . . . . . . . . . . . 44
10.4. Transfers Between Funds. . . . . . . . . . . . . . . . . 45
10.5. Valuation of the Fund. . . . . . . . . . . . . . . . . . 45
10.6. Effect of Valuations.. . . . . . . . . . . . . . . . . . 45
10.7. No Liability for Fluctuations in Value.. . . . . . . . . 45
10.8. Adjustments to Accounts. . . . . . . . . . . . . . . . . 46
10.9. Ordering of Distributions. . . . . . . . . . . . . . . . 46
10.10 Unallocated Accounts.. . . . . . . . . . . . . . . . . . 47
10.11.Special Valuation of Company Stock in
Extraordinary Circumstances.. . . . . . . . . . . . . . . 47
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.1. Amounts Contributed by the Participant.. . . . . . . . . 48
11.2. Company Matching and Supplemental
Contributions.. . . . . . . . . . . . . . . . . . . . . . 48
11.3. Vesting Rules. . . . . . . . . . . . . . . . . . . . . . 48
11.4. Change in Control of the Company.. . . . . . . . . . . . 50
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.1. Distributions Upon Termination of
Employment. . . . . . . . . . . . . . . . . . . . . . . . 51
12.2. Time and Method of Distribution. . . . . . . . . . . . . 51
12.3. Eligible Rollover Distributions. . . . . . . . . . . . . 54
12.4. Determination of Disability. . . . . . . . . . . . . . . 54
12.5. Transfer of Accounts.. . . . . . . . . . . . . . . . . . 55
12.6. Early Distribution under Domestic Relations
Order.. . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.7. Absolute Right to Receive Stock
Distribution. . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Withdrawals While Employed. . . . . . . . . . . . . . . . . . . . . 56
13.1. Elective Right to Make Certain Withdrawals.. . . . . . . 56
13.2. Protected Withdrawal Rights. . . . . . . . . . . . . . . 57
iv
<PAGE>
13.3. Withdrawal Procedure.. . . . . . . . . . . . . . . . . . 57
13.4. Frequency of Withdrawals.. . . . . . . . . . . . . . . . 58
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Hardship Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . 59
l4.l. Eligibility and Procedure. . . . . . . . . . . . . . . . 59
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Loans to Participants . . . . . . . . . . . . . . . . . . . . . . . 61
l5.l. Procedure and Terms. . . . . . . . . . . . . . . . . . . 61
ARTICLE XVI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Designation of a Beneficiary. . . . . . . . . . . . . . . . . . . . 64
16.1. Procedure and Effect.. . . . . . . . . . . . . . . . . . 64
16.2. Renunciation of Death Benefit. . . . . . . . . . . . . . 67
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Lost Distributees . . . . . . . . . . . . . . . . . . . . . . . . . 68
17.1. Disposition of Accounts Payable to Persons
Who Cannot Be Located.. . . . . . . . . . . . . . . . . . 68
17.2. Efforts To Locate Distributees.. . . . . . . . . . . . . 68
ARTICLE XVIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Amendment or Termination. . . . . . . . . . . . . . . . . . . . . . 69
18.1. Company's Power to Amend or Terminate. . . . . . . . . . 69
18.2. Termination by a Participating Employer. . . . . . . . . 70
18.3. Disposition of Assets on Termination.. . . . . . . . . . 70
18.4. Effect of Termination by the Company.. . . . . . . . . . 71
18.5. Effect of Termination of ESOP Loan.. . . . . . . . . . . 72
ARTICLE XIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Administrative Committee. . . . . . . . . . . . . . . . . . . . . . 73
19.1. Appointment. . . . . . . . . . . . . . . . . . . . . . . 73
19.2. Organization.. . . . . . . . . . . . . . . . . . . . . . 73
19.3. Powers.. . . . . . . . . . . . . . . . . . . . . . . . . 73
19.4. Forms and Procedures.. . . . . . . . . . . . . . . . . . 75
19.5. Meetings.. . . . . . . . . . . . . . . . . . . . . . . . 76
19.6. Records. . . . . . . . . . . . . . . . . . . . . . . . . 76
19.7. Applications for Benefits; Appeal From
Denial of Benefits. . . . . . . . . . . . . . . . . . . . 76
19.8. Liability of Committee.. . . . . . . . . . . . . . . . . 77
19.9. Standard of Review.. . . . . . . . . . . . . . . . . . . 79
v
<PAGE>
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Prohibition Against Voluntary or Involuntary
Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . 80
20.1. No Liability for Participants' Debts.. . . . . . . . . . 80
ARTICLE XXI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Competency of Distributees. . . . . . . . . . . . . . . . . . . . . 81
21.1. Distributees Presumed Competent. . . . . . . . . . . . . 81
21.2. Facility of Payment. . . . . . . . . . . . . . . . . . . 81
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Becoming a Participating Employer . . . . . . . . . . . . . . . . . 82
22.1. Authorization and Procedure. . . . . . . . . . . . . . . 82
22.2. Effect of Being a Participating Employer.. . . . . . . . 82
22.3. Pooled Funds.. . . . . . . . . . . . . . . . . . . . . . 82
22.4. Costs and Expenses.. . . . . . . . . . . . . . . . . . . 83
22.5. Adoption of Plan Conditional.. . . . . . . . . . . . . . 83
ARTICLE XXIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Limitations Applicable to All Contributions to this
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
23.1. Special Limitation on Annual Additions For
Any Participant For Any Year. . . . . . . . . . . . . . . 84
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
24.1. Return of Contributions. . . . . . . . . . . . . . . . . 86
24.2. Limitations of Liability and Rights. . . . . . . . . . . 86
24.3. General Administration and Expenses. . . . . . . . . . . 87
24.4. Notice of Address. . . . . . . . . . . . . . . . . . . . 87
24.5. Data.. . . . . . . . . . . . . . . . . . . . . . . . . . 87
24.6. Trust Agreement Related. . . . . . . . . . . . . . . . . 88
24.7. Severability Clause. . . . . . . . . . . . . . . . . . . 88
24.8. Situs. . . . . . . . . . . . . . . . . . . . . . . . . . 88
24.9. Succession.. . . . . . . . . . . . . . . . . . . . . . . 88
24.10. Execution.. . . . . . . . . . . . . . . . . . . . . . . 88
24.11. Merger of Plan or Transfer of Trust Assets. . . . . . . 88
24.12. Miscellaneous Rules of Construction.. . . . . . . . . . 88
24.13. Delayed Payments. . . . . . . . . . . . . . . . . . . . 89
24.14. Mistakes in Benefit Payments. . . . . . . . . . . . . . 89
vi
<PAGE>
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT)
ARTICLE I
Establishment of Plan
---------------------
1.1. Action By Company. Effective as of April l, l976,
-----------------
Anheuser-Busch, Inc., a Missouri corporation, established the
Anheuser-Busch Employee Stock Purchase and Savings Plan. The Plan
was subsequently amended from time to time and the position of
Anheuser-Busch, Inc. as the Plan Sponsor was assumed by
Anheuser-Busch Companies, Inc., a Delaware corporation (the
"Company"). The Company reserved the right to amend the Plan in
any way not expressly prohibited by the Plan. Pursuant to such
reserved right, effective March 1, 1986, the Company divided the
Plan into two separate plans, with employees not covered by a
collective bargaining agreement being covered by a separate but
substantially similar plan. This Plan is a continuation of the
former Anheuser-Busch Employee Stock Purchase and Savings Plan
though its name has been changed to the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (For Employees Covered by a
Collective Bargaining Agreement).
Also pursuant to such reserved right the Company has duly
amended the Plan from time to time, most recently in the form of a
complete restatement effective April 1, 1994, with one subsequent
amendment thereto. The Company hereby adopts this current
amendment and restatement of the Plan, effective as of April 1,
1996, in order to make certain changes consistent with
administrative practice and the Company's spin-off of the
Earthgrains Company. The provisions of this amendment and
restatement are effective as of April 1, 1996, unless otherwise
expressly provided.
The Plan is intended to be an employee stock ownership plan
within the meaning of Section 4975(e)(7) of the Code, designed to
invest primarily in "qualifying employer securities" as defined in
Sections 4975(e)(8) and 409(l) of the Code and also is intended to
constitute a cash or deferred arrangement pursuant to Section
401(k) of the Code. The Plan permits investment in Company stock
to be made with the proceeds of loans involving funds borrowed by
the Company or Trustee. It is the intention of the Company that
loans entered into by the Trustee shall be repaid with
contributions under the Plan, dividends on Company stock and
earnings thereon.
1
<PAGE>
1.2. Named Plan Fiduciaries. The authority to control and
----------------------
manage the operation and administration of this Plan, and,
generally, the investment of its funds, shall be vested in the
Plan's named fiduciaries. The Plan's named fiduciaries are the
Company, as Plan Sponsor and Plan Administrator, the Trustee,
and, for certain limited purposes, Participants. As Plan Sponsor,
the Company shall have the right to amend the Plan, to designate
the Plan's named fiduciaries, and to exercise all fiduciary
functions necessary to the operation of the Plan except those
which are assigned to another named fiduciary under this Plan. As
Plan Administrator, the Company shall have the authority and
responsibility for the general administration of the Plan,
including discretionary authority to determine eligibility for
benefits and to construe the terms thereof. The Company shall
have the right to appoint an Administrative Committee to exercise
such authority and responsibility. The Trustee shall have the
exclusive authority and discretion to invest, manage and control
the assets of the Trust by which the Plan is funded, subject to
and in accordance with the provisions hereof and of the separate
Trust Agreement, and subject to the rights of Participants to
direct the investment of their Accounts as permitted hereby. For
purposes of voting and tendering Shares as to which no
instructions have been received by the Trustee, and Unallocated
Shares as described in Sections 9.16 and 9.17, the Participants
shall be deemed named fiduciaries.
The rights and responsibilities of each named fiduciary shall
be exercised severally and not jointly, but any party may serve in
more than one fiduciary capacity with respect to the Plan.
-2-
<PAGE>
ARTICLE II
Definitions of General Applicability
------------------------------------
2.1. "Account". The separate record of the interest of
-------
each Participant in this Plan which will be established in
accordance with Section 10.1.
2.2. "After-Tax Contributions". A Participant's Personal
-----------------------
Contributions which are not subject to deduction or exclusion from
gross income for federal income tax purposes. After-Tax
Contributions are of two types:
(a) "After-Tax Matched Contributions", which are
-------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "After-Tax Unmatched Contributions", which are
---------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.3. "Before-Tax Contributions". A Participant's Personal
------------------------
Contributions which are properly excluded from gross
income pursuant to Section 40l(k) of the Code. Before-Tax
Contributions are of two types:
(a) "Before-Tax Matched Contributions", which are
--------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "Before-Tax Unmatched Contributions", which are
----------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.4. "Beneficiary". Any person designated by a
-----------
Participant pursuant to Article XVI to receive benefits hereunder
or any other person deemed to be a Beneficiary by any other
provision of this Plan or by law.
2.5. "Base Pay". A Participant's regular wages or other
--------
remuneration for services paid by a Participating Employer and
determined before subtracting Before-Tax Contributions or salary
reductions pursuant to a plan designed to comply with Section 125
of the Code. Base Pay is used in computing the amount of Personal
Contributions to the Plan and shall be determined as follows:
(a) Items Included In Base Pay For All Participants.
-----------------------------------------------
Base Pay is straight-time gross wages for the standard work week,
-3-
<PAGE>
including reported tips for persons who are compensated wholly or
partially by way of tips, vacation pay at straight-time rates (or
such other rates as are established by local facility practice)
and amounts paid, at straight-time rates, for periods not worked
because of holiday time off, furlough, sick leave, bereavement,
military leave, jury duty, or with respect to relief or lunch
periods. Base pay also includes backpay, but only to the extent
that the back pay would have been Base Pay had it been paid in a
timely manner (i.e. disregarding back pay awards for such items as
---
over-time pay). Back pay shall be included in Base Pay at the
time payment is actually made. In situations involving irregular
hours in a work week, the Committee shall determine an appropriate
method to compute Base Pay.
(b) Items Excluded From Base Pay For All
------------------------------------
Participants. Base Pay does not include over-time pay,
- ------------
supplemental unemployment benefits, supplemental workmen's
compensation benefits, any bonus, pay in lieu of vacation, service
allowance, severance pay, premium pay for shift or other
specialized work, Company Matching or Supplemental Contributions
to this Plan, Company contributions to any other pension,
retirement, group insurance, health and welfare or similar plan,
cash payments pursuant to a plan designed to comply with Section
125 of the Code, any other so-called "fringe benefits," any income
attributable to the award or exercise of a stock option or the
premature disposition of stock option stock, any other amount
which does not constitute "compensation" within the meaning of
Section 415 of the Code, any type of remuneration not otherwise
described in this Section, or any expense allowance or
reimbursements of expenses paid on behalf of a Participant (even
if subsequently not allowed as such and treated as additional
compensation for federal income tax purposes). Base Pay does not
include any vacation pay which becomes payable on account of
termination of employment nor does it include payments for any
unused sick day, whether before or after termination of
employment.
(c) Limit On Base Pay Considered. In no event shall
----------------------------
the Base Pay taken into account for a Participant under this Plan
exceed the amount specified in Section 401(a)(17) of the Code, as
adjusted for any applicable increases in the cost of living.
2.6. "Board". The Board of Directors of the Company.
-----
2.7. "Closing Price". The price at which Shares shall be
-------------
valued for some purposes under the Plan. The Closing Price is the
closing price of a Share or group of Shares on The New York Stock
-4-
<PAGE>
Exchange for the last trading day (on which there was at least one
sale of a Share) of a Processing Period, or on such other date as
may be specified in the Plan or determined by the Committee
pursuant to the Plan.
2.8. "Code". The United States Internal Revenue Code of
----
1986, as amended (Title 26 of the United States Code). All
references to specific sections of the Code shall be deemed to be
references to such sections as they may be amended or superseded,
and to the corresponding sections or provisions of any subsequent
United States Internal Revenue Code, as appropriate at the time of
reference.
2.9. "Committee". The Committee appointed under the
---------
provisions of Section 19.1 to administer this Plan.
2.10. "Company". Anheuser-Busch Companies, Inc., a
-------
corporation organized and existing under the laws of the State of
Delaware, and any successor corporation which assumes this Plan
and agrees to be bound by the terms and provisions hereof.
2.11. "Company Matching Contributions". The amounts
------------------------------
contributed to this Plan by Participating Employers pursuant to
Section 6.1(a), including forfeitures which are applied to reduce
the contributions otherwise payable by them.
2.12. "Company Stock Fund". The separate portion of the
------------------
Fund which is to be invested in accordance with Section 9.7.
2.13. "Company Year". The fiscal year of the Company as in
------------
effect from time to time. On the Effective Date the fiscal year
of the Company is the calendar year.
2.14. "Consolidated Net Income For Plan Purposes". The
-----------------------------------------
consolidated net income of all of the Employing Companies for any
Company Year as shown in the Company's annual report to its
shareholders for such Company Year after extraordinary items of
and charges to income, but before taxes on income and earnings of,
and direct and indirect expenses attributable to, any Subsidiary
acquired after October 1, 1982 that is not a Participating
Employer under this Plan or a Related Plan. For purposes of the
foregoing, all determinations of earnings and expenses shall be
made in accordance with rules of uniform application adopted by
the Committee; the incorporation of a Subsidiary at the direction
of the Company shall not be treated as an acquisition of such
Subsidiary, even though one of the Employing Companies may
purchase the shares thereof; and a Subsidiary will be deemed to be
acquired when the percentage of voting capital stock or equity
-5-
<PAGE>
interest owned by the Company or another Subsidiary or any
combination of the Company and/or one or more Subsidiaries first
equals 80%.
2.15. "Effective Date". When used with respect to this
--------------
amended and restated Plan, April 1, 1996 except where otherwise
expressed in this document. This Plan is a continuation, in part,
of the Anheuser-Busch Employee Stock Purchase and Savings Plan,
and the term "Effective Date", when used with respect to that Plan
as originally adopted, means April l, l976.
2.16. "Eligible Employee". An Employee of any
-----------------
Participating Employer who has satisfied the service requirement
for eligibility to participate in this Plan set forth in Article
III hereof.
2.17. "Employee". Any common law employee employed by any
--------
of the Employing Companies in any capacity, who is a resident of
the United States or Puerto Rico and who is represented by a
collective bargaining unit.
2.18. "Employing Companies". The Company and any
-------------------
corporation or other business entity that is a member of a
controlled group of corporations or other business entities, as
defined in Sections 414(b) and 414(c) of the Code, that includes
the Company, or is a member of an affiliated service group that
includes the Company as defined in Section 414(m) of the Code, all
as determined from time to time. A business entity is an
Employing Company only while a member of such a controlled group
of corporations or other business entities or such an affiliated
service group. All determinations required by this Section shall
be made pursuant to and consistent with Sections 414(b), (c), (m)
and (o) of the Code and regulations thereunder.
2.19. "Equity Index Fund". The separate portion of the
-----------------
Fund which is to be invested in accordance with Section 9.10.
2.20. "ERISA". The Employee Retirement Income Security Act
-----
of 1974, Pub. L. No. 93-406, 88 Stat. 829, which amended both the
Code and Title 29 of the United States Code (captioned "Labor").
ERISA sections contained in the Code are cited by references to
the Code. ERISA sections not contained in the Code are cited in
sections of ERISA as enacted. All references to specific ERISA sections
shall be deemed to be references to such sections as originally enacted or
as subsequently amended or superseded, as appropriate at the time of
reference.
2.21. "ESOP Loan". A loan described in Section
---------
404(a)(9)(A) of the Code and which otherwise satisfies the
-6-
<PAGE>
requirements of Article VIII, which is used by the Trustee to
finance the acquisition of Shares, or to refinance an existing
ESOP Loan.
2.22. "ESOP Loan Payment Accumulation Account". The
--------------------------------------
Account established pursuant to Section 10.10(b) in which the
Trustee will accumulate, pursuant to Section 8.5, Plan
contributions, dividends and related earnings.
2.23. "ESOP Loan Suspense Account". The account
--------------------------
established pursuant to Section 10.10(a) to hold Unallocated
Shares.
2.24. "Fund". All securities, cash and other assets held
----
by the Trustee with respect to this Plan from time to time subject
to the provisions of this Plan. As of April 1, 1996, there are
seven separate Investment Funds within the Fund: the Company
Stock Fund, the Equity Index Fund, the Indexed Balanced Fund, the
Managed Balanced Fund, the Medium-Term Fixed Income Fund, the
Short-Term Fixed Income Fund and the Earthgrains Stock Fund.
2.25. "Highly Compensated Employee". (a) The term Highly
---------------------------
Compensated Employee includes Highly Compensated Employees who are
active and certain former Highly Compensated Employees as
described in this Section.
(b) An active Highly Compensated Employee includes
any individual who performs service for any of the Employing
Companies during the determination year and who, during the
look-back year: (i) received compensation from the Employing
Companies in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code); (ii) received compensation from the Employing
Companies in excess of $50,000 (as adjusted pursuant to Section
415(d) of the Code) and was a member of the top-paid group for
such year; or (iii) was at any time an officer of an Employing
Company and received compensation during such year that is greater
than 50 percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such year.
(c) The term Highly Compensated Employee also
includes: (i) individuals who are both described in the preceding
subsection (b) if the term "determination year" is substituted for
the term "look-back year" and the individual is one of the one
hundred employees who received the most compensation from the
Employing Companies during the determination year; and (ii) employees who
are five-percent owners at any time during the look-back year or
determination year.
-7-
<PAGE>
(d) If no officer has satisfied the compensation
requirement of (b)(iii) above during either a determination year
or look-back year, the highest paid officer for such year shall be
treated as a Highly Compensated Employee.
(e) For purposes of this Section,(i) the
determination year shall be the Plan Year; (ii) the look-back year
shall be the twelve-month period immediately preceding the
determination year; and (iii) compensation shall mean compensation
as defined in Section 414(q)(7) of the Code and regulations
thereunder.
(f) A former Highly Compensated Employee includes
any individual who separated from service with an Employing
Company (or was deemed to have separated) prior to the
determination year, performs no service for an Employing Company
during the determination year, and was an active Highly
Compensated Employee for either the separation year or any
determination year ending on or after the employee's 55th
birthday.
(g) If an individual is, during a determination year
or look-back year, a family member of either a five-percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the ten most highly compensated employees
during such year, then the family member and the five-percent
owner or top-ten highly compensated employee shall be treated as a
single employee receiving compensation and plan contributions or
benefits equal to the sum of such compensation and contributions
or benefits of the family member and five-percent owner or top-ten
highly compensated employee.
(h) For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the
employee or former employee and the spouses of such lineal
ascendants and descendants.
(i) The determination of who is a Highly Compensated
Employee, including the determinations of the number and identity
of employees in the top-paid group, any five-percent owner, the
top one hundred employees, the number of employees treated as
officers and the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and applicable Treasury
Regulations.
2.26. "Hour of Service". (a) An Hour of Service is:
---------------
-8-
<PAGE>
(i) each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Employing Company;
(ii) each hour for which an Employee is paid,
or entitled to payment, by an Employing Company on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence; and
(iii) each hour (if not already credited) for
which back pay (irrespective of mitigation of damages) has been
either awarded or agreed to by an Employing Company; provided the
Hours of Service derived from back pay shall be credited to the
computation period or periods to which the award or agreement
pertains, and not to the computation period in which payment is
made.
(iv) in the case of an Employee (or former
Employee) who is on an authorized leave of absence or on active
duty with any branch of the military service of the United States
and who is not directly or indirectly paid or entitled to payment
by any of the Employing Companies during such period, an Hour of
Service is every regular working hour of every regular working day
for which such person would have been credited with an Hour of
Service (based on the person's normal work schedule in effect at
the time of the beginning of such leave or military service) had
the person been actively at work during the period of such leave
or military service, but only if such person returns to work at
the end of such leave or (in the case of military service) during
the period in which such person's re-employment rights are
protected by Federal law.
(b) The following rules shall apply to
determinations of Hours of Service credited under this Plan:
(i) A payment shall be deemed to be made by or
due from an Employing Company regardless of whether such payment
is made by or due from an Employing Company directly, or
indirectly through (among others) a trust fund or insurer to which
the Employing Company contributes or pays premiums and regardless
of whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
(ii) The number of Hours of Service to be
credited to an Employee for reasons other than performance of
-9-
<PAGE>
duties, and the Plan Year or Plan Years to which Hours of Service
will be credited in appropriate instances, shall be determined,
respectively, pursuant to the United States Department of Labor's
Regulations Section 2530.200b-2(b) and (c), which are incorporated
herein by this reference.
(iii) Notwithstanding the provisions of
subsection (a) requiring that Hours of Service be credited because
of payments made for reasons other than the performance of duties,
no more than 501 Hours of Service shall be credited to an Employee
on account of any single continuous period (whether occurring in
one or more computation periods) during which such Employee
performs no duties, and no Hour of Service shall be credited on
account of a period during which no duties are performed if the
payment therefor is made under a plan maintained solely for the
purpose of complying with applicable workmen's compensation,
unemployment compensation, or disability insurance laws.
(iv) No Hours of Service will be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by such Employee.
(v) For purposes of determining the number of
Hours of Service credited to an Employee who is not yet eligible
to be a Participant in this Plan, the computation period shall be
the eligibility computation period specified in Section 3.4
hereof.
(vi) These provisions shall be liberally
construed in favor of Employees.
(vii) Solely for the purposes of determining
whether a break in service for eligibility under Section 3.3(a)
has occurred, any Employee who is absent from work (A) by reason
of the pregnancy of the Employee, (B) by reason of the birth of a
child of the Employee, (C) by reason of the placement of a child
with the Employee in connection with the adoption of such child by
the Employee, or (D) for purposes of caring for such child for a
period beginning immediately following such birth or placement,
shall receive credit for the Hours of Service which would
otherwise have been credited but for such absence, or in any case
in which such hours cannot be determined, eight Hours of Service
for each day of such absence. The Hours of Service credited under
this paragraph shall be credited in the computation period in
which the absence begins if the crediting is necessary to prevent
a break in service in that period, or, in all other cases, in the
following computation period. Notwithstanding the foregoing, no
more than 501 Hours of Service shall be credited under this
-10-
<PAGE>
paragraph for any single maternity or paternity leave. The
Committee shall have the right to require such timely information
from an Employee as it deems reasonably necessary to establish
that the absence is for reasons referred to in this paragraph and
the number of days for which there was such an absence. If an
Employee does not comply with any such request, the rules of this
paragraph shall not apply to the absence.
(c) Hours of Service credited under a Related Plan
shall be Hours of Service under this Plan for all purposes.
(d) In determining the Hours of Service of any
individual employed by Sea World of Florida, Inc., Florida Cypress
Gardens, Inc., Busch Properties of Florida, Inc., Sea World, Inc.,
Sea World of Texas, Inc., or Boardwalk and Baseball, Inc. as of
December 1, 1989, hours of service with any of such corporations
shall be considered Hours of Service in accordance with this
Section. In addition, if an individual worked for Harcourt,
Brace, Jovanovich, Inc. immediately prior to December 1, 1989 and
became employed by a Participating Employer on or before
January 1, 1990, such individual's hours of service with such
company shall be considered Hours of Service under this Plan.
(e) In determining the Hours of Service of any
individual employed by Vesper Corporation as of May 29, 1992, who
becomes an Employee in connection with the acquisition of the LG
Potato Chip Company division of Vesper Corporation on or about
May 29, 1992, hours of service with Vesper Corporation prior to
May 30, 1992, shall be considered Hours of Service in accordance
with this Section. This provision shall be effective for purposes
of both Article III and Article XI.
(f) In determining the Hours of Service of any
individual employed by Precision Printing and Packaging, Inc. as
of December 31, 1994, hours of service with such corporation or
with International Label Company shall be considered Hours of
Service in accordance with this Section. This provision shall be
effective for purposes of both Article III and Article XI.
2.27. "Indexed Balanced Fund". The separate portion of the
---------------------
Fund which is to be invested in accordance with Section 9.11.
2.28. "Managed Balanced Fund". The separate portion of the
---------------------
Fund which is to be invested in accordance with Section 9.12.
-11-
<PAGE>
2.29. "Medium-Term Fixed Income Fund". The separate
-----------------------------
portion of the Fund which is to be invested in accordance with
Section 9.9.
2.30. "Non-Highly Compensated Employee". An Employee who
-------------------------------
is neither a Highly Compensated Employee nor a family member of a
Highly Compensated Employee within the meaning of Section
414(q)(6)(B) of the Code.
2.31. "Participant". Any Eligible Employee who has elected
-----------
to participate in this Plan in the manner provided in Section 3.2
and any former Eligible Employee who has assets credited to an
Account.
2.32. "Participating Employer". (a) As of April 1, 1996,
----------------------
the Company and the following Subsidiaries:
Anheuser-Busch, Incorporated
Anheuser-Busch Recycling Corporation
August A. Busch & Co. of Massachusetts
Busch Agricultural Resources, Inc.
Metal Container Corporation
Manufacturers Railway Company
Pacific International Rice Mills, Inc.
Precision Printing and Packaging, Inc.
(b) Any other Subsidiary which may hereafter become
a party hereto in the manner provided in Article XXII.
(c) Any corporation(s) into which or with which any
of the foregoing Participating Employers may be liquidated, merged
or consolidated, if such successor(s) or (in the event of a
liquidation, merger or consolidation) surviving corporation(s) is
a Subsidiary and is or becomes a Participating Employer hereunder.
2.33. "Personal Contributions". A generic term referring,
----------------------
collectively, to all amounts contributed to this Plan by a
Participant. Such amounts will be either After-Tax Contributions
or Before-Tax Contributions, and may be either matched by a
Company Matching Contribution or unmatched.
2.34. "Plan". This Anheuser-Busch Deferred Income Stock
----
Purchase and Savings Plan (For Employees Covered by a Collective
Bargaining Agreement) as herein established and as it may be
amended from time to time.
-12-
<PAGE>
2.35. "Plan Year". The fiscal year adopted by the Company
---------
for this Plan. The Plan Year is the twelve consecutive month
period beginning each April 1 and ending each March 31.
2.36. "Processing Period". The seven consecutive day
-----------------
period beginning each Wednesday and ending the following Tuesday
or such other period as may be designated by the Committee from
time to time.
2.37. "Related Plans". The Anheuser-Busch Deferred Income
-------------
Stock Purchase and Savings Plan and the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (for Certain Hourly
Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries).
2.38. "Share". A share of common stock of the Company.
-----
2.39. "Share Equivalents". The portion of a Participant's
-----------------
Account which is invested in the Company Stock Fund but measured
in terms of the number of Shares that would be equivalent in value
to such investment. Share Equivalents that a Participant or
Beneficiary shall be entitled to vote or tender pursuant to
Sections 9.16 and 9.17 shall be equal to the number of full and
fractional Shares held in the Company Stock Fund as of a Valuation
Date, divided by the number of Company Stock Fund units as of such
Valuation Date, multiplied by the number of Company Stock Fund
units in the Participant's Account as of such Valuation Date. For
purposes of this Section, the term "Valuation Date" shall mean any
date as of which Share value or unit value is determined under an
Investment Fund as directed by the Committee.
2.40. "Short-Term Fixed Income Fund". The separate portion
----------------------------
of the Fund which is to be invested in accordance with
Section 9.8.
2.41. "Subsidiary". Any corporation or other form of
----------
business enterprise created or organized in the United States
under the law of any State or Territory thereof, the issued and
outstanding voting capital stock or equity interest of which is,
in the aggregate, 80% or more owned by the Company, another
Subsidiary or any combination of the Company and/or one or more
Subsidiaries.
2.42. "Supplemental Contributions". Amounts contributed to
--------------------------
this Plan by Participating Employers pursuant to Section 6.1(b).
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<PAGE>
2.43. "Taxable Compensation". The amount of compensation
--------------------
determined under the provisions of Section 414(s) of the Code and
regulations thereunder, but including amounts otherwise excluded
from gross income under Sections 402(e)(3) and 125 of the Code.
In no event shall an Employee's Taxable Compensation exceed the
amount specified in Section 401(a)(17) of the Code as adjusted for
any applicable increases in the cost of living.
2.44. "Trust Agreement". The separate Master Defined
---------------
Contribution Trust Agreement entered into by and between the
Company and the Trustee, as well as all other agreements and
documents relating to the operation of the Master Defined
Contribution Trust including, but not limited to, agreements
appointing investment managers and agreements joining plans into
the Master Defined Contribution Trust Agreement. The Master
Defined Contribution Trust Agreement, as may be amended from time
to time, governs the establishment, investment and maintenance of
the Fund. The Master Defined Contribution Trust Agreement shall
be deemed to be a part of this Plan as if all of the terms and
provisions thereof were fully set forth herein.
2.45. "Trustee". The corporation designated by the Company
-------
from time to time to act as Trustee under the Trust Agreement.
2.46. "Unallocated Shares". Shares held in the ESOP Loan
------------------
Suspense Account which have not been allocated to the Account of a
Participant.
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<PAGE>
ARTICLE III
Eligibility and Participation
-----------------------------
3.1. Eligibility. (a) An Employee of a Participating
-----------
Employer shall be eligible to participate in the Plan at the end
of the eligibility computation period during which the Employee
completes one Year of Service.
(b) Notwithstanding the foregoing, no Employee will
be eligible to participate in this Plan if (i) such person's
employment is covered by a collective bargaining agreement which
does not expressly provide for participation in this Plan and
under which retirement benefits have been the subject of good
faith collective bargaining, or (ii) such person is deemed to be a
leased employee (within the meaning of Section 414(n) of the Code)
of an Employing Company.
3.2. Becoming a Participant. Participation in the Plan is
----------------------
entirely voluntary, but to become a Participant an Eligible
Employee must agree to make Personal Contributions, as hereinafter
set out. Notwithstanding anything, an Eligible Employee's
election to make Personal Contributions shall not become effective
before the first day of the calendar month following expiration of
the eligibility computation period during which such person
completes one Year of Service.
3.3. Re-Employment Following a Break in Service. (a) An
------------------------------------------
Employee who incurs a break in service before becoming eligible to
participate in this Plan and who is subsequently re-employed by a
Participating Employer shall be treated as a new Employee and
shall be required to satisfy the eligibility requirements set out
in Section 3.1 following such person's re-employment date before
such person becomes an Eligible Employee.
(b) An Eligible Employee who has one or more breaks
in service and who is subsequently re-employed by a Participating
Employer shall be eligible to participate in this Plan immediately
upon re-employment.
3.4. Year of Service; Break in Service. (a) A Year of
---------------------------------
Service for determining eligibility to participate is an
eligibility computation period during which an Employee performs
at least 1,000 Hours of Service.
(b) The initial eligibility computation period for
an Employee shall be the twelve-month period beginning on the
first date (the "initial employment date") such Employee
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<PAGE>
performs an Hour of Service. In the case of an Employee who
performs more than 500 but less than 1,000 Hours of Service during
the initial eligibility computation period, each succeeding
twelve-month period beginning on the anniversary of the Employee's
initial employment date shall be an eligibility computation period
until the Employee either becomes an Eligible Employee or incurs a
break in service.
(c) An Employee's failure to perform more than 500
Hours of Service during any eligibility computation period before
the Employee becomes an Eligible Employee shall constitute a break
in service.
(d) The eligibility computation period for an
Employee who has incurred five consecutive breaks in service and
who is subsequently re-employed shall be the twelve-month period
beginning on the first date (the "re-employment date") on which
such Employee performs an Hour of Service following such breaks in
service. In the case of such an Employee who performs more than
500 but less than 1,000 Hours of Service during such eligibility
computation period, each succeeding twelve-month period beginning
on each anniversary of the Employee's re-employment date shall be
an eligibility computation period until the Employee either
becomes an Eligible Employee or incurs five consecutive breaks in
service.
3.5. Transfers of Participants and Lay-Offs. (a) No
--------------------------------------
transfer or other change in the employment of a Participant from
the employ of a Participating Employer to the employ of another of
the Employing Companies which is not a Participating Employer, and
no transfer from an employment classification in which the
Participant is an Employee to a classification in which the
Participant is not an Employee, shall be deemed to be either a
break in service or a termination of employment, whether or not
the transferred employee is reported as having resigned or
otherwise ceased to have been employed in such employee's former
employment classification or by such employee's former employer.
After such transfer, the transferred Participant shall no longer
be entitled to make Personal Contributions to this Plan or to have
any Company Matching Contributions made on such Participant's
behalf. If eligible to participate in a Related Plan after such
transfer, a Participant's Account may be transferred to such
Related Plan.
(b) So long as there is any unwithdrawn or
undistributed balance in the Account of a transferred Participant,
the Account shall not be affected by such transfer and shall not
be segregated from or within the Fund, but shall continue to be
commingled therewith and be subject to appropriate increases or
-16-
<PAGE>
decreases to reflect the results of the valuations made in
accordance with Section 10.5.
(c) A Participant who may no longer actively
participate in this Plan because of a lay-off or a job transfer
and who is thereafter again transferred to the employ of a
Participating Employer or is recalled from lay-off shall
automatically and immediately become eligible to resume
participation in this Plan upon compliance with rules adopted by
the Committee and the timely filing of the requisite forms, if
any.
(d) An Employee who ceases to be a resident of the
United States or Puerto Rico, after once having become a
Participant, shall then be treated as if such Employee had been
transferred from the employ of a Participating Employer to the
employ of another of the Employing Companies which is not a
Participating Employer and such Employee's rights thereafter shall
be determined pursuant to this Section 3.6.
(e) If, as a result of an employment transfer, an
individual who was a Participant in a Related Plan becomes
eligible to participate in this Plan, this Plan shall accept the
transfer of such Participant's Account from such other Plan. Any
Account so transferred shall be combined with the Participant's
Account under this Plan, if any, in accordance with procedures
established by the Committee. Any Participant described in this
subsection who was making Personal Contributions to a Related Plan
at the time of transfer shall be deemed to have made identical
elections regarding the rate, type and investment of contributions
to this Plan.
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<PAGE>
ARTICLE IV
Matched Contributions
---------------------
4.1. Before-Tax Matched Contributions. A Participant who
--------------------------------
wishes to make Before-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received,
in the percentage indicated by the Participant, but subject to the
limitations set out in Sections 7.2 and 7.3, on the condition that
the amount so deferred be delivered to the Trustee as a Personal
Contribution. All Before-Tax Matched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either 1, 2, 3, 4, 5 or 6% of Base Pay.
4.2. After-Tax Matched Contributions. A Participant who
-------------------------------
wishes to make After-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant but subject to
the limitations set out in Section 7.4, and to deliver the amounts
so withheld to the Trustee as a Personal Contribution. All
After-Tax Matched Contributions shall be expressed in full
percentage points of Base Pay, and shall be either 1, 2, 3, 4, 5
or 6% of Base Pay.
4.3. Limitation on Total Matched Contributions. The sum
-----------------------------------------
of a Participant's Before-Tax Matched Contributions and After-Tax
Matched Contributions may not be less than 1% nor more than 6% of
the Participant's Base Pay.
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<PAGE>
ARTICLE V
Unmatched Contributions
-----------------------
5.1. Contributions Permitted. Whether or not a
-----------------------
Participant is making matched Personal Contributions, such
Participant may make unmatched Personal Contributions pursuant to
this Article and subject to the limitations set out in this
Article and Article VII. Such unmatched Personal Contributions
may either be on a before-tax or after-tax basis.
5.2. Before-Tax Unmatched Contributions. A Participant
----------------------------------
who wishes to make Before-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received
in the percentage indicated by the Participant, on the condition
that the amount so deferred be delivered to the Trustee as a
Personal Contribution. All Before-Tax Unmatched Contributions
shall be expressed in full percentage points of Base Pay, and
shall be either 1, 2, 3, 4, 5, 6, 7, 8, 9 or 10% of Base Pay.
5.3. After-Tax Unmatched Contributions. A Participant who
---------------------------------
wishes to make After-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, and to
deliver the amounts so withheld to the Trustee as a Personal
Contribution. All After-Tax Unmatched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either l, 2, 3, 4, 5, 6, 7, 8, 9 or l0% of Base Pay.
5.4. Limitation on Total Unmatched Contributions. If a
-------------------------------------------
Participant making Before-Tax Unmatched Contributions is
concurrently making After-Tax Unmatched Contributions, the sum of
the Participant's unmatched contribution rates may not be more
than 10% of the Participant's Base Pay.
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<PAGE>
ARTICLE VI
Company Contributions
---------------------
6.1. Required Contributions. (a) Each Participating
----------------------
Employer shall contribute, as its share of Company Matching
Contributions, for each Plan Year (or portion thereof) of its
participation in this Plan, either directly or indirectly by way
of (i) release of available Unallocated Shares having an
equivalent value, or (ii) the access or use of any funds held in
the ESOP Loan Payment Accumulation Account, the "formula amount",
less the aggregate amount of forfeitures attributable to
Participants employed by it. The "formula amount" is that amount
determined by multiplying (i) the total amount of matched Personal
Contributions actually deferred or withheld during such period
from the Base Pay of all Participants employed by such
Participating Employer, by (ii) the contribution rate in effect
for such period.
(b) Each Participating Employer shall also
contribute, directly or indirectly by way of (i) release of
available Unallocated Shares having an equivalent value, or (ii)
the access or use of any funds held in the ESOP Loan Payment
Accumulation Account, for each Plan Year (or portion thereof) of
its participation in this Plan, its proportionate share of any
Supplemental Contribution for any Plan Year. Supplemental
Contributions shall be determined by the Committee under Section
6.3.
(c) If so directed by the Company from time to time,
each Participating Employer shall also contribute for each Plan
Year (or portion thereof) of its participation in this Plan,
either directly or indirectly by access or use of any funds held
in the ESOP Loan Payment Accumulation Account, its proportionate
share of the amount, if any, by which dividends transferred to the
ESOP Loan Payment Accumulation Account for such year exceeds the
value of Shares available for release from the ESOP Loan Suspense
Account in connection with such transfer.
(d) If so directed by the Company from time to time,
each Participating Employer shall make its proportionate share of
any additional contributions determined by the Company, in its
absolute discretion.
(e) For purposes of this Section 6.1, the value of
such Shares released from the ESOP Loan Suspense Account shall be
the Closing Price on the last trading day prior to the date of
release or such other date as may be determined by the Committee
for this purpose.
-20-
<PAGE>
6.2. Contribution Rate For Company Matching Contributions.
----------------------------------------------------
The contribution rate for Company Matching Contributions is a
decimal fraction, expressed to four places, determined by the
Committee prior to the beginning of each Plan Year, which shall
not change during a Plan Year. Such contribution rate shall be
established by dividing (a) 2-1/2% of the Company's Consolidated
Net Income for Plan Purposes for the Company Year most recently
ended, by (b) 6% of the eligible payroll for such Company Year,
but shall never be less than .3333 nor more than .7500.
Notwithstanding the foregoing, the Company, in its sole discretion
as Plan sponsor, may establish a contribution rate for a Plan Year
which is greater than the rate determined in accordance with the
preceding sentence.
The "eligible payroll" for any Company Year shall be the sum
of (c) the total Base Pay accrued for that Company Year for all
Employees of all of the Employing Companies which will be
Participating Employers for the Plan Year for which the
contribution rate is being established and, without duplication,
(d) the total "Base Pay" accrued for such Plan Year for all
"employees" of all of the "employing companies" which will be
"participating employers" in all the Related Plans, except
employees of The Earthgrains Company and its subsidiaries. For
purposes of this paragraph, the quoted terms shall have the
meanings set out in such other plans.
Consolidated Net Income and payroll shall be determined by
excluding the earnings and payroll of Sea World, Inc., The
Earthgrains Company and their respective subsidiaries until such
time as the Company determines that such exclusion is no longer
appropriate, in part or in full.
6.3 Determination of Supplemental Contribution. (a) As
------------------------------------------
soon as practicable after the close of each Plan Year, the
Committee shall determine the amount of the Supplemental
Contribution, if any, for such Plan Year. The Supplemental
Contribution shall be computed by first computing a Tentative
Supplemental Contribution and then adjusting such figure as set
forth herein. The Tentative Supplemental Contribution shall be
computed as follows: first, the average Closing Price of Shares
released from the ESOP Loan Suspense Account for the Plan Year for
this Plan and each Related Plan shall be determined. Second, the
ESOP Share Cost of such released Shares shall be increased by (i)
five percent (5%) for the first Plan Year, and (ii) ten percent
(10%) compounded annually for each full Plan Year which has
elapsed since the ESOP Loan proceeds were received by the Trustee,
or for any Plan Year, such other percentage as may be determined
by the Committee from time to time. (For partial years, a
proportional part of the applicable percentage increase shall be
used based on the number of full months in the Plan Year during
which the ESOP Loan is outstanding.) The ESOP Share Cost so
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<PAGE>
increased shall be referred to as the Hurdle ESOP Share Price for
such Plan Year. If the average Closing Price of the Shares
released from the ESOP Loan Suspense Account for the Plan Year is
equal to or less than the Hurdle ESOP Share Price for the Plan
Year, there shall be no Tentative Supplemental Contribution for
such Year. If such average Closing Price is greater than the
Hurdle ESOP Share Price for the Plan Year, the difference shall be
computed and multiplied by the number of Shares actually released
from the ESOP Loan Suspense Account for this Plan and each Related
Plan during the Plan Year. The figure so obtained shall be
apportioned among this Plan and the Related Plans based on the
ratio that the aggregate formula amount (as defined in Section
6.1(a)) of each plan attributable to those Participants eligible
to have a Supplemental Contribution allocated to their Accounts
for such Plan Year, bears to the combined aggregate formula amount
of all plans attributable to those Participants eligible to have a
Supplemental Contribution allocated to their Accounts for such
Plan Year, and the portion allocated to this Plan shall be this
Plan's Tentative Supplemental Contribution for the Plan Year. If
there is more than one ESOP Loan outstanding for any Plan Year,
the Tentative Supplemental Contribution shall be the sum of the
amounts computed under this Section with respect to the Shares in
the separate ESOP Loan Suspense Accounts. This Plan's Tentative
Supplemental Contribution shall then be reduced by the amount of
this Plan's "Carryover Amount", if any, for the Plan Year, and
increased by the amount of its "Surplus Amount", if any, for such
Plan Year, as such terms are described in subsection (b).
(b) For purposes of this Section, the "Carryover
Amount" shall be equal to the excess, if any, of (i) the total
Supplemental Contributions of this Plan for all prior Plan Years
(without regard to forfeitures) over (ii) the total Tentative
Supplemental Contributions of this Plan for all prior
Plan Years (without regard to forfeitures). The "Surplus Amount"
shall be the excess, if any, of (iii) the Closing Price as of the
last trading day prior to the end of the Plan Year of all Suspense
Shares required to be released from this Plan's ESOP Loan Suspense
Account for such Plan Year but which were otherwise not released
throughout such Plan Year multiplied by the number of such Shares,
over (iv) the Tentative Supplemental Contribution of this Plan for
such Plan Year (without regard to forfeitures).
(c) For purposes of this Section, the "ESOP Share
Cost" shall be the average price at which the Trustee acquires
Shares with the proceeds of an ESOP Loan. For each ESOP Loan
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<PAGE>
entered into by the Trustee there shall be a separate ESOP Share
Cost which shall be uniform for each Share acquired with the
proceeds of such loan.
6.4. Payment and Payment Date. Each Participating
------------------------
Employer's Company Matching, Supplemental, and any other type of
contribution for the Plan Year, to the extent actually required to
be contributed under Section 6.1, shall be delivered to the
Trustee as and when determined by the Committee but not later than
180 days after the end of such Plan Year. Such delivery shall be
either in cash or in Shares (from authorized but unissued Shares
or out of Shares held in the Company's treasury), or a combination
of both, and if delivered wholly or partially in Shares, such
Shares shall be valued at the Closing Price on the date of
delivery or on the last business day prior to the date of delivery
as determined by the Committee on a uniform and consistent basis.
6.5. Allocation to Participants' Accounts. (a) Company
------------------------------------
Matching Contributions shall be allocated to the Accounts of
Participants as of the end of each Processing Period in accordance
with the contribution rate in effect for the Plan Year in which
such Processing Period falls. Thus, if the contribution rate for
a Plan Year is .3500, each Participant shall have allocated to
such Participant's Account from the Company Matching Contributions
for any Processing Period of such Plan Year an amount equal to
thirty-five percent of such Participant's matched Personal
Contributions actually withheld during such Processing Period.
(b) Supplemental Contributions shall be allocated to
the Accounts of Participants as of the end of each Plan Year in
accordance with the ratio that the sum of the individual
Participant's Company Matching Contributions allocated (and not
then forfeited) for such Plan Year bears to the total Company
Matching Contributions allocated (and not then forfeited) for such
Plan Year. In order to receive a Supplemental Contribution
allocation for a Plan Year, a Participant (or the Participant's
Beneficiary) must have an existing Account balance in the Plan as
of the last day of such Plan Year. Notwithstanding anything to
the contrary in this Plan, no Supplemental Contribution shall be
allocated to the Account of an alternate payee under a qualified
domestic relations order (as described in Section 414(p) of the
Code) unless otherwise specifically required under such order.
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<PAGE>
ARTICLE VII
Procedures and Limitations
--------------------------
7.1. Election Procedures. (a) An election to make
-------------------
Personal Contributions must be delivered to the Employee Stock
Plans Department at such time prior to the effective date of the
election as the Committee may determine. A Participant may change
the rate or type of Personal Contributions, or cease making
Personal Contributions altogether, by delivering such an
instruction to the Employee Stock Plans Department prior to the
effective date of such change. A direction concerning rate and
type of Personal Contributions shall continue in effect until
changed in the manner provided above.
(b) All elections concerning rate and type of
Personal Contributions shall be implemented after the election is
delivered to the Employee Stock Plans Department on so much
advance notice as may be required by the Committee, but shall
always become effective as of the first paycheck dated in a month.
(c) All elections concerning rate and type of
Personal Contributions must be made in accordance with all
applicable rules and procedures adopted by the Committee.
7.2. Special Dollar Limitation On Before-Tax
---------------------------------------
Contributions. (a) A Participant's total Before-Tax
- -------------
Contributions (Matched and Unmatched) for any calendar year shall
not exceed the amount in effect under Section 402(g) of the Code
for such calendar year ($9,500 for 1996). If such limit would be
exceeded under a Participant's deferral election as in effect at
any time (whether because of a mid-year Base Pay increase or
otherwise), the Participant's contribution rate for Before-Tax
Contributions shall automatically be reduced by the Plan before
the end of the calendar year so that such limit is not exceeded.
In addition, the Committee may make such projections and adopt such
procedures as it shall deem advisable to insure satisfaction of this
limit at the end of the Plan Year. Payroll deductions shall be
adjusted as necessary to comply with this paragraph.
(b) If the Committee is notified, pursuant to
Section 402(g)(2) of the Code and prior to April 15, that a
Participant has made deferrals in the immediately preceding
calendar year under two or more qualified plans which, in the
aggregate, would exceed the limitations of subsection (a), a
portion of such excess deferrals, as directed by the Participant,
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<PAGE>
shall be handled in accordance with subsection (c) of this
Section.
(c) If, notwithstanding the provisions of this
Section, it is determined that a Participant's Before-Tax
Contributions in fact exceeded the limit set out in subsection
(a), by administrative error or otherwise, or if the Participant
so directs under subsection (b), the amount of Before-Tax
Contributions actually made for the calendar year in excess of the
permitted amount, plus applicable earnings or less applicable
loss, may be refunded to the Participant. Any refund under this
paragraph shall be made after the excess deferral was received by
the Plan but, if feasible, on or before the April 15th following
the end of the calendar year in which the excess deferral
occurred. Earnings attributable to an excess deferral hereunder
shall be computed under a method selected by the Committee and
permitted under applicable Treasury Regulations. Any excess
deferral otherwise distributable hereunder shall be reduced by the
amount of any excess Before-Tax Contributions distributed under
Section 7.3 prior to the distribution hereunder and made with
respect to the Plan Year commencing within such calendar year.
Refunds under this Section shall be apportioned first to
Before-Tax Unmatched Contributions, including earnings, and then
to Before-Tax Matched Contributions, including earnings.
(d) A refund under this Section shall not subject a
Participant to any suspension penalty.
7.3. Required Adjustment of Before-Tax Personal
------------------------------------------
Contributions. Inasmuch as applicable federal law and regulations
- -------------
establish certain limitations on amounts which may be excluded
from income by certain Employees, each election to make Before-Tax
Contributions shall be subject to automatic adjustment in
accordance with the rules set forth in this Section. This Section
shall be administered in a manner consistent with Sections 401(k)
and 401(m) of the Code and applicable Treasury Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual Before-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who are
Highly Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual Before-Tax
Contribution rate for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of Before-Tax Contributions for such
person, to (y) such person's Taxable Compensation.
-25-
<PAGE>
(b) One of the following tests shall be satisfied
each Plan Year: (i) the actual Before-Tax Contribution rate for
the Highly Compensated group shall not exceed one and one-quarter
times the rate of the Non-Highly Compensated group; or (ii) the
rate of the Highly Compensated group shall be neither more than
two percentage points higher than, nor more than two times, the
rate of the Non-Highly Compensated group. If neither of these
tests is met, the excess Before-Tax Contributions of each affected
Participant in the Highly Compensated group shall be refunded to
the Participant, with income attributable thereto, within twelve
months after the close of the Plan Year in which such excess
Before-Tax Contributions were made. In making refunds hereunder,
unmatched contributions shall be completely refunded before any
matched contribution is refunded. Income attributable to such
refunded contributions shall be determined in accordance with a
method selected by the Committee and permitted under applicable
Treasury Regulations. A refund under this Section shall not
subject a Participant to any suspension penalty.
(c) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.3(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
Before-Tax Contributions of Highly Compensated Employees.
(d) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.3(b), the Committee
may, at its option and if permitted by law, aggregate pertinent
data from this Plan and any other plan maintained by any of the
Employing Companies which contains provisions intended to be
qualified under Section 401(k) of the Code.
(e) The determination of the amount of excess
Before-Tax Contributions for each Highly Compensated Participant
under subsection (b) shall be made by reducing the contribution
rates of Highly Compensated Participants in order of highest
actual deferral ratios, using the leveling method provided in
Treasury Regulations.
(f) If the test under clause (ii) of Section 7.3(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.4(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
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<PAGE>
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(g) Excess Before-Tax Contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by applicable Treasury Regulations.
(h) In determining the actual Before-Tax
Contribution rate for any Highly Compensated Employee, (i) salary
deferral contributions under each plan maintained by an Employing
Company shall be aggregated, and (ii) the Before-Tax Contributions
and Taxable Compensation of certain family members shall be taken
into account as provided in Section 2.25(g).
7.4. Required Adjustment of After-Tax and Company Matching
-----------------------------------------------------
Contributions. Inasmuch as applicable Federal law and regulations
- -------------
establish certain limitations on amounts which may be contributed
to this Plan, each election to make After-Tax Contributions shall
be subject to automatic adjustment in accordance with the rules
set forth in this Section. This Section shall be administered in
a manner consistent with Sections 401(k) and 401(m) of the Code
and applicable Treasury Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual After-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who are
Highly-Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual After-Tax
Contribution rates for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one-hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of After-Tax, Company Matching and
Supplemental Contributions for such person, to (y) such person's
Taxable Compensation.
(b) One of the following tests shall be satisfied
for each Plan Year: (i) the actual After-Tax Contribution rate for
the Highly Compensated group shall not exceed one and one-quarter
times the rate of the Non-Highly Compensated group; or (ii) the
rate of the Highly Compensated Group shall be neither more than
two percentage points higher than, nor more than two times, the
rate of the Non-Highly Compensated Group.
(c) If the actual After-Tax Contribution rate for
the Highly Compensated group should exceed the limits in the
preceding subsection, then excess After-Tax Contributions and
income attributable thereto shall be refunded as set out in this
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<PAGE>
Section. For purposes hereof, excess After-Tax Contributions
shall mean the excess of (i) the aggregate amount of the
After-Tax, Company Matching and Supplemental Contributions of
Highly-Compensated Employees made for the Plan Year, over (ii) the
maximum amount of such contributions permitted under subsection
(b). Such excess contributions shall be refunded on the basis of
the respective portions of such amount attributable to each such
Participant, in accordance with the following:
(aa) First, such Participant's After-Tax
Unmatched Contributions will be refunded.
(bb) Next, After-Tax Matched Contributions shall
be refunded.
Income attributable to excess After-Tax Contributions to be
refunded shall be computed under a method selected by the
Committee and permitted under applicable Treasury Regulations.
(d) All refunds of excess contributions and
applicable earnings under this Section shall be completed not
later than the close of the Plan Year following the Plan Year in
which the excess contributions were made.
(e) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.4(a) and (b) and may make such adjustments and recharacteri-
zations of Personal Contributions as and when it deems necessary
or appropriate, in its sole judgment, to insure satisfaction of
the test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
After-Tax Contributions of Highly Compensated employees.
(f) The determination of the amount of excess After-
Tax Contributions shall be made after excess Before-Tax
Contributions under Section 7.3 have been determined.
(g) The determination of the amount of excess
After-Tax Contributions for each Highly Compensated Participant
under subsection (c) shall be made by reducing the contribution
rates of the Highly Compensated Participants in order of highest
actual contribution percentages, using the leveling method
provided in Treasury Regulations.
(h) If the test under clause (ii) of Section 7.4(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.3(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
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Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(i) In determining whether the contributions to this
Plan satisfy the test set forth in Section 7.4(b), the
Committee may, at its option and if permitted by law, aggregate
pertinent data from this Plan and any other plan maintained by any
of the Employing Companies which contains provisions intended to
be qualified under Section 401(m) of the Code.
(j) In determining the actual After-Tax Contribution
rate for any Highly Compensated Employee, the After-Tax Company
Matching and Supplemental Contributions, and the Taxable
Compensation, of certain family members shall be taken into
account as provided in Section 2.25(g). Excess After-Tax
Contributions shall be allocated to Participants who are subject
to the family member aggregation rules of Section 414(q)(6) of the
Code in the manner prescribed by applicable Treasury Regulations.
7.5. Suspension and Reinstatement of Matched Personal
------------------------------------------------
Contributions After Withdrawal. (a) A Participant who has made a
- ------------------------------
withdrawal pursuant to Article XIII and is thereby prevented from
making any Personal Contributions to this Plan for six months
shall, upon the expiration of such period, be eligible to resume
making Personal Contributions upon delivering appropriate
instructions in accordance with Section 7.1.
(b) A Participant who has made a withdrawal pursuant
to Section 14.1 and is thereby prevented from making any Personal
Contributions to this Plan for twelve months shall, upon the
expiration of such period, be eligible to resume making Personal
Contributions upon delivering appropriate instructions in
accordance with Section 7.1.
7.6. Payroll Deductions. All Personal Contributions from
------------------
Participants shall be made by way of payroll deductions. A
Participant's election made in accordance with Section 7.1 shall
constitute full authority to the Participating Employer to deduct
the percentage of Base Pay indicated by the Participant. Personal
Contributions so deducted shall be transmitted to the Trustee no
less frequently than monthly, in cash or, in the case of
contributions to be invested in the Company Stock Fund, either in
cash or in Shares (from authorized but unissued Shares or out of
Shares held in the Company's treasury), or a combination of both.
If contributions are transmitted in Shares, such shares shall be
valued at the Closing Price on the date of delivery.
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ARTICLE VIII
ESOP Loans
----------
8.1. Terms of ESOP Loan. The Trustee will be specifically
------------------
empowered to borrow funds (including a borrowing from the Company
or any other of the Employing Companies) to acquire Shares or
repay a prior ESOP Loan, subject to the conditions set forth in
this Section 8.1. The terms of each ESOP Loan must, at the time
the loan is made, be at least as favorable to the Trust as the
terms of a comparable loan resulting from arm's length
negotiations between independent parties. Each ESOP Loan shall be
for a specific term, shall bear a reasonable rate of interest, and
shall be without recourse against the Trust or the Participants'
Accounts, except that an ESOP Loan may be guaranteed by the
Company and may be secured by a pledge of the Shares acquired with
the proceeds of the ESOP Loan (or acquired with the proceeds of a
prior ESOP Loan which is being refinanced). No other Trust assets
may be pledged as collateral for an ESOP Loan, and no lender shall
have recourse against Trust assets other than (a) collateral given
for the ESOP Loan, (b) amounts held under the ESOP Loan Payment
Accumulation Account (other than Company Matching or Supplemental
Contributions of Shares), and (c) earnings attributable to such
collateral. An ESOP Loan shall not be payable on demand except in
the event of default. In the event of default, the value of Plan
assets transferred in satisfaction of the ESOP Loan shall not
exceed the amount of the default plus any applicable prepayment or
similar penalties or premiums. If the lender is a disqualified
person within the meaning of Code Section 4975(e)(2), the ESOP
Loan must provide for a transfer of Trust assets on default only
upon and to the extent of the failure of the Trust to meet the
payment schedule of the ESOP loan. Payments of principal and/or
interest on any ESOP Loan shall be made by the Trustee in
accordance with Section 8.7. The Committee shall direct the
Trustee to enter into any loan transaction approved by the Board
and conforming with the provisions hereof.
8.2. Acquisition of Shares with proceeds of ESOP Loan.
------------------------------------------------
The ESOP Loan proceeds shall be used by the Trustee within a
reasonable time after receipt to acquire Shares or to repay a
prior ESOP Loan. In acquiring Shares, the Trustee shall take all
appropriate and necessary measures to ensure that the Trust pays
no more than "adequate consideration" (within the meaning of
Section 3(18) of ERISA) for such securities. All Shares acquired
with the proceeds of an ESOP Loan shall be placed in an ESOP Loan
Suspense Account established by the Trustee pursuant to Section
10.10(a). To the extent required for the purpose of pledging such
Shares as collateral for the ESOP Loan, the Shares held as
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collateral in the ESOP Loan Suspense Account may be physically
segregated from other Trust assets. Any pledge of Shares must
provide for the release of Shares not later than as payments on
the ESOP Loan are made by the Trustee and for Shares so released
to be transferred as appropriate for allocation to Participants'
Accounts pursuant to Sections 8.4 and 8.6 and regulations
promulgated under ERISA and the Code.
8.3. Shares to be Unrestricted. No Shares acquired with
-------------------------
the proceeds of an ESOP Loan shall be subject to any put, call or
other option or any buy-sell or similar agreement while held
by or when distributed from the Trust, whether or not the Plan
constitutes an "employee stock ownership plan" within the meaning
of Section 4975(e)(7) of the Code at such time and whether or not
the ESOP Loan has been repaid at such time.
8.4. Release from ESOP Loan Suspense Account. Each year a
---------------------------------------
number of Shares shall be released from the ESOP Loan Suspense
Account. Such number shall be determined as follows: the number
of Shares held in the ESOP Loan Suspense Account at the beginning
of the applicable Plan Year shall be multiplied by a fraction, the
numerator of which shall be the amount of principal and interest
due under the loan amortization payment schedule for the current
Plan Year, and the denominator shall be the numerator plus the
principal and interest to be paid on the loan amortization payment
schedule for all future Plan Years. Unless otherwise determined
by the Committee, a substantially equal number of Shares shall be
released from the ESOP Loan Suspense Account for each calendar
quarter during the Plan Year. Such Shares shall be deemed
acquired by the Company Stock Fund at the Closing Price on the
last trading day prior to the date of release or such other date
as may be determined by the Committee for this purpose, and
Company Stock Fund units representing the Participant's interest
in such released Shares shall be allocated to the accounts of
Participants in substitution for Company Stock Fund units
otherwise required to be allocated. In connection with such
releases, it is intended that the Trustee will transfer funds to
the ESOP Loan Payment Accumulation Account for each month equal to
the total value of Shares released from the ESOP Loan Suspense
Account for such month. Such transferred funds shall represent
Company Contributions, Personal Contributions and dividends that
are required to be invested in the Company Stock Fund and
allocated to the Accounts of Participants.
8.5. Use of Company and Personal Contributions for ESOP
--------------------------------------------------
Loan Payments. In order to accumulate the necessary funds for
- -------------
ESOP loan repayment, all Company and Personal Before-Tax
Contributions to this Plan which are to be invested in the Company
Stock Fund shall be available for ESOP loan repayment. It is
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<PAGE>
intended that Company Contributions under Section 6.1, Company
Matching Contributions and Personal Contributions, together with
earnings thereon, shall be applied to ESOP loan repayment as
provided under Section 8.7.
8.6. Use of Dividends for ESOP Loan Payments. In the
---------------------------------------
event a dividend on Company stock is paid and an ESOP loan is
outstanding, such dividend shall, except where directed
otherwise by the Committee, be applied to ESOP loan repayment. It
is intended that dividends on Company stock be deemed applied to
ESOP loan repayment to the extent that such dividends, if so
applied, would be tax deductible to the Company under Section
404(k) of the Code, and that the Committee will direct that
dividends be applied to purposes other than ESOP loan repayment
only where such a tax deduction would not be available. In any
case in which dividends on Shares held in the Company Stock Fund
are applied for ESOP Loan repayment, Shares ("Dividend Replacement
Shares") with a fair market value equal to such dividends shall be
substituted for such dividends. For this purpose, fair market
value of Unallocated Shares released from the ESOP Loan Suspense
Account shall be the Closing Price on the last trading day prior
to the date of release or such other date as may be determined by
the Committee for this purpose, and for other Dividend Replacement
Shares, shall be the replacement cost to the Trust. Dividend
Replacement Shares shall be applied to increase the value of
Company Stock Fund units.
8.7. ESOP Loan Payments. The Trustee shall, from time to
------------------
time, transfer sufficient funds to the ESOP Loan Payment
Accumulation Account or ESOP Loan Suspense Account to provide
funds for ESOP Loan payments required for the Plan Year. Such
transfers (including the transfers described in Section 8.4), and
the corresponding ESOP loan payments shall be treated as derived
from the following sources, in the following order to the extent
of assets available from such sources at the time of transfer:
(a) First, if directed by the Committee, proceeds
from the sale, exchange, or disposition of Shares or other assets
held in the ESOP Loan Suspense Account and earnings thereon;
(b) Second, from dividends on Shares in accordance
with Section 8.6 and, to the extent permitted under applicable
law, earnings thereon;
(c) Third, from Company Contributions under Section
6.1(d) and earnings thereon;
(d) Fourth, from Company Matching Contributions and
earnings thereon;
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(e) Fifth, from Supplemental Contributions and
earnings thereon; and
(f) Sixth, from Before-Tax Personal Contributions
made by Participants and earnings thereon.
This provision shall not be construed to preclude the
transfer of funds out of the ESOP Loan Payment Accumulation
Account or ESOP Loan Suspense Account for other Plan purposes,
provided that no such transfer shall alter the order of priority
established by this provision. Further, any funds remaining in
the ESOP Loan Payment Accumulation Account or ESOP Loan Suspense
Account at the end of the Plan Year and not applied to ESOP loan
repayment shall be used as otherwise provided in this Plan.
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<PAGE>
ARTICLE IX
Investment of Contributions
---------------------------
9.1. Investment of Company Matching and Supplemental
-----------------------------------------------
Contributions. All Company Matching and Supplemental
- -------------
Contributions shall be invested in the Company Stock Fund at all
times except to the extent that any of such contributions are held
by the Trustee in the ESOP Loan Payment Accumulation Account or
ESOP Loan Suspense Account.
9.2. Investment of the Matched Contributions Part of an
--------------------------------------------------
Account. At least one-half of a Participant's matched Personal
- -------
Contributions for each Plan Year shall be invested in the Company
Stock Fund. The remaining one-half shall be invested, as the
Participant may direct, in 1% increments in any Investment Fund
other than the Earthgrains Stock Fund. Except as provided in
Section 9.6, all Company Stock Fund units required under this
Section to be purchased for any Plan Year with a Participant's
matched Personal Contributions must be held in the Company Stock
Fund for at least one full Plan Year beginning after the date of
contribution and thereafter the Participant shall be permitted to
direct the investment of such units and all earnings thereon, in
1% increments in any Investment Fund other than the Earthgrains
Stock Fund.
9.3. Investment of the Unmatched Contributions Part of an
----------------------------------------------------
Account. A Participant's unmatched Personal Contributions shall
- -------
be invested as the Participant may direct in 1% increments in any
Investment Fund.
9.4. A Participant's Investment Direction for Current
------------------------------------------------
Contributions. In connection with an initial election to
- -------------
participate in the Plan, each Participant shall indicate how
current contributions credited to such Participant's Account which
are subject to the Participant's investment direction are to be
invested. A Participant may change investment direction, but not
more than once in any Processing Period by delivering such
instructions to the Employee Stock Plans Department at the time
and in the manner prescribed by the Committee. Any change in
investment direction for current contributions shall be effective
as of the first day of a Processing Period.
9.5. A Participant's Investment Direction for Accumulated
----------------------------------------------------
Account Balances. (a) Either with or without changing investment
- ----------------
direction for contributions to be credited thereafter, a
Participant may, by delivery of instructions to the Employee Stock
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<PAGE>
Plans Department at the time and in the manner prescribed by the
Committee, direct that the accumulated balance in the Personal
Contributions portion of the Participant's Account be transferred
pursuant to Section 10.4 between or among available Investment
Funds (other than transfers into the Earthgrains Stock Fund), in
1% increments, provided that all Company Stock Fund units required
under Section 9.2 to be purchased for any Plan Year with a
Participant's matched Personal Contributions must remain invested
in the Company Stock Fund for at least one full Plan Year
beginning after the date of contribution. Except as provided in
Section 9.6 below, no investment direction may be given under this
subsection more frequently than once in any Processing Period
effective October 17, 1995.
(b) The Participant's Account as of the end of the
Processing Period in which the change of investment is intended to
become effective shall be controlling for purposes of implementing
the change order. Any change of investment of the accumulated
balance in a Participant's Account shall be effective as of the
end of a Processing Period.
9.6. Special Diversification After Attainment of Age 55.
--------------------------------------------------
Each Participant shall be permitted, during the 90-day period
following the close of each Plan Year occurring after attainment
of age 55, to diversify the investment of all Company Stock Fund
units in the Participant's Account, other than those attributable
to Company Matching and Supplemental Contributions, by directing
the transfer thereof, in 1% increments, into any fund established
for investments under this Plan. The right to transfer
investments hereunder shall be in addition to any other investment
or transfer right under this Plan. A request hereunder shall be
submitted, on forms provided by the Committee, within such 90-day
period and shall be effective June 30 of the following Plan Year.
9.7. The Company Stock Fund. Except for interim
----------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment in Shares, and for amounts held to meet
contemplated payments, the Company Stock Fund shall be invested by
the Trustee only in Shares; provided, the Trustee may receive and
retain in such Company Stock Fund any warrant, right, option or
similar instrument which gives the holder the right to acquire any
Shares under any circumstances, distributed on or in respect of
any Shares held in such Company Stock Fund (and shall sell any
other instrument or property so received which does not give the
holder the right to acquire Shares). Cash contributions to the
Company Stock Fund and any proceeds from any Shares held therein
which were tendered or exchanged in a tender or exchange offer
shall be applied by the Trustee to the purchase of Shares or other
Qualifying Employer Securities if such securities are available
for purchase at a price determined to be appropriate by the
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<PAGE>
Trustee, as soon as reasonably possible after the Trustee's
receipt thereof except to the extent such contributions and
proceeds are held in cash for purposes of liquidity. Shares may
be acquired by the Trustee in any of the following transactions:
(i) purchases from the Company or otherwise, at
a price not greater than the Closing Price on the date of
purchase;
(ii) purchases on the open market; or
(iii) deemed purchases from an ESOP Loan
Suspense Account, at a price not greater than the Closing Price on
the last trading day prior to the date of release from the
Suspense Account or such other date as may be determined by the
Committee for this purpose.
9.8. The Short-Term Fixed Income Fund. The Short-Term
--------------------------------
Fixed Income Fund shall be invested by the Trustee only in the
following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any short-term
fixed income fund maintained by, any national or state bank, trust
company (including the Trustee or any bank affiliated with it),
savings and loan association or regulated insurance company; or
(c) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Short-Term Fixed Income Fund other
than United States Government or agency obligations shall be rated
A or higher by Moody's Investors Service or another equivalent
recognized rating agency. All investments of the Short-Term Fixed
Income Fund (other than readily marketable or redeemable units of
participation in any fund) shall mature on demand or on a date not
later than three years after the date of acquisition thereof.
Investments for the Short-Term Fixed Income Fund may be purchased
on the open market or otherwise, or by direct subscription with
the issuer.
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<PAGE>
9.9. The Medium-Term Fixed Income Fund. Except for interim
---------------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Medium-Term Fixed Income Fund shall be invested by
the Trustee only in the following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any
medium-term fixed income fund or guaranteed interest contracts
fund maintained by, any national or state bank, trust company
(including the Trustee or any bank affiliated with it), savings
and loan association or regulated insurance company;
(c) Guaranteed interest contracts issued by
regulated insurance companies; or
(d) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Medium-Term Fixed Income Fund other
than United States Government or agency obligations shall be rated
A or higher by Moody's Investors Service or another equivalent
recognized rating agency. All investments of the Medium-Term
Fixed Income Fund (other than readily marketable or redeemable
units of participation in any fund) shall mature not later than
ten years after the date of acquisition thereof. Investments for
the Medium-Term Fixed Income Fund may be purchased on the open
market or otherwise, or by direct subscription with the issuer.
9.10. The Equity Index Fund. Except for interim
---------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Equity Index Fund shall be invested only in units of
participation in one or more funds, managed by an investment
manager selected by the Committee from time to time. The primary
objective of such fund(s) shall be the realization of dividends
and capital growth closely approximating the results of the group
of stocks comprising the Standard & Poor's 500 Composite Index
from time to time. Such fund(s) may be a mutual fund, an
investment trust or any other type of investment vehicle. During
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<PAGE>
any period of time when the Equity Index Fund is invested through
the medium of a common, collective or commingled trust fund which
is qualified under the provisions of Section 401(a) of the Code
and exempt from income tax under the provisions of Section 501(a)
of the Code, the Declaration of Trust of such fund, as theretofore
or thereafter amended, may be incorporated by reference into the
Trust Agreement of this Plan. The investment manager of the
Equity Index Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund, including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment manager
which is fully independent of the Trustee and shall be subject to
the terms of any prohibited transaction exemption (class or
otherwise) issued by the U.S. Department of Labor. As used herein
the term "investment manager" means only (a) a party registered as
an investment manager under the Investment Advisers Act of 1940,
(b) a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.11. The Indexed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Indexed Balanced Fund shall be invested only in
units of participation in two or more funds managed by an invest-
ment manager selected by the Committee from time to time. The
primary objective of such funds shall be to achieve a total return
which approximates the performance of a 50/50 mix of stocks and
bonds, as reflected in the Standard & Poor's 500 Composite Index
and the Lehman Brothers Government Corporate Bond Index,
respectively. During any period of time when the Indexed Balanced
Fund is invested through the medium of a common, collective or
commingled trust fund which is qualified under the provisions of
Section 401(a) of the Code and exempt from income tax under the
provisions of Section 501(a) of the Code, the Declaration of Trust
of such fund, as theretofore or thereafter amended, may be
incorporated by reference into the Trust Agreement of this Plan.
The investment manager of the Indexed Balanced Fund shall have and
may exercise all powers and discretions granted by the
organizational instruments governing the fund, including, without
limitation, the power to eliminate investments which in its
judgment involve an unacceptable risk of loss, the power to
respond to tender offers as it deems to be in the best interests
-38-
<PAGE>
of the fund, and the power to lend securities of the fund;
provided, that any loan of securities shall be pursuant to a
written instrument approved by an investment manager which is
fully independent of the Trustee and shall be subject to the terms
of any prohibited transaction exemption (class or otherwise)
issued by the U.S. Department of Labor. As used herein, the term
"investment manager" means only (a) a party registered as an
investment manager under the Investment Advisers Act of 1940, (b)
a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.12. The Managed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet contemplated
payments, the Managed Balanced Fund shall be invested only in
units of participation in two or more funds, managed by an
investment manager selected by the Committee from time to time.
The primary objective of such funds shall be to achieve higher
returns than a 60/40 mix of the Standard & Poor's 500 Composite
Index and the Lehman Brothers Government Corporate Bond Index,
respectively. During any period of time when the Managed Balanced
Fund is invested through the medium of a common, collective or
commingled trust fund which is qualified under the provisions of
Section 401(a) of the Code and exempt from income tax under the
provisions of Section 501(a) of the Code, the Declaration of Trust
of such fund, as theretofore or thereafter amended, may be
incorporated by reference into the Trust Agreement of this Plan.
The investment manager of the Managed Balanced Fund shall have and
may exercise all powers and discretions granted by the
organizational instruments governing the fund including, without
limitation, the power to eliminate investments which in its
judgment involve an unacceptable risk of loss, the power to
respond to tender offers as it deems to be in the best interests
of the fund, and the power to lend securities of the fund;
provided, that any loan of securities shall be pursuant to a
written instrument approved by an investment manager which is
fully independent of the Trustee and shall be subject to the terms
of any prohibited transaction exemption (class or otherwise)
issued by the U.S. Department of Labor. As used herein, the term
"investment manager" means only (a) a party registered as an
investment manager under the Investment Advisers Act of 1940, (b)
a bank as defined in such Act, or (c) an insurance company
qualified to manage, acquire or dispose of any asset of any
employee benefit plan subject to ERISA.
9.13. The Earthgrains Stock Fund. Except for amounts held
--------------------------
to meet contemplated payments, the Earthgrains Stock Fund shall be
invested by the Trustee only in shares of common stock of The
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<PAGE>
Earthgrains Company. Neither cash contributions nor transfers
from any Investment Fund shall be permitted to be made to the
Earthgrains Stock Fund.
9.14. Earnings, etc. Except as provided in Section 8.6,
-------------
dividends, interest and other cash distributions received by the
Trustee in respect of any Investment Fund shall be reinvested in
the same Investment Fund. If the Company so directs, the Trustee
shall purchase from the Company (from authorized but unissued
Shares or out of Shares held in the Company's treasury) all or
some of the Shares which are to be purchased with cash dividends
received on Shares held in the Fund, and in any such case, the
purchase price per Share payable by the Trustee shall be the
Closing Price on the date of purchase. Alternatively, the Trustee
may obtain Shares from other sources, including Shares released
from the ESOP Loan Suspense Account.
9.15. Reports to Participants. The Committee shall furnish
-----------------------
each Participant, at least semi-annually, a statement of the
Participant's Account showing, at a minimum, the market value
thereof as of the end of such period, the portions invested in
each Investment Fund, and the portions thereof which are vested
and unvested. Notwithstanding the foregoing, the Committee need
not furnish a statement of account to an individual who has
separated from the service of the Employing Companies unless such
individual so requests.
9.16. Voting of Shares. (a) Each Participant (or, if
----------------
deceased, the Participant's Beneficiary), as a named fiduciary
within the meaning of Section 403(a)(1) of ERISA, shall be
entitled to vote, at any meeting of shareholders of the Company,
all of the full and fractional Share Equivalents credited to the
Participant's Account in the Plan, as shown on the records of the
Plan as of the most recent valuation date for which information is
available prior to the record date for determining shareholders
entitled to vote at such meeting. To enable them to do so, and to
be fully informed of all matters on which they are entitled to
vote, arrangements have been made for the Company or the Committee
promptly to deliver or cause to be delivered to each Participant
(or Beneficiary) who is entitled to vote any Share Equivalents a
copy of all proxy solicitation materials, before each annual or
special meeting of shareholders of the Company, together with a
form requesting confidential instructions on how the Shares which
such Participant is entitled to vote are to be voted at such
meeting.
(b) Each Participant (or Beneficiary) entitled to
vote on any matter presented for a vote by the stockholders and
who provides timely instructions to the Trustee hereunder shall
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<PAGE>
also be considered to have voted, as a named fiduciary, in
proportion to the vote of such Participant's (or Beneficiary's)
Share Equivalents, a pro rata portion of the votes attributable to
the aggregate number of (i) any Share Equivalents as to which
voting instructions have not been timely received from
Participants (or Beneficiaries), and (ii) all Unallocated Shares.
Such pro rata portion shall be equal to the aggregate number of
votes attributable to Shares and Share Equivalents described in
clauses (i)-(ii) of the preceding sentence multiplied by a
fraction, the numerator of which is the number of votes
attributable to Share Equivalents for such Participant (or
Beneficiary) and the denominator of which is the total number of
votes attributable to Share Equivalents of all Participants (and
Beneficiaries) who have provided timely instructions to the
Trustee under this Section.
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide voting instructions to the Trustee at least three
business days before the shareholders' meeting. Voting
instructions from individual Participants (or Beneficiaries) shall
be held by the Trustee in strictest confidence and neither the
name of, nor the voting instructions given by, any individual
Participant (or Beneficiary) who chooses to give voting
instructions shall be divulged by the Trustee to any of the
Employing Companies or to any director, officer or employee
thereof, or to the Committee; provided, however, that to the
extent necessary for the operation of the Plan, such instructions
may be relayed by the Trustee to an independent recordkeeper,
auditor or other person providing services to the Plan if such
person agrees not to divulge such directions to any other person,
including employees, officers and directors of the Company or its
affiliates.
9.17. Tendering of Shares and Rights. (a) Each
------------------------------
Participant (or, if deceased, the Participant's Beneficiary), as a
named fiduciary within the meaning of Section 403(a)(1) of ERISA,
shall be entitled, to the extent of full and fractional Share
Equivalents credited to the Participant's (or Beneficiary's)
Account in the Plan, as shown on the records of the Plan as of the
most recent valuation date for which information is available, to
direct the Trustee in writing as to the manner in which to respond
to a tender or exchange offer, including but not limited to a
tender or exchange offer within the meaning of the Securities
Exchange Act of 1934, as amended, with respect to Shares, related
rights, or both, and the Trustee shall respond in accordance with
the instructions so received. The Committee shall utilize its
best efforts to timely distribute or cause to be distributed to
each Participant (or Beneficiary) such information as will be
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<PAGE>
distributed to shareholders of the Company in connection with any
such tender or exchange offer, together with a form requesting
confidential instructions on whether or not such Shares or rights
will be tendered or exchanged.
(b) Each Participant (or Beneficiary) who has Share
Equivalents shall also be considered to have directed the Trustee,
as a named fiduciary, in proportion to the direction given or
deemed to have been given with respect to such Participant's (or
Beneficiary's) Share Equivalents, as to the sale, exchange or
transfer of a pro rata portion of the aggregate number of (i)
Share Equivalents to which directions have not been timely
received from Participants (or Beneficiaries) and (ii) all
Unallocated Shares. Such pro rata portion shall be equal to the
Shares and Share Equivalents described in clauses (i)-(ii) of the
preceding sentence multiplied by a fraction, the numerator of
which is the number of Share Equivalents of such Participant (or
Beneficiary) and the denominator of which is the total number of
Share Equivalents of all Participants (or Beneficiaries).
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide instructions to the Trustee by the date established by
the Trustee and calculated to provide sufficient time to compile
instructions and a timely response to the tender or exchange
offer. If the Trustee shall not receive timely instructions from
a Participant (or Beneficiary) as to the manner in which to
respond to such a tender or exchange offer, the Participant (or
Beneficiary) shall be deemed to have directed the Trustee not to
tender or exchange such Participant's (or Beneficiary's) Share
Equivalents and the Trustee shall not tender or exchange such
Share Equivalents with respect to which such Participant (or
Beneficiary) has the right of direction. The instructions
received by the Trustee from individual Participants shall be held
in the strictest confidence and neither the name of, nor the
instructions given by, any individual Participant (or Beneficiary)
who chooses to give instructions shall be divulged by the Trustee
to any of the Employing Companies or to any director, officer or
employee thereof, or to the Committee; provided, however, that to
the extent necessary for the operation of the Plan, such
instructions may be relayed by the Trustee to an independent
recordkeeper, auditor or other person providing services to the
Plan if such person agrees not to divulge such directions to any
other person, including employees, officers and directors of the
Company or its affiliates.
9.18. Plan Mergers. In the event that this Plan is a party
------------
to a merger with or accepts a transfer of assets from any other
qualified employee benefit plan, the Committee shall be authorized
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<PAGE>
to waive any of the investment restrictions of Section 9.1, 9.2 or
9.5 with respect to existing balances in any employee account
which is transferred to this Plan in connection with such merger,
if in the Committee's absolute discretion such waiver is
appropriate under the circumstances.
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<PAGE>
<PAGE>
ARTICLE X
Maintenance and Valuation of Accounts
-------------------------------------
10.l. Separate Accounts. The Committee shall establish a
-----------------
separate Account for each Participant, which shall be a record of
all contributions made by or for such Participant, by source and
type, and all investments thereof, separately accounted for with
respect to each part of such Account and each Investment Fund.
The fact that allocations shall be made and credited to individual
Accounts shall not give the Participant any vested or other right
in or to the assets of the Fund except as expressly provided by
this Plan.
10.2. Company Stock Fund Portion. The number of units to
--------------------------
be credited to each part of a Participant's Account which has been
invested in the Company Stock Fund shall be determined as follows:
(a) Such part shall be credited as of the end of
each Processing Period with a number of units (including
fractional units to the fourth decimal place) determined by
dividing
(i) the sum of the contributions made (directly
or indirectly through, for example, release of Unallocated Shares
from the ESOP Loan Suspense Account) to such part for such
Participant (regardless of type or source) which were applied
toward the acquisition of units for that Processing Period, by
(ii) the fair market value of each unit as of
the end of the Processing Period.
(b) Such part shall be debited as of the end of each
Processing Period with the number of units distributed or sold
from the part as of the end of such Processing Period (even though
the distribution or sale might not be completed until some
subsequent date).
(c) Except as provided in Section 8.6, dividends and
other cash distributions received on Shares held in the Company
Stock Fund shall be reinvested in the Company Stock Fund.
10.3. Other Investment Fund Portions. The Committee may
------------------------------
adopt any method of accounting it believes appropriate (unit,
dollar or otherwise) for each of the other Investment Funds. As
of the end of each Processing Period, there shall be credited to
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each Participant's Account additional units or interests, as
appropriate, of each Investment Fund in which the Participant's
Account is invested, as determined by dividing the contributions
to each such Investment Fund for such Processing Period by the
value of a unit or interest therein as of the end of the prior or
current Processing Period as determined by the Committee on a
uniform and consistent basis. In making valuations of the
Investment Funds, the Trustee shall be entitled to accept the most
recent valuations received from their managers.
10.4. Transfers Between Funds. All transfers of
-----------------------
investments between Investment Funds to comply with a
Participant's investment direction or to comply with Section 12.8
shall be deemed a sale of the assets which must be disposed of,
and a purchase of the assets which must be purchased, to effect
such transfer. In the case of a sale or purchase of interests in
an Investment Fund, such interests shall be valued at the end of
the Processing Period for which such deemed sale or purchase
occurs.
10.5. Valuation of the Fund. As soon as practicable after
---------------------
the end of each Processing Period the Trustee shall determine, in
accordance with generally accepted valuation methods and
practices, the fair market value of the assets then constituting
the Fund (giving effect to income, expenses and realized and
unrealized gains and losses experienced during such Processing
Period), separately valuing each Investment Fund, as of the end of
such Processing Period (such determination being called a
"valuation"), and shall separately adjust the value of each
Investment Fund's portion of all existing Accounts in the ratio
that the balance of each such portion of each such Account bears
to the total of the combined balances of such portions of all
Accounts. In making its valuations of the Fund, the Trustee shall
have the absolute right to rely on the valuations of units of
participation in any Investment Fund, or the underlying
investments of any Investment Fund, furnished by the fund manager.
10.6. Effect of Valuations. The Trustee's valuations of
--------------------
the Fund or any portion thereof in accordance with the fore-
going, and its determination of the value of the Participants'
Accounts based thereon, shall be conclusive and binding upon the
Company, all other Participating Employers, the Committee, and all
Participants and their respective Beneficiaries.
10.7. No Liability for Fluctuations in Value. The benefits
--------------------------------------
provided by this Plan shall be payable solely from the Fund. Each
Participant and all persons who may derive rights under this Plan
through or from a Participant are hereby charged with actual
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<PAGE>
notice that all Accounts will increase or decrease in value from
time to time as the assets of the Fund fluctuate in value. The
fact that a particular amount was credited to a Participant's
Account at some time is no assurance that such amount will
ultimately be distributable hereunder and neither the Company, any
Participating Employer, the Committee, the Trustee, nor any fund
manager, guarantees in any way that the amount ultimately
distributable to or on behalf of any Participant will be equal to
any amount at any time credited to such Participant's Account.
Each Participant, by electing to participate in this Plan, assumes
the risk of possible declines in the market value of the
Participant's Account.
10.8. Adjustments to Accounts. If an adjustment to any
-----------------------
Participant's Account is required to correct any error (such as an
incorrect payroll deduction or an incorrect allocation of any
contribution), or for any other reason (such as a delay in the
start of payroll deductions), such adjustment shall be made as
soon as administratively feasible after the Committee first learns
of the circumstances which require adjustment. Any such
adjustment shall be made in accordance with the Plan
characteristics (including, but not limited to, the price of
Shares and units) in effect during the Processing Period in which
the adjustment is posted to the Participant's Account, except that
adjustments of Company Matching Contributions shall be at the
rate(s) in effect during the Processing Period(s) in which the
error occurred. No adjustment shall be made for any interest,
dividend or other gain or loss not realized because of a delay in
contributions.
Under extraordinary circumstances as determined by the
Committee in its absolute discretion, error adjustments may be
made based on Plan characteristics in effect during the Processing
Period(s) in which the error(s) occurred or on such other terms as
the Committee shall determine. In exercising its discretion under
this paragraph, the Committee shall consider such circumstances as
it shall deem appropriate, including but not limited to (a) the
nature of the error, (b) the ability of the Participant reasonably
to detect the error, and (c) the time elapsed between discovery of
the error and the reporting of same.
All necessitated Participant make-up contributions shall be
on an after-tax basis and shall be made by way of cashiers check
or money order. In no event shall adjustments be made for any
period exceeding twelve (12) months prior to the date the
Participant notifies a Plan representative of the error.
10.9. Ordering of Distributions. A distribution on
-------------------------
termination of employment shall take precedence over any other
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<PAGE>
distribution or withdrawal which (but for this provision) would
otherwise be made from the Account of a Participant as of the
distribution date.
10.10 Unallocated Accounts. The Trustee shall establish
--------------------
and maintain in the Trust the following accounts for purposes of
holding and investing amounts not allocated to the individual
accounts of Participants:
(a) An account to be designated the "ESOP Loan
Suspense Account" to hold Unallocated Shares acquired with the
proceeds of an ESOP Loan until such time as they are released and
allocated to the Company Stock Fund in accordance with Section
8.4. If so directed by the Committee, the ESOP Loan Suspense
Account may also hold contributions, dividends and related
accumulations under the ESOP for application to payment of
principal and interest on an ESOP loan in lieu of maintaining an
ESOP Loan Payment Accumulation Account as described in (b) below.
(b) An account to be designated the "ESOP Loan
Payment Accumulation Account" to hold and accumulate such funds as
are transferred thereto pursuant to Sections 8.4 and 8.7 to make
future ESOP Loan amortization payments or for use as provided in
Section 8.7. Pending application of funds to ESOP Loan payment or
other Plan purposes, the ESOP Loan Payment Accumulation Account
shall be invested in the Short-Term Fixed Income Fund or in a
separate but similar fund invested in the manner described in
Section 9.8.
10.11. Special Valuation of Company Stock in Extraordinary
---------------------------------------------------
Circumstances. Notwithstanding anything in this Plan to the
- -------------
contrary, if the Committee determines that the volume of distribu-
tions, withdrawals, transfers between Investment Funds, or
Participant loans as of the last day of a Processing Period
pursuant to other provisions of the Plan requires sales or
purchases of Shares at levels greater than can be accommodated in
an orderly fashion in a single day on the New York Stock Exchange,
the Processing Period shall be extended so that the sales or
purchases shall be spread over a period of days and the price
shall be established at the end of the period in accordance with
procedures adopted by the Committee from time to time.
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<PAGE>
<PAGE>
ARTICLE XI
Vesting
-------
11.1. Amounts Contributed by the Participant. The portions
--------------------------------------
of a Participant's Account which are attributable to the
Participant's Personal Contributions, with all earnings thereon,
shall be fully vested and non-forfeitable at all times.
11.2. Company Matching and Supplemental Contributions. The
-----------------------------------------------
portion of a Participant's Account which is attributable to
Company Matching and Supplemental Contributions for any Plan Year
(including earnings thereon) shall vest and become non-forfeitable
when such Participant completes two years of Vesting Service.
11.3. Vesting Rules. (a) Vesting Service shall be that
-------------
period of employment with the Employing Companies commencing on an
individual's Employment Commencement Date and ending on the
individual's Severance from Service Date. In the event that
non-successive periods of Vesting Service are restored pursuant to
this Section, such periods shall be aggregated into completed
twelfths of a year on the basis that thirty days of service equal
one twelfth of a year.
(b) The Employment Commencement Date shall be the
date on which an individual first performs an Hour of Service for
an Employing Company.
(c) The Severance from Service Date of an individual
shall be the earlier of the date the individual quits, is
discharged, retires or dies, or the first anniversary of the date
the individual is absent from service for any reason, unless
otherwise provided in subsection (d) or (h) of this Section.
(d) The Vesting Service of an individual shall not
be considered severed by an Absence from Service, and, except as
otherwise provided above, shall be deemed to include such Absence
from Service. An Absence from Service means one of the following:
(i) Any approved non-disability leave of
absence not exceeding two years in length; provided, however, that
Service shall not include any portion of the leave of absence
which is in excess of twelve (12) months unless the individual
returns to regular employment within thirty (30) days after
expiration of the leave of absence. If the individual fails to
return within such period, such individual's Severance from
Service Date shall be the earlier of the expiration of the
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<PAGE>
individual's leave of absence or the first anniversary of the date
on which the individual's leave of absence began.
(ii) Absence for any period while in the
service of the government of the United States under circumstances
such that the individual has re-employment rights granted by
Federal law, provided a written application for re-employment is
filed within the period after discharge from such government
service during which such re-employment rights are guaranteed,
failing which such individual's Severance from Service Date shall
be the first day of the period during which the individual no
longer performs services for the Employing Companies because of
such governmental service.
(iii) A leave of absence because of physical or
mental disability up to a maximum of twenty-four (24) months.
(iv) Lay-off of up to twelve (12) months.
(e) Period of Severance shall mean the period of
time commencing on an individual's Severance from Service Date and
ending on the date on which the individual again performs an Hour
of Service.
(f) If an individual has a Severance from Service by
reason of a quit, discharge or retirement and again performs an
Hour of Service for an Employing Company within twelve months of
the Severance from Service Date, such Period of Severance shall be
disregarded and shall constitute Vesting Service.
(g) If an individual has a Severance from Service by
reason of a quit, discharge, or retirement during an absence of
twelve months or less for any reason other than a quit, discharge
or retirement, and again performs an Hour of Service with an
Employing Company within twelve months of the date on which the
individual was first absent from Service, such Period of Severance
shall be disregarded and shall constitute Vesting Service.
(h) The Severance from Service Date of an individual
who is absent from service beyond the first anniversary of the
first date of absence by reason of a
maternity or paternity absence described in Section 2.26(b)(viii)
is the second anniversary of the first date of absence. The
period between the first and second anniversaries of the first
date of absence is not a Period of Severance nor a period of
Vesting Service unless otherwise provided in subsection (d).
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<PAGE>
(i) If a Participant has a Period of Severance and
is thereafter re-employed, all years of Vesting Service prior to
the Period of Severance shall be taken into account in determining
the Participant's vested interest in the Company Matching and
Supplemental Contributions portion of the Participant's Account,
as accumulated prior to such severance. The foregoing sentence
shall not apply to any Participant whose entire account balance is
not vested on the Participant's Severance from Service Date and
who incurs a Period of Severance exceeding five years. During the
period when any unvested amount is being held pending a
determination of whether a Period of Severance exceeding five
years occurs, the Participant's interest in such amount shall be
immediately terminated subject to reinstatement if the Participant
is re-employed by an Employing Company prior to incurring a
five-year Period of Severance. If the amount does not subsequently
vest, it shall be treated as a forfeiture. Any amount reinstated
hereunder shall be the fair market value of the forfeited amount
on the date of forfeiture, without any interest or other addition
thereto for the period prior to reinstatement. Forfeitures shall
be applied to reduce the Company's Contributions to this Plan.
(j) A transferred Participant whose participation
has become inactive under Section 3.5 and who continues to be
employed by an Employing Company without incurring a Period of
Severance shall be credited with Vesting Service for so long as
the Participant remains so employed.
11.4. Change in Control of the Company. Notwithstanding
--------------------------------
the foregoing provisions of this Article XI, in the event of a
"Change in Control of the Company" (as defined herein), the
nonvested portion of a Participant's Account which is attributable
to Company Matching and Supplemental Contributions for any Plan
Year or part thereof (including earnings thereon) shall
immediately vest and become nonforfeitable. The portion of the
Participant's Account which shall vest and become nonforfeitable
under this Section shall be determined as of the end of the month
during which the Change in Control of the Company occurs. For
purposes hereof, a "Change in Control of the Company" shall occur
if any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Act")) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act) of more than fifty percent (50%) of the then
outstanding voting stock of the Company. This Section shall not
apply to any Participant who is not employed by an Employing
Company at the time the Change in Control of the Company occurs.
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ARTICLE XII
Distributions
-------------
12.1. Distributions Upon Termination of Employment. A
--------------------------------------------
Participant who ceases to be an Employee of any Employing Company
because of death, total and presumably permanent disability, entry
into active duty with any branch of the military services of the
United States, or who has been laid off for a period exceeding
twelve consecutive months, or who has attained the age of 60 years
at the time the Participant ceases to be an Employee, or who has
completed two years of Vesting Service or is otherwise vested
under the provisions of Article XI, shall receive (or if not then
living, the Participant's Beneficiary shall receive), at the time
provided in Section 12.2 hereof, in a single distribution, the
Participant's entire Account. A cessation of employment with all
Employing Companies for any reason or at any time described in the
preceding sentence is referred to as a "vested termination." A
Participant who ceases to be an Employee under any other
circumstances shall receive (or if the Participant is not living
at the time of distribution the Participant's Beneficiary shall
receive), at the time provided in Section 12.2 hereof, in a single
distribution, the portions of the Participant's Account
attributable to Personal Contributions. Such Participant shall
forfeit the portion of the Participant's Account which is
attributable to Company Matching and Supplemental Contributions in
accordance with Section 11.3(i).
12.2. Time and Method of Distribution. (a) Except as
-------------------------------
provided otherwise in this Section, every distribution under
Section 12.1 shall be made as soon as is administratively feasible
after, but as of, the end of the Processing Period which ends on
or after the date on which the Committee learns that an event
requiring distribution has occurred and is advised of the identity
or identities, and location(s) of, the party or parties entitled
to such distribution. In any event payment of such distribution
shall be commenced no later than the 60th day after the close of
the Plan Year in which falls the last to occur of the following
dates:
(i) The date on which the Participant attains
the age of 65 years;
(ii) The tenth anniversary of the year in which
the Participant first became a Participant in this Plan; or
(iii) The date on which the Participant ceased
to be an Employee.
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<PAGE>
Notwithstanding anything to the contrary herein,
distributions under this Plan shall commence not later than
April 1 following the calendar year in which the Participant
attains age 70-1/2.
Whole numbers of Shares which are to be distributed shall be
distributed in kind (subject, however, to transfer taxes), except
that amounts required to be distributed under the preceding
paragraph after age 70-1/2 may be distributed in cash at the
Participant's election. Subject to Section 12.7, the value of all
other interests shall be distributed in cash. Interests in the
Investment Funds shall be valued as of the end of the Processing
Period as of which a distribution is to be made; provided that,
with respect to interests in the Company Stock Fund which are to
be distributed in cash, the value of a fractional Share shall be
based on the value of a full Share, which shall be the Closing
Price on the last business day of the Processing Period or on the
next prior business day as determined by the Committee on a
uniform and consistent basis.
(b) Each Participant (and, in the case of a deceased
Participant, the Participant's Beneficiary) entitled to a
distribution hereunder may elect to defer such distribution to the
end of the Plan Year during which the Participant's Account would
otherwise be distributed, so as to participate in the allocation
of any Supplemental Contribution for such Plan Year. Such
Participant shall indicate, in accordance with procedures
promulgated by the Committee, whether the Participant or
Beneficiary elects to defer such distribution or receive it
immediately. If the value of such distribution is less than
$3,500 and if the Participant or Beneficiary fails to elect to
defer such distribution, the Participant or Beneficiary shall be
deemed to have elected immediate distribution.
(c) Notwithstanding any other provision of the Plan,
if a Participant's vested Account balance exceeds $3,500 or has
exceeded $3,500 at the time of any previous distribution to the
Participant, amounts payable to such Participant shall not be
distributed before the Participant attains age 62 without the
consent of the Participant. The Participant's consent to
distribution must be made in accordance with procedures
promulgated by the Committee after the Participant receives a
notice as described in subsection (d) below and must be made
within the 90-day period ending on the last day of the Processing
Period as of which the amount of the distribution is determined
and made.
(d) No less than 30 days and no more than 90 days
before the last day of the Processing Period as of which a
distribution to a Participant is determined and made in accordance
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<PAGE>
with this Article or Article XIII, the Committee shall provide to
the Participant a notice describing the right to defer receipt of
the distribution until age 62. Notwithstanding the preceding
sentence, distribution to a Participant may be made less than 30
days after the notice is provided if (i) the notice 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 (ii)
the Participant affirmatively elects a distribution after
receiving the notice.
(e) Any Participant not consenting to a distribution
hereunder shall become an inactive Participant, but
notwithstanding any provision of this Plan to the contrary, such
Participant shall have only the following rights under this Plan:
(i) the right to receive a distribution of all
(but not less than all) of the vested portion of the Participant's
Account as of the end of any Processing Period permitted under
this Section;
(ii) the right to make changes in the
investments of the Participant's Account in accordance with
Article IX;
(iii) the right to vote and tender Share
Equivalents held in the Participant's Account in accordance with
Sections 9.15 and 9.16, respectively;
(iv) the right to change the Participant's
designated Beneficiary or Beneficiaries from time to time in
accordance with Section 16.1;
(v) the right to have Supplemental Contributions
allocated to the Participant's Account for the Plan Year in which
the Participant's termination occurred; and
(vi) any other right required by law to be
given to an inactive Participant with an undistributed vested
account in a defined contribution plan qualified under Section
401(a) of the Code.
(f) The consent to distribution required by
subsection (c) above shall not be applicable in the event of a
termination distribution arising from the death of a Participant.
In addition, if an inactive Participant dies, the distribution of
such Participant's Account shall be made as soon as
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<PAGE>
administratively feasible after the Committee learns of such
event.
(g) Nothing in this Section shall be construed to
increase the vested portion of any Participant's Account whose
termination was not a "vested termination" within the meaning of
Section 12.1. An Account held hereunder for later distribution
shall, subject to the inactive Participant's right to direct a
change in investments as herein set forth, remain invested in the
manner in effect on the Participant's termination date, and shall
continue to fluctuate in value as the respective Investment Funds
in which such Account is invested so fluctuate.
12.3. Eligible Rollover Distributions. (a) A Participant
may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the Participant (a "direct rollover"). In addition,
the Participant's surviving spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, may elect a direct
rollover.
(b) An eligible rollover distribution is any
distribution of all or any portion of a Participant's Account,
except that an eligible rollover distribution does not include any
distribution required under Section 401(a)(9) of the Code 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 Shares).
(c) An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, that
accepts the eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
12.4. Determination of Disability. For purposes of
---------------------------
determining whether a Participant has had a Vested Termination
because of total and presumably permanent disability, a
Participant shall be deemed to be totally and presumably
permanently disabled if the Participant is unable to perform the
duties of such Participant's position as an Employee because of a
physical or mental impairment which can be expected to result in
death or to be of long continued or indefinite duration, as
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<PAGE>
conclusively determined by a competent doctor selected by the
Participant and approved by the Committee or its delegate, who
shall certify the result of the examination of the Participant to
the Committee.
12.5. Transfer of Accounts. Once per year or at such
--------------------
other times as it shall determine, the Committee shall arrange for
the transfer of the Accounts of individuals who are no longer
eligible to participate in this Plan and who are currently
eligible and have an Account in a Related Plan to such Related
Plan to be combined with the Participant's active Account under
such Related Plan. After such transfer is accomplished, this Plan
shall have no further liability to the Participant with respect to
the transferred Account.
12.6. Early Distribution under Domestic Relations Order.
-------------------------------------------------
If the Committee shall receive an order that is finally determined
to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code, and if such order shall so permit, the
Committee may authorize the early distribution under the
provisions of this Article XII of any amount distributable to the
alternate payee under the order.
12.7. Absolute Right to Receive Stock Distribution.
--------------------------------------------
Notwithstanding any provision of this Plan to the contrary,
whenever it is specified that a distribution will be made in cash,
the Participant shall nonetheless have the right to elect to have
Shares purchased and distributed to him. If such election is made,
the Participant's non-Share investments shall be deemed
transferred, pursuant to Section 10.4, to the Company Stock Fund
and thereafter distributed. Under no circumstances will a
fractional Share be distributed.
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ARTICLE XIII
Withdrawals While Employed
--------------------------
13.1. Elective Right to Make Certain Withdrawals. (a) Any
------------------------------------------
Participant may withdraw any part of the Participant's Account
which is attributable to
(i) After-Tax Unmatched Contributions,
(ii) After-Tax Matched Contributions which have
been in the Participant's Account for at least one full Plan Year
after the contributions were made, and
(iii) Company Matching Contributions
attributable to Personal After-Tax Contributions made before
April 1, 1994, which have been in the Participant's Account for at
least two full Plan Years after the contributions were made;
provided that, if any part of a Participant's Account described in
this paragraph (iii) is withdrawn, the Participant shall not be
permitted to make any Personal Contributions to the Plan or to
have any Company Matching Contributions credited to the
Participant's Account for a period of six months.
Any withdrawals under this subsection (a) shall be deemed
made in the order listed above.
(b) In addition to the rights set forth in
subsection (a), any Participant may withdraw any part of the
Participant's Account which is attributable to
(i) Company Matching Contributions attributable
to Personal Before-Tax Contributions made before April 1, 1994,
which have been in the Participant's Account for at least two full
Plan Years after the contributions were made, and
(ii) after a Participant has attained age
59-1/2,
(A) Before-Tax Matched Contributions which have
been in the Participant's Account for at least one full Plan
Year after the contributions were made,
(B) Before-Tax Unmatched Contributions, and
(C) Company Matching Contributions which have
been in the Participant's Account for at least one full Plan
Year after the contributions were made.
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Withdrawals under this subsection (b) shall be deemed made in
the order listed above.
(c) Subject to Section 12.7, amounts withdrawn under
this Section shall be distributed in cash. Amounts which are to
be distributed in cash shall be expressed in whole dollars unless
the entire amount of the part of the Account subject to withdrawal
is being withdrawn. Interests in the Investment Funds which are
to be distributed shall be valued as of the end of the Processing
Period as of which a distribution is made.
(d) A Participant who has attained age 55 and for
whom the diversification requirements of Section 401(a)(28) of the
Code cannot be satisfied for any Plan Year by a change of
investments under Article IX shall be permitted to withdraw so
much of the vested Company Matching and Supplemental Contribution
portions of the Participant's Account as may be necessary to
satisfy such diversification requirements. To request a
withdrawal under this Section, a Participant must deliver the
appropriate withdrawal form, properly completed, on or before the
90th day following the close of such Plan Year. Withdrawals under
this subsection shall be distributed within 180 days following the
end of the Plan Year to which the withdrawal relates.
13.2. Protected Withdrawal Rights. Any Participant with an
---------------------------
Account balance as of March 31, 1994 shall be entitled to any
elective distribution or withdrawal right under the Plan as in
effect on such date with respect to such Account balance; provided
that any limitations or suspension penalties on such elective
distribution or withdrawal rights in effect on March 31, 1994 may
be reduced or eliminated in accordance with rules promulgated by
the Committee. For any period of suspension after March 31, 1994,
the Participant will not be permitted to make any Personal
Contributions to the Plan.
13.3. Withdrawal Procedure. A Participant may request a
--------------------
withdrawal under this Article XIII by delivering such request to
the Employee Stock Plans Department in accordance with procedures
prescribed by the Committee. Withdrawals shall be effective as of
the last day of a Processing Period and shall be distributed as
soon as administratively feasible after the end of such Processing
Period. For purposes of determining the amount to be withdrawn,
the value of the withdrawable portion of the Account as of the
effective date of the withdrawal shall govern. Except as may be
required for certain withdrawals made pursuant to Section 13.2,
withdrawals shall be distributed in Shares or cash at the
Participant's election.
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13.4. Frequency of Withdrawals. No more than two
------------------------
withdrawals may be made under this Article in any period of twelve
consecutive months.
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ARTICLE XIV
Hardship Withdrawals
--------------------
l4.l. Eligibility and Procedure. This Article is
-------------------------
applicable only to the portions of a Participant's vested Account
which cannot be withdrawn under Article XIII excluding any
earnings on Before-Tax Contributions accumulated after
December 31, 1988.
(a) Any Participant who has suffered a hardship may
withdraw all or any part of such portions of the Participant's
Account upon application to the Committee and demonstration to the
Committee's satisfaction that a hardship exists.
(b) For purposes of this Article, a distribution
will be on account of hardship if the distribution is necessary in
light of immediate and heavy financial needs of the Participant.
A distribution based upon financial hardship cannot exceed the
amount required to meet the immediate financial need created by
the hardship and not reasonably available from other resources of
the Participant. The determination of the existence of financial
hardship and the amount required to be distributed to meet the
need created by the hardship shall be made in accordance with
uniform and non-discriminatory rules promulgated by the Committee.
The Committee shall require exhaustion of all other resources
reasonably available to the Participant, including loans and
distributions from the Plan, before granting an application
hereunder. A loan shall not be required if repayment thereof
would constitute a hardship.
(c) Subject to Section 12.7 the amount of a
withdrawal under this Article shall be delivered to the
Participant in cash from investments of the Participant's Account
other than Shares except as (and only to the extent) necessary to
realize sufficient cash to fund the withdrawal.
(d) In administering this Article the Committee
shall be entitled to act in reliance on any applicable U. S.
Treasury Regulations.
(e) No more than one withdrawal under this Article,
may be made in any consecutive period of twelve months.
(f) No withdrawal will be permitted which will
reduce the amount of a Participant's Account which is then held as
collateral to secure a loan under Article XV.
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(g) If a Participant shall have a hardship
withdrawal approved, the Participant shall be suspended from Plan
participation for twelve months from the date of distribution.
Such suspension shall run concurrently with any other suspension
then in effect.
(h) Withdrawals under this Article shall be
distributed as soon as administratively feasible after the end of
the Processing Period during which the Committee approves the
Participant's application.
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ARTICLE XV
Loans to Participants
---------------------
l5.l. Procedure and Terms. A Participant may apply to the
-------------------
Committee for a loan from the Participant's Account and the
Committee shall grant such a loan, but only on the following
conditions:
(a) Maximum loan amounts are the lesser of (i)
$50,000 less the highest outstanding loan balance under the Plan
during the one-year period ending on the day before the loan is
made, or (ii) 50% of the vested portion of the Account. In
computing the maximum amount of a loan, any Company Matching or
Supplemental Contributions which have not been in the Plan for one
full Plan Year shall not be considered.
(b) A Participant may have no more than two loans
outstanding at any time.
(c) The minimum amount of any loan shall be $1,000.
(d) The loan shall be evidenced by a note on a form
approved by the Committee and shall bear interest at a rate of one
percentage point above the "prime rate" published by Morgan
Guaranty Trust Company of New York at the close of business on the
last business day of the prior calendar quarter, as determined by
the Committee for each calendar quarter. The loan shall be
secured by a portion of the Participant's Account equivalent to
the amount of the loan, and shall be repayable in level
installments of principal and interest over a period not to exceed
five years from the date of such loan. Notwithstanding the
foregoing sentence, if the proceeds of a loan are to be used to
acquire a dwelling unit which is to be used, within a reasonable
period of time after the loan is made, as the principal residence
of the Participant, the loan shall be repayable over such a
period, not to exceed ten years, as the Committee shall determine.
The note shall be subject to prepayment at any time, but only in
full, and not in part, without premium or penalty. Except as the
Committee shall otherwise determine, payments on the note shall be
made only by way of payroll deductions and shall be invested in
accordance with the Participant's current investment election for
the type(s) of contribution which were the source of the loan;
provided that with respect to the portion of the loan attributable
to Before-Tax Contributions, payments shall be invested in
accordance with the current method of investment for the
Participant's current Before-Tax Unmatched Contributions. If no
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Before-Tax Unmatched Contributions are then being made, the
Participant shall direct how loan payments are to be invested.
(e) After the Participant shall be 90 days in
arrears on loan payments, the Committee shall determine the loan
to be in default. The Trustee shall thereafter have the right to
take recourse against the collateral securing the same, with full
right to exercise all remedies granted a secured party under the
applicable laws (including the Uniform Commercial Code) as in
effect in the various jurisdiction(s) in which the collateral may
be located; provided: (i) in no event shall the Trustee file a
claim under any bankruptcy proceeding for the debt represented by
the note; (ii) if an event occurs whereby the Participant would
receive a distribution of the Participant's Account balance, such
distribution shall consist of the defaulted note and the remainder
of the assets of the Account; and (iii) in no event shall the
defaulted note be distributed until the Participant would be
eligible to elect to receive distribution of the Participant's
Account balance pursuant to Section 12.1, even though a taxable
distribution may be deemed to have occurred at an earlier time
under applicable provisions of the Code.
(f) Any such loan shall be treated as a segregated
investment for the appropriate portion of the Account of the
borrowing Participant, the interest thereon shall be credited only
to such portion of the Participant's Account (and not to the
general earnings of the Fund), and for the purposes of allocating
income of the Fund or any other appreciation or depreciation of
the Fund for any Plan Year the Account of such borrowing
Participant shall be treated as not including the unpaid amount of
such borrowing (but for all other purposes of this Plan, including
the provisions dealing with the allocation of contributions and
the valuation of the corpus of the Trust, the amount of such
borrowing shall continue to be treated as part of the borrowing
Participant's Account, having a fair market value exactly equal to
the unpaid principal balance thereof at any time when it is
necessary to determine its fair market value).
(g) An application for a loan must be submitted and
shall be processed and disbursed in accordance with procedures
established by the Committee.
(h) The loan will be made in cash, from the
investments of the Participant's Account other than Shares except
as (and only to the extent) necessary to realize sufficient cash
to fund the loan.
(i) If a Participant becomes entitled to a
termination distribution before the loan has been repaid in full,
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the Trustee will distribute the Participant's note, endorsed
without recourse, as part of the resulting distribution of the
Participant's Account unless the loan is repaid at that time or
the termination distribution is deferred as provided in Section
12.2.
(j) If so determined by the Committee, a Participant
requesting a loan shall pay all out-of-pocket administrative and
filing fees incurred in processing the Participant's loan.
(k) A waiting period of two full calendar months is
required after a loan is repaid in any manner before a new loan
may be effective.
(l) Any Participant with respect to whom a loan has
been determined by the Committee to be in default shall not be
permitted to commence another loan of any type until five years
have elapsed from the end of the month in which the loan was
determined to be in default.
(m) Other than to determine whether an extended term
is available under Section 15.1(d), the Committee shall not take
into consideration the purpose for which the Participant intends
to use the proceeds.
(n) If a Participant directs that payroll deductions
for loan payments are to be discontinued prior to the full
repayment of a loan, the Participant shall be prohibited from
making another loan from the Plan for ten years from the date of
such direction, and shall be suspended from participation for five
years from the date of such direction.
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ARTICLE XVI
Designation of a Beneficiary
----------------------------
16.1. Procedure and Effect. (a) Except as otherwise
--------------------
provided in this Article or by law, any amount distributable under
this Plan as a result of or following the death of a Participant
shall be applied only for the benefit of the Beneficiary or
Beneficiaries designated pursuant to this Article by the
Participant on whose behalf the amount payable was accumulated.
Each Participant shall specifically designate, by name, on forms
provided by the Committee, the Beneficiary(ies) to whom such
payment shall be made. Such designation may be made at any time
satisfactory to the Committee. Except as provided in subsection
(b) hereof, a designation of a Beneficiary may be changed or
revoked without the consent of the Beneficiary at any time by
filing a new Beneficiary designation form with the Committee. The
filing of a new form shall automatically revoke any forms
previously filed with the Committee. A Beneficiary designation
form not properly filed with the Committee prior to the death of
the Participant shall have no validity under the Plan.
Any such designation shall be contingent on the designated
Beneficiary surviving the Participant, and if the designated
Beneficiary survives the Participant but dies before receiving the
entire amount distributable to the Beneficiary hereunder, the
amount which would otherwise have been so distributed shall be
paid to the estate of the deceased Beneficiary unless a contrary
direction was made by the Participant, in which case such
direction shall control. More than one Beneficiary, and
alternative or contingent Beneficiaries, may be designated, in
which case the Participant shall specify the shares, terms and
conditions upon which amounts shall be paid to such multiple or
alternative or contingent Beneficiaries, all of which must be
satisfactory to the Committee. All payments and distributions to
a Beneficiary or Beneficiaries shall always be of the total amount
of the Participant's Account which is then subject to
distribution, and no such payments or distributions shall be made
in installments or as an annuity.
(b) In any situation where a married Participant
wishes to designate a Beneficiary other than the Participant's
spouse to receive benefits upon the Participant's death, such a
designation shall not be a qualified Beneficiary designation, and
shall not be recognized under this Plan, unless it is accompanied
by one of the following:
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(i) a written consent, in form satisfactory to
the Committee, whereby the spouse to whom the Participant is
married at the time of the Participant's death consents to the
designation of the Beneficiary and acknowledges the effect of the
designation, and which is witnessed by either a notary public, a
member of the Committee or other plan representative; or
(ii) proof satisfactory to the Committee that
such a written consent cannot be obtained because the spouse
cannot be located or such other circumstances as U.S. Treasury
Regulations may prescribe.
Spousal consent to the designation of a non-spouse
Beneficiary shall not be valid unless such consent is executed and
filed with the Committee prior to the Participant's death.
(c) If (i) no such designation is on file with the
Committee at the time of the Participant's death, or (ii) if a
designation on file is not valid, based upon the Participant's
marital status on the Participant's date of death, the
Participant's surviving spouse (if the Participant is married at
the time of the Participant's death) or the Participant's estate
(if it is established to the satisfaction of the Committee that
the Participant is not then married) shall be conclusively deemed
to be the Beneficiary designated to receive any amounts
distributable under this Plan. In determining any question
concerning a Participant's beneficiary, the latest designation
filed with the Committee shall control and intervening changes in
circumstances shall be ignored.
By way of example, if a Participant designates the
Participant's spouse as Beneficiary but thereafter is divorced
from such spouse and is not remarried on the Participant's date of
death, such designation shall remain valid unless the Participant
filed a later beneficiary designation form with the Committee.
Further, if a Participant at any time files a beneficiary
designation form which, because of other provisions of this Plan
or applicable federal law, is not effective at the time it is
filed or later becomes ineffective for any period of time (this
could occur, for example, by reason of an intervening marriage
during which the current spouse would automatically be entitled to
benefits under this Article or as otherwise required by law), and
such individual's marital status or other circumstances change so
that, on the date of death such designation would be effective,
such designation shall be controlling notwithstanding any
intervening period of ineffectiveness.
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(d) In addition to the foregoing limitations on a
Participant's right to have this Plan recognize a Beneficiary
designation, a Participant's designation shall automatically be
modified to the extent necessary to comply with the terms of any
Qualified Domestic Relations Order (within the meaning of Section
414(p) of the Code) received by the Plan affecting the
Participant's benefits under this Plan. In interpreting this
Section, any applicable U.S. Treasury or Department of Labor
Regulations shall be complied with.
(e) If any amount distributable hereunder is payable
to a minor or other person under legal disability, distributions
thereof shall be made in one (or any combination) of the following
ways, as the Committee shall determine in its
sole discretion:
(i) directly to said minor or other person;
(ii) to the legal representatives of said minor
or other person; or
(iii) to some relative of such minor for the
support, welfare or education of such minor.
Neither the Company, any Participating Employer, the
Committee nor the Trustee shall be required to see to the
application of any distribution so made, and the receipt by the
person to whom such distribution is actually made shall fully
discharge the Company, each Participating Employer, the Committee
and the Trustee from any further accountability or responsibility
with respect to the amount so distributed.
(f) The amount payable to the Participant's
Beneficiaries shall be all amounts remaining in the Trust Fund on
the Participant's date of death. If the Participant, prior to
death, had requested any withdrawal or if any type of distribution
had otherwise commenced, and a check or stock certificate was
issued on or prior to the Participant's date of death, such funds
shall remain payable to the Participant, as opposed to the
Participant's Beneficiaries, even if not received prior to the
Participant's death. Any check or stock certificate issued after
the Participant's date of death shall be the property of the
Participant's Beneficiaries determined in accordance with this
Section.
(g) A Participant's Beneficiary designation on file
with the Committee under a Related Plan shall be valid and binding
under this Plan unless and until superseded as provided in this
Article.
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16.2. Renunciation of Death Benefit. A Beneficiary of a
-----------------------------
Participant entitled to a benefit under this Plan may disclaim the
right to all or any portion of such benefit by filing with the
Committee, a written irrevocable and unqualified refusal to accept
the benefit. Such disclaimer must be filed before payment to the
Beneficiary of any part of the benefit to which the Beneficiary is
otherwise entitled, but no later than nine months after the death
of such a Participant. Any benefit so disclaimed shall be
distributable to the person or persons (and in the proportions) to
which such benefit would have been distributable if the
disclaiming Beneficiary had predeceased the Participant.
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ARTICLE XVII
Lost Distributees
-----------------
17.1. Disposition of Accounts Payable to Persons Who Cannot
-----------------------------------------------------
Be Located. If the Committee is unable to locate any person
- ----------
entitled to receive a distribution hereunder, or the estate of
such person, if the person is deceased, and if, under this Plan,
the estate is entitled to receive any amount distributable, within
two years after the same becomes distributable, during which
period the Committee shall have made a reasonable search for such
person and/or the person's estate, the right and interest of such
distributee in and to the amount distributable shall terminate on
the last day of such two-year period, and the amount so
distributable shall be applied to reduce the administrative
expenses of the Plan; provided, however, that if the Participant
or the Participant's Beneficiary(ies) or estate should later make
a claim for benefits hereunder or otherwise be located, the
amounts so applied shall be reinstated and used and applied only
for the benefit of such Participant, the Participant's
Beneficiary(ies) or estate, as otherwise provided by this Plan.
17.2. Efforts To Locate Distributees. In its search for
------------------------------
any distributee, the Committee (or the Trustee, at the direction
of the Committee) shall mail a notice, postage prepaid, by U.S.
registered or certified mail, return receipt requested and return
postage guaranteed, to the last known address of such distributee
or (if the distributee is not the Participant and if the address
of the distributee is not known or if the notice sent to such
distributee is returned unclaimed or addressee unknown) to such
distributee in care of the last known address of the Participant
for whose benefit the Account to be distributed was accumulated.
Such action shall constitute a reasonable search for such
distributee.
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ARTICLE XVIII
Amendment or Termination
------------------------
18.1. Company's Power to Amend or Terminate. (a) The
-------------------------------------
Company, for itself and for each other Participating Employer,
reserves the absolute right to modify, amend or terminate this
Plan in whole or in part, at any time and from time to time, by
action of (i) the Board; (ii) subject to the limitations stated in
Section 19.3(c), the Committee; or (iii) any officer of the
Company authorized from time to time by the Board. A copy of the
instrument by which any such action is taken shall promptly be
delivered to the Trustee and to the corporate secretary of the
Company. This Plan shall not, however, be modified or amended in
any manner which would
(i) reduce the amount credited to a
Participant's Account unless such reduction is required in order
to prevent the issuance by the Internal Revenue Service of an
adverse determination letter as to the qualified status of the
Plan under Section 401 of the Code, or shall be necessary to bring
the provisions of this Plan into conformity with any applicable
law or regulation so that contributions of the Participating
Employers hereunder and dividend payments shall be deductible for
federal income tax purposes, or so that interest paid on any ESOP
Loan shall be subject to the exclusion available under Section 133
of the Code, or to satisfy the prohibited transaction exemption
requirements under the Code and ERISA, or shall be necessary in
order to qualify the Trust by which this Plan is funded as exempt
from tax under Section 501 of the Code, or to continue the
qualified status of such Trust; or
(ii) permit any portion of the Fund to be used
for or diverted to purposes other than (A) for the exclusive
benefit of Participants, their Beneficiaries or estates, and (B)
for the administrative expenses of this Plan; or
(iii) cause any part of the Fund to revert to
any of the Employing Companies (except as provided in paragraph
(i) above or in Section 25.1); or
(iv) increase the duties or liabilities of the
Trustee without its consent;
provided, that any modification or amendment which would result in
the loss by the Plan of its qualified status under Section
401 of the Code, or in the loss by the Trust of its tax exempt
status under Section 501 of the Code, shall be retroactively null
and void as if such amendment had never been made.
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<PAGE>
(b) All Participating Employers and their Employees,
and all Participants and their Beneficiaries and estates, shall be
bound by any amendment effected by the Company pursuant to this
Section.
18.2. Termination by a Participating Employer. Every
---------------------------------------
Participating Employer reserves the right to terminate its
participation in this Plan voluntarily as of any specified current
or future date (or, if no date be specified, as of the date of
delivery of the certified copy of the authorizing resolution to
the Trustee as hereinafter required) by action of its Board of
Directors and by delivering a certified copy of the resolution by
which such action is taken to the Committee and to the Trustee.
In addition, the participation of any Participating Employer in
this Plan shall be automatically terminated upon a dissolution of
such Participating Employer (but not upon a merger, consolidation,
reorganization or recapitalization thereof if the surviving
corporation therein is a Subsidiary and is already a Participating
Employer or specifically assumes this Plan and agrees to be bound
by the terms hereof), or upon such Participating Employer being
legally adjudicated a bankrupt, or upon the appointment of a
receiver or trustee in bankruptcy with respect to such
Participating Employer's assets and business if such appointment
is not set aside within 90 days thereafter, or upon the making by
such Participating Employer of a general assignment for the
benefit of creditors, or if such Participating Employer ceases to
be a Subsidiary. Upon a termination of participation as
aforesaid, or in the event of a complete and permanent
discontinuance of contributions to this Plan by a Participating
Employer (whether or not pursuant to action by its Board of
Directors and whether or not, if pursuant to such action, a
certified copy of the authorizing resolution is delivered to the
Trustee), no additional Employees of such Participating Employer
shall become eligible to participate herein, and any undistributed
balance in any Account shall immediately and fully vest in favor
of the person for whom such Account was established and shall
become non-forfeitable. Should a partial termination of this Plan
occur, as determined in accordance with Federal law and
regulation, such partial termination shall have the same effect
as, and shall be treated the same as, a termination of the Plan,
except that in such case the provisions of Sections 18.3(b) and
(c) governing termination shall be applied only to those persons
affected by such partial termination, whose undistributed Account
balances shall thereupon be immediately fully vested and
non-forfeitable.
18.3. Disposition of Assets on Termination. (a)
------------------------------------
Notwithstanding that the participation of a Participating Employer
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in this Plan may be terminated pursuant to Section 18.2, the Trust
by which this Plan is funded shall continue in full effect, but
the Trustee shall make a valuation of the Fund as of the date of
such termination of participation in the manner provided with
respect to regular valuations, and shall segregate from the Fund
all Shares and other investments attributable to the Accounts of
all Participants then or theretofore employed by such terminating
Participating Employer which have vested and become
non-forfeitable.
(b) If the terminating Participating Employer has
ceased doing business or has been dissolved, or if any other event
has occurred as a result of which no Participant continues to be
employed by such Participating Employer (so that all such
Participants shall be deemed to have severed their employment with
such Participating Employer within the meaning of Section
402(d)(4)(A)(iii) of the Code), the Trustee shall distribute to
each Participant formerly employed by such Participating Employer
the Participant's proportionate share of the assets segregated
from the Fund in the manner provided above, as reflected by the
Participant's adjusted Account balance, less distribution
expenses. Until the segregated assets have been fully
distributed, the Trustee shall continue to possess all powers,
rights, privileges and immunities with which it was invested by
the Trust Agreement, and shall have all such other powers as are
necessary or appropriate to the completion of such distribution,
and all expenses of administration of the segregated assets shall
be charged to and paid out of such assets.
(c) If, notwithstanding the termination, all or any
of the Participants shall continue in the employ of such
terminating Participating Employer or of an entity so related to
such terminating Participating Employer that such Participants
shall be deemed not to have severed their employment with it
within the meaning of Section 402(d)(4)(A)(iii) of the Code, the
assets which would otherwise be distributable to them shall be
retained by the Trustee, which shall continue to administer such
assets subject to the provisions of the Trust, until such time as
the same shall be otherwise distributable under this Plan, and
during such administration, all expenses of administration of such
amounts shall be charged to and paid out of such assets.
(d) Notwithstanding anything to the contrary in this
Section, distributions may be made to the former employees of the
terminating Participating Employer if permitted under Section
401(k) of the Code.
18.4. Effect of Termination by the Company. If the Company
------------------------------------
terminates its participation in this Plan, such termination shall
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result in the immediate termination of this Plan in its entirety,
as to all Participating Employers, whereupon every Account which
contains an undistributed balance shall immediately and fully vest
in favor of the person for whom it was established, and shall
become non-forfeitable.
18.5. Effect of Termination of ESOP Loan. If for any
----------------------------------
reason it shall be necessary or desirable to terminate or
partially terminate an outstanding ESOP Loan prior to its original
termination date, including but not limited to (a) the termination
of the ESOP Loan provisions of this Plan or the Plan otherwise
ceasing to qualify to maintain any ESOP Loan, (b) the occurrence
of a default under such loan, or (c) the occurrence of any event
which increases the interest rate payable on such loan or results
in the Company purchasing or assuming such loan, the Trustee shall
repay any outstanding ESOP Loan (or the part thereof to be
terminated) first using the assets (if any) then held in the ESOP
Loan Suspense Account and then using assets held in the ESOP Loan
Payment Accumulation Account, as directed by the Committee and
permitted under the terms of the ESOP Loan and Section 4975 of the
Code and the regulations promulgated thereunder. Unless the Plan
is also terminated at such time, termination of all or part of an
ESOP Loan shall not affect the operation of other Plan provisions.
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ARTICLE XIX
Administrative Committee
------------------------
19.1. Appointment. The actual administration of this Plan
-----------
shall be conducted by a Committee of not less than three (3)
persons appointed from time to time by, and to serve at the
pleasure of, the Chief Financial Officer of the Company. The
number of persons constituting the Committee may be increased or
decreased (but not below three) at any time and from time to time
by such Officer. Any officer, director or Employee of any of the
Employing Companies may be appointed to the Committee, but
Committee members need not be either Employees or Participants.
Any member of the Committee may resign by delivering a written
resignation to the Chief Financial Officer of the Company and to
the then-acting Secretary of the Committee. The members of the
Committee shall serve as such without compensation.
19.2. Organization. The members of the Committee shall
------------
elect a Chairman (who shall be a member of the Committee) and a
Secretary (who may, but need not, be a member of the Commit- tee),
who shall have the powers and duties usually incident to their
respective offices. The Committee may appoint from its membership
such subcommittees, and delegate such of its powers thereto, as it
may determine, and may authorize one or more of its members, or
any agent, to execute and deliver any instrument, or, on its
behalf, to authorize or direct any payment or distribution
permitted or required by this Plan. The Committee may delegate to
any agents such duties and powers, both ministerial and
discretionary, as it deems appropriate, by an instrument in
writing which specifies which such duties are so delegated and to
whom each such duty is so delegated.
19.3. Powers. The Committee shall have full power and
------
authority to administer this Plan in all respects, including
without limitation, full power and authority:
(a) To construe the Plan and to determine all
questions which may arise thereunder relating to the adminis-
tration of the Plan, including questions relating to the
eligibility of Employees to participate in the Plan and the status
and rights of Participants, Beneficiaries, and other persons
hereunder; provided, however, that if the Committee deems any
language of this Plan so ambiguous or unclear that its reasonable
meaning or application cannot be determined, the Committee may, if
it so desires and in its sole discretion, submit such language to
the Board with a request that it adopt a resolution interpreting
such language or establishing rules for its application, and any
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such resolution adopted by it shall be binding upon all parties
interested in the Plan. If the Committee so desires, it may (but
need not) submit such language to counsel for interpretation prior
to requesting action by the Board. Unless the Board has adopted a
particular interpretation of specific Plan language, or has
established rules for its application, any decision of, or action
taken by, the Committee shall be final and binding upon all
parties interested in the Plan. Any discretionary actions taken,
or rules adopted by the Committee or the Board, shall be
administered uniformly and applied with equal effectiveness and in
a non-discriminatory manner to all persons similarly situated.
(b) To establish limitations on changes in
investments by Participants as may be necessary to assure
compliance with any contractual restrictions governing any fund,
guaranteed interest contract or other investment, and, in its sole
discretion, to establish rules and regulations governing, and to
administer, loans and hardship withdrawals hereunder, including
all necessary processing and the exercise of any discretion
associated therewith.
(c) To modify or amend this Plan and the Trust
Agreement, at any time and from time to time, effective as of any
specified current, prior or future date, provided, however, that
the Committee shall have no authority to:
(i) Add or remove any Participating Employer;
or
(ii) Except as provided in subsection (d)
below, change any provision relating to the Company Matching
Contribution formula, participation, eligibility to participate,
vesting, withdrawals, distributions, or limitations on
contributions or benefits, except in regard to procedural or
technical matters in a way calculated to lessen administrative
burdens or as necessary to comply with applicable law.
(d) To implement the ESOP Loan provisions of this
Plan, including but not limited to (i) directing the Trustee
with regard to any ESOP Loan, and (ii) determining the
Supplemental Contribution under Section 6.3 for any Plan Year and
the Participants to whom it shall be allocated.
(e) To appoint an agent for service of process in
any action or proceeding involving this Plan, who may (but need
not) be either a member of the Committee, an Employee or a
Participant.
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(f) To employ such counsel, accountants and agents
(who may serve any of the Employing Companies in a similar
capacity) and to contract for such clerical and accounting
assistance, and to delegate ministerial authority (including the
authority to instruct the Trustee respecting the amount and time
for payment of any benefit hereunder, and the identity of the
payee(s) thereof) to such person(s) selected by it, as it may deem
necessary or desirable, and all fees, charges and costs incurred
thereby shall be treated as an expense of the Plan and paid in the
manner provided for other expenses of the Plan.
(g) The Committee shall have no obligation or right
to manage or direct the investment of the Fund, except the right
to direct the Trustee as to which, if any, collective investment
funds shall be selected for the Investment Funds.
(h) To require such information from Participants as
it may deem necessary, in its absolute discretion, to make
determinations as to the status of paternity or maternity leaves,
marital status or the location of a Participant's spouse, or the
adequacy of any hardship circumstance as contemplated under
Article XIV.
(i) To make such determinations concerning the
qualified status of domestic relations orders affecting
Participants as are required by law and to adopt such rules and
procedures relating thereto as the Committee deems appropriate in
its absolute discretion.
(j) To direct the Trustee to enter into ESOP Loans
approved by the Board and otherwise meeting the criteria set out
in Article VIII.
(k) To adopt procedures designed to safeguard the
confidentiality of information relating to the purchase, holding,
and sale of Shares and the exercise of voting, tender and similar
rights with respect to such Shares by Participants and Beneficia-
ries. The Committee shall be responsible for insuring that such
procedures are sufficient to safeguard the confidentiality of such
information, that such procedures are being followed, and that an
independent fiduciary is appointed to carry out activities
relating to any situations which the Committee determines involve
a potential for undue Company influence upon Participants and
Beneficiaries with regard to the direct or indirect exercise of
shareholder rights.
19.4. Forms and Procedures. The Committee shall adopt all
--------------------
forms and procedures it deems necessary or appropriate for the
administration of this Plan and may change such forms and
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procedures from time to time as it sees fit. In instances in
which no time period is stated in this Plan, the Committee shall
adopt reasonable time periods for the doing of any act, which may
take the form of a required notice period in advance of the date
on which an action is to become effective or of a period after
some event during which, or upon the expiration of which, an
action may be timely taken. The Committee shall have the power,
under uniform and non- discriminatory rules, and for good cause or
administrative convenience, to waive strict adherence to any time
period or other requirement stated in this Plan or established by
the Committee.
19.5. Meetings. The Committee shall hold meetings upon
--------
such notice, at such place or places, and at such time or times as
it may from time to time determine, and may, if it so desires, by
resolution, provide for regular meetings. In lieu of any meeting,
the Committee may act by written consent signed by a majority of
the members of the Committee and filed with the Secretary thereof,
whether executed before or after the stated effective date
thereof, and such consent shall have the same effect as if the
action thereby taken had been taken at a meeting duly called and
held.
19.6. Records. The Secretary of the Committee shall keep
-------
records of all meetings of the Committee and shall forward all
necessary communications to the Trustee. The Committee shall
preserve the accounts of the fiscal transactions of the Plan
submitted by the Trustee, and shall keep in convenient form such
data as may be necessary for calculating the financial condition
of the Plan and for determining any benefit or other right
hereunder.
19.7. Applications for Benefits; Appeal From Denial of
------------------------------------------------
Benefits. Any application for any payment, distribution,
- --------
withdrawal or loan under this Plan, whether by a Participant or by
a Beneficiary, shall be submitted in accordance with procedures
prescribed by the Committee. Any properly completed application
submitted to the Committee shall constitute a claim under the
Plan, and the Committee shall then grant or deny such claim as
soon as is reasonably practicable. The Committee shall render its
decision on the claim not later than 90 days after receipt of the
claim, and shall notify the claimant of its decision; provided,
however, that in special circumstances, as found by the Committee,
the Committee may by notice to the claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 180 days after
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the receipt of the claim. In any instance where a claim is denied
in whole or in part by the Committee, the Committee shall
forthwith furnish a copy of its decision to the claimant, in
writing, setting forth the following:
(a) The specific reason or reasons for the denial of
the claim;
(b) Specific reference to the pertinent Plan
provision(s) on which such denial is based;
(c) If the denial was occasioned by the failure of
the claimant to furnish any necessary information, a description
of the additional information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and
(d) Appropriate information as to the steps to be
taken if the claimant wishes to submit the claim for review.
Any claimant whose application for payment, distribution,
loan or withdrawal has been denied may appeal such denial by
filing an appeal and request for review with the Committee not
later than 60 days after receipt of the notice of denial of the
claim. The Committee shall then promptly review its decision,
reconsidering the facts of the case and taking into account any
new or additional information which may be submitted by the
claimant, and shall render its decision not later than 60 days
after receipt of the appeal and request for review; provided,
however that in special circumstances, as found by the Committee,
the Committee may by notice to the Claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 120 days after
the receipt of the request for review. In connection with such
review, the claimant or a duly authorized representative may
review all pertinent documents and records and may submit issues
and comments in writing. The Committee's decision on the appeal
shall be reported to the claimant, in writing, in the same manner
as an original decision, and no further appeal to the Committee
shall be permitted under this Plan.
19.8. Liability of Committee. (a) The Committee shall be
----------------------
responsible only for its own acts and omissions, and except as
provided in ERISA Section 405 (29 U.S.C. Section 1105) shall have no
liability to any person or party whomsoever for the acts or
omissions of others. The Company shall indemnify any person who
is, or is threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
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that such person is or was a member of the Committee, against
expenses (including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, to the extent
and under the circumstances permitted by ERISA, but not as to any
matter in which such person shall be finally adjudged in such
action, suit or proceeding (i) to be liable for misconduct in the
performance of such person's duties as such member or (ii) to have
breached with respect to the Plan or its Trust any fiduciary duty
imposed on such person by ERISA for which personal liability is
imposed on such person and, in either instance, for which
indemnification would be contrary to public policy, as set forth
in any applicable statute or judicial decision. The foregoing
right of indemnification shall extend to any action, suit or
proceeding which may be settled or compromised prior to final
judgment, and shall not be exclusive of any other rights to which
any such Committee member may be entitled as a matter of law.
(b) Such indemnification (unless ordered by a court)
shall be made as authorized in a specific case upon a
determination that indemnification of the Committee member is
proper in the circumstances because such person has met the
applicable standards of conduct set forth in ERISA. Such
determination shall be made (i) by the Board by a majority vote of
a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Company. Expenses
incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final
disposition of the action, suit or proceeding as authorized by the
Board in a specific case, upon receipt of an undertaking by or on
behalf of the Committee member to repay such amount unless it
shall ultimately be determined that such person is entitled to be
indemnified by the Company as authorized by ERISA and this
Article.
(c) The foregoing right of indemnification shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, or vote
of stockholders or disinterested members of the Board, both as to
action in the person's official capacity as a member of the
Committee and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
Committee member and shall inure to the benefit of the heirs,
executors and administrators of such person.
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(d) The Board may authorize, to the extent permitted
by ERISA, the purchase and maintenance of insurance on behalf of
any person who is or was a member of the Committee against any
liability asserted against such person and incurred by such person
in such capacity or arising out of such person's status as such.
(e) Except as otherwise required by law, no bond or
other security shall be required of any member of the Committee
for the faithful performance of such person's duties as such.
19.9. Standard of Review. The Committee shall perform its
------------------
duties as the Committee in its sole discretion shall determine is
appropriate in light of the reason and purpose for which the Plan
is established and maintained. In particular, the interpretation
of all plan provisions, and the determination of whether a
Participant or Beneficiary is entitled to any benefit pursuant to
the terms of the Plan, shall be exercised by the Committee in its
sole discretion. Any construction of the terms of the Plan for
which there is a rational basis that is adopted by the Committee
shall be final and legally binding on all parties.
Any interpretation of the Plan or other action of the Committee
made in its sole discretion shall be subject to review only if
such an interpretation or other action is without a rational
basis. Any review of a final decision or action of the Committee
shall be based only on such evidence presented to or considered by
the Committee at the time it made the decision that is the subject
of the review. Any Participating Employer and any Employee who
performs services for an Employer that are or may be compensated
for in part by benefits payable pursuant to this Plan, hereby
consents to actions of the Committee made in its sole discretion
and agrees to the narrow standard of review prescribed in this
Section.
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<PAGE>
ARTICLE XX
Prohibition Against Voluntary or Involuntary Assignments
--------------------------------------------------------
20.1. No Liability for Participants' Debts. Except as
------------------------------------
otherwise required by law or provided in Article XV, neither this
Plan nor the Trust by which it is funded shall be liable for or
subject to the debts or liabilities of any Participant or
Beneficiary hereunder, and no amount payable hereunder shall at
any time or in any manner be subject to alienation, sale,
transfer, assignment, pledge or encumbrance of any kind.
Notwithstanding the foregoing, this Plan shall comply with the
terms of any domestic relations order which is found by the
Committee to be "qualified" in accordance with Section 414(p) of
the Code. Any such order which is found by the Committee not to
be so qualified shall not be complied with. The Committee shall
adopt written procedures for making determinations concerning the
qualified status of domestic relations orders.
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ARTICLE XXI
Competency of Distributees
--------------------------
21.1. Distributees Presumed Competent. Every person
-------------------------------
receiving or claiming any benefit under this Plan shall be
conclusively presumed to be mentally competent and of legal age
until the Committee and/or Trustee receives a written notice, in
form and substance acceptable to them, that any such person is
incompetent, is a minor or that a guardian or other individual
legally vested with the care of the person's estate has been
appointed.
21.2. Facility of Payment. (a) If any amount is payable
-------------------
hereunder to a minor or other person under legal disability or
otherwise incapable of managing such person's own affairs, as
determined by the Committee, payment thereof shall be made in one
(or any combination) of the following ways, as the Committee shall
determine in its sole discretion:
(i) directly to said minor or other person;
(ii) to a custodian for said minor or other
person (whether designated by the Committee or any other person)
under the Missouri Transfers to Minors Law, the Missouri Personal
Custodian Law or a similar law of any other jurisdiction;
(iii) to the conservator of the estate of said
minor or other person; or
(iv) to some relative or friend of such minor
or other person for the support, welfare or education of such
minor or other person.
(b) If the Committee determines that any amount
shall be paid to a relative or friend of such minor or other
person for the support, welfare or education of such minor or
other person, and the amount would otherwise be required to be
distributed in the form of Shares, the relative or friend to whom
such amount is payable shall have the right to elect that the
entire distribution be made in the form of cash rather than
Shares.
(c) The Committee shall not be required to see to
the application of any payment made pursuant to this Section 21.2,
and the receipt of the person to whom such payment is actually
made shall fully discharge the Committee from any further
accountability or responsibility with respect to the amount so
paid.
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ARTICLE XXII
Becoming a Participating Employer
---------------------------------
22.1. Authorization and Procedure. (a) Any Subsidiary
---------------------------
may, with the consent of the Chief Financial Officer of the
Company, adopt this Plan and become a Participating Employer
hereunder. Any such Subsidiary which desires to become a
Participating Employer shall deliver to the Committee an executed
participation agreement which is satisfactory to the Committee.
Thenceforth such entity shall be a Participating Employer
hereunder for all purposes and shall be bound by each and every
provision of this Plan and of the Trust Agreement.
(b) Each new Participating Employer shall deliver or
cause to have delivered to the Committee such information as the
Committee may request for purposes of implementing the Plan as
regards such Participating Employer and such of its Employees as
are or may become eligible to participate herein.
22.2. Effect of Being a Participating Employer. Except as
----------------------------------------
hereinafter provided in this Section, the contributions made by
each Participating Employer shall be credited, and forfeitures
reducing its contributions shall be reallocated, only to the
Accounts of those Participants who are employed by it. The
transfer of a Participant from the employ of one Participating
Employer to the employ of another Participating Employer shall not
result in the termination of such Participant's participation in
this Plan. However, in the event of any such transfer, the
Committee shall thereupon annotate such Participant's Account so
as to clearly identify it with the Participating Employer by which
such Participant is then employed. If any such transferred
Participant thereafter terminates employment with the Employing
Companies under any circumstance giving rise to a forfeiture, any
such forfeiture shall be allocated among the Participating
Employers whose contributions were credited to such Participant's
Account, in the ratio that the unvested amounts contributed for
such Participant by each such Participating Employer bears to the
total unvested amounts contributed for such Participant by all
Participating Employers.
22.3. Pooled Funds. Notwithstanding that there may be more
------------
than one Participating Employer, there shall be but a single
Trust, consisting of such separate Investment Funds as are
required under this Plan, and the Trustee shall invest and
reinvest each of such Investment Funds as a single investment
pool. The Trustee shall not be required to segregate the Account
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of any Participant for separate investment or otherwise, though
separate records of all Participant's Accounts shall be maintained
as required by Article X hereof.
22.4. Costs and Expenses. Any costs and expenses of
------------------
operating and administering this Plan that are to be paid by the
Participating Employers may be paid in full by the Company, and
each Participating Employer shall then reimburse the Company for
its equitable share thereof, as determined by the Committee in its
sole discretion.
22.5. Adoption of Plan Conditional. The adoption of this
----------------------------
Plan by a Participating Employer shall be conditioned on such
action not adversely affecting the qualified status of the Plan,
or the tax exempt status of the Trust by which it is funded,
whether determined with respect to the Plan and Trust as existing
prior to the participation of such Participating Employer or as
regards the participation thereof.
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ARTICLE XXIII
Limitations Applicable to
All Contributions to this Plan
------------------------------
23.1. Special Limitation on Annual Additions For Any
----------------------------------------------
Participant For Any Year. (a) No Participant shall have an
- ------------------------
annual addition to the Participant's Account for any calendar year
in excess of the amount then permitted under Section 415 of the
Code.
(b) If a Participant shall, as a result of errors in
estimating compensation or in determining the amount of elective
deferrals (within the meaning of Code Section 402(a)(3)) that may
be made with respect to any individual under the limits of Code
Section 415, have allocated to accounts under this Plan and all
other defined contribution plans maintained by the Employing
Companies which are "qualified" under Section 401(a) of the Code,
an annual addition greater than the limit set out under Section
415 of the Code, such Participant's account under any other such
defined contribution plan shall be reduced before any reductions
are made to such Participant's account under this Plan. If such
other defined contribution plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions are
required under this Plan, such Participant's Personal and Company
Contributions under this Plan shall be reduced or refunded as
necessary in accordance with procedures established by the
Committee.
(c) In the case of a Participant who also
participates in a defined benefit plan(s) which is maintained by
the Employing Companies and which is "qualified" under Section
401(a) of the Code, the sum of such Participant's "defined benefit
plan fraction" and such Participant's "defined contribution plan
fraction" for any year shall not exceed the limit provided in
Section 415 of the Code. If such fractions would exceed this
limit, benefits shall be reduced or eliminated under such defined
benefit plan, to the extent necessary to comply with Section 415
of the Code, before any reduction of benefits shall be made under
this Plan. If such other plan does not permit such reductions,
reductions shall first be made under this Plan. If reductions are
required under this Plan, such Participant's Personal and Company
Contributions under this Plan shall be reduced in accordance with
procedures established by the Committee.
(d) For purpose of this Section, "annual addition"
shall mean the sum of the Before-Tax Contributions, After-Tax
Contributions, Company Matching and Supplemental Contributions
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allocated to the account of a Participant for the limitation year.
The terms compensation, defined benefit plan fraction and defined
contribution plan fraction shall have the meanings provided in
Section 415 of the Code. Section 415 of the Code, as in effect
from time to time, and regulations promulgated thereunder, are
incorporated herein by reference.
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ARTICLE XXIV
Miscellaneous
-------------
24.1. Return of Contributions. (a) It is the objective
-----------------------
and intention of each Participating Employer that this amended and
restated Plan shall continue to be a qualified plan within the
meaning of Section 401 of the Code, the Trust of which continues
to be exempt from Federal income tax under Section 501 of the
Code. If the Internal Revenue Service rules, upon application to
it for a favorable determination, that this Plan and its related
Trust are so qualified and exempt, all contributions theretofore
made by any Participating Employer shall be subject to the
provisions of this Plan in all respects and may not be diverted to
purposes other than the exclusive benefit of Participants and
their Beneficiaries and estates and the payment of the
administrative expenses of this Plan, and may not be returned to
any Participating Employer.
(b) Notwithstanding the foregoing or any other
contrary provision herein contained, any erroneous Company
Matching or Supplemental Contribution which is made by a mistake
of fact may be returned to the Participating Employer which made
such contribution if the mistake of fact is discovered and the
return of such contribution is completed within one year after the
payment of such contribution to the Plan. Furthermore, if after
the Internal Revenue Service rules that the Plan and Trust are
qualified and exempt, as contemplated by subsection (a) above, any
deduction for any Company Contribution hereto is denied as not
allowable under Section 404(a)(3) of the Code, then such
contribution, to the extent of such disallowed deduction, may be
returned to the Participating Employer which made such
contribution within one year after the disallowance of such
deduction. Each and every Company contribution made pursuant to
this Plan is contingent upon the allowance of a deduction for such
contribution under Section 404 of the Code.
24.2. Limitations of Liability and Rights. (a)
-----------------------------------
Participation in this Plan shall not give any Participant any
rights to any amounts hereunder except as specifically provided in
this Plan, and no one in the employ of any Participating Employer,
and no Participant or Beneficiary, shall be entitled to any
amounts hereunder except to the extent that a right thereto is
specifically fixed by the terms of this Plan and the assets of the
Trust by which this Plan is funded are sufficient therefor.
(b) Except as provided in ERISA Section 405 (29
U.S.C. Section 1105), no Participating Employer, no officer, director or
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stockholder of any Participating Employer, and no member of the
Committee, shall be liable for any act or omission of the
Trustee with respect to its investment or administration of the
Trust which is a part of this Plan.
(c) The establishment of this Plan shall not give
any person any right to be continued in the employ of any
Participating Employer or any of the Employing Companies, nor
shall it interfere with or limit any right of any of the Employing
Companies to terminate the employment of any person at any time.
24.3. General Administration and Expenses. Except with
-----------------------------------
respect to such duties as have specifically been delegated to the
Committee, the Trustee or others hereunder, or which require the
exercise of discretion, the Company or its nominees (who may be
Employees) may perform all ministerial activities necessary to the
efficient administration of this Plan, may maintain all proper
files and records, and may provide all forms, notices and other
documents in connection herewith. All notices, requests,
directions and other orders or elections for which the Committee
has adopted an official administrative form shall be effective
only if submitted to the Committee on a properly completed and
signed official form. All brokerage fees, commissions, stock
transfer taxes and similar acquisition costs incurred on the
purchase of any security (including any Shares) shall be treated
as additional purchase price and all brokerage fees, commissions,
stock transfer taxes and similar disposition costs incurred on the
sale of any security (including any Shares) shall be treated as a
reduction in sale proceeds, except that stock transfer taxes on
Shares distributable in kind shall be charged against the Account
of the distributee. Except as otherwise provided in the Trust
Agreement, all other expenses of the Plan and its administration
may be paid by the Participating Employers, in such proportions as
the Company shall determine.
24.4. Notice of Address. It is the duty of every
-----------------
Participant to keep the employer informed of the Participant's
current post office address. Any communication, statement or
notice addressed to a Participant at the latest post office
address on file with the Employing Companies shall be binding upon
such Participant for all purposes, and neither the Committee, the
Trustee nor the Company shall be obligated to search for or
attempt to ascertain the whereabouts of any person, except as
provided in Article XVII.
24.5. Data. Every person entitled to payments hereunder
----
shall furnish such documents, evidence or other information to the
Committee as the Committee may consider necessary or desirable for
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the administration of this Plan or for the protection of the Plan,
the Committee or the Trustee. Each such person must furnish such
information promptly and must sign such documents as the Committee
may reasonably require before the person shall receive any payment
or distribution hereunder.
24.6. Trust Agreement Related. The Trust Agreement and
-----------------------
each of the provisions thereof shall be deemed a part of the this
Plan for all purposes, and in case of a conflict between the
provisions of the Trust Agreement and the provisions of this Plan,
the provisions of this Plan shall control.
24.7. Severability Clause. In case any provision of this
-------------------
Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining provisions
of the Plan, and the Plan shall be construed and enforced as if
such illegal and invalid provision had never been included herein.
24.8. Situs. This Plan shall be construed, regulated and
-----
administered according to ERISA.
24.9. Succession. Except as otherwise provided herein,
----------
this Plan and each of the provisions hereof shall be binding upon
each Participating Employer and any corporation(s) resulting from
or surviving any merger, consolidation, reorganization or
recapitalization of a Participating Employer or of a Participating
Employer and one of more other corporations, and any corporation
into which a Participating Employer may be liquidated.
24.10. Execution. This Plan may be executed in any number
---------
of counterparts, each of which so executed shall be deemed to be
an original, and such counterparts shall together constitute one
and the same instrument.
24.11. Merger of Plan or Transfer of Trust Assets. If this
------------------------------------------
Plan is merged or consolidated with any other plan, or if the
assets or liabilities of the Plan are transferred to any other
plan or trust, then each Participant in the Plan shall (if the
Plan shall then be terminated) receive a benefit immediately after
such merger, consolidation or transfer which is equal to or
greater than the benefit the Participant would have been entitled
to receive immediately before such merger, consolidation or
transfer (if the Plan had then terminated).
24.12. Miscellaneous Rules of Construction. (a) Masculine
-----------------------------------
pronouns include the feminine, the singular includes the plural,
and the plural includes the singular, as the context or
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application demands. The words "herein", "hereunder", "hereof"
and similar compounds of the word "here" refer to this entire Plan
unless expressly limited to a particular article, section,
sentence or other subdivision of this Plan unless the context
otherwise requires.
(b) Titles to articles and headings of sections in
this Plan are for convenience of reference only, and in case of
conflict, the text of this Plan rather than such titles or
headings shall control.
24.13. Delayed Payments. Notwithstanding any other
----------------
provision of the Plan, if the amount of a payment required to be
paid on a date determined under this Plan cannot be ascertained by
such date, or if it is not possible to make such payment on such
date because the Committee has been unable to locate the
Participant, spouse or Beneficiary (if applicable) after making
reasonable efforts to do so, a payment retroactive to such date
may be made no later than 60 days after the earliest date on which
the amount of such payment can be ascertained or the date on which
such Participant, spouse or Beneficiary is located (whichever is
applicable).
24.14. Mistakes in Benefit Payments. In the event and to
----------------------------
the extent that any payment to a Participant, spouse or
Beneficiary is determined by the Committee to have been in error,
the Committee and the Trustee shall determine the extent of the
error, and shall take action to correct the error in an equitable
manner, as determined in the sole discretion of the Committee,
consistent with the following:
(a) In the event that an amount paid in error is
less than the amount which should have been paid, the Committee
shall direct the Trustee to distribute the difference between the
amount paid and the amount which should have been paid to the
Participant, spouse or Beneficiary;
(b) In the event that the amount paid in error
exceeds the amount which should have been paid, the Committee, to
the extent possible, shall reduce any benefit then remaining
payable to the Participant, spouse or Beneficiary by the excess of
the amount paid over the amount which should have been paid,
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and shall make other reasonable efforts to recover such excess
from the Participant, spouse or Beneficiary.
IN WITNESS WHEREOF, the Company has executed this Plan by and
through its authorized agents this 4th day of October, 1996,
---- -------
effective as of the 1st day of April, l996.
ANHEUSER-BUSCH COMPANIES, INC.
By /s/Jacquelyn G. Johnson
-------------------------------
Jacquelyn G. Johnson
Chair, Administrative Committee
32256
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<PAGE>
EX-4.3
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
Effective Date April 1, 1996
<PAGE>
<PAGE>
Table of Contents
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Establishment of Plan . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Action By Company.. . . . . . . . . . . . . . . . . . . .1
1.2. Named Plan Fiduciaries. . . . . . . . . . . . . . . . . .1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Definitions of General Applicability. . . . . . . . . . . . . . . . .3
2.1. "Account".. . . . . . . . . . . . . . . . . . . . . . . .3
2.2. "After-Tax Contributions".. . . . . . . . . . . . . . . .3
2.3. "Before-Tax Contributions". . . . . . . . . . . . . . . .3
2.4. "Beneficiary".. . . . . . . . . . . . . . . . . . . . . .3
2.5. "Base Pay". . . . . . . . . . . . . . . . . . . . . . . .3
2.6. "Board".. . . . . . . . . . . . . . . . . . . . . . . . .5
2.7. "Closing Price".. . . . . . . . . . . . . . . . . . . . .5
2.8. "Code". . . . . . . . . . . . . . . . . . . . . . . . . .5
2.9. "Committee".. . . . . . . . . . . . . . . . . . . . . . .5
2.10. "Company". . . . . . . . . . . . . . . . . . . . . . . .5
2.11. "Company Matching Contributions".. . . . . . . . . . . .5
2.12. "Company Stock Fund".. . . . . . . . . . . . . . . . . .5
2.13. "Company Year".. . . . . . . . . . . . . . . . . . . . .5
2.14. "Consolidated Net Income For Plan
Purposes".. . . . . . . . . . . . . . . . . . . . . .5
2.15. "Effective Date".. . . . . . . . . . . . . . . . . . . .6
2.16. "Eligible Employee". . . . . . . . . . . . . . . . . . .6
2.17. "Employee".. . . . . . . . . . . . . . . . . . . . . . .6
2.18. "Employing Companies". . . . . . . . . . . . . . . . . .6
2.19. "Equity Index Fund". . . . . . . . . . . . . . . . . . .6
2.20. "ERISA". . . . . . . . . . . . . . . . . . . . . . . . .6
2.21. "Fund".. . . . . . . . . . . . . . . . . . . . . . . . .7
2.22. "Highly Compensated Employee". . . . . . . . . . . . . .7
2.23. "Hour of Service". . . . . . . . . . . . . . . . . . . .8
2.24. "Indexed Balanced Fund". . . . . . . . . . . . . . . . 11
2.25. "Managed Balanced Fund". . . . . . . . . . . . . . . . 11
2.26. "Medium-Term Fixed Income Fund". . . . . . . . . . . . 11
2.27. "Non-Highly Compensated Employee". . . . . . . . . . . 11
2.28. "Participant". . . . . . . . . . . . . . . . . . . . . 11
2.29. "Participating Employer".. . . . . . . . . . . . . . . 11
2.30. "Personal Contributions".. . . . . . . . . . . . . . . 12
2.31. "Plan".. . . . . . . . . . . . . . . . . . . . . . . . 12
2.32. "Plan Year". . . . . . . . . . . . . . . . . . . . . . 12
2.33. "Processing Period". . . . . . . . . . . . . . . . . . 12
2.34. "Related Plans". . . . . . . . . . . . . . . . . . . . 12
2.35. "Share". . . . . . . . . . . . . . . . . . . . . . . . 12
2.36. "Share Equivalents . . . . . . . . . . . . . . . . . . 12
2.37. "Short-Term Fixed Income Fund".. . . . . . . . . . . . 13
2.38. "Subsidiary".. . . . . . . . . . . . . . . . . . . . . 13
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<PAGE>
Table of Contents
(Cont.)
2.39. "Supplemental Contributions".. . . . . . . . . . . . . 13
2.40. "Taxable Compensation".. . . . . . . . . . . . . . . . 13
2.41. "Trust Agreement". . . . . . . . . . . . . . . . . . . 13
2.42. "Trustee". . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Eligibility and Participation . . . . . . . . . . . . . . . . . . . 14
3.1. Eligibility.. . . . . . . . . . . . . . . . . . . . . . 14
3.2. Becoming a Participant. . . . . . . . . . . . . . . . . 14
3.3. Re-employment Following a Break in Service. . . . . . . 14
3.4. Year of Service; Break in Service.. . . . . . . . . . . 14
3.5. Transfers of Participants and Lay-Offs. . . . . . . . . 15
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Matched Contributions . . . . . . . . . . . . . . . . . . . . . . . 17
4.1. Before-Tax Matched Contributions. . . . . . . . . . . . 17
4.2. After-Tax Matched Contributions.. . . . . . . . . . . . 17
4.3. Limitation on Total Matched Contributions.. . . . . . . 17
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Unmatched Contributions . . . . . . . . . . . . . . . . . . . . . . 18
5.1. Contributions Permitted.. . . . . . . . . . . . . . . . 18
5.2. Before-Tax Unmatched Contributions. . . . . . . . . . . 18
5.3. After-Tax Unmatched Contributions.. . . . . . . . . . . 18
5.4. Limitation on Total Unmatched Contributions.. . . . . . 18
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Company Contributions . . . . . . . . . . . . . . . . . . . . . . . 19
6.1. Required Contributions. . . . . . . . . . . . . . . . . 19
6.2. Contribution Rate For Company Matching
Contributions . . . . . . . . . . . . . . . . . . . . 19
6.3 Determination of Supplemental Contribution. . . . . . . 20
6.4. Payment and Payment Date. . . . . . . . . . . . . . . . 20
6.5. Allocation to Participants' Accounts. . . . . . . . . . 20
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Procedures and Limitations on Personal Contributions and
Elections. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1. Election Procedures.. . . . . . . . . . . . . . . . . . 22
7.2. Special Dollar Limitation On Before-Tax
Contributions . . . . . . . . . . . . . . . . . . . . 22
7.3. Required Adjustment of Before-Tax Personal
Contributions . . . . . . . . . . . . . . . . . . . . 23
7.4. Required Adjustment of After-Tax and Company
Matching Contributions. . . . . . . . . . . . . . . . 25
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<PAGE>
Table of Contents
(Cont.)
7.5. Suspension and Reinstatement of Matched
Personal Contributions After Withdrawal . . . . . . . 27
7.6. Payroll Deductions. . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Investment of Contributions . . . . . . . . . . . . . . . . . . . . 28
8.1. Investment of Company Matching and
Supplemental Contributions. . . . . . . . . . . . . . 28
8.2. Investment of the Matched Contributions Part
of an Account . . . . . . . . . . . . . . . . . . . . 28
8.3. Investment of the Unmatched Contributions Part
of an Account . . . . . . . . . . . . . . . . . . . . 28
8.4. A Participant's Investment Direction for
Current Contributions . . . . . . . . . . . . . . . . 28
8.5. A Participant's Investment Direction for
Accumulated Account Balances. . . . . . . . . . . . . 28
8.6. Special Diversification After Attainment of
Age 55. . . . . . . . . . . . . . . . . . . . . . . . 29
8.7. The Company Stock Fund. . . . . . . . . . . . . . . . . 29
8.8. The Short-Term Fixed Income Fund. . . . . . . . . . . . 30
8.9. The Medium-Term Fixed Income Fund.. . . . . . . . . . . 30
8.10. The Equity Index Fund. . . . . . . . . . . . . . . . . 31
8.11. The Indexed Balanced Fund. . . . . . . . . . . . . . . 32
8.12. The Managed Balanced Fund. . . . . . . . . . . . . . . 33
8.13. The Earthgrains Stock Fund.. . . . . . . . . . . . . . 33
8.14. Earnings, etc. . . . . . . . . . . . . . . . . . . . . 33
8.15. Reports to Participants. . . . . . . . . . . . . . . . 34
8.16. Voting of Shares.. . . . . . . . . . . . . . . . . . . 34
8.17. Tendering of Shares and Rights.. . . . . . . . . . . . 35
8.18. Plan Mergers.. . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Maintenance and Valuation of Accounts . . . . . . . . . . . . . . . 37
9.l. Separate Accounts.. . . . . . . . . . . . . . . . . . . 37
9.2. Company Stock Fund Portion. . . . . . . . . . . . . . . 37
9.3. Other Investment Fund Portions. . . . . . . . . . . . . 37
9.4. Transfers Between Funds.. . . . . . . . . . . . . . . . 38
9.5. Valuation of the Fund.. . . . . . . . . . . . . . . . . 38
9.6. Effect of Valuations. . . . . . . . . . . . . . . . . . 38
9.7. No Liability for Fluctuations in Value. . . . . . . . . 38
9.8. Adjustments to Accounts.. . . . . . . . . . . . . . . . 39
9.9. Ordering of Distributions.. . . . . . . . . . . . . . . 39
9.10. Special Valuation of Company Stock in
Extraordinary Circumstances.. . . . . . . . . . . . . . 39
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-iii-
<PAGE>
Table of Contents
(Cont.)
10.1. Amounts Contributed by the Participant.. . . . . . . . 41
10.2. Company Matching and Supplemental
Contributions. . . . . . . . . . . . . . . . . . . . 41
10.3. Vesting Rules. . . . . . . . . . . . . . . . . . . . . 41
10.4. Change in Control of the Company.. . . . . . . . . . . 43
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.1. Distributions Upon Termination of
Employment . . . . . . . . . . . . . . . . . . . . . 44
11.2. Time and Method of Distribution. . . . . . . . . . . . 44
11.3. Eligible Rollover Distributions. . . . . . . . . . . . 47
11.4. Determination of Disability. . . . . . . . . . . . . . 47
11.5. Transfer of Accounts.. . . . . . . . . . . . . . . . . 48
11.6. Early Distribution under Domestic Relations
Order. . . . . . . . . . . . . . . . . . . . . . . . 48
11.7. Absolute Right to Receive Stock
Distribution . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Withdrawals While Employed. . . . . . . . . . . . . . . . . . . . . 49
12.1. Elective Right to Make Certain Withdrawals.. . . . . . 49
12.2. Protected Withdrawal Rights. . . . . . . . . . . . . . 50
12.3. Withdrawal Procedure.. . . . . . . . . . . . . . . . . 50
12.4. Frequency of Withdrawals.. . . . . . . . . . . . . . . 51
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Hardship Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . 52
l3.l. Eligibility and Procedure. . . . . . . . . . . . . . . 52
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Loans to Participants . . . . . . . . . . . . . . . . . . . . . . . 54
14.l. Procedure and Terms. . . . . . . . . . . . . . . . . . 54
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Designation of a Beneficiary. . . . . . . . . . . . . . . . . . . . 57
15.1. Procedure and Effect.. . . . . . . . . . . . . . . . . 57
15.2. Renunciation of Death Benefit. . . . . . . . . . . . . 59
ARTICLE XVI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Lost Distributees . . . . . . . . . . . . . . . . . . . . . . . . . 61
16.1. Disposition of Accounts Payable to Persons
Who Cannot Be Located. . . . . . . . . . . . . . . . 61
16.2. Efforts To Locate Distributees.. . . . . . . . . . . . 61
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<PAGE>
Table of Contents
(Cont.)
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Amendment or Termination. . . . . . . . . . . . . . . . . . . . . . 62
17.1. Company's Power to Amend or Terminate. . . . . . . . . 62
17.2. Termination by a Participating Employer. . . . . . . . 63
17.3. Disposition of Assets on Termination.. . . . . . . . . 63
17.4. Effect of Termination by the Company.. . . . . . . . . 64
ARTICLE XVIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Administrative Committee. . . . . . . . . . . . . . . . . . . . . . 66
18.1. Appointment. . . . . . . . . . . . . . . . . . . . . . 66
18.2. Organization.. . . . . . . . . . . . . . . . . . . . . 66
18.3. Powers.. . . . . . . . . . . . . . . . . . . . . . . . 66
18.4. Forms and Procedures.. . . . . . . . . . . . . . . . . 68
18.5. Meetings.. . . . . . . . . . . . . . . . . . . . . . . 69
18.6. Records. . . . . . . . . . . . . . . . . . . . . . . . 69
18.7. Applications for Benefits; Appeal From
Denial of Benefits . . . . . . . . . . . . . . . . . 69
18.8. Liability of Committee.. . . . . . . . . . . . . . . . 70
18.9 Standard of Review . . . . . . . . . . . . . . . . . . 72
ARTICLE XIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Prohibition Against Voluntary or Involuntary
Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . 73
19.1. No Liability for Participants' Debts.. . . . . . . . . 73
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Competency of Distributees. . . . . . . . . . . . . . . . . . . . . 74
20.1. Distributees Presumed Competent. . . . . . . . . . . . 74
20.2. Facility of Payment. . . . . . . . . . . . . . . . . . 74
ARTICLE XXI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Becoming a Participating Employer . . . . . . . . . . . . . . . . . 75
21.1. Authorization and Procedure. . . . . . . . . . . . . . 75
21.2. Effect of Being a Participating Employer.. . . . . . . 75
21.3. Pooled Funds.. . . . . . . . . . . . . . . . . . . . . 75
21.4. Costs and Expenses.. . . . . . . . . . . . . . . . . . 76
21.5. Adoption of Plan Conditional.. . . . . . . . . . . . . 76
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Limitations Applicable to All Contributions to This
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
22.1. Special Limitation on Annual Additions For
Any Participant For Any Year . . . . . . . . . . . . 77
-v-
<PAGE>
Table of Contents
(Cont.)
ARTICLE XXIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Special Rules for Years When Plan is Top-Heavy. . . . . . . . . . . 79
23.1. Special Definitions and Rules of
Construction . . . . . . . . . . . . . . . . . . . . 79
23.2. Special Rules Applicable to Top-Heavy
Years. . . . . . . . . . . . . . . . . . . . . . . . 81
23.3. Operating Rules. . . . . . . . . . . . . . . . . . . . 82
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
24.1. Return of Contributions. . . . . . . . . . . . . . . . 84
24.2. Limitations of Liability and Rights. . . . . . . . . . 84
24.3. General Administration and Expenses. . . . . . . . . . 85
24.4. Notice of Address. . . . . . . . . . . . . . . . . . . 85
24.5. Data.. . . . . . . . . . . . . . . . . . . . . . . . . 85
24.6. Trust Agreement Related. . . . . . . . . . . . . . . . 86
24.7. Severability Clause. . . . . . . . . . . . . . . . . . 86
24.8. Situs. . . . . . . . . . . . . . . . . . . . . . . . . 86
24.9. Succession.. . . . . . . . . . . . . . . . . . . . . . 86
24.10. Execution.. . . . . . . . . . . . . . . . . . . . . . 86
24.11. Merger of Plan or Transfer of Trust
Assets. . . . . . . . . . . . . . . . . . . . . . . 86
24.12. Miscellaneous Rules of Construction.. . . . . . . . . 86
24.13. Delayed Payments. . . . . . . . . . . . . . . . . . . 87
24.14. Mistakes in Benefit Payments. . . . . . . . . . . . . 87
-vi-
<PAGE>
ANHEUSER-BUSCH DEFERRED INCOME
STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
----------------------------------------------------
ARTICLE I
Establishment of Plan
---------------------
1.1. Action By Company. Effective as of April l, l976,
-----------------
Anheuser-Busch, Inc., a Missouri corporation, established the
Anheuser-Busch Employee Stock Purchase and Savings Plan. The
Plan was subsequently amended from time to time and the position
of Anheuser-Busch, Inc. as the Plan Sponsor was assumed by
Anheuser-Busch Companies, Inc., a Delaware corporation (the
"Company"). The Company reserved the right to amend the Plan in
any way not expressly prohibited by the Plan. Pursuant to such
reserved right, effective January 1, 1985, the Company divided
the Plan into two separate plans, with employees covered by a
collective bargaining agreement being covered by a separate but
substantially similar plan. Effective April 1, 1992, the Company
again divided the Plan and established this separate plan for
hourly employees of Busch Entertainment Corporation and certain
of its subsidiaries. This Plan is a continuation of the former
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
but only for such separate group of employees. The Plan has
subsequently been amended from time to time, most recently in the
form of a complete restatement effective April 1, 1994.
The Company hereby adopts this current amendment and restatement
effective as of April 1, 1996, in order to make certain changes
consistent with administrative practice and the Company's spin-
off of the Earthgrains Company. The provisions of this amendment
and restatement are effective as of April 1, 1996, unless
otherwise expressly provided.
The Plan is intended to be an employee stock ownership plan
within the meaning of Section 4975(e)(7) of the Code, designed to
invest primarily in "qualifying employer securities" as defined
in Sections 4975(e)(8) and 409(l) of the Code and also is
intended to constitute a cash or deferred arrangement pursuant to
Section 401(k) of the Code.
1.2. Named Plan Fiduciaries. The authority to control
----------------------
and manage the operation and administration of this Plan, and,
generally, the investment of its funds, shall be vested in the
Plan's named fiduciaries. The Plan's named fiduciaries are the
Company, as Plan Sponsor and Plan Administrator, the Trustee,
and, for certain limited purposes, Participants. As Plan
Sponsor, the Company shall have the right to amend the Plan, to
designate the Plan's named fiduciaries, and to exercise all
fiduciary functions necessary to the operation of the Plan except
<PAGE>
those which are assigned to another named fiduciary under this
Plan. As Plan Administrator, the Company shall have the
authority and responsibility for the general administration of
the Plan, including discretionary authority to determine
eligibility for benefits and to construe the terms thereof. The
Company shall have the right to appoint an Administrative
Committee to exercise such authority and responsibility. The
Trustee shall have the exclusive authority and discretion to
invest, manage and control the assets of the Trust by which the
Plan is funded, subject to and in accordance with the provisions
hereof and of the separate Trust Agreement, and subject to the
rights of Participants to direct the investment of their Accounts
as permitted hereby. For purposes of voting and tendering Shares
as to which no instructions have been received by the Trustee, as
described in Sections 8.16 and 8.17, the Participants shall be
deemed named fiduciaries.
The rights and responsibilities of each named fiduciary shall be
exercised severally and not jointly, but any party may serve in
more than one fiduciary capacity with respect to the Plan.
2
<PAGE>
ARTICLE II
Definitions of General Applicability
------------------------------------
2.1. "Account". The separate record of the interest of
-------
each Participant in this Plan which will be established in
accordance with Section 9.1.
2.2. "After-Tax Contributions". A Participant's Personal
-----------------------
Contributions which are not subject to deduction or exclusion
from gross income for federal income tax purposes. After-Tax
Contributions are of two types:
(a) "After-Tax Matched Contributions", which are
-------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "After-Tax Unmatched Contributions", which are
---------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.3. "Before-Tax Contributions". A Participant's
------------------------
Personal Contributions which are properly excluded from gross
income pursuant to Section 401(k) of the Code. Before-Tax
Contributions are of two types:
(a) "Before-Tax Matched Contributions", which are
--------------------------------
Personal Contributions for which a Company Matching Contribution
will be made; and
(b) "Before-Tax Unmatched Contributions", which are
----------------------------------
Personal Contributions for which no Company Matching Contribution
will be made.
2.4. "Beneficiary". Any person designated by a Partici-
-----------
pant pursuant to Article XV to receive benefits hereunder or any
other person deemed to be a Beneficiary by any other provision of
this Plan or by law.
2.5. "Base Pay". A Participant's regular salary, wages
--------
or other remuneration for services paid by a Participating
Employer and determined before subtracting Before-Tax
Contributions or salary reductions pursuant to a plan designed to
comply with Section 125 of the Code. Base Pay is used in
computing the amount of Personal Contributions to the Plan and
shall be determined as follows:
3
<PAGE>
(a) Participants Paid on an Hourly Basis. Base Pay
------------------------------------
is straight-time gross wages for the standard work week,
excluding any over-time pay, supplemental unemployment benefits,
or supplemental workers' compensation benefits. Base Pay
includes vacation pay at straight-time rates (or such other rates
as are established by local facility practice) and amounts paid,
at straight-time rates, for periods not worked because of holiday
time off, furlough, sick leave, bereavement, military leave, jury
duty, or with respect to relief or lunch periods. In situations
where work schedules are not arranged so that 40 regular hours
are worked each work week, the Committee shall determine an
appropriate method to compute Base Pay.
(b) Participants Paid on a Salary Basis. Base Pay
-----------------------------------
is gross salary for the standard pay period, not including any
over-time pay. Base pay includes, at regular salary rates,
amounts paid for periods not worked because of vacation, holiday
time off, furlough, sick leave, bereavement, military leave, jury
duty or with respect to relief or lunch periods.
(c) Other Items Included In Base Pay For All
----------------------------------------
Participants. Base Pay includes commissions paid to persons who
- ------------
are compensated wholly or partially by way of commission,
reported tips for persons who are compensated wholly or partially
by way of tips, and also includes back pay, but only to the
extent that the back pay would have been Base Pay had it been
paid in a timely manner (i.e., disregarding back pay awards for
such items as over-time pay). Back pay shall be included in Base
Pay at the time payment is actually made.
(d) Other Items Excluded from Base Pay For All
------------------------------------------
Participants. Base Pay does not include any bonus, pay in lieu
- ------------
of vacation, service allowance, severance pay, premium pay for
shift or other specialized work, Company Matching or Supplemental
Contributions to this Plan, Company contributions to any other
pension, retirement, group insurance, health and welfare or
similar plan, cash payments pursuant to a plan designed to comply
with Section 125 of the Code, any other so-called "fringe
benefits," any income attributable to the award or exercise of a
stock option or the premature disposition of stock option stock,
any other amount which does not constitute "compensation" within
the meaning of Section 415 of the Code, any type of remuneration
not otherwise described in this Section, or any expense allowance
or reimbursements of expenses paid on behalf of a Participant
(even if subsequently not allowed as such and treated as
additional compensation for federal income tax purposes). Base
Pay does not include any vacation pay which becomes payable on
account of termination of employment nor does it include payments
for any unused sick day, whether before or after termination of
employment.
4
<PAGE>
(e) Limit On Base Pay Considered. In no event
----------------------------
shall the Base Pay taken into account for a Participant under
this Plan exceed the amount specified in Section 401(a)(17) of
the Code as adjusted for any applicable increases in the cost of
living.
2.6. "Board". The Board of Directors of the Company.
-----
2.7. "Closing Price". The price at which Shares shall be
-------------
valued for some purposes under the Plan. The Closing Price is
the closing price of a Share or group of Shares on The New York
Stock Exchange for the last trading day (on which there was at
least one sale of a Share) of a Processing Period, or on such
other date as may be specified in the Plan or determined by the
Committee pursuant to the Plan.
2.8. "Code". The United States Internal Revenue Code of
----
1986, as amended (Title 26 of the United States Code). All
references to specific sections of the Code shall be deemed to be
references to such sections as they may be amended or superseded,
and to the corresponding sections or provisions of any subsequent
United States Internal Revenue Code, as appropriate at the time
of reference.
2.9. "Committee". The Committee appointed under the
---------
provisions of Section 18.1 to administer this Plan.
2.10. "Company". Anheuser-Busch Companies, Inc., a
-------
corporation organized and existing under the laws of the State of
Delaware, and any successor corporation which assumes this Plan
and agrees to be bound by the terms and provisions hereof.
2.11. "Company Matching Contributions". The amounts
------------------------------
contributed to this Plan by Participating Employers pursuant to
Section 6.1(a), including forfeitures which are applied to reduce
the contributions otherwise payable by them.
2.12. "Company Stock Fund". The separate portion of the
------------------
Fund which is to be invested in accordance with Section 8.7.
2.13. "Company Year". The fiscal year of the Company as
------------
in effect from time to time. On the Effective Date the fiscal
year of the Company is the calendar year.
2.14. "Consolidated Net Income For Plan Purposes". The
-----------------------------------------
consolidated net income of all of the Employing Companies for any
Company Year as shown in the Company's annual report to its
5
<PAGE>
shareholders for such Company Year after extraordinary items of
and charges to income, but before taxes on income and earnings
of, and direct and indirect expenses attributable to any
Subsidiary acquired after October 1, 1982 that is not a
Participating Employer under this Plan or a Related Plan. For
purposes of the foregoing, all determinations of earnings and
expenses shall be made in accordance with rules of uniform
application adopted by the Committee; the incorporation of a
Subsidiary at the direction of the Company shall not be treated
as an acquisition of such Subsidiary, even though one of the
Employing Companies may purchase the shares thereof; and a
Subsidiary will be deemed to be acquired when the percentage of
voting capital stock or equity interest owned by the Company or
another Subsidiary or any combination of the Company and/or one
or more Subsidiaries first equals 80%.
2.15. "Effective Date". When used with respect to the
--------------
provisions of this amended and restated Plan, April 1, 1996,
unless otherwise expressly provided. The rights and benefits of
any Participant for any period before April 1, 1996 shall be
determined in accordance with the provisions of the Plan then in
effect.
2.16. "Eligible Employee". An Employee of any Partici-
-----------------
pating Employer who has satisfied the service requirement for
eligibility to participate in this Plan set forth in Article III
hereof.
2.17. "Employee". Any common-law employee employed by a
--------
Participating Employer in any full or part-time capacity who is
compensated by the hour, or classified as regular or seasonal,
and who is a resident of the United States or Puerto Rico.
2.18. "Employing Companies". The Company and any
-------------------
corporation or other business entity that is a member of a
controlled group of corporations or other business entities, as
defined in Sections 414(b) and 414(c) of the Code, that includes
the Company, or is a member of an affiliated service group that
includes the Company as defined in Section 414(m) of the Code,
all as determined from time to time. A business entity is an
Employing Company only while a member of such a controlled group
of corporations or other business entities or such an affiliated
service group. All determinations required by this Section shall
be made pursuant to and consistent with Sections 414(b), (c), (m)
and (o) of the Code and regulations thereunder.
2.19. "Equity Index Fund". The separate portion of the
-----------------
Fund which is to be invested in accordance with Section 8.10.
2.20. "ERISA". The Employee Retirement Income Security
-----
Act of 1974, Pub. L. No. 93-406, 88 Stat. 829, which amended both
the Code and Title 29 of the United States Code (captioned
6
<PAGE>
"Labor"). ERISA sections contained in the Code are cited by
references to the Code. ERISA sections not contained in the Code
are cited in sections of ERISA as enacted. All references to
specific ERISA sections shall be deemed to be references to such
sections as originally enacted or as subsequently amended or
superseded, as appropriate at the time of reference.
2.21. "Fund". All securities, cash and other assets held
----
by the Trustee with respect to this Plan from time to time
subject to the provisions of this Plan. As of April 1, 1996,
there are seven separate Investment Funds within the Fund: the
Company Stock Fund, the Equity Index Fund, the Indexed Balanced
Fund, the Managed Balanced Fund, the Medium-Term Fixed Income
Fund, the Short-Term Fixed Income Fund and the Earthgrains Stock
Fund.
2.22. "Highly Compensated Employee". (a) The term Highly
---------------------------
Compensated Employee includes Highly Compensated Employees who
are active and certain former Highly Compensated Employees as
described in this Section.
(b) An active Highly Compensated Employee includes
any individual who performs service for any of the Employing
Companies during the determination year and who, during the
look-back year: (i) received compensation from the Employing
Companies in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code); (ii) received compensation from the
Employing Companies in excess of $50,000 (as adjusted pursuant to
Section 415(d) of the Code) and was a member of the top-paid
group for such year; or (iii) was at any time an officer of an
Employing Company and received compensation during such year that
is greater than 50 percent of the dollar limitation in effect
under Section 415(b)(1)(A) of the Code for such year.
(c) The term Highly Compensated Employee also
includes: (i) individuals who are both described in the
preceding subsection (b) if the term "determination year" is
substituted for the term "look-back year" and the individual is
one of the one hundred employees who received the most
compensation from the Employing Companies during the
determination year; and (ii) employees who are five-percent
owners at any time during the look-back year or determination
year.
(d) If no officer has satisfied the compensation
requirement of (b)(iii) above during either a determination year
or look-back year, the highest paid officer for such year shall
be treated as a Highly Compensated Employee.
(e) For purposes of this Section, (i) the
determination year shall be the Plan Year; (ii) the look-back
year shall be the twelve-month period immediately preceding the
determination year; and (iii) compensation shall mean
7
<PAGE>
compensation as defined in Section 414(q)(7) of the Code and
regulations thereunder.
(f) A former Highly Compensated Employee includes
any individual who separated from service with an Employing
Company (or was deemed to have separated) prior to the
determination year, performs no service for an Employing Company
during the determination year, and was an active Highly
Compensated Employee for either the separation year or any
determination year ending on or after the employee's 55th
birthday.
(g) If an individual is, during a determination
year or look-back year, a family member of either a five-percent
owner who is an active or former employee or a Highly Compensated
Employee who is one of the ten most highly compensated employees
during such year, then the family member and the five-percent
owner or top-ten highly compensated employee shall be treated as
a single employee receiving compensation and plan contributions
or benefits equal to the sum of such compensation and
contributions or benefits of the family member and five-percent
owner or top-ten highly compensated employee.
(h) For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the
employee or former employee and the spouses of such lineal
ascendants and descendants.
(i) The determination of who is a Highly
Compensated Employee, including the determinations of the number
and identity of employees in the top-paid group, any five-percent
owner, the top one hundred employees, the number of employees
treated as officers and the compensation that is considered, will
be made in accordance with Section 414(q) of the Code and
applicable Treasury Regulations.
2.23. "Hour of Service". (a) An Hour of Service is:
---------------
(i) each hour for which an Employee is paid,
or entitled to payment, for the performance of duties for an
Employing Company;
(ii) each hour for which an Employee is paid,
or entitled to payment, by an Employing Company on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence; and
8
<PAGE>
(iii) each hour (if not already credited) for
which back pay (irrespective of mitigation of damages) has been
either awarded or agreed to by an Employing Company; provided the
Hours of Service derived from back pay shall be credited to the
computation period or periods to which the award or agreement
pertains, and not to the computation period in which payment is
made.
(iv) in the case of an Employee (or former
Employee) who is on an authorized leave of absence or on active
duty with any branch of the military service of the United States
and who is not directly or indirectly paid or entitled to payment
by any of the Employing Companies during such period, an Hour of
Service is every regular working hour of every regular working
day for which such person would have been credited with an Hour
of Service (based on the person's normal work schedule in effect
at the time of the beginning of such leave or military service)
had the person been actively at work during the period of such
leave or military service, but only if such person returns to
work at the end of such leave or (in the case of military
service) during the period in which such person's re-employment
rights are protected by Federal law.
(b) The following rules shall apply to
determinations of Hours of Service credited under this Plan:
(i) A payment shall be deemed to be made by or
due from an Employing Company regardless of whether such payment
is made by or due from an Employing Company directly, or
indirectly through (among others) a trust fund or insurer to
which the Employing Company contributes or pays premiums and
regardless of whether contributions made or due to the trust
fund, insurer or other entity are for the benefit of particular
Employees or are on behalf of a group of Employees in the
aggregate.
(ii) An Employee who is compensated by way of
a salary which is payable semi-monthly shall be credited with 95
Hours of Service for each semi-monthly payroll period for which
the Employee is compensated for the performance of duties (the
number of Hours of Service to be credited to such Employee
because of compensation for reasons other than the performance of
duties shall be determined in the manner hereafter specified).
If a semi-monthly salary period falls into two different
computation periods, the entire number of Hours of Service
attributable to such period shall be credited to the second
computation period.
(iii) The number of Hours of Service to be
credited to an Employee for reasons other than performance of
9
<PAGE>
duties, and the Plan Year or Plan Years to which Hours of Service
will be credited in appropriate instances, shall be determined,
respectively, pursuant to the United States Department of Labor's
Regulations Section 2530.200b-2(b) and (c), which are
incorporated herein by this reference.
(iv) Notwithstanding the provisions of
subsection (a) requiring that Hours of Service be credited
because of payments made for reasons other than the performance
of duties, no more than 501 Hours of Service shall be credited to
an Employee on account of any single continuous period (whether
occurring in one or more computation periods) during which such
Employee performs no duties, and no Hour of Service shall be
credited on account of a period during which no duties are
performed if the payment therefor is made under a plan maintained
solely for the purpose of complying with applicable workmen's
compensation, unemployment compensation, or disability insurance
laws.
(v) No Hours of Service will be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by such Employee.
(vi) For purposes of determining the number of
Hours of Service credited to an Employee who is not yet eligible
to be a Participant in this Plan, the computation period shall be
the eligibility computation period specified in Section 3.4
hereof.
(vii) These provisions shall be liberally
construed in favor of Employees.
(viii) Solely for the purposes of determining
whether a break in service for eligibility under Section 3.3(a)
has occurred, any Employee who is absent from work (A) by reason
of the pregnancy of the Employee, (B) by reason of the birth of a
child of the Employee, (C) by reason of the placement of a child
with the Employee in connection with the adoption of such child
by the Employee, or (D) for purposes of caring for such child for
a period beginning immediately following such birth or placement,
shall receive credit for the Hours of Service which would
otherwise have been credited but for such absence, or in any case
in which such hours cannot be determined, eight Hours of Service
for each day of such absence. The Hours of Service credited
under this paragraph shall be credited in the computation period
in which the absence begins if the crediting is necessary to
prevent a break in service in that period, or, in all other
cases, in the following computation period. Notwithstanding the
foregoing, no more than 501 Hours of Service shall be credited
under this paragraph for any single maternity or paternity leave.
10
<PAGE>
The Committee shall have the right to require such timely
information from an Employee as it deems reasonably necessary to
establish that the absence is for reasons referred to in this
paragraph and the number of days for which there was such an
absence. If an Employee does not comply with any such request,
the rules of this paragraph shall not apply to the absence.
(c) Hours of Service credited under a Related Plan
shall be Hours of Service under this Plan for all purposes.
(d) In determining the Hours of Service of any
individual employed by Sea World of Florida, Inc., Florida
Cypress Gardens, Inc., Sea World, Inc., Sea World of Texas, Inc.,
or Boardwalk and Baseball, Inc. as of December 1, 1989, hours of
service with any of such corporations shall be considered Hours
of Service in accordance with this Section.
(e) In determining the Hours of Service of any
individual employed by Precision Printing and Packaging, Inc. as
of December 31, 1994, hours of service with such corporation or
with International Label Company shall be considered Hours of
Service in accordance with this Section. This provision shall be
effective for purposes of both Article III and Article X.
2.24. "Indexed Balanced Fund". The separate portion of
---------------------
the Fund which is to be invested in accordance with Section 8.11.
2.25. "Managed Balanced Fund". The separate portion of
---------------------
the Fund which is to be invested in accordance with Section 8.12.
2.26. "Medium-Term Fixed Income Fund". The separate
-----------------------------
portion of the Fund which is to be invested in accordance with
Section 8.9.
2.27. "Non-Highly Compensated Employee". An Employee who
-------------------------------
is neither a Highly Compensated Employee nor a family member of a
Highly Compensated Employee within the meaning of Section
414(q)(6)(B) of the Code.
2.28. "Participant". Any Eligible Employee who has
-----------
elected to participate in this Plan in the manner provided in
Section 3.2 and any former Eligible Employee who has assets
credited to an Account.
2.29. "Participating Employer". (a) As of April 1, 1996,
----------------------
the following Subsidiaries:
Busch Entertainment Corporation
Sea World, Inc.
Sea World of Texas, Inc.
11
<PAGE>
Sea World of Florida, Inc.
Florida Cypress Gardens, Inc.
Boardwalk and Baseball, Inc.
(b) Any other Subsidiary which may hereafter become
a party hereto in the manner provided in Article XXI.
(c) Any corporation(s) into which or with which any
of the foregoing Participating Employers may be liquidated,
merged or consolidated, if such successor(s) or (in the event of
a liquidation, merger or consolidation) surviving corporation(s)
is a Subsidiary and is or becomes a Participating Employer
hereunder.
2.30. "Personal Contributions". A generic term referring,
----------------------
collectively, to all amounts contributed to this Plan by a
Participant. Such amounts will be either After-Tax Contributions
or Before-Tax Contributions, and may be either matched by a
Company Matching Contribution or unmatched.
2.31. "Plan". This Anheuser-Busch Deferred Income Stock
----
Purchase and Savings Plan (for Certain Hourly Employees of
Anheuser-Busch Companies, Inc. and its Subsidiaries) as herein
established and as it may be amended from time to time.
2.32. "Plan Year". The fiscal year adopted by the Company
---------
for this Plan. The Plan Year is the twelve consecutive month
period beginning each April 1 and ending each March 31.
2.33. "Processing Period". The seven consecutive day
-----------------
period beginning each Wednesday and ending the following Tuesday
or such other period as may be designated by the Committee from
time to time.
2.34. "Related Plans". The Anheuser-Busch Deferred Income
-------------
Stock Purchase and Savings Plan and the Anheuser-Busch Deferred
Income Stock Purchase and Savings Plan (For Employees Covered by
a Collective Bargaining Agreement).
2.35. "Share". A share of common stock of the Company.
-----
2.36. "Share Equivalents". The portion of a Participant's
-----------------
Account which is invested in the Company Stock Fund but measured
in terms of the number of Shares that would be equivalent in
value to such investment. Share Equivalents that a Participant
or Beneficiary shall be entitled to vote or tender pursuant to
Sections 8.16 and 8.17 shall be equal to the number of full and
fractional Shares held in the Company Stock Fund as of a
Valuation Date, divided by the number of Company Stock Fund units
as of such Valuation Date, multiplied by the number of Company
12
<PAGE>
Stock Fund units in the Participant's Account as of such
Valuation Date. For purposes of this Section, the term
"Valuation Date" shall mean any date as of which Share value or
unit value is determined under an Investment Fund as directed by
the Committee.
2.37. "Short-Term Fixed Income Fund". The separate
----------------------------
portion of the Fund which is to be invested in accordance with
Section 8.8.
2.38. "Subsidiary". Any corporation or other form of
----------
business enterprise created or organized in the United States
under the law of any State or Territory thereof, the issued and
outstanding voting capital stock or equity interest of which is,
in the aggregate, 80% or more owned by the Company, another
Subsidiary or any combination of the Company and/or one or more
Subsidiaries.
2.39. "Supplemental Contributions". Amounts contributed
--------------------------
to this Plan by Participating Employers pursuant to
Section 6.1(b).
2.40. "Taxable Compensation". The amount of compensation
--------------------
determined under the provisions of Section 414(s) of the Code and
regulations thereunder, but including amounts otherwise excluded
from gross income under Sections 402(e)(3) and 125 of the Code.
In no event shall an Employee's Taxable Compensation exceed the
amount specified in Section 401(a)(17) of the Code as adjusted
for any applicable increases in the cost of living.
2.41. "Trust Agreement". The separate Master Defined
---------------
Contribution Trust Agreement entered into by and between the
Company and the Trustee, as well as all other agreements and
documents relating to the operation of the Master Defined
Contribution Trust including, but not limited to, agreements
appointing investment managers and agreements joining plans into
the Master Defined Contribution Trust Agreement. The Master
Defined Contribution Trust Agreement, as may be amended from time
to time, governs the establishment, investment and maintenance of
the Fund. The Master Defined Contribution Trust Agreement shall
be deemed to be a part of this Plan as if all of the terms and
provisions thereof were fully set forth herein.
2.42. "Trustee". The corporation designated by the
-------
Company from time to time to act as Trustee under the Trust
Agreement.
13
<PAGE>
ARTICLE III
Eligibility and Participation
-----------------------------
3.1. Eligibility. (a) An Employee of a Participating
-----------
Employer shall be eligible to participate in the Plan at the end
of the eligibility computation period during which the Employee
completes one Year of Service.
(b) Notwithstanding the foregoing, no Employee will
be eligible to participate in this Plan if (i) such person's
employment is covered by a collective bargaining agreement which
does not expressly provide for participation in this Plan and
under which retirement benefits have been the subject of good
faith collective bargaining, or (ii) such person is deemed to be
a leased employee (within the meaning of Section 414(n) of the
Code) of an Employing Company.
3.2. Becoming a Participant. Participation in the Plan
----------------------
is entirely voluntary, but to become a Participant an Eligible
Employee must agree to make Personal Contributions, as
hereinafter set out. Notwithstanding anything, an Eligible
Employee's election to make Personal Contributions shall not
become effective before the first day of the calendar month
following expiration of the eligibility computation period during
which such person completes one Year of Service.
3.3. Re-employment Following a Break in Service. (a) An
------------------------------------------
Employee who incurs a break in service before becoming eligible
to participate in this Plan and who is subsequently re-employed
by a Participating Employer shall be treated as a new Employee
and shall be required to satisfy the eligibility requirements set
out in Section 3.1 following such person's re-employment date
before such person becomes an Eligible Employee.
(b) An Eligible Employee who has one or more breaks
in service and who is subsequently re-employed by a Participating
Employer shall be eligible to participate in this Plan
immediately upon re-employment.
3.4. Year of Service; Break in Service. (a) A Year of
---------------------------------
Service for determining eligibility to participate is an
eligibility computation period during which an Employee performs
at least 1,000 Hours of Service.
(b) The initial eligibility computation period for
an Employee shall be the twelve-month period beginning on the
first date (the "initial employment date") such Employee performs
an Hour of Service. In the case of an Employee who performs more
than 500 but less than 1,000 Hours of Service during the initial
14
<PAGE>
eligibility computation period, each succeeding twelve-month
period beginning on the anniversary of the Employee's initial
employment date shall be an eligibility computation period until
the Employee either becomes an Eligible Employee or incurs a
break in service.
(c) An Employee's failure to perform more than 500
Hours of Service during any eligibility computation period before
the Employee becomes an Eligible Employee shall constitute a
break in service.
(d) The eligibility computation period for an
Employee who has incurred five consecutive breaks in service and
who is subsequently re-employed shall be the twelve-month period
beginning on the first date (the "re-employment date") on which
such Employee performs an Hour of Service following such breaks
in service. In the case of such an Employee who performs more
than 500 but less than 1,000 Hours of Service during such
eligibility computation period, each succeeding twelve-month
period beginning on each anniversary of the Employee's
re-employment date shall be an eligibility computation period
until the Employee either becomes an Eligible Employee or incurs
five consecutive breaks in service.
3.5. Transfers of Participants and Lay-Offs. (a) No
--------------------------------------
transfer or other change in the employment of a Participant from
the employ of a Participating Employer to the employ of another
of the Employing Companies which is not a Participating Employer,
and no transfer from an employment classification in which the
Participant is an Employee to a classification in which the
Participant is not an Employee, shall be deemed to be either a
break in service or a termination of employment, whether or not
the transferred employee is reported as having resigned or
otherwise ceased to have been employed in such employee's former
employment classification or by such employee's former employer.
After such transfer, the transferred Participant shall no longer
be entitled to make Personal Contributions to this Plan or to
have any Company Matching Contributions made on such
Participant's behalf. If eligible to participate in a Related
Plan after such transfer, a Participant's Account may be
transferred to such Related Plan.
(b) So long as there is any unwithdrawn or
undistributed balance in the Account of a transferred
Participant, the Account shall not be affected by such transfer
and shall not be segregated from or within the Fund, but shall
continue to be commingled therewith and be subject to appropriate
increases or decreases to reflect the results of the valuations
made in accordance with Section 9.5.
15
<PAGE>
(c) A Participant who may no longer actively
participate in this Plan because of a lay-off or a job transfer
and who is thereafter again transferred to the employ of a
Participating Employer or is recalled from lay-off shall
automatically and immediately become eligible to resume
participation in this Plan upon compliance with rules adopted by
the Committee and the timely filing of the requisite forms, if
any.
(d) An Employee who ceases to be a resident of the
United States or Puerto Rico (if applicable), after once having
become a Participant shall then be treated as if the Participant
had been transferred from the employ of a Participating Employer
to the employ of another of the Employing Companies which is not
a Participating Employer and such Participant's rights thereafter
shall be determined pursuant to this Section 3.5.
(e) If, as a result of an employment transfer, an
individual who was a Participant in a Related Plan becomes
eligible to participate in this Plan, this Plan shall accept the
transfer of such Participant's Account from such other Plan. Any
Account so transferred shall be combined with the Participant's
Account under this Plan, if any, in accordance with procedures
established by the Committee. Any Participant described in this
subsection who was making Personal Contributions to a Related
Plan at the time of transfer shall be deemed to have made
identical elections regarding the rate, type and investment of
contributions to this Plan.
16
<PAGE>
ARTICLE IV
Matched Contributions
---------------------
4.1. Before-Tax Matched Contributions. A Participant who
--------------------------------
wishes to make Before-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to defer a portion of
the Base Pay that such Participant would otherwise have received,
in the percentage indicated by the Participant, but subject to
the limitations set out in Sections 7.2 and 7.3, on the condition
that the amount so deferred be delivered to the Trustee as a
Personal Contribution. All Before-Tax Matched Contributions
shall be expressed in full percentage points of Base Pay, and
shall be either 1, 2, 3, 4, 5 or 6% of Base Pay.
4.2. After-Tax Matched Contributions. A Participant who
-------------------------------
wishes to make After-Tax Matched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, but subject
to the limitations set out in Section 7.4, and to deliver the
amounts so withheld to the Trustee as a Personal Contribution.
All After-Tax Matched Contributions shall be expressed in full
percentage points of Base Pay, and shall be either 1, 2, 3, 4, 5
or 6% of Base Pay.
4.3. Limitation on Total Matched Contributions. The sum
-----------------------------------------
of a Participant's Before-Tax Matched Contributions and After-Tax
Matched Contributions may not be less than 1% nor more than 6% of
the Participant's Base Pay.
17
<PAGE>
ARTICLE V
Unmatched Contributions
-----------------------
5.1. Contributions Permitted. Whether or not a Partici-
-----------------------
pant is making matched Personal Contributions, such Participant
may make unmatched Personal Contributions pursuant to this
Article and subject to the limitations set out in this Article
and Article VII. Such unmatched Personal Contributions may
either be on a before-tax or after-tax basis.
5.2. Before-Tax Unmatched Contributions. A Participant
----------------------------------
who wishes to make Before-Tax Unmatched Contributions must make
an election so indicating in accordance with procedures
promulgated by the Committee. Such an election shall be a
direction by the Participant to the Participating Employer to
defer a portion of the Base Pay that such Participant would
otherwise have received in the percentage indicated by the
Participant, on the condition that the amount so deferred be
delivered to the Trustee as a Personal Contribution. All
Before-Tax Unmatched Contributions shall be expressed in full
percentage points of Base Pay, and shall be either 1, 2, 3, 4, 5,
6, 7, 8, 9 or 10% of Base Pay.
5.3. After-Tax Unmatched Contributions. A Participant
---------------------------------
who wishes to make After-Tax Unmatched Contributions must make an
election so indicating in accordance with procedures promulgated
by the Committee. Such an election shall be a direction by the
Participant to the Participating Employer to withhold the
percentage of Base Pay indicated by the Participant, and to
deliver the amounts so withheld to the Trustee as a Personal
Contribution. All After-Tax Unmatched Contributions shall be
expressed in full percentage points of Base Pay, and shall be
either 1, 2, 3, 4, 5, 6, 7, 8, 9 or l0% of Base Pay.
5.4. Limitation on Total Unmatched Contributions. If a
-------------------------------------------
Participant making Before-Tax Unmatched Contributions is
concurrently making After-Tax Unmatched Contributions, the sum of
the Participant's unmatched contribution rates may not be more
than 10% of the Participant's Base Pay.
18
<PAGE>
ARTICLE VI
Company Contributions
---------------------
6.1. Required Contributions. (a) Each Participating
----------------------
Employer shall contribute, as its share of Company Matching
Contributions, for each Plan Year (or portion thereof) of its
participation in this Plan, the "formula amount", less the
aggregate amount of forfeitures attributable to Participants
employed by it. The "formula amount" is that amount determined
by multiplying (i) the total amount of matched Personal
Contributions actually deferred or withheld during such period
from the Base Pay of all Participants employed by such
Participating Employer, by (ii) the contribution rate in effect
for such period for such Participating Employer.
(b) Each Participating Employer shall also
contribute, for each Plan Year (or portion thereof) of its
participation in this Plan, its proportionate share of any
Supplemental Contribution for any Plan Year. Supplemental
Contributions shall be determined by the Committee under Section
6.3.
(c) If so directed by the Company from time to
time, each Participating Employer shall make its proportionate
share of any additional contributions determined by the Company,
in its absolute discretion.
6.2. Contribution Rate For Company Matching
--------------------------------------
Contributions. The contribution rate for Company Matching
- -------------
Contributions is a decimal fraction, expressed to four places,
determined by the Committee prior to the beginning of each Plan
Year, which shall not change during a Plan Year. Such
contribution rate shall be established by dividing (a) 2-1/2% of
the Company's Consolidated Net Income for Plan Purposes for the
Company Year most recently ended, by (b) 6% of the eligible
payroll for such Company Year, but shall never be less than .3333
nor more than .7500. Notwithstanding the foregoing, the Company,
in its sole discretion as Plan sponsor, may establish a
contribution rate for a Plan Year which is greater than the rate
determined in accordance with the preceding sentence.
The "eligible payroll" for any Company Year shall be the sum of
(c) the total Base Pay accrued for that Company Year for all
Employees of all of the Employing Companies which will be
Participating Employers for the Plan Year for which the
contribution rate is being established and, without duplication,
and (d) the total "Base Pay" accrued for such Plan Year for all
"employees" of all of the "employing companies" which will be
"participating employers" in all the Related Plans except
19
<PAGE>
employees of The Earthgrains Company and its subsidiaries. For
purposes of this paragraph, the quoted terms shall have the
meanings set out in such other plans.
Consolidated Net Income and payroll shall be determined by
excluding the earnings and payroll of Sea World, Inc., The
Earthgrains Company and their respective subsidiaries until such
time as the Company determines that such exclusion is no longer
appropriate, in part or in full.
6.3 Determination of Supplemental Contribution. As soon
------------------------------------------
as practicable after the close of each Plan Year, the Committee
shall determine the amount of the Supplemental Contribution, if
any, for such Plan Year. It is intended that the Supplemental
Contribution shall, when expressed as a matching rate, be
substantially equivalent to the "supplemental contribution"
computed under the Anheuser-Busch Deferred Income Stock Purchase
and Savings Plan when expressed as a matching rate.
6.4. Payment and Payment Date. Each Participating
------------------------
Employer's Company Matching, Supplemental, and any other type of
contribution for the Plan Year, to the extent actually required
to be contributed under Section 6.1, shall be delivered to the
Trustee as and when determined by the Committee but not later
than 180 days after the end of such Plan Year. Such delivery
shall be either in cash or in Shares (from authorized but
unissued Shares or out of Shares held in the Company's treasury),
or a combination of both, and if delivered wholly or partially in
Shares, such Shares shall be valued at the Closing Price on the
date of delivery or on the last business day prior to the date of
delivery as determined by the Committee on a uniform and
consistent basis.
6.5. Allocation to Participants' Accounts. (a) Company
------------------------------------
Matching Contributions shall be allocated to the Accounts of
Participants as of the end of each Processing Period in
accordance with the contribution rate in effect for the Plan Year
in which such Processing Period falls. Thus, if the contribution
rate for a Plan Year is .3500, each Participant shall have
allocated to such Participant's Account from the Company Matching
Contributions for any Processing Period of such Plan Year an
amount equal to thirty-five percent of such Participant's matched
Personal Contributions actually withheld during such Processing
Period.
(b) Supplemental Contributions shall be allocated
to the Accounts of Participants as of the end of each Plan Year
in accordance with the ratio that the sum of the individual
Participant's Company Matching Contributions allocated (and not
then forfeited) for such Plan Year bears to the total Company
20
<PAGE>
Matching Contributions allocated (and not then forfeited) for
such Plan Year. In order to receive a Supplemental Contribution
allocation for a Plan Year, a Participant (or the Participant's
Beneficiary) must have an existing Account balance in the Plan as
of the last day of such Plan Year. Notwithstanding anything to
the contrary in this Plan, no Supplemental Contribution shall be
allocated to the Account of an alternate payee under a qualified
domestic relations order (as described in Section 414(p) of the
Code) unless otherwise specifically required under such order.
21
<PAGE>
ARTICLE VII
Procedures and Limitations
on Personal Contributions and Elections
---------------------------------------
7.1. Election Procedures. (a) An election to make
-------------------
Personal Contributions must be delivered to the Employee Stock
Plans Department at such time prior to the effective date of the
election as the Committee may determine. A Participant may
change the rate or type of Personal Contributions, or cease
making Personal Contributions altogether, by delivering such an
instruction to the Employee Stock Plans Department prior to the
effective date of such change. A direction concerning rate and
type of Personal Contributions shall continue in effect until
changed in the manner provided above.
(b) All elections concerning rate and type of
Personal Contributions shall be implemented after the election is
delivered to the Employee Stock Plans Department on so much
advance notice as may be required by the Committee, but shall
always become effective as of the first paycheck dated in a
month.
(c) All elections concerning rate and type of
Personal Contributions must be made in accordance with all
applicable rules and procedures adopted by the Committee.
7.2. Special Dollar Limitation On Before-Tax
---------------------------------------
Contributions. (a) A Participant's total Before-Tax
- -------------
Contributions (Matched and Unmatched) for any calendar year shall
not exceed the amount in effect under Section 402(g) of the Code
for such calendar year ($9,500 for 1996). If such limit would be
exceeded under a Participant's deferral election as in effect at
any time (whether because of a mid-year Base Pay increase or
otherwise), the Participant's contribution rate for Before-Tax
Contributions shall automatically be reduced by the Plan before
the end of the calendar year so that such limit is not exceeded.
In addition, the Committee may make such projections and adopt
such procedures as it shall deem advisable to insure satisfaction
of this limit at the end of the Plan Year. Payroll deductions
shall be adjusted as necessary to comply with this paragraph.
(b) If the Committee is notified, pursuant to
Section 402(g)(2) of the Code and prior to April 15, that a
Participant has made deferrals in the immediately preceding
calendar year under two or more qualified plans which, in the
aggregate, would exceed the limitations of subsection (a), a
portion of such excess deferrals, as directed by the Participant,
shall be handled in accordance with subsection (c) of this
Section.
22
<PAGE>
(c) If, notwithstanding the provisions of this
Section, it is determined that a Participant's Before-Tax
Contributions in fact exceeded the limit set out in subsection
(a), by administrative error or otherwise, or if the Participant
so directs under Subsection (b), the amount of Before-Tax
Contributions actually made for the calendar year in excess of
the permitted amount, plus applicable earnings or less applicable
loss, may be refunded to the Participant. Any refund under this
paragraph shall be made after the excess deferral was received by
the Plan but, if feasible, on or before the April 15th following
the end of the calendar year in which the excess deferral
occurred. Earnings attributable to an excess deferral hereunder
shall be computed under a method selected by the Committee and
permitted under applicable Treasury Regulations. Any excess
deferral otherwise distributable hereunder shall be reduced by
the amount of any excess Before-Tax Contributions distributed
under Section 7.3 prior to the distribution hereunder and made
with respect to the Plan Year commencing within such calendar
year. Refunds under this Section shall be apportioned first to
Before-Tax Unmatched Contributions, including earnings, and then
to Before-Tax Matched Contributions, including earnings.
(d) A refund under this Section shall not subject a
Participant to any suspension penalty.
7.3. Required Adjustment of Before-Tax Personal
------------------------------------------
Contributions. Inasmuch as applicable federal law and
- -------------
regulations establish certain limitations on amounts which may be
excluded from income by certain Employees, each election to make
Before-Tax Contributions shall be subject to automatic adjustment
in accordance with the rules set forth in this Section. This
Section shall be administered in a manner consistent with
Sections 401(k) and 401(m) of the Code and applicable Treasury
Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual Before-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who
are Highly Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual Before-Tax
Contribution rate for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one hundredth of one percent for each Eligible Employee
in the group, of (x) the amount of Before-Tax Contributions for
such person, to (y) such person's Taxable Compensation.
(b) One of the following tests shall be satisfied
each Plan Year: (i) the actual Before-Tax Contribution rate for
the Highly Compensated group shall not exceed one and one-quarter
23
<PAGE>
times the rate of the Non-Highly Compensated group; or (ii) the
rate of the Highly Compensated group shall be neither more than
two percentage points higher than, nor more than two times, the
rate of the Non-Highly Compensated group. If neither of these
tests is met, the excess Before-Tax Contributions of each
affected Participant in the Highly Compensated group shall be
refunded to the Participant, with income attributable thereto,
within twelve months after the close of the Plan Year in which
such excess Before-Tax Contributions were made. In making
refunds hereunder, unmatched contributions shall be completely
refunded before any matched contribution is refunded. Income
attributable to such refunded contributions shall be determined
in accordance with a method selected by the Committee and
permitted under applicable Treasury Regulations. A refund under
this Section shall not subject a Participant to any suspension
penalty.
(c) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.3(a) and (b) and may make such adjustments and recharacteriza-
tions of Personal Contributions as and when it deems necessary or
appropriate, in its sole judgment, to insure satisfaction of the
test at the end of the Plan Year and to minimize or prevent
refunds. The Committee may also impose separate limits on
Before-Tax Contributions of Highly Compensated Employees.
(d) In determining whether the contributions to
this Plan satisfy the test set forth in Section 7.3(b), the
Committee may, at its option and if permitted by law, aggregate
pertinent data from this Plan and any other plan maintained by
any of the Employing Companies which contains provisions intended
to be qualified under Section 401(k) of the Code.
(e) The determination of the amount of excess
Before-Tax Contributions for each Highly Compensated Participant
under subsection (b) shall be made by reducing the contribution
rates of Highly Compensated Participants in order of highest
actual deferral ratios, using the leveling method provided in
Treasury Regulations.
(f) If the test under clause (ii) of Section 7.3(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.4(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(g) Excess Before-Tax Contributions shall be
allocated to Participants who are subject to the family member
24
<PAGE>
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by applicable Treasury Regulations.
(h) In determining the actual Before-Tax
Contribution rate for any Highly Compensated Employee, (i) salary
deferral contributions under each plan maintained by an Employing
Company shall be aggregated, and (ii) the Before-Tax
Contributions and Taxable Compensation of certain family members
shall be taken into account as provided in Section 2.22(g).
7.4. Required Adjustment of After-Tax and Company
--------------------------------------------
Matching Contributions. Inasmuch as applicable Federal law and
- ----------------------
regulations establish certain limitations on amounts which may be
contributed to this Plan, each election to make After-Tax
Contributions shall be subject to automatic adjustment in
accordance with the rules set forth in this Section. This
Section shall be administered in a manner consistent with
Sections 401(k) and 401(m) of the Code and applicable Treasury
Regulations.
(a) When the Plan Year has ended, the Committee
shall determine the actual After-Tax Contribution rates for two
groups of Eligible Employees consisting of (i) individuals who
are Highly-Compensated Employees, and (ii) individuals who are
Non-Highly Compensated Employees. The actual After-Tax Contri-
bution rates for each of these groups is the average of the
ratios for such Plan Year, calculated separately to the nearest
one-hundredth of one percent for each Eligible Employee in the
group, of (x) the amount of After-Tax, Company Matching and
Supplemental Contributions for such person, to (y) such person's
Taxable Compensation.
(b) One of the following tests shall be satisfied
for each Plan Year: (i) the actual After-Tax Contribution rate
for the Highly Compensated group shall not exceed one and
one-quarter times the rate of the Non-Highly Compensated group;
or (ii) the rate of the Highly Compensated Group shall be neither
more than two percentage points higher than, nor more than two
times, the rate of the Non-Highly Compensated Group.
(c) If the actual After-Tax Contribution rate for
the Highly Compensated group should exceed the limits in the
preceding subsection, then excess After-Tax Contributions and
income attributable thereto shall be refunded as set out in this
Section. For purposes hereof, excess After-Tax Contributions
shall mean the excess of (i) the aggregate amount of the
After-Tax, Company Matching and Supplemental Contributions of
Highly-Compensated Employees made for the Plan Year, over (ii)
the maximum amount of such contributions permitted under
subsection (b). Such excess contributions shall be refunded on
25
<PAGE>
the basis of the respective portions of such amount attributable
to each such Participant, in accordance with the following:
(aa) First, such Participant's After-Tax
Unmatched Contributions will be refunded.
(bb) Next, After-Tax Matched Contributions
shall be refunded.
Income attributable to excess After-Tax Contributions to be
refunded shall be computed under a method selected by the
Committee and permitted under applicable Treasury Regulations.
(d) All refunds of excess contributions and
applicable earnings under this Section shall be completed not
later than the close of the Plan Year following the Plan Year in
which the excess contributions were made.
(e) The Committee may adopt such procedures as it
deems appropriate for making interim projections under Sections
7.4(a) and (b) and may make such adjustments and recharac-
terizations of Personal Contributions as and when it deems
necessary or appropriate, in its sole judgment, to insure
satisfaction of the test at the end of the Plan Year and to
minimize or prevent refunds. The Committee may also impose
separate limits on After-Tax Contributions of Highly Compensated
employees.
(f) The determination of the amount of excess
After-Tax Contributions shall be made after excess Before-Tax
Contributions under Section 7.3 have been determined.
(g) The determination of the amount of excess
After-Tax Contributions for each Highly Compensated Participant
under subsection (c) shall be made by reducing the contribution
rates of the Highly Compensated Participants in order of highest
actual contribution percentages, using the leveling method
provided in Treasury Regulations.
(h) If the test under clause (ii) of Section 7.4(b)
is met but not the test under clause (i), this Plan shall not use
the alternative test under clause (ii) of Section 7.3(b) in
satisfying the test specified therein unless otherwise permitted
by applicable Treasury Regulations. If not so permitted, the
Committee shall determine whether the alternative test shall be
used under Section 7.3(b) or 7.4(b).
(i) In determining whether the contributions to
this Plan satisfy the test set forth in Section 7.4(b), the
Committee may, at its option and if permitted by law, aggregate
26
<PAGE>
pertinent data from this Plan and any other plan maintained by
any of the Employing Companies which contains provisions intended
to be qualified under Section 401(m) of the Code.
(j) In determining the actual After-Tax
Contribution rate for any Highly Compensated Employee, the
After-Tax Company Matching and Supplemental Contributions, and
the Taxable Compensation, of certain family members shall be
taken into account as provided in Section 2.22(g). Excess
After-Tax Contributions shall be allocated to Participants who
are subject to the family member aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by applicable
Treasury Regulations.
7.5. Suspension and Reinstatement of Matched Personal
------------------------------------------------
Contributions After Withdrawal. (a) A Participant who has made
- ------------------------------
a withdrawal pursuant to Article XII and is thereby prevented
from making any Personal Contributions to this Plan for six
months shall, upon the expiration of such period, be eligible to
resume making Personal Contributions upon delivering appropriate
instructions in accordance with Section 7.1.
(b) A Participant who has made a withdrawal
pursuant to Section 13.1 and is thereby prevented from making any
Personal Contributions to this Plan for twelve months shall, upon
the expiration of such period, be eligible to resume making
Personal Contributions upon delivering appropriate instructions
in accordance with Section 7.1.
7.6. Payroll Deductions. All Personal Contributions from
------------------
Participants shall be made by way of payroll deductions. A
Participant's election made in accordance with Section 7.1 shall
constitute full authority to the Participating Employer to deduct
the percentage of Base Pay indicated by the Participant.
Personal Contributions so deducted shall be transmitted to the
Trustee no less frequently than monthly, in cash or, in the case
of contributions to be invested in the Company Stock Fund, either
in cash or in Shares (from authorized but unissued Shares or out
of Shares held in the Company's treasury), or a combination of
both. If contributions are transmitted in Shares, such shares
shall be valued at the Closing Price on the date of delivery.
27
<PAGE>
ARTICLE VIII
Investment of Contributions
---------------------------
8.1. Investment of Company Matching and Supplemental
-----------------------------------------------
Contributions. All Company Matching and Supplemental
- -------------
Contributions shall be invested in the Company Stock Fund at all
times.
8.2. Investment of the Matched Contributions Part of an
--------------------------------------------------
Account. At least one-half of a Participant's matched Personal
- -------
Contributions for each Plan Year shall be invested in the Company
Stock Fund. The remaining one-half shall be invested, as the
Participant may direct, in 1% increments in any Investment Fund
other than the Earthgrains Stock Fund. Except as provided in
Section 8.6, all Company Stock Fund units required under this
Section to be purchased for any Plan Year with a Participant's
matched Personal Contributions must be held in the Company Stock
Fund for at least one full Plan Year beginning after the date of
contribution and thereafter the Participant shall be permitted to
direct the investment of such units and all earnings thereon, in
1% increments, in any Investment Fund other than the Earthgrains
Stock Fund.
8.3. Investment of the Unmatched Contributions Part of an
----------------------------------------------------
Account. A Participant's unmatched Personal Contributions shall
- -------
be invested, as the Participant may direct in 1% increments, in
any Investment Fund other than the Earthgrains Stock Fund.
8.4. A Participant's Investment Direction for Current
------------------------------------------------
Contributions. In connection with an initial election to
- -------------
participate in the Plan, each Participant shall indicate how
current contributions credited to such Participant's Account
which are subject to the Participant's investment direction are
to be invested. A Participant may change investment direction,
but not more than once in any Processing Period by delivering
such instructions to the Employee Stock Plans Department at the
time and in the manner prescribed by the Committee. Any change
in investment direction for current contributions shall be
effective as of the first day of a Processing Period.
8.5. A Participant's Investment Direction for Accumulated
----------------------------------------------------
Account Balances. (a) Either with or without changing
- ----------------
investment direction for contributions to be credited thereafter,
a Participant may, by delivery of instructions to the Employee
Stock Plans Department at the time and in the manner prescribed
by the Committee, direct that the accumulated balance in the
28
<PAGE>
Personal Contributions portion of the Participant's Account be
transferred pursuant to Section 9.4 between or among available
Investment Funds (other than transfers into the Earthgrains Stock
Fund), in 1% increments, provided that all Company Stock Fund
units required under Section 8.2 to be purchased for any Plan
Year with a Participant's matched Personal Contributions must
remain invested in the Company Stock Fund for at least one full
Plan Year beginning after the date of contribution. Except as
provided in Section 8.6 below, no investment direction may be
given under this subsection more frequently than once in any
Processing Period, effective October 17, 1995.
(b) The Participant's Account as of the end of the
Processing Period in which the change of investment is intended
to become effective shall be controlling for purposes of
implementing the change order. Any change of investment of the
accumulated balance in a Participant's Account shall be effective
as of the end of a Processing Period.
8.6. Special Diversification After Attainment of Age 55.
--------------------------------------------------
Each Participant shall be permitted, during the 90-day period
following the close of each Plan Year occurring after attainment
of age 55, to diversify the investment of all Company Stock Fund
units in the Participant's Account, other than those attributable
to Company Matching and Supplemental Contributions, by directing
the transfer thereof, in 1% increments, into any other fund
established for investments under this Plan. The right to
transfer investments hereunder shall be in addition to any other
investment or transfer right under this Plan. A request
hereunder shall be submitted, on forms provided by the Committee,
within such 90-day period and shall be effective June 30 of the
following Plan Year.
8.7. The Company Stock Fund. Except for interim invest-
----------------------
ments of the type permitted by the Short-Term Fixed Income Fund
pending investment in Shares, and for amounts held to meet
contemplated payments, the Company Stock Fund shall be invested
by the Trustee only in Shares; provided, the Trustee may receive
and retain in such Company Stock Fund any warrant, right, option
or similar instrument which gives the holder the right to acquire
any Shares under any circumstances, distributed on or in respect
of any Shares held in such Company Stock Fund (and shall sell any
other instrument or property so received which does not give the
holder the right to acquire Shares). Cash contributions to the
Company Stock Fund and any proceeds from any Shares held therein
which were tendered or exchanged in a tender or exchange offer
shall be applied by the Trustee to the purchase of Shares or
other Qualifying Employer Securities if such securities are
available for purchase at a price determined to be appropriate by
the Trustee, as soon as reasonably possible after the Trustee's
receipt thereof except to the extent such contributions and
proceeds are held in cash for purposes of liquidity. Shares may
be acquired by the Trustee in any of the following transactions:
29
<PAGE>
(i) purchases from the Company or otherwise,
at a price not greater than the Closing Price on the date of
purchase; or
(ii) purchases on the open market.
8.8. The Short-Term Fixed Income Fund. The Short-Term
--------------------------------
Fixed Income Fund shall be invested by the Trustee only in the
following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in, any short-
term fixed income fund maintained by, any national or state bank,
trust company (including the Trustee or any bank affiliated with
it), savings and loan association or regulated insurance company;
or
(c) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Short-Term Fixed Income Fund other than
United States Government or agency obligations shall be rated A
or higher by Moody's Investors Service or another equivalent
recognized rating agency.
All investments of the Short-Term Fixed Income Fund (other than
readily marketable or redeemable units of participation in any
fund) shall mature on demand or on a date not later than three
years after the date of acquisition thereof. Investments for the
Short-Term Fixed Income Fund may be purchased on the open market
or otherwise, or by direct subscription with the issuer.
8.9. The Medium-Term Fixed Income Fund. Except for
---------------------------------
interim investments of the type permitted by the Short-Term Fixed
Income Fund pending investment, and for amounts held to meet
contemplated payments, the Medium-Term Fixed Income Fund shall be
invested by the Trustee only in the following securities:
(a) Bonds, bills, notes, certificates and other
obligations issued or guaranteed by the United States of America
or any instrumentality or agency thereof;
30
<PAGE>
(b) Interest-bearing savings and deposit accounts,
equipment trust certificates, certificates of deposit and similar
obligations issued by, or units of participation in any
medium-term fixed income fund or guaranteed interest contracts
fund maintained by, any national or state bank, trust company
(including the Trustee or any bank affiliated with it), savings
and loan association or regulated insurance company;
(c) Guaranteed interest contracts issued by
regulated insurance companies; or
(d) Fixed income debt obligations, such as mortgage
bonds, asset backed securities, debentures, notes or commercial
paper, issued by any corporation (other than the Company, the
Trustee, or any subsidiary or affiliate of either), or certain
obligations (in United States currency) of foreign governments.
All investments of the Medium-Term Fixed Income Fund other than
United States Government or agency obligations shall be rated A
or higher by Moody's Investors Service or another equivalent
recognized rating agency.
All investments of the Medium-Term Fixed Income Fund (other than
readily marketable or redeemable units of participation in any
fund) shall mature not later than ten years after the date of
acquisition thereof. Investments for the Medium-Term Fixed
Income Fund may be purchased on the open market or otherwise, or
by direct subscription with the issuer.
8.10. The Equity Index Fund. Except for interim invest-
---------------------
ments of the type permitted by the Short-Term Fixed Income Fund
pending investment, and for amounts held to meet contemplated
payments, the Equity Index Fund shall be invested only in units
of participation in one or more funds, managed by an investment
manager selected by the Committee from time to time. The primary
objective of such fund(s) shall be the realization of dividends
and capital growth closely approximating the results of the group
of stocks comprising the Standard & Poor's 500 Composite Index
from time to time. Such fund(s) may be a mutual fund, an
investment trust or any other type of investment vehicle. During
any period of time when the Equity Index Fund is invested through
the medium of a common, collective or commingled trust fund which
is qualified under the provisions of Section 401(a) of the Code
and exempt from income tax under the provisions of Section 501(a)
of the Code, the Declaration of Trust of such fund, as
theretofore or thereafter amended, may be incorporated by
reference into the Trust Agreement of this Plan. The investment
manager of the Equity Index Fund shall have and may exercise all
powers and discretions granted by the organizational instruments
31
<PAGE>
governing the fund, including, without limitation, the power to
eliminate investments which in its judgment involve an
unacceptable risk of loss, the power to respond to tender offers
as it deems to be in the best interests of the fund, and the
power to lend securities of the fund; provided, that any loan of
securities shall be pursuant to a written instrument approved by
an investment manager which is fully independent of the Trustee
and shall be subject to the terms of any prohibited transaction
exemption (class or otherwise) issued by the U.S. Department of
Labor. As used herein the term "investment manager" means only
(a) a party registered as an investment manager under the
Investment Advisers Act of 1940, (b) a bank as defined in such
Act, or (c) an insurance company qualified to manage, acquire or
dispose of any asset of any employee benefit plan subject to
ERISA.
8.11. The Indexed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Indexed Balanced Fund shall be
invested only in units of participation in two or more funds
managed by an investment manager selected by the Committee from
time to time. The primary objective of such funds shall be to
achieve a total return which approximates the performance of a
50/50 mix of stocks and bonds, as reflected in the Standard &
Poor's 500 Composite Index and the Lehman Brothers Government
Corporate Bond Index, respectively. During any period of time
when the Indexed Balanced Fund is invested through the medium of
a common, collective or commingled trust fund which is qualified
under the provisions of Section 401(a) of the Code and exempt
from income tax under the provisions of Section 501(a) of the
Code, the Declaration of Trust of such fund, as theretofore or
thereafter amended, may be incorporated by reference into the
Trust Agreement of this Plan. The investment manager of the
Indexed Balanced Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund, including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment
manager which is fully independent of the Trustee and shall be
subject to the terms of any prohibited transaction exemption
(class or otherwise) issued by the U.S. Department of Labor. As
used herein, the term "investment manager" means only (a) a party
registered as an investment manager under the Investment Advisers
Act of 1940, (b) a bank as defined in such Act, or (c) an
insurance company qualified to manage, acquire or dispose of any
asset of any employee benefit plan subject to ERISA.
32
<PAGE>
8.12. The Managed Balanced Fund. Except for interim
-------------------------
investments of the type permitted by the Short-Term Fixed Income
Fund pending investment, and for amounts held to meet
contemplated payments, the Managed Balanced Fund shall be
invested only in units of participation in two or more funds,
managed by an investment manager selected by the Committee from
time to time. The primary objective of such funds shall be to
achieve higher returns than a 60/40 mix of the Standard & Poor's
500 Composite Index and the Lehman Brothers Government Corporate
Bond Index, respectively. During any period of time when the
Managed Balanced Fund is invested through the medium of a common,
collective or commingled trust fund which is qualified under the
provisions of Section 401(a) of the Code and exempt from income
tax under the provisions of Section 501(a) of the Code, the
Declaration of Trust of such fund, as theretofore or thereafter
amended, may be incorporated by reference into the Trust
Agreement of this Plan. The investment manager of the Managed
Balanced Fund shall have and may exercise all powers and
discretions granted by the organizational instruments governing
the fund including, without limitation, the power to eliminate
investments which in its judgment involve an unacceptable risk of
loss, the power to respond to tender offers as it deems to be in
the best interests of the fund, and the power to lend securities
of the fund; provided, that any loan of securities shall be
pursuant to a written instrument approved by an investment
manager which is fully independent of the Trustee and shall be
subject to the terms of any prohibited transaction exemption
(class or otherwise) issued by the U.S. Department of Labor. As
used herein, the term "investment manager" means only (a) a party
registered as an investment manager under the Investment Advisers
Act of 1940, (b) a bank as defined in such Act, or (c) an
insurance company qualified to manage, acquire or dispose of any
asset of any employee benefit plan subject to ERISA.
8.13. The Earthgrains Stock Fund. Except for amounts held
--------------------------
to meet contemplated payments, the Earthgrains Stock Fund shall
be invested by the Trustee only in shares of common stock of The
Earthgrains Company. Neither cash contributions nor transfers
from any Investment Fund shall be permitted to be made to the
Earthgrains Stock Fund.
8.14. Earnings, etc. Dividends, interest and other cash
-------------
distributions received by the Trustee in respect of any
Investment Fund shall be reinvested in the same Investment Fund.
If the Company so directs, the Trustee shall purchase from the
Company (from authorized but unissued Shares or out of Shares
held in the Company's treasury) all or some of the Shares which
are to be purchased with cash dividends received on Shares held
in the Fund, and in any such case, the purchase price per Share
33
<PAGE>
payable by the Trustee shall be the Closing Price on the date of
purchase. Alternatively, the Trustee may obtain Shares from
other sources.
8.15. Reports to Participants. The Committee shall
-----------------------
furnish each Participant, at least semi-annually, a statement of
the Participant's Account showing, at a minimum, the market value
thereof as of the end of such period, the portions invested in
each Investment Fund, and the portions thereof which are vested
and unvested. Notwithstanding the foregoing, the Committee need
not furnish a statement of account to an individual who has
separated from the service of the Employing Companies unless such
individual so requests.
8.16. Voting of Shares. (a) Each Participant (or, if
----------------
deceased, the Participant's Beneficiary), as a named fiduciary
within the meaning of Section 403(a)(1) of ERISA, shall be
entitled to vote, at any meeting of shareholders of the Company,
all of the full and fractional Share Equivalents credited to the
Participant's Account in the Plan, as shown on the records of the
Plan as of the most recent valuation date for which information
is available prior to the record date for determining
shareholders entitled to vote at such meeting. To enable them to
do so, and to be fully informed of all matters on which they are
entitled to vote, arrangements have been made for the Company or
the Committee promptly to deliver or cause to be delivered to
each Participant (or Beneficiary) who is entitled to vote any
Share Equivalents a copy of all proxy solicitation materials,
before each annual or special meeting of shareholders of the
Company, together with a form requesting confidential
instructions on how the Shares which such Participant is entitled
to vote are to be voted at such meeting.
(b) Each Participant (or Beneficiary) entitled to
vote on any matter presented for a vote by the stockholders and
who provides timely instructions to the Trustee hereunder shall
also be considered to have voted, as a named fiduciary, in
proportion to the vote of such Participant's (or Beneficiary's)
Share Equivalents, a pro rata portion of the votes attributable
to the aggregate number of Share Equivalents as to which voting
instructions have not been timely received from Participants (or
Beneficiaries). Such pro rata portion shall be equal to the
aggregate number of votes attributable to Share Equivalents as to
which timely instructions were not received multiplied by a
fraction, the numerator of which is the number of votes
attributable to Share Equivalents for such Participant (or
Beneficiary) and the denominator of which is the total number of
votes attributable to Share Equivalents of all Participants (and
Beneficiaries) who have provided timely instructions to the
Trustee under this Section.
34
<PAGE>
(c) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide voting instructions to the Trustee at least three
business days before the shareholders' meeting. Voting
instructions from individual Participants (or Beneficiaries)
shall be held by the Trustee in strictest confidence and neither
the name of, nor the voting instructions given by, any individual
Participant (or Beneficiary) who chooses to give voting
instructions shall be divulged by the Trustee to any of the
Employing Companies or to any director, officer or employee
thereof, or to the Committee; provided, however, that to the
extent necessary for the operation of the Plan, such instructions
may be relayed by the Trustee to an independent recordkeeper,
auditor or other person providing services to the Plan if such
person agrees not to divulge such directions to any other person,
including employees, officers and directors of the Company or its
affiliates.
8.17. Tendering of Shares and Rights. (a) Each
------------------------------
Participant (or, if deceased, the Participant's Beneficiary), as
a named fiduciary within the meaning of Section 403(a)(1) of
ERISA, shall be entitled, to the extent of full and fractional
Share Equivalents credited to the Participant's (or
Beneficiary's) Account in the Plan, as shown on the records of
the Plan as of the most recent valuation date for which
information is available, to direct the Trustee in writing as to
the manner in which to respond to a tender or exchange offer,
including but not limited to a tender or exchange offer within
the meaning of the Securities Exchange Act of 1934, as amended,
with respect to Shares, related rights, or both, and the Trustee
shall respond in accordance with the instructions so received.
The Committee shall utilize its best efforts to timely distribute
or cause to be distributed to each Participant (or Beneficiary)
such information as will be distributed to shareholders of the
Company in connection with any such tender or exchange offer,
together with a form requesting confidential instructions on
whether or not such Shares or rights will be tendered or
exchanged.
(b) For purposes of this Section, the Trustee shall
follow the directions of those Participants (and Beneficiaries)
who provide instructions to the Trustee by the date established
by the Trustee and calculated to provide sufficient time to
compile instructions and a timely response to the tender or
exchange offer. If the Trustee shall not receive timely
instructions from a Participant (or Beneficiary) as to the manner
in which to respond to such a tender or exchange offer, the
Participant (or Beneficiary) shall be deemed to have directed the
Trustee not to tender or exchange such Participant's (or
35
<PAGE>
Beneficiary's) Share Equivalents and the Trustee shall not tender
or exchange such Share Equivalents with respect to which such
Participant (or Beneficiary) has the right of direction. The
instructions received by the Trustee from individual Participants
shall be held in the strictest confidence and neither the name
of, nor the instructions given by, any individual Participant (or
Beneficiary) who chooses to give instructions shall be divulged
by the Trustee to any of the Employing Companies or to any
director, officer or employee thereof, or to the Committee;
provided, however, that to the extent necessary for the operation
of the Plan, such instructions may be relayed by the Trustee to
an independent recordkeeper, auditor or other person providing
services to the Plan if such person agrees not to divulge such
directions to any other person, including employees, officers and
directors of the Company or its affiliates.
8.18. Plan Mergers. In the event that this Plan is a
------------
party to a merger with or accepts a transfer of assets from any
other qualified employee benefit plan, the Committee shall be
authorized to waive any of the investment restrictions of Section
8.1, 8.2, or 8.5 with respect to existing balances in any
employee account which is transferred to this Plan in connection
with such merger, if in the Committee's absolute discretion such
waiver is appropriate under the circumstances.
36
<PAGE>
ARTICLE IX
Maintenance and Valuation of Accounts
-------------------------------------
9.l. Separate Accounts. The Committee shall establish a
-----------------
separate Account for each Participant, which shall be a record of
all contributions made by or for such Participant, by source and
type, and all investments thereof, separately accounted for with
respect to each part of such Account and each Investment Fund.
The fact that allocations shall be made and credited to
individual Accounts shall not give the Participant any vested or
other right in or to the assets of the Fund except as expressly
provided by this Plan.
9.2. Company Stock Fund Portion. The number of Shares or
--------------------------
units to be credited to each part of a Participant's Account
which has been invested in the Company Stock Fund shall be
determined as follows:
(a) Such part shall be credited as of the end of
each Processing Period with a number of units (including
fractional units to the fourth decimal place) determined by
dividing
(i) the sum of the contributions made to such
part for such Participant (regardless of type or source) which
were applied toward the acquisition of units for that Processing
Period, by
(ii) the fair market value of each unit as of
the end of the Processing Period.
(b) Such part shall be debited as of the end of
each Processing Period with the number of units distributed or
sold from the part as of the end of such Processing Period (even
though the distribution or sale might not be completed until some
subsequent date).
(c) Dividends and other cash distributions received
on Shares held in the Company Stock Fund shall be reinvested in
the Company Stock Fund.
9.3. Other Investment Fund Portions. The Committee may
------------------------------
adopt any method of accounting it believes appropriate (unit,
dollar or otherwise) for each of the other Investment Funds. As
of the end of each Processing Period, there shall be credited to
each Participant's Account additional units or interests, as
appropriate, of each Investment Fund in which the Participant's
Account is invested, as determined by dividing the contributions
to each such Investment Fund for such Processing Period by the
37
<PAGE>
value of a unit or interest therein as of the end of the prior or
current Processing Period as determined by the Committee on a
uniform and consistent basis. In making valuations of the
Investment Funds, the Trustee shall be entitled to accept the
most recent valuations received from their managers.
9.4. Transfers Between Funds. All transfers of
-----------------------
investments between Investment Funds to comply with a Parti-
cipant's investment direction or to comply with Section 11.7
shall be deemed a sale of the assets which must be disposed of,
and a purchase of the assets which must be purchased, to effect
such transfer. In the case of a sale or purchase of interests in
an Investment Fund, such interests shall be valued at the end of
the Processing Period for which such deemed sale or purchase
occurs.
9.5. Valuation of the Fund. As soon as practicable after
---------------------
the end of each Processing Period the Trustee shall determine, in
accordance with generally accepted valuation methods and
practices, the fair market value of the assets then constituting
the Fund (giving effect to income, expenses and realized and
unrealized gains and losses experienced during such Processing
Period), separately valuing each Investment Fund, as of the end
of such Processing Period (such determination being called a
"valuation"), and shall separately adjust the value of each
Investment Fund's portion of all existing Accounts in the ratio
that the balance of each such portion of each such Account bears
to the total of the combined balances of such portions of all
Accounts. In making its valuations of the Fund, the Trustee
shall have the absolute right to rely on the valuations of units
of participation in any Investment Fund, or the underlying
investments of any Investment Fund, furnished by the fund
manager.
9.6. Effect of Valuations. The Trustee's valuations of
--------------------
the Fund or any portion thereof in accordance with the foregoing,
and its determination of the value of the Participants' Accounts
based thereon, shall be conclusive and binding upon the Company,
all Participating Employers, the Committee, and all Participants
and their respective Beneficiaries.
9.7. No Liability for Fluctuations in Value. The
--------------------------------------
benefits provided by this Plan shall be payable solely from the
Fund. Each Participant and all persons who may derive rights
under this Plan through or from a Participant are hereby charged
with actual notice that all Accounts will increase or decrease in
value from time to time as the assets of the Fund fluctuate in
value. The fact that a particular amount was credited to a
Participant's Account at some time is no assurance that such
amount will ultimately be distributable hereunder and neither the
38
<PAGE>
Company, any Participating Employer, the Committee, the Trustee,
nor any fund manager, guarantees in any way that the amount
ultimately distributable to or on behalf of any Participant will
be equal to any amount at any time credited to such Participant's
Account. Each Participant, by electing to participate in this
Plan, assumes the risk of possible declines in the market value
of the Participant's Account.
9.8. Adjustments to Accounts. If an adjustment to any
-----------------------
Participant's Account is required to correct any error (such as
an incorrect payroll deduction or an incorrect allocation of any
contribution), or for any other reason (such as a delay in the
start of payroll deductions), such adjustment shall be made as
soon as administratively feasible after the Committee first
learns of the circumstances which require adjustment. Any such
adjustment shall be made in accordance with the Plan character-
istics (including, but not limited to, the price of Shares and
units) in effect during the Processing Period in which the
adjustment is posted to the Participant's Account, except that
adjustments of Company Matching Contributions shall be at the
rate(s) in effect during the Processing Period(s) in which the
error occurred. No adjustment shall be made for any interest,
dividend or other gain or loss not realized because of a delay in
contributions.
Under extraordinary circumstances as determined by the Committee
in its absolute discretion, error adjustments may be made based
on Plan characteristics in effect during the Processing Period(s)
in which the error(s) occurred or on such other terms as the
Committee shall determine. In exercising its discretion under
this paragraph, the Committee shall consider such circumstances
as it shall deem appropriate, including but not limited to (a)
the nature of the error, (b) the ability of the Participant
reasonably to detect the error, and (c) the time elapsed between
discovery of the error and the reporting of same.
All necessitated Participant make-up contributions shall be on an
after-tax basis and shall be made by way of cashiers check or
money order. In no event shall adjustments be made for any
period exceeding twelve (12) months prior to the date the
Participant notifies a Plan representative of the error.
9.9. Ordering of Distributions. A distribution on
-------------------------
termination of employment shall take precedence over any other
distribution or withdrawal which (but for this provision) would
otherwise be made from the Account of a Participant as of the
distribution date.
9.10. Special Valuation of Company Stock in Extraordinary
---------------------------------------------------
Circumstances. Notwithstanding anything in this Plan to the
- -------------
39
<PAGE>
contrary, if the Committee determines that the volume of
distributions, withdrawals, transfers between Investment Funds,
or Participant loans as of the last day of a Processing Period
pursuant to other provisions of the Plan requires sales or
purchases of Shares at levels greater than can be accommodated in
an orderly fashion in a single day on the New York Stock
Exchange, the Processing Period shall be extended so that the
sales or purchases shall be spread over a period of days and the
price shall be established at the end of the period in accordance
with procedures adopted by the Committee from time to time.
40
<PAGE>
ARTICLE X
Vesting
-------
10.1. Amounts Contributed by the Participant. The
--------------------------------------
portions of a Participant's Account which are attributable to the
Participant's Personal Contributions, with all earnings thereon,
shall be fully vested and non-forfeitable at all times.
10.2. Company Matching and Supplemental Contributions.
-----------------------------------------------
The portion of a Participant's Account which is attributable to
Company Matching and Supplemental Contributions for any Plan Year
(including earnings thereon) shall vest and become non-
forfeitable when such Participant completes two years of Vesting
Service.
10.3. Vesting Rules. (a) Vesting Service shall be that
-------------
period of employment with the Employing Companies commencing on
an individual's Employment Commencement Date and ending on the
individual's Severance from Service Date. In the event that
non-successive periods of Vesting Service are restored pursuant
to this Section, such periods shall be aggregated into completed
twelfths of a year on the basis that thirty days of service equal
one twelfth of a year.
(b) The Employment Commencement Date shall be the
date on which an individual first performs an Hour of Service for
an Employing Company.
(c) The Severance from Service Date of an
individual shall be the earlier of the date the individual quits,
is discharged, retires or dies, or the first anniversary of the
date the individual is absent from service for any reason, unless
otherwise provided in subsection (d) or (h) of this Section.
(d) The Vesting Service of an individual shall not
be considered severed by an Absence from Service, and, except as
otherwise provided above, shall be deemed to include such
Absence from Service. An Absence from Service means one of the
following:
(i) Any approved non-disability leave of
absence not exceeding two years in length; provided, however,
that Service shall not include any portion of the leave of
absence which is in excess of twelve (12) months unless the
individual returns to regular employment within thirty (30) days
after expiration of the leave of absence. If the individual
fails to return within such period, such individual's Severance
from Service Date shall be the earlier of the expiration of the
41
<PAGE>
individual's leave of absence or the first anniversary of the
date on which the individual's leave of absence began.
(ii) Absence for any period while in the
service of the government of the United States under
circumstances such that the individual has re-employment rights
granted by Federal law, provided a written application for
re-employment is filed within the period after discharge from
such government service during which such re-employment rights
are guaranteed, failing which such individual's Severance from
Service Date shall be the first day of the period during which
the individual no longer performs services for the Employing
Companies because of such governmental service.
(iii) A leave of absence because of physical
or mental disability up to a maximum of twenty-four (24) months.
(iv) Lay-off of up to twelve (12) months.
(e) Period of Severance shall mean the period of
time commencing on an individual's Severance from Service Date
and ending on the date on which the individual again performs an
Hour of Service.
(f) If an individual has a Severance from Service
by reason of a quit, discharge or retirement and again performs
an Hour of Service for an Employing Company within twelve months
of the Severance from Service Date, such Period of Severance
shall be disregarded and shall constitute Vesting Service.
(g) If an individual has a Severance from Service
by reason of a quit, discharge, or retirement during an absence
of twelve months or less for any reason other than a quit,
discharge or retirement, and again performs an Hour of Service
with an Employing Company within twelve months of the date on
which the individual was first absent from Service, such Period
of Severance shall be disregarded and shall constitute Vesting
Service.
(h) The Severance from Service Date of an
individual who is absent from service beyond the first
anniversary of the first date of absence by reason of a maternity
or paternity absence described in Section 2.23(b)(viii) is the
second anniversary of the first date of absence. The period
between the first and second anniversaries of the first date of
absence is not a Period of Severance nor a period of Vesting
Service unless otherwise provided in subsection (d).
(i) If a Participant has a Period of Severance and
is thereafter re-employed, all years of Vesting Service prior to
42
<PAGE>
the Period of Severance shall be taken into account in
determining the Participant's vested interest in the Company
Matching and Supplemental Contributions portion of the
Participant's Account, as accumulated prior to such severance.
The foregoing sentence shall not apply to any Participant whose
entire account balance is not vested on the Participant's
Severance from Service Date and who incurs a Period of Severance
exceeding five years. During the period when any unvested amount
is being held pending a determination of whether a Period of
Severance exceeding five years occurs, the Participant's interest
in such amount shall be immediately terminated subject to
reinstatement if the Participant is re-employed by an Employing
Company prior to incurring a five-year Period of Severance. If
the amount does not subsequently vest, it shall be treated as a
forfeiture. Any amount reinstated hereunder shall be the fair
market value of the forfeited amount on the date of forfeiture,
without any interest or other addition thereto for the period
prior to reinstatement. Forfeitures shall be applied to reduce
the Company's Contributions to this Plan.
(j) A transferred Participant whose participation
has become inactive under Section 3.5 and who continues to be
employed by an Employing Company without incurring a Period of
Severance shall be credited with Vesting Service for so long as
the Participant remains so employed.
10.4. Change in Control of the Company. Notwithstanding
--------------------------------
the foregoing provisions of this Article X, in the event of a
"Change in Control of the Company" (as defined herein), the
nonvested portion of a Participant's Account which is
attributable to Company Matching and Supplemental Contributions
for any Plan Year or part thereof (including earnings thereon)
shall immediately vest and become nonforfeitable. The portion of
the Participant's Account which shall vest and become
nonforfeitable under this Section shall be determined as of the
end of the month during which the Change in Control of the
Company occurs. For purposes hereof, a "Change in Control of the
Company" shall occur if any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Act")) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act) of more than
fifty percent (50%) of the then outstanding voting stock of the
Company. This Section shall not apply to any Participant who is
not employed by an Employing Company at the time the Change in
Control of the Company occurs.
43
<PAGE>
ARTICLE XI
Distributions
-------------
11.1. Distributions Upon Termination of Employment. A
--------------------------------------------
Participant who ceases to be an Employee of any Employing Company
because of death, total and presumably permanent disability,
entry into active duty with any branch of the military services
of the United States, or who has been laid off for a period
exceeding twelve consecutive months, or who has attained the age
of 60 years at the time the Participant ceases to be an Employee,
or who has completed two years of Vesting Service or is otherwise
vested under the provisions of Article X, shall receive (or if
not then living, the Participant's Beneficiary shall receive), at
the time provided in Section 11.2 hereof, in a single
distribution, the Participant's entire Account. A cessation of
employment with all Employing Companies for any reason or at any
time described in the preceding sentence is referred to as a
"vested termination." A Participant who ceases to be an Employee
of any Employing Company under any other circumstances shall
receive (or if the Participant is not living at the time of
distribution the Participant's Beneficiary shall receive), at the
time provided in Section 11.2 hereof, in a single distribution,
the portions of the Participant's Account attributable to
Personal Contributions. Such Participant shall forfeit the
portion of the Participant's Account which is attributable to
Company Matching and Supplemental Contributions in accordance
with Section 10.3(i).
11.2. Time and Method of Distribution. (a) Except as
-------------------------------
provided otherwise in this Section, every distribution under
Section 11.1 shall be made as soon as is administratively
feasible after, but as of, the end of the Processing Period which
ends on or after the date on which the Committee learns that an
event requiring distribution has occurred and is advised of the
identity or identities, and location(s) of, the party or parties
entitled to such distribution. In any event payment of such
distribution shall be commenced no later than the 60th day after
the close of the Plan Year in which falls the last to occur of
the following dates:
(i) The date on which the Participant attains
the age of 65 years;
(ii) The tenth anniversary of the year in
which the Participant first became a Participant in this Plan; or
(iii) The date on which the Participant ceased
to be an Employee of any Employing Company.
44
<PAGE>
Notwithstanding anything to the contrary herein, distributions
under this Plan shall commence not later than April 1 following
the calendar year in which the Participant attains age 70-1/2.
Whole numbers of Shares which are to be distributed shall be
distributed in kind (subject, however, to transfer taxes), except
that amounts required to be distributed under the preceding
paragraph after age 70-1/2 may be distributed in cash at the
Participant's election. Subject to Section 11.7, the value of
all other interests shall be distributed in cash. Interests in
the Investment Funds shall be valued as of the end of the
Processing Period as of which a distribution is to be made;
provided that, with respect to interests in the Company Stock
Fund which are to be distributed in cash, the value of a
fractional Share shall be based on the value of a full Share,
which shall be the Closing Price on the last business day of the
Processing Period or on the next prior business day as determined
by the Committee on a uniform and consistent basis.
(b) Each Participant (and, in the case of a
deceased Participant, the Participant's Beneficiary) entitled to
a distribution hereunder may elect to defer such distribution to
the end of the Plan Year during which the Participant's Account
would otherwise be distributed, so as to participate in the
allocation of any Supplemental Contribution for such Plan Year.
Such Participant shall indicate, in accordance with procedures
promulgated by the Committee, whether the Participant or
Beneficiary elects to defer such distribution or receive it
immediately. If the value of such distribution is less than
$3,500 and if the Participant or Beneficiary fails to elect to
defer such distribution, the Participant or Beneficiary shall be
deemed to have elected immediate distribution.
(c) Notwithstanding any other provision of the
Plan, if a Participant's vested Account balance exceeds $3,500 or
has exceeded $3,500 at the time of any previous distribution to
the Participant, amounts payable to such Participant shall not be
distributed before the Participant attains age 62 without the
consent of the Participant. The Participant's consent to
distribution must be made in accordance with procedures
promulgated by the Committee after the Participant receives a
notice as described in subsection (d) below and must be made
within the 90-day period ending on the last day of the Processing
Period as of which the amount of the distribution is determined
and made.
(d) No less than 30 days and no more than 90 days
before the last day of the Processing Period as of which a
distribution to a Participant is determined and made in
accordance with this Article or Article XII, the Committee shall
45
<PAGE>
provide to the Participant a notice describing the right to defer
receipt of the distribution until age 62. Notwithstanding the
preceding sentence, distribution to a Participant may be made
less than 30 days after the notice is provided if (i) the notice
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 (ii) the Participant affirmatively elects a distribution
after receiving the notice.
(e) Any Participant not consenting to a
distribution hereunder shall become an inactive Participant, but
notwithstanding any provision of this Plan to the contrary, such
Participant shall have only the following rights under this Plan:
(i) the right to receive a distribution of all
(but not less than all) of the vested portion of the
Participant's Account as of the end of any Processing Period
permitted under this Section;
(ii) the right to make changes in the
investments of the Participant's Account in accordance with
Article VIII;
(iii) the right to vote and tender Shares or
Share Equivalents held in the Participant's Account in accordance
with Sections 8.15 and 8.16, respectively;
(iv) the right to change the Participant's
designated Beneficiary or Beneficiaries from time to time in
accordance with Section 15.1;
(v) the right to have Supplemental
Contributions allocated to the Participant's Account for the Plan
Year in which the Participant's termination occurred; and
(vi) any other right required by law to be
given to an inactive Participant with an undistributed vested
account in a defined contribution plan qualified under Section
401(a) of the Code.
(f) The consent to distribution required by
subsection (c) above shall not be applicable in the event of a
termination distribution arising from the death of a Participant.
In addition, if an inactive Participant dies, the distribution of
such Participant's Account shall be made as soon as
administratively feasible after the Committee learns of such
event.
46
<PAGE>
(g) Nothing in this Section shall be construed to
increase the vested portion of any Participant's Account whose
termination was not a "vested termination" within the meaning of
Section 11.1. An Account held hereunder for later distribution
shall, subject to the inactive Participant's right to direct a
change in investments as herein set forth, remain invested in the
manner in effect on the Participant's termination date, and shall
continue to fluctuate in value as the respective Investment Funds
in which such Account is invested so fluctuate.
11.3. Eligible Rollover Distributions. (a) A Participant
-------------------------------
may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the Participant (a "direct rollover"). In addition,
the Participant's surviving spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, may elect a direct
rollover.
(b) An eligible rollover distribution is any
distribution of all or any portion of a Participant's Account,
except that an eligible rollover distribution does not include
any distribution required under Section 401(a)(9) of the Code 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 Shares).
(c) An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, that
accepts the eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
11.4. Determination of Disability. For purposes of
---------------------------
determining whether a Participant has had a Vested Termination
because of total and presumably permanent disability, a
Participant shall be deemed to be totally and presumably
permanently disabled if the Participant is unable to perform the
duties of such Participant's position as an Employee because of a
physical or mental impairment which can be expected to result in
death or to be of long continued or indefinite duration, as
conclusively determined by a competent doctor selected by the
Participant and approved by the Committee or its delegate, who
shall certify the result of the examination of the Participant to
the Committee.
47
<PAGE>
11.5. Transfer of Accounts. Once per year or at such
--------------------
other times as it shall determine, the Committee shall arrange
for the transfer of the Accounts of individuals who are no longer
eligible to participate in this Plan and who are currently
eligible and have an Account in a Related Plan to such Related
Plan to be combined with the Participant's active Account under
such Related Plan. After such transfer is accomplished, this
Plan shall have no further liability to the Participant with
respect to the transferred Account.
11.6. Early Distribution under Domestic Relations Order.
-------------------------------------------------
If the Committee shall receive an order that is finally
determined to be a qualified domestic relations order within the
meaning of Section 414(p) of the Code, and if such order shall so
permit, the Committee may authorize the early distribution under
the provisions of this Article XI of any amount distributable to
the alternate payee under the order.
11.7. Absolute Right to Receive Stock Distribution.
--------------------------------------------
Notwithstanding any provision of this Plan to the contrary,
whenever it is specified that a distribution will be made in
cash, the Participant shall nonetheless have the right to elect
to have Shares purchased and distributed to him. If such election
is made, the Participant's non-Share investments shall be deemed
transferred, pursuant to Section 9.4, to the Company Stock Fund
and thereafter distributed. Under no circumstances will a
fractional Share be distributed.
48
<PAGE>
ARTICLE XII
Withdrawals While Employed
--------------------------
12.1. Elective Right to Make Certain Withdrawals. (a)
------------------------------------------
Any Participant may withdraw any part of the Participant's
Account which is attributable to
(i) After-Tax Unmatched Contributions,
(ii) After-Tax Matched Contributions which
have been in the Participant's Account for at least one full Plan
Year after the contributions were made, and
(iii) Company Matching Contributions
attributable to Personal After-Tax Contributions made before
April 1, 1994, which have been in the Participant's Account for
at least two full Plan Years after the contributions were made;
provided that, if any part of a Participant's Account described
in this paragraph (iii) is withdrawn, the Participant shall not
be permitted to make any Personal Contributions to the Plan or to
have any Company Matching Contributions credited to the
Participant's Account for a period of six months.
Any withdrawals under this subsection (a) shall be deemed made in
the order listed above.
(b) In addition to the rights set forth in
subsection (a), any Participant may withdraw any part of the
Participant's Account which is attributable to
(i) Company Matching Contributions attribut-
able to Personal Before-Tax Contributions made before April 1,
1994, which have been in the Participant's Account for at least
two full Plan Years after the contributions were made, and
(ii) after a Participant has attained age
59-1/2,
(A) Before-Tax Matched Contributions
which have been in the Participant's Account for at least one
full Plan Year after the contributions were made,
(B) Before-Tax Unmatched Contributions,
and
(C) Company Matching Contributions
which have been in the Participant's Account for at least one
full Plan Year after the contributions were made.
49
<PAGE>
Withdrawals under this subsection (b) shall be deemed made in the
order listed above.
(c) Subject to Section 11.7, amounts withdrawn
under this Section shall be distributed in cash. Amounts which
are to be distributed in cash shall be expressed in whole dollars
unless the entire amount of the part of the Account subject to
withdrawal is being withdrawn. Interests in the Investment Funds
which are to be distributed shall be valued as of the end of the
Processing Period as of which a distribution is made.
(d) A Participant who has attained age 55 and for
whom the diversification requirements of Section 401(a)(28) of
the Code cannot be satisfied for any Plan Year by a change of
investments under Article VIII shall be permitted to withdraw so
much of the vested Company Matching and Supplemental Contribution
portions of the Participant's Account as may be necessary to
satisfy such diversification requirements. To request a
withdrawal under this Section, a Participant must deliver the
appropriate withdrawal form, properly completed, on or before the
90th day following the close of such Plan Year. Withdrawals
under this subsection shall be distributed within 180 days
following the end of the Plan Year to which the withdrawal
relates.
12.2. Protected Withdrawal Rights. Any Participant with
---------------------------
an Account balance as of March 31, 1994, shall be entitled to any
elective distribution or withdrawal right under the Plan as in
effect on such date with respect to such Account balance;
provided that any limitations or suspension penalties on such
elective distribution or withdrawal rights in effect on March 31,
1994 may be reduced or eliminated in accordance with rules
promulgated by the Committee. For any period of suspension after
March 31, 1994, the Participant will not be permitted to make any
Personal Contributions to the Plan.
12.3. Withdrawal Procedure. A Participant may request a
--------------------
withdrawal under this Article XII by delivering such request to
the Employee Stock Plans Department in accordance with procedures
prescribed by the Committee. Withdrawals shall be effective as
of the last day of a Processing Period and shall be distributed
as soon as administratively feasible after the end of such
Processing Period. For purposes of determining the amount to be
withdrawn, the value of the withdrawable portion of the Account
as of the effective date of the withdrawal shall govern. Except
as may be required for certain withdrawals made pursuant to
Section 12.2, withdrawals shall be distributed in Shares or cash
at the Participant's election.
50
<PAGE>
12.4. Frequency of Withdrawals. No more than two
------------------------
withdrawals may be made under this Article in any period of
twelve consecutive months.
51
<PAGE>
ARTICLE XIII
Hardship Withdrawals
--------------------
l3.l. Eligibility and Procedure. This Article is appli-
-------------------------
cable only to the portions of a Participant's vested Account
which cannot be withdrawn under Article XII excluding any
earnings on Before-Tax Contributions accumulated after
December 31, 1988.
(a) Any Participant who has suffered a hardship may
withdraw all or any part of such portions of the Participant's
Account upon application to the Committee and demonstration to
the Committee's satisfaction that a hardship exists.
(b) For purposes of this Article, a distribution
will be on account of hardship if the distribution is necessary
in light of immediate and heavy financial needs of the Partici-
pant. A distribution based upon financial hardship cannot exceed
the amount required to meet the immediate financial need created
by the hardship and not reasonably available from other resources
of the Participant. The determination of the existence of
financial hardship and the amount required to be distributed to
meet the need created by the hardship shall be made in accordance
with uniform and non-discriminatory rules promulgated by the
Committee. The Committee shall require exhaustion of all other
resources reasonably available to the Participant, including
loans and distributions from the Plan, before granting an
application hereunder. A loan shall not be required if repayment
thereof would constitute a hardship.
(c) Subject to Section 11.7 the amount of a
withdrawal under this Article shall be delivered to the
Participant in cash from investments of the Participant's Account
other than Shares except as (and only to the extent) necessary to
realize sufficient cash to fund the withdrawal.
(d) In administering this Article the Committee
shall be entitled to act in reliance on any applicable U. S.
Treasury Regulations.
(e) No more than one withdrawal under this Article,
may be made in any consecutive period of twelve months.
(f) No withdrawal will be permitted which will
reduce the amount of a Participant's Account which is then held
as collateral to secure a loan under Article XIV.
(g) If a Participant shall have a hardship
withdrawal approved, the Participant shall be suspended from Plan
participation for twelve months from the date of distribution.
52
<PAGE>
Such suspension shall run concurrently with any other suspension
then in effect.
(h) Withdrawals under this Article shall be
distributed as soon as administratively feasible after the end of
the Processing Period during which the Committee approves the
Participant's application.
53
<PAGE>
ARTICLE XIV
Loans to Participants
---------------------
14.l. Procedure and Terms. A Participant may apply to the
-------------------
Committee for a loan from the Participant's Account and the
Committee shall grant such a loan, but only on the following
conditions:
(a) Maximum loan amounts are the lesser of (i)
$50,000 less the highest outstanding loan balance under the Plan
during the one-year period ending on the day before the loan is
made, or (ii) 50% of the vested portion of the Account. In
computing the maximum amount of a loan, any Company Matching or
Supplemental Contributions which have not been in the Plan for
one full Plan Year shall not be considered.
(b) A Participant may have no more than two loans
outstanding at any time.
(c) The minimum amount of any loan shall be $1,000.
(d) The loan shall be evidenced by a note on a form
approved by the Committee and shall bear interest at a rate of
one percentage point above the "prime rate" published by Morgan
Guaranty Trust Company of New York at the close of business on
the last business day of the prior calendar quarter, as
determined by the Committee for each calendar quarter. The loan
shall be secured by a portion of the Participant's Account
equivalent to the amount of the loan, and shall be repayable in
level installments of principal and interest over a period not to
exceed five years from the date of such loan. Notwithstanding
the foregoing sentence, if the proceeds of a loan are to be used
to acquire a dwelling unit which is to be used, within a
reasonable period of time after the loan is made, as the
principal residence of the Participant, the loan shall be
repayable over such a period, not to exceed ten years, as the
Committee shall determine. The note shall be subject to
prepayment at any time, but only in full, and not in part,
without premium or penalty. Except as the Committee shall
otherwise determine, payments on the note shall be made only by
way of payroll deductions and shall be invested in accordance
with the Participant's current investment election for the
type(s) of contribution which were the source of the loan;
provided that with respect to the portion of the loan
attributable to Before-Tax Unmatched Contributions, payments
shall be invested in accordance with the current method of
investment for the Participant's current Before-Tax Unmatched
Contributions. If no Before-Tax Unmatched Contributions are then
54
<PAGE>
being made, the Participant shall direct how loan payments are to
be invested.
(e) After the Participant shall be 90 days in
arrears on loan payments, the Committee shall determine the loan
to be in default. The Trustee shall thereafter have the right to
take recourse against the collateral securing the same, with full
right to exercise all remedies granted a secured party under the
applicable laws (including the Uniform Commercial Code) as in
effect in the various jurisdiction(s) in which the collateral may
be located; provided: (i) in no event shall the Trustee file a
claim under any bankruptcy proceeding for the debt represented by
the note; (ii) if an event occurs whereby the Participant would
receive a distribution of the Participant's Account balance, such
distribution shall consist of the defaulted note and the
remainder of the assets of the Account; and (iii) in no event
shall the defaulted note be distributed until the Participant
would be eligible to elect to receive distribution of the
Participant's Account balance pursuant to Section 12.1, even
though a taxable distribution may be deemed to have occurred at
an earlier time under applicable provisions of the Code.
(f) Any such loan shall be treated as a segregated
investment for the appropriate portion of the Account of the
borrowing Participant, the interest thereon shall be credited
only to such portion of the Participant's Account (and not to the
general earnings of the Fund), and for the purposes of allocating
income of the Fund or any other appreciation or depreciation of
the Fund for any Plan Year the Account of such borrowing
Participant shall be treated as not including the unpaid amount
of such borrowing (but for all other purposes of this Plan,
including the provisions dealing with the allocation of
contributions and the valuation of the corpus of the Trust, the
amount of such borrowing shall continue to be treated as part of
the borrowing Participant's Account, having a fair market value
exactly equal to the unpaid principal balance thereof at any time
when it is necessary to determine its fair market value).
(g) An application for a loan must be submitted and
shall be processed and disbursed in accordance with procedures
established by the Committee.
(h) The loan will be made in cash, from the
investments of the Participant's Account other than Shares except
as (and only to the extent) necessary to realize sufficient cash
to fund the loan.
(i) If a Participant becomes entitled to a
termination distribution before the loan has been repaid in full,
the Trustee will distribute the Participant's note, endorsed
55
<PAGE>
without recourse, as part of the resulting distribution of the
Participant's Account unless the loan is repaid at that time or
the termination distribution is deferred as provided in Section
11.2.
(j) If so determined by the Committee, a
Participant requesting a loan shall pay all out-of-pocket
administrative and filing fees incurred in processing the
Participant's loan.
(k) A waiting period of two full calendar months is
required after a loan is repaid in any manner before a new loan
may be effective.
(l) Any Participant with respect to whom a loan has
been determined by the Committee to be in default shall not be
permitted to commence another loan of any type until five years
have elapsed from the end of the month in which the loan was
determined to be in default.
(m) Other than to determine whether an extended
term is available under Section 14.1(d), the Committee shall not
take into consideration the purpose for which the Participant
intends to use the proceeds.
(n) If a Participant directs that payroll
deductions for loan payments are to be discontinued prior to the
full repayment of a loan, the Participant shall be prohibited
from making another loan from the Plan for ten years from the
date of such direction, and shall be suspended from participation
for five years from the date of such direction.
56
<PAGE>
ARTICLE XV
Designation of a Beneficiary
----------------------------
15.1. Procedure and Effect. (a) Except as otherwise
--------------------
provided in this Article or by law, any amount distributable
under this Plan as a result of or following the death of a
Participant shall be applied only for the benefit of the
Beneficiary or Beneficiaries designated pursuant to this Article
by the Participant on whose behalf the amount payable was
accumulated. Each Participant shall specifically designate, by
name, on forms provided by the Committee, the Beneficiary(ies) to
whom such payment shall be made. Such designation may be made at
any time satisfactory to the Committee. Except as provided in
subsection (b) hereof, a designation of a Beneficiary may be
changed or revoked without the consent of the Beneficiary at any
time by filing a new Beneficiary designation form with the
Committee. The filing of a new form shall automatically revoke
any forms previously filed with the Committee. A Beneficiary
designation form not properly filed with the Committee prior to
the death of the Participant shall have no validity under the
Plan.
Any such designation shall be contingent on the designated
Beneficiary surviving the Participant, and if the designated
Beneficiary survives the Participant but dies before receiving
the entire amount distributable to the Beneficiary hereunder, the
amount which would otherwise have been so distributed shall be
paid to the estate of the deceased Beneficiary unless a contrary
direction was made by the Participant, in which case such
direction shall control. More than one Beneficiary, and
alternative or contingent Beneficiaries, may be designated, in
which case the Participant shall specify the shares, terms and
conditions upon which amounts shall be paid to such multiple or
alternative or contingent Beneficiaries, all of which must be
satisfactory to the Committee. All payments and distributions to
a Beneficiary or Beneficiaries shall always be of the total
amount of the Participant's Account which is then subject to
distribution, and no such payments or distributions shall be made
in installments or as an annuity.
(b) In any situation where a married Participant
wishes to designate a Beneficiary other than the Participant's
spouse to receive benefits upon the Participant's death, such a
designation shall not be a qualified Beneficiary designation, and
shall not be recognized under this Plan, unless it is accompanied
by one of the following:
(i) a written consent, in form satisfactory to
the Committee, whereby the spouse to whom the Participant is
57
<PAGE>
married at the time of the Participant's death consents to the
designation of the Beneficiary and acknowledges the effect of the
designation, and which is witnessed by either a notary public, a
member of the Committee or other plan representative; or
(ii) proof satisfactory to the Committee that
such a written consent cannot be obtained because the spouse
cannot be located or such other circumstances as U.S. Treasury
Regulations may prescribe.
Spousal consent to the designation of a non-spouse Beneficiary
shall not be valid unless such consent is executed and filed with
the Committee prior to the Participant's death.
(c) If (i) no such designation is on file with the
Committee at the time of the Participant's death, or (ii) if a
designation on file is not valid, based upon the Participant's
marital status on the Participant's date of death, the
Participant's surviving spouse (if the Participant is married at
the time of the Participant's death) or the Participant's estate
(if it is established to the satisfaction of the Committee that
the Participant is not then married) shall be conclusively deemed
to be the Beneficiary designated to receive any amounts
distributable under this Plan. In determining any question
concerning a Participant's beneficiary, the latest designation
filed with the Committee shall control and intervening changes in
circumstances shall be ignored.
By way of example, if a Participant designates the Participant's
spouse as Beneficiary but thereafter is divorced from such spouse
and is not remarried on the Participant's date of death, such
designation shall remain valid unless the Participant filed a
later beneficiary designation form with the Committee. Further,
if a Participant at any time files a beneficiary designation form
which, because of other provisions of this Plan or applicable
federal law, is not effective at the time it is filed or later
becomes ineffective for any period of time (this could occur, for
example, by reason of an intervening marriage during which the
current spouse would automatically be entitled to benefits under
this Article or as otherwise required by law), and such
individual's marital status or other circumstances change so
that, on the date of death such designation would be effective,
such designation shall be controlling notwithstanding any
intervening period of ineffectiveness.
(d) In addition to the foregoing limitations on a
Participant's right to have this Plan recognize a Beneficiary
designation, a Participant's designation shall automatically be
modified to the extent necessary to comply with the terms of
58
<PAGE>
any Qualified Domestic Relations Order (within the meaning of
Section 414(p) of the Code) received by the Plan affecting the
Participant's benefits under this Plan. In interpreting this
Section, any applicable U.S. Treasury or Department of Labor
Regulations shall be complied with.
(e) If any amount distributable hereunder is
payable to a minor or other person under legal disability,
distributions thereof shall be made in one (or any combination)
of the following ways, as the Committee shall determine in its
sole discretion:
(i) directly to said minor or other person;
(ii) to the legal representatives of said
minor or other person; or
(iii) to some relative of such minor for the
support, welfare or education of such minor.
Neither the Company, any Participating Employer, the Committee
nor the Trustee shall be required to see to the application of
any distribution so made, and the receipt by the person to whom
such distribution is actually made shall fully discharge the
Company, each Participating Employer, the Committee and the
Trustee from any further accountability or responsibility with
respect to the amount so distributed.
(f) The amount payable to the Participant's
Beneficiaries shall be all amounts remaining in the Trust Fund on
the Participant's date of death. If the Participant, prior to
death, had requested any withdrawal or if any type of
distribution had otherwise commenced, and a check or stock
certificate was issued on or prior to the Participant's date of
death, such funds shall remain payable to the Participant, as
opposed to the Participant's Beneficiaries, even if not received
prior to the Participant's death. Any check or stock certificate
issued after the Participant's date of death shall be the
property of the Participant's Beneficiaries determined in
accordance with this Section.
(g) A Participant's Beneficiary designation on file
with the Committee under a Related Plan shall be valid and
binding under this Plan unless and until superseded as provided
in this Article.
15.2. Renunciation of Death Benefit. A Beneficiary of a
-----------------------------
Participant entitled to a benefit under this Plan may disclaim
the right to all or any portion of such benefit by filing with
the Committee a written irrevocable and unqualified refusal to
59
<PAGE>
accept the benefit. Such disclaimer must be filed before payment
to the Beneficiary of any part of the benefit to which the
Beneficiary is otherwise entitled, but no later than nine months
after the death of such a Participant. Any benefit so disclaimed
shall be distributable to the person or persons (and in the
proportions) to which such benefit would have been distributable
if the disclaiming Beneficiary had predeceased the Participant.
60
<PAGE>
ARTICLE XVI
Lost Distributees
-----------------
16.1. Disposition of Accounts Payable to Persons Who
----------------------------------------------
Cannot Be Located. If the Committee is unable to locate any
- -----------------
person entitled to receive a distribution hereunder, or the
estate of such person, if the person is deceased, and if, under
this Plan, the estate is entitled to receive any amount
distributable, within two years after the same becomes
distributable, during which period the Committee shall have made
a reasonable search for such person and/or the person's estate,
the right and interest of such distributee in and to the amount
distributable shall terminate on the last day of such two-year
period, and the amount so distributable shall be applied to
reduce the administrative expenses of the Plan; provided,
however, that if the Participant or the Participant's
Beneficiary(ies) or estate should later make a claim for benefits
hereunder or otherwise be located, the amounts so applied shall
be reinstated and used and applied only for the benefit of such
Participant, the Participant's Beneficiary(ies) or estate, as
otherwise provided by this Plan.
16.2. Efforts To Locate Distributees. In its search for
------------------------------
any distributee, the Committee (or the Trustee, at the direction
of the Committee) shall mail a notice, postage prepaid, by U.S.
registered or certified mail, return receipt requested and return
postage guaranteed, to the last known address of such distributee
or (if the distributee is not the Participant and if the address
of the distributee is not known or if the notice sent to such
distributee is returned unclaimed or addressee unknown) to such
distributee in care of the last known address of the Participant
for whose benefit the Account to be distributed was accumulated.
Such action shall constitute a reasonable search for such
distributee.
61
<PAGE>
ARTICLE XVII
Amendment or Termination
------------------------
17.1. Company's Power to Amend or Terminate. (a) The
-------------------------------------
Company, for itself and for each Participating Employer, reserves
the absolute right to modify, amend or terminate this Plan in
whole or in part, at any time and from time to time, by action of
(i) the Board; (ii) subject to the limitations stated in Section
18.3(c), the Committee; or (iii) any officer of the Company
authorized from time to time by the Board. A copy of the
instrument by which any such action is taken shall promptly be
delivered to the Trustee and to the corporate secretary of the
Company. This Plan shall not, however, be modified or amended in
any manner which would
(i) reduce the amount credited to a Partici-
pant's Account unless such reduction is required in order to
prevent the issuance by the Internal Revenue Service of an
adverse determination letter as to the qualified status of the
Plan under Section 401 of the Code, or shall be necessary to
bring the provisions of this Plan into conformity with any
applicable law or regulation so that contributions of the
Participating Employers hereunder and dividend payments shall
be deductible for federal income tax purposes, or to satisfy the
prohibited transaction exemption requirements under the Code and
ERISA, or shall be necessary in order to qualify the Trust by
which this Plan is funded as exempt from tax under Section 501 of
the Code, or to continue the qualified status of such Trust; or
(ii) permit any portion of the Fund to be used
for or diverted to purposes other than (A) for the exclusive
benefit of Participants, their Beneficiaries or estates, and (B)
for the administrative expenses of this Plan; or
(iii) cause any part of the Fund to revert to
any of the Employing Companies (except as provided in paragraph
(i) above or in Section 24.1); or
(iv) increase the duties or liabilities of the
Trustee without its consent;
provided, that any modification or amendment which would result
in the loss by the Plan of its qualified status under Section 401
of the Code, or in the loss by the Trust of its tax exempt status
under Section 501 of the Code, shall be retroactively null and
void as if such amendment had never been made.
62
<PAGE>
(b) All Participating Employers and their
Employees, and all Participants and their Beneficiaries and
estates, shall be bound by any amendment effected by the Company
pursuant to this Section.
17.2. Termination by a Participating Employer. Every
---------------------------------------
Participating Employer reserves the right to terminate its
participation in this Plan voluntarily as of any specified
current or future date (or, if no date be specified, as of the
date of delivery of the certified copy of the authorizing
resolution to the Trustee as hereinafter required) by action of
its Board of Directors and by delivering a certified copy of the
resolution by which such action is taken to the Committee and to
the Trustee. In addition, the participation of any Participating
Employer in this Plan shall be automatically terminated upon a
dissolution of such Participating Employer (but not upon a
merger, consolidation, reorganization or recapitalization thereof
if the surviving corporation therein is a Subsidiary and is
already a Participating Employer or specifically assumes this
Plan and agrees to be bound by the terms hereof), or upon such
Participating Employer being legally adjudicated a bankrupt, or
upon the appointment of a receiver or trustee in bankruptcy with
respect to such Participating Employer's assets and business if
such appointment is not set aside within 90 days thereafter, or
upon the making by such Participating Employer of a general
assignment for the benefit of creditors, or if such Participating
Employer ceases to be a Subsidiary. Upon a termination of
participation as aforesaid, or in the event of a complete and
permanent discontinuance of contributions to this Plan by a
Participating Employer (whether or not pursuant to action by its
Board of Directors and whether or not, if pursuant to such
action, a certified copy of the authorizing resolution is
delivered to the Trustee), no additional Employees of such
Participating Employer shall become eligible to participate
herein, and any undistributed balance in any Account shall
immediately and fully vest in favor of the person for whom such
Account was established and shall become non-forfeitable. Should
a partial termination of this Plan occur, as determined in
accordance with Federal law and regulation, such partial
termination shall have the same effect as, and shall be treated
the same as, a termination of the Plan, except that in such case
the provisions of Sections 17.3(b) and (c) governing termination
shall be applied only to those persons affected by such partial
termination, whose undistributed Account balances shall thereupon
be immediately fully vested and non-forfeitable.
17.3. Disposition of Assets on Termination. (a)
------------------------------------
Notwithstanding that the participation of a Participating
Employer in this Plan may be terminated pursuant to Section 17.2,
the Trust by which this Plan is funded shall continue in full
63
<PAGE>
effect, but the Trustee shall make a valuation of the Fund as of
the date of such termination of participation in the manner
provided with respect to regular valuations, and shall segregate
from the Fund all Shares and other investments attributable to
the Accounts of all Participants then or theretofore employed by
such terminating Participating Employer which have vested and
become non-forfeitable.
(b) If the terminating Participating Employer has
ceased doing business or has been dissolved, or if any other
event has occurred as a result of which no Participant continues
to be employed by such Participating Employer (so that all such
Participants shall be deemed to have severed their employment
with such Participating Employer within the meaning of Section
402(d)(4)(A)(iii) of the Code), the Trustee shall distribute to
each Participant formerly employed by such Participating Employer
the Participant's proportionate share of the assets segregated
from the Fund in the manner provided above, as reflected by the
Participant's adjusted Account balance, less distribution
expenses. Until the segregated assets have been fully
distributed, the Trustee shall continue to possess all powers,
rights, privileges and immunities with which it was invested by
the Trust Agreement, and shall have all such other powers as are
necessary or appropriate to the completion of such distribution,
and all expenses of administration of the segregated assets shall
be charged to and paid out of such assets.
(c) If, notwithstanding the termination, all or any
of the Participants shall continue in the employ of such
terminating Participating Employer or of an entity so related
to such terminating Participating Employer that such Participants
shall be deemed not to have severed their employment with it
within the meaning of Section 402(d)(4)(A)(iii) of the Code, the
assets which would otherwise be distributable to them shall be
retained by the Trustee, which shall continue to administer such
assets subject to the provisions of the Trust, until such time as
the same shall be otherwise distributable under this Plan, and
during such administration, all expenses of administration of
such amounts shall be charged to and paid out of such assets.
(d) Notwithstanding anything to the contrary in
this Section, distribution may be made to the former employees of
the terminating Participating Employer if permitted under
Section 401(k)(10) of the Code.
17.4. Effect of Termination by the Company. If the
------------------------------------
Company terminates its sponsorship in this Plan, such termination
shall result in the immediate termination of this Plan in its
entirety, as to all Participating Employers, whereupon every
Account which contains an undistributed balance shall immediately
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<PAGE>
and fully vest in favor of the person for whom it was
established, and shall become non-forfeitable.
65
<PAGE>
ARTICLE XVIII
Administrative Committee
------------------------
18.1. Appointment. The actual administration of this Plan
-----------
shall be conducted by a Committee of not less than three (3)
persons appointed from time to time by, and to serve at the
pleasure of, the Chief Financial Officer of the Company. The
number of persons constituting the Committee may be increased or
decreased (but not below three) at any time and from time to time
by such Officer. Any officer, director or Employee of any of the
Employing Companies may be appointed to the Committee, but
Committee members need not be either Employees or Participants.
Any member of the Committee may resign by delivering a written
resignation to the Chief Financial Officer of the Company and to
the then-acting Secretary of the Committee. The members of the
Committee shall serve as such without compensation.
18.2. Organization. The members of the Committee shall
------------
elect a Chairman (who shall be a member of the Committee) and a
Secretary (who may, but need not, be a member of the Committee),
who shall have the powers and duties usually incident to their
respective offices. The Committee may appoint from its
membership such subcommittees, and delegate such of its powers
thereto, as it may determine, and may authorize one or more of
its members, or any agent, to execute and deliver any instrument,
or, on its behalf, to authorize or direct any payment or
distribution permitted or required by this Plan. The Committee
may delegate to any agents such duties and powers, both
ministerial and discretionary, as it deems appropriate, by an
instrument in writing which specifies which such duties are so
delegated and to whom each such duty is so delegated.
18.3. Powers. The Committee shall have full power and
------
authority to administer this Plan in all respects, including
without limitation, full power and authority:
(a) To construe the Plan and to determine all
questions which may arise thereunder relating to the adminis-
tration of the Plan, including questions relating to the
eligibility of Employees to participate in the Plan and the
status and rights of Participants, Beneficiaries, and other
persons hereunder; provided, however, that if the Committee deems
any language of this Plan so ambiguous or unclear that its
reasonable meaning or application cannot be determined, the
Committee may, if it so desires and in its sole discretion,
submit such language to the Board with a request that it adopt a
resolution interpreting such language or establishing rules for
its application, and any such resolution adopted by it shall be
binding upon all parties interested in the Plan. If the
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<PAGE>
Committee so desires, it may (but need not) submit such language
to counsel for interpretation prior to requesting action by the
Board. Unless the Board has adopted a particular interpretation
of specific Plan language, or has established rules for its
application, any decision of, or action taken by, the Committee
shall be final and binding upon all parties interested in the
Plan. Any discretionary actions taken, or rules adopted by the
Committee or the Board, shall be administered uniformly and
applied with equal effectiveness and in a non-discriminatory
manner to all persons similarly situated.
(b) To establish limitations on changes in
investments by Participants as may be necessary to assure
compliance with any contractual restrictions governing any fund,
guaranteed interest contract or other investment, and, in its
sole discretion, to establish rules and regulations governing,
and to administer, loans and hardship withdrawals hereunder,
including all necessary processing and the exercise of any
discretion associated therewith.
(c) To modify or amend this Plan and the Trust
Agreement, at any time and from time to time, effective as of any
specified current, prior or future date, provided, however, that
the Committee shall have no authority to:
(i) Add or remove any Participating Employer;
or
(ii) Except as provided in subsection (d)
below, change any provision relating to the Company Matching
Contribution formula, participation, eligibility to participate,
vesting, withdrawals, distributions, or limitations on
contributions or benefits, except in regard to procedural or
technical matters in a way calculated to lessen administrative
burdens or as necessary to comply with applicable law.
(d) To determine the Supplemental Contribution
under Section 6.3 for any Plan Year and the Participants to whom
it shall be allocated.
(e) To appoint an agent for service of process in
any action or proceeding involving this Plan, who may (but need
not) be either a member of the Committee, an Employee or a
Participant.
(f) To employ such counsel, accountants and agents
(who may serve any of the Employing Companies in a similar
capacity) and to contract for such clerical and accounting
assistance, and to delegate ministerial authority (including the
authority to instruct the Trustee respecting the amount and time
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<PAGE>
for payment of any benefit hereunder, and the identity of the
payee(s) thereof) to such person(s) selected by it, as it may
deem necessary or desirable, and all fees, charges and costs
incurred thereby shall be treated as an expense of the Plan and
paid in the manner provided for other expenses of the Plan.
(g) The Committee shall have no obligation or right
to manage or direct the investment of the Fund, except the right
to direct the Trustee as to which, if any, collective investment
funds shall be selected for the Investment Funds.
(h) To require such information from Participants
as it may deem necessary, in its absolute discretion, to make
determinations as to the status of paternity or maternity leaves,
marital status or the location of a Participant's spouse, or the
adequacy of any hardship circumstance as contemplated under
Article XIII.
(i) To make such determinations concerning the
qualified status of domestic relations orders affecting
Participants as are required by law and to adopt such rules and
procedures relating thereto as the Committee deems appropriate in
its absolute discretion.
(j) To adopt procedures designed to safeguard the
confidentiality of information relating to the purchase, holding,
and sale of Shares and the exercise of voting, tender and similar
rights with respect to such Shares by Participants and
Beneficiaries. The Committee shall be responsible for insuring
that such procedures are sufficient to safeguard the
confidentiality of such information, that such procedures are
being followed, and that an independent fiduciary is appointed to
carry out activities relating to any situations which the
Committee determines involve a potential for undue Company
influence upon Participants and Beneficiaries with regard to the
direct or indirect exercise of shareholder rights.
18.4. Forms and Procedures. The Committee shall adopt all
--------------------
forms and procedures it deems necessary or appropriate for the
administration of this Plan and may change such forms and
procedures from time to time as it sees fit. In instances in
which no time period is stated in this Plan, the Committee shall
adopt reasonable time periods for the doing of any act, which may
take the form of a required notice period in advance of the date
on which an action is to become effective or of a period after
some event during which, or upon the expiration of which, an
action may be timely taken. The Committee shall have the power,
under uniform and non- discriminatory rules, and for good cause
or administrative convenience, to waive strict adherence to any
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<PAGE>
time period or other requirement stated in this Plan or
established by the Committee.
18.5. Meetings. The Committee shall hold meetings upon
--------
such notice, at such place or places, and at such time or times
as it may from time to time determine, and may, if it so desires,
by resolution, provide for regular meetings. In lieu of any
meeting, the Committee may act by written consent signed by a
majority of the members of the Committee and filed with the
Secretary thereof, whether executed before or after the stated
effective date thereof, and such consent shall have the same
effect as if the action thereby taken had been taken at a meeting
duly called and held.
18.6. Records. The Secretary of the Committee shall keep
-------
records of all meetings of the Committee and shall forward all
necessary communications to the Trustee. The Committee shall
preserve the accounts of the fiscal transactions of the Plan
submitted by the Trustee, and shall keep in convenient form such
data as may be necessary for calculating the financial condition
of the Plan and for determining any benefit or other right
hereunder.
18.7. Applications for Benefits; Appeal From Denial of
------------------------------------------------
Benefits. Any application for any payment, distribution,
- --------
withdrawal or loan under this Plan, whether by a Participant or
by a Beneficiary, shall be submitted in accordance with
procedures prescribed by the Committee. Any properly completed
application submitted to the Committee shall constitute a claim
under the Plan, and the Committee shall then grant or deny such
claim as soon as is reasonably practicable. The Committee shall
render its decision on the claim not later than 90 days after
receipt of the claim, and shall notify the claimant of its
decision; provided, however, that in special circumstances, as
found by the Committee, the Committee may by notice to the
claimant extend the time for its decision in order to permit
processing or otherwise meet the special circumstances, in which
case the decision shall be rendered as soon as practicable, but
not later than 180 days after the receipt of the claim. In any
instance where a claim is denied in whole or in part by the
Committee, the Committee shall forthwith furnish a copy of its
decision to the claimant, in writing, setting forth the
following:
(a) The specific reason or reasons for the denial
of the claim;
(b) Specific reference to the pertinent Plan
provision(s) on which such denial is based;
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<PAGE>
(c) If the denial was occasioned by the failure of
the claimant to furnish any necessary information, a description
of the additional information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and
(d) Appropriate information as to the steps to be
taken if the claimant wishes to submit the claim for review.
Any claimant whose application for payment, distribution, loan or
withdrawal has been denied may appeal such denial by filing
an appeal and request for review with the Committee not later
than 60 days after receipt of the notice of denial of the claim.
The Committee shall then promptly review its decision,
reconsidering the facts of the case and taking into account any
new or additional information which may be submitted by the
claimant, and shall render its decision not later than 60 days
after receipt of the appeal and request for review; provided,
however that in special circumstances, as found by the Committee,
the Committee may by notice to the Claimant extend the time for
its decision in order to permit processing or otherwise meet the
special circumstances, in which case the decision shall be
rendered as soon as practicable, but not later than 120 days
after the receipt of the request for review. In connection with
such review, the claimant or a duly authorized representative may
review all pertinent documents and records and may submit issues
and comments in writing. The Committee's decision on the appeal
shall be reported to the claimant, in writing, in the same manner
as an original decision, and no further appeal to the Committee
shall be permitted under this Plan.
18.8. Liability of Committee. (a) The Committee shall be
----------------------
responsible only for its own acts and omissions, and except as
provided in ERISA Section 405 (29 U.S.C. Section 1105) shall have no
liability to any person or party whomsoever for the acts or
omissions of others. The Company shall indemnify any person who
is, or is threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that such person is or was a member of the Committee, against
expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding,
to the extent and under the circumstances permitted by ERISA, but
not as to any matter in which such person shall be finally
adjudged in such action, suit or proceeding (i) to be liable for
misconduct in the performance of such person's duties as such
member or (ii) to have breached with respect to the Plan or its
Trust any fiduciary duty imposed on such person by ERISA for
which personal liability is imposed on such person and, in either
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<PAGE>
instance, for which indemnification would be contrary to public
policy, as set forth in any applicable statute or judicial
decision. The foregoing right of indemnification shall extend to
any action, suit or proceeding which may be settled or
compromised prior to final judgment, and shall not be exclusive
of any other rights to which any such Committee member may be
entitled as a matter of law.
(b) Such indemnification (unless ordered by a
court) shall be made as authorized in a specific case upon a
determination that indemnification of the Committee member is
proper in the circumstances because such person has met the
applicable standards of conduct set forth in ERISA. Such
determination shall be made (i) by the Board by a majority vote
of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the Company. Expenses
incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final
disposition of the action, suit or proceeding as authorized by
the Board in a specific case, upon receipt of an undertaking by
or on behalf of the Committee member to repay such amount unless
it shall ultimately be determined that such person is entitled to
be indemnified by the Company as authorized by ERISA and this
Article.
(c) The foregoing right of indemnification shall
not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any law, agreement,
or vote of stockholders or disinterested members of the Board,
both as to action in the person's official capacity as a member
of the Committee and as to action in another capacity while
holding such office, and shall continue as to a person who has
ceased to be a Committee member and shall inure to the benefit of
the heirs, executors and administrators of such person.
(d) The Board may authorize, to the extent
permitted by ERISA, the purchase and maintenance of insurance on
behalf of any person who is or was a member of the Committee
against any liability asserted against such person and incurred
by such person in such capacity or arising out of such person's
status as such.
(e) Except as otherwise required by law, no bond or
other security shall be required of any member of the Committee
for the faithful performance of such person's duties as such.
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<PAGE>
18.9 Standard of Review. The Committee shall perform its
------------------
duties as the Committee in its sole discretion shall determine is
appropriate in light of the reason and purpose for which the Plan
is established and maintained. In particular, the interpretation
of all plan provisions, and the determination of whether a
Participant or Beneficiary is entitled to any benefit pursuant to
the terms of the Plan, shall be exercised by the Committee in its
sole discretion. Any construction of the terms of the Plan for
which there is a rational basis that is adopted by the Committee
shall be final and legally binding on all parties.
Any interpretation of the Plan or other action of the Committee
made in its sole discretion shall be subject to review only if
such an interpretation or other action is without a rational
basis. Any review of a final decision or action of the Committee
shall be based only on such evidence presented to or considered
by the Committee at the time it made the decision that is the
subject of the review. Any Participating Employer and any
Employee who performs services for an Employer that are or may be
compensated for in part by benefits payable pursuant to this
Plan, hereby consents to actions of the Committee made in its
sole discretion and agrees to the narrow standard of review
prescribed in this Section.
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<PAGE>
ARTICLE XIX
Prohibition Against Voluntary or Involuntary Assignments
--------------------------------------------------------
19.1. No Liability for Participants' Debts. Except as
------------------------------------
otherwise required by law or provided in Article XIV, neither
this Plan nor the Trust by which it is funded shall be liable for
or subject to the debts or liabilities of any Participant or
Beneficiary hereunder, and no amount payable hereunder shall at
any time or in any manner be subject to alienation, sale,
transfer, assignment, pledge or encumbrance of any kind.
Notwithstanding the foregoing, this Plan shall comply with the
terms of any domestic relations order which is found by the
Committee to be "qualified" in accordance with Section 414(p) of
the Code. Any such order which is found by the Committee not to
be so qualified shall not be complied with. The Committee shall
adopt written procedures for making determinations concerning the
qualified status of domestic relations orders.
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<PAGE>
ARTICLE XX
Competency of Distributees
--------------------------
20.1. Distributees Presumed Competent. Every person
-------------------------------
receiving or claiming any benefit under this Plan shall be
conclusively presumed to be mentally competent and of legal age
until the Committee and/or Trustee receives a written notice, in
form and substance acceptable to them, that any such person is
incompetent, is a minor or that a guardian or other individual
legally vested with the care of the person's estate has been
appointed.
20.2. Facility of Payment. (a) If any amount is payable
-------------------
hereunder to a minor or other person under legal disability or
otherwise incapable of managing such person's own affairs, as
determined by the Committee, payment thereof shall be made in one
(or any combination) of the following ways, as the Committee
shall determine in its sole discretion:
(i) directly to said minor or other person;
(ii) to a custodian for said minor or other
person (whether designated by the Committee or any other person)
under the Missouri Transfers to Minors Law, the Missouri Personal
Custodian Law or a similar law of any other jurisdiction;
(iii) to the conservator of the estate of said
minor or other person; or
(iv) to some relative or friend of such minor
or other person for the support, welfare or education of such
minor or other person.
(b) If the Committee determines that any amount
shall be paid to a relative or friend of such minor or other
person for the support, welfare or education of such minor or
other person, and the amount would otherwise be required to be
distributed in the form of Shares, the relative or friend to whom
such amount is payable shall have the right to elect that the
entire distribution be made in the form of cash rather than
Shares.
(c) The Committee shall not be required to see to
the application of any payment made pursuant to this Section
20.2, and the receipt of the person to whom such payment is
actually made shall fully discharge the Committee from any
further accountability or responsibility with respect to the
amount so paid.
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<PAGE>
ARTICLE XXI
Becoming a Participating Employer
---------------------------------
21.1. Authorization and Procedure. (a) Any Subsidiary
---------------------------
may, with the consent of the Chief Financial Officer of the
Company, adopt this Plan and become a Participating Employer
hereunder. Any such Subsidiary which desires to become a
Participating Employer shall deliver to the Committee an executed
participation agreement which is satisfactory to the Committee in
form and substance. Thenceforth such entity shall be a
Participating Employer hereunder for all purposes and shall be
bound by each and every provision of this Plan and of the Trust
Agreement.
(b) Each new Participating Employer shall deliver
or cause to have delivered to the Committee such information as
the Committee may request for purposes of implementing the Plan
as regards such Participating Employer and such of its Employees
as are or may become eligible to participate herein.
21.2. Effect of Being a Participating Employer. Except as
----------------------------------------
hereinafter provided in this Section, the contributions made by
each Participating Employer shall be credited, and forfeitures
reducing its contributions shall be reallocated, only to the
Accounts of those Participants who are employed by it. The
transfer of a Participant from the employ of one Participating
Employer to the employ of another Participating Employer shall
not result in the termination of such Participant's participation
in this Plan. However, in the event of any such transfer, the
Committee shall thereupon annotate such Participant's Account so
as to clearly identify it with the Participating Employer by
which such Participant is then employed. If any such transferred
Participant thereafter terminates employment with the Employing
Companies under any circumstance giving rise to a forfeiture, any
such forfeiture shall be allocated among the Participating
Employers whose contributions were credited to such Participant's
Account, in the ratio that the unvested amounts contributed for
such Participant by each such Participating Employer bears to the
total unvested amounts contributed for such Participant by all
Participating Employers.
21.3. Pooled Funds. Notwithstanding that there may be
------------
more than one Participating Employer, there shall be but a single
Trust, consisting of such separate Investment Funds as are
required under this Plan, and the Trustee shall invest and
reinvest each of such Investment Funds as a single investment
pool. The Trustee shall not be required to segregate the Account
of any Participant for separate investment or otherwise, though
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<PAGE>
separate records of all Participant's Accounts shall be
maintained as required by Article IX hereof.
21.4. Costs and Expenses. Any costs and expenses of
------------------
operating and administering this Plan that are to be paid by the
Participating Employers may be paid in full by the Company, and
each Participating Employer shall then reimburse the Company for
its equitable share thereof, as determined by the Committee in
its sole discretion.
21.5. Adoption of Plan Conditional. The adoption of this
----------------------------
Plan by a Participating Employer shall be conditioned on such
action not adversely affecting the qualified status of the Plan,
or the tax exempt status of the Trust by which it is funded,
whether determined with respect to the Plan and Trust as existing
prior to the participation of such Participating Employer or as
regards the participation thereof.
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ARTICLE XXII
Limitations Applicable to
All Contributions to This Plan
------------------------------
22.1. Special Limitation on Annual Additions For Any
----------------------------------------------
Participant For Any Year. (a) No Participant shall have an
- ------------------------
annual addition to the Participant's Account for any calendar
year in excess of the amount then permitted under Section 415 of
the Code.
(b) If a Participant shall, as a result of errors
in estimating compensation or in determining the amount of
elective deferrals (within the meaning of Code Section 402(a)(3))
that may be made with respect to any individual under the limits
of Code Section 415, have allocated to accounts under this Plan
and all other defined contribution plans maintained by the
Employing Companies which are "qualified" under Section 401(a) of
the Code, an annual addition greater than the limit set out under
Section 415 of the Code, such Participant's account under any
other such defined contribution plan shall be reduced before any
reductions are made to such Participant's account under this
Plan. If such other defined contribution plan does not permit
such reductions, reductions shall first be made under this Plan.
If reductions are required under this Plan, such Participant's
Personal and Company Contributions under this Plan shall be
reduced or refunded as necessary in accordance with procedures
established by the Committee.
(c) In the case of a Participant who also
participates in a defined benefit plan(s) which is maintained by
the Employing Companies and which is "qualified" under Section
401(a) of the Code, the sum of such Participant's "defined
benefit plan fraction" and such Participant's "defined contribu-
tion plan fraction" for any year shall not exceed the limit
provided in Section 415 of the Code. If such fractions would
exceed this limit, benefits shall be reduced or eliminated under
such defined benefit plan, to the extent necessary to comply with
Section 415 of the Code, before any reduction of benefits shall
be made under this Plan. If such other plan does not permit such
reductions, reductions shall first be made under this Plan. If
reductions are required under this Plan, such Participant s
Personal and Company Contributions under this Plan shall be
reduced in accordance with procedures established by the
Committee.
(d) For purpose of this Section, "annual addition"
shall mean the sum of the Before-Tax Contributions, After-Tax
Contributions, Company Matching and Supplemental Contributions
allocated to the account of a Participant for the limitation
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<PAGE>
year. The terms compensation, defined benefit plan fraction and
defined contribution plan fraction shall have the meanings
provided in Section 415 of the Code. Section 415 of the Code, as
in effect from time to time, and regulations promulgated
thereunder, are incorporated herein by reference.
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<PAGE>
ARTICLE XXIII
Special Rules for Years
When Plan is Top-Heavy
----------------------
23.1. Special Definitions and Rules of Construction. For
---------------------------------------------
purposes of applying the special rules set out in this Article
the following terms shall have the following meanings:
(a) "Top-Heavy". Unless the Plan is required to be
---------
included in an aggregation group, this Plan will be a top-heavy
plan with respect to any Plan Year if, as of the determination
date, the aggregate of the Accounts of Key Employees under the
Plan exceeds 60 percent of the aggregate of the Accounts of all
Employees under the Plan. If the Plan is required to be included
in an aggregation group for any Plan Year, the Plan will be
top-heavy with respect to such Plan Year if the aggregation group
is a top-heavy group.
(b) "Aggregation Group". Each plan of the
-----------------
Employing Companies in which a Key Employee is a Participant, and
each other plan of the Employing Companies which enables any plan
in which a Key Employee participates to meet the requirements of
Sections 401(a)(4) or 410 of the Code. The Company may at its
option treat any plan not required to be included in an
aggregation group pursuant to the preceding sentence as being
part of such group if such group would continue to meet the
requirements of such Sections 401(a)(4) and 410 with such plan
being taken into account.
(c) "Top-Heavy Group". Any aggregation group if:
---------------
(i) the sum (as of the determination date) of:
(A) the present value of the cumulative
accrued benefits for Key Employees under all defined benefit
plans included in such group, and
(B) the aggregate of the accounts
(adjusted to include contributions due as of such
determination date) of Key Employees under all defined
contribution plans included in such group,
(ii) exceeds 60 percent of a similar sum
determined for all employees under such plans.
For purposes of determining the present value of the cumulative
accrued benefit for any Employee or the amount of the account of
any Employee, (iii) such present value or amount shall be
increased by the aggregate distributions made with respect to
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<PAGE>
such employee under the plan during the 5-year period ending on
the determination date (including distributions under any
terminated plan which, if it had not been terminated, would have
been required to be included in an aggregation group) and (iv)
the valuation date shall be the most recent valuation date
occurring within a twelve-month period ending on the
determination date.
(d) "Determination Date". With respect to any plan
------------------
year, the last day of the preceding plan year or, in the case of
the first plan year of a plan, the last day of such first plan
year. In the case of an aggregation group, a separate
determination shall be made each calendar year for each plan
within such aggregation group, as of each such plan's
determination date which falls within such calendar year. The
results of the separate determinations within the same calendar
year shall then be added to determine the status of the
aggregation group.
(e) "Key Employee". An Employee who, at any time
------------
during the Plan Year in question or any of the four preceding
Plan Years, is or was:
(i) an officer of the Employing Companies
having an annual compensation from the Employing Companies
greater than 150 percent of the amount in effect under Section
415(c)(1)(A) of the Code for such Plan Year;
(ii) one of the ten employees having annual
compensation from the Employing Companies of more than the
limitation in effect under Section 415(c)(1)(A) of the Code and
owning (or considered as owning, within the meaning of Section
318 of the Code) the largest interests in the Employing
Companies;
(iii) a 5-percent owner of the Employing
Companies; or
(iv) a 1-percent owner of the Employing
Companies having aggregate annual compensation from the Employing
Companies combined in excess of $150,000; provided, however, that
--------
no more than 50 Employees in the aggregate (or, if less, the
greater of 3 or 10 percent of the Employees of the Employing
Companies) shall be treated as officers. For purposes of clause
(ii), if two or more Employees have the same interest in the
Employing Companies, the Employee having greater annual
compensation from the Employing Companies shall be treated as
having a larger interest.
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(f) "5-percent Owner". Any person who owns (or is
---------------
considered as owning within the meaning of Section 318 of the
Code) more than 5 percent of the outstanding stock of the
Employing Companies or stock possessing more than 5 percent of
the total combined voting power of all stock of the Employing
Companies.
(g) "1-percent Owner". Any person who owns (or is
---------------
considered as owning within the meaning of Section 318 of the
Code) more than 1 percent of the outstanding stock of the
Employing Companies or stock possessing more than 1 percent of
the total combined voting power of all stock of the Employing
Companies.
(h) "Non-Key Employee". Any Employee who is not a
----------------
Key Employee.
(i) For purposes of this Article, subparagraph (C)
of Section 318(a)(2) of the Code shall be applied by substituting
"5 percent" for "50 percent," and the rules of subsections (b),
(c), and (m) of Section 414 of the Code shall not apply for
purposes of determining ownership.
(j) The terms Employee and Key Employee include
their Beneficiaries.
(k) This Article shall not apply with respect to
any Employee included in a unit of Employees covered by an
agreement which the Secretary of Labor finds to be a collective
bargaining agreement between Employee representatives and one or
more employers if there is evidence that retirement benefits were
the subject of good faith bargaining between such employee
representatives and such employer or employers.
(l) If any individual is a Non-Key Employee with
respect to the Plan for any Plan Year, but was a Key Employee
with respect to the Plan for any prior Plan Year, the Account of
such individual shall not be taken into consideration in making
the determinations hereunder.
(m) If any individual has not received any
compensation from the Employing Companies (other than benefits
under this Plan) at any time during the five-year period ending
on the applicable determination date, the Account of such
individual shall not be taken into consideration in making the
determination hereunder.
23.2. Special Rules Applicable to Top-Heavy Years. If
-------------------------------------------
this Plan is a top-heavy plan for any Plan Year, then:
81
<PAGE>
(a) Notwithstanding any provisions herein to the
contrary, no Key Employee may have allocated to the Key
Employee's Account for such Plan Year Before-Tax, Company
Matching or Supplemental Contributions which, expressed as a
percentage of the Key Employee's Compensation, exceed the Company
Matching and Supplemental Contribution also expressed as a
percentage of Compensation, of that Non-Key Eligible Employee
whose Company Matching and Supplemental Contribution is the
lowest percentage. The percentage calculations required by this
subsection shall be made treating all defined contribution plans
of the Company included in the aggregation group of plans as if
they were a single plan, and any reduction in Before-Tax, Company
Matching and Supplemental Contributions required by this
provision shall be effected out of Before-Tax, Company Matching
and Supplemental Contributions to this Plan first, before being
allocated to any other plan. If the Before-Tax, Company Matching
and Supplemental Contributions which would otherwise be allocated
to a Key Employee are reduced by operation of this provision,
excess Personal Contributions shall be refunded to the
Participant without penalty, to the end that the Participant's
Personal Contributions for the Plan Year in question do not
exceed the amount the Key Employee would have contributed in
order to receive only the recalculated Company Matching and
Supplemental Contribution amount;
(b) The provision in (a) above shall not apply to
any Non-Key Eligible Employee to the extent the Non-Key Eligible
Employee is covered under any other plan or plans of an Employing
Company if any such other plan is a defined benefit plan under
which the Non-Key Eligible Employee shall receive the minimum
accrued benefit required by Section 416(c) of the Code; and
(c) Paragraphs (2)(b) and (3)(b) of Section 415(e)
of the Code shall be applied by substituting "1.0" for "1.25" if
the aggregate value of the accounts of Key Employees exceeds 90%
of the aggregate value of the accounts of all Employees under the
Plan or if the sum referred to in Section 23.1(c)(i) above
exceeds 90% of a similar sum determined for all employees under
all plans in the aggregation group.
(d) For purposes of this Article, the term
"compensation" shall be the amount of compensation determined
under the provisions of Section 415(c)(3) of the Code.
23.3. Operating Rules. (a) Contributions or benefits
---------------
under chapter 2 (relating to tax on self-employment income),
chapter 21 (relating to Federal Insurance Contributions Act) of
the Code, or title II of the Social Security Act, or any other
Federal or State law shall not be taken into account in applying
Section 23.2.
82
<PAGE>
(b) This Article shall be applied to all plans
maintained by the Employing Companies in a manner consistent with
regulations promulgated by the Secretary of the Treasury under
the authority granted by Section 416(f) of the Code.
(c) This Article is included solely to permit the
Plan to comply with Section 416 of the Code. Should this Plan
ultimately be excused or exempted from the operation of such
Section, either by statutory amendment or by any regulation or
ruling of the U.S. Treasury or the Internal Revenue Service, this
Article shall immediately and automatically be null and void and
of no further force or effect.
83
<PAGE>
ARTICLE XXIV
Miscellaneous
-------------
24.1. Return of Contributions. (a) It is the objective
-----------------------
and intention of each Participating Employer that this amended
and restated Plan shall continue to be a qualified plan within
the meaning of Section 401 of the Code, the Trust of which
continues to be exempt from Federal income tax under Section 501
of the Code. If the Internal Revenue Service rules, upon
application to it for a favorable determination, that this Plan
and its related Trust are so qualified and exempt, all contribu-
tions theretofore made by any Participating Employer shall be
subject to the provisions of this Plan in all respects and may
not be diverted to purposes other than the exclusive benefit of
Participants and their Beneficiaries and estates and the payment
of the administrative expenses of this Plan, and may not be
returned to any Participating Employer.
(b) Notwithstanding the foregoing or any other
contrary provision herein contained, any erroneous Company
Matching or Supplemental Contribution which is made by a mistake
of fact may be returned to the Participating Employer which made
such contribution if the mistake of fact is discovered and the
return of such contribution is completed within one year after
the payment of such contribution to the Plan. Furthermore, if
after the Internal Revenue Service rules that the Plan and Trust
are qualified and exempt, as contemplated by subsection (a)
above, any deduction for any Company Contribution hereto is
denied as not allowable under Section 404(a)(3) of the Code, then
such contribution, to the extent of such disallowed deduction,
may be returned to the Participating Employer which made such
contribution within one year after the disallowance of such
deduction. Each and every Company contribution made pursuant to
this Plan is contingent upon the allowance of a deduction for
such contribution under Section 404 of the Code.
24.2. Limitations of Liability and Rights. (a)
-----------------------------------
Participation in this Plan shall not give any Participant any
rights to any amounts hereunder except as specifically provided
in this Plan, and no one in the employ of any Participating
Employer, and no Participant or Beneficiary, shall be entitled to
any amounts hereunder except to the extent that a right thereto
is specifically fixed by the terms of this Plan and the assets of
the Trust by which this Plan is funded are sufficient therefor.
(b) Except as provided in ERISA Section 405 (29
U.S.C. Section 1105), no Participating Employer, no officer, director
or stockholder of any Participating Employer, and no member of
the Committee, shall be liable for any act or omission of the
84
<PAGE>
Trustee with respect to its investment or administration of the
Trust which is a part of this Plan.
(c) The establishment of this Plan shall not give
any person any right to be continued in the employ of any
Participating Employer or any of the Employing Companies, nor
shall it interfere with or limit any right of any of the
Employing Companies to terminate the employment of any person at
any time.
24.3. General Administration and Expenses. Except with
-----------------------------------
respect to such duties as have specifically been delegated to the
Committee, the Trustee or others hereunder, or which require the
exercise of discretion, the Company or its nominees (who may be
Employees) may perform all ministerial activities necessary to
the efficient administration of this Plan, may maintain all
proper files and records, and may provide all forms, notices and
other documents in connection herewith. All notices, requests,
directions and other orders or elections for which the Committee
has adopted an official administrative form shall be effective
only if submitted to the Committee on a properly completed and
signed official form. All brokerage fees, commissions, stock
transfer taxes and similar acquisition costs incurred on the
purchase of any security (including any Shares) shall be treated
as additional purchase price and all brokerage fees, commissions,
stock transfer taxes and similar disposition costs incurred on
the sale of any security (including any Shares) shall be treated
as a reduction in sale proceeds, except that stock transfer taxes
on Shares distributable in kind shall be charged against the
Account of the distributee. Except as otherwise provided in the
Trust Agreement, all other expenses of the Plan and its
administration may be paid by the Participating Employers, in
such proportions as the Company shall determine.
24.4. Notice of Address. It is the duty of every
-----------------
Participant to keep the employer informed of the Participant's
current post office address. Any communication, statement or
notice addressed to a Participant at the latest post office
address on file with the Employing Companies shall be binding
upon such Participant for all purposes, and neither the
Committee, the Trustee nor the Company shall be obligated to
search for or attempt to ascertain the whereabouts of any person,
except as provided in Article XVI.
24.5. Data. Every person entitled to payments hereunder
----
shall furnish such documents, evidence or other information to
the Committee as the Committee may consider necessary or
desirable for the administration of this Plan or for the
protection of the Plan, the Committee or the Trustee. Each such
person must furnish such information promptly and must sign such
85
<PAGE>
documents as the Committee may reasonably require before the
person shall receive any payment or distribution hereunder.
24.6. Trust Agreement Related. The Trust Agreement and
-----------------------
each of the provisions thereof shall be deemed a part of the
Plan for all purposes, and in case of a conflict between the
provisions of the Trust Agreement and the provisions of this
Plan, the provisions of this Plan shall control.
24.7. Severability Clause. In case any provision of this
-------------------
Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining
provisions of the Plan, and the Plan shall be construed and
enforced as if such illegal and invalid provision had never been
included herein.
24.8. Situs. This Plan shall be construed, regulated and
-----
administered according to ERISA.
24.9. Succession. Except as otherwise provided herein,
----------
this Plan and each of the provisions hereof shall be binding upon
each Participating Employer and any corporation(s) resulting from
or surviving any merger, consolidation, reorganization or
recapitalization of a Participating Employer or of a
Participating Employer and one of more other corporations, and
any corporation into which a Participating Employer may be
liquidated.
24.10. Execution. This Plan may be executed in any number
---------
of counterparts, each of which so executed shall be deemed to be
an original, and such counterparts shall together constitute one
and the same instrument.
24.11. Merger of Plan or Transfer of Trust Assets. If this
------------------------------------------
Plan is merged or consolidated with any other plan, or if the
assets or liabilities of the Plan are transferred to any other
plan or trust, then each Participant in the Plan shall (if the
Plan shall then be terminated) receive a benefit immediately
after such merger, consolidation or transfer which is equal to or
greater than the benefit the Participant would have been entitled
to receive immediately before such merger, consolidation or
transfer (if the Plan had then terminated).
24.12. Miscellaneous Rules of Construction. (a) Masculine
-----------------------------------
pronouns include the feminine, the singular includes the plural,
and the plural includes the singular, as the context or
application demands. The words "herein", "hereunder", "hereof"
and similar compounds of the word "here" refer to this entire
Plan unless expressly limited to a particular article, section,
86
<PAGE>
sentence or other subdivision of this Plan or the context
otherwise requires.
(b) Titles to articles and headings of sections in
this Plan are for convenience of reference only, and in case of
conflict, the text of this Plan rather than such titles or
headings shall control.
24.13. Delayed Payments. Notwithstanding any other
----------------
provision of the Plan, if the amount of a payment required to be
paid on a date determined under this Plan cannot be ascertained
by such date, or if it is not possible to make such payment on
such date because the Committee has been unable to locate the
Participant, spouse or Beneficiary (if applicable) after making
reasonable efforts to do so, a payment retroactive to such date
may be made no later than 60 days after the earliest date on
which the amount of such payment can be ascertained or the date
on which such Participant, spouse or Beneficiary is located
(whichever is applicable).
24.14. Mistakes in Benefit Payments. In the event and to
----------------------------
the extent that any payment to a Participant, spouse or
Beneficiary is determined by the Committee to have been in error,
the Committee and the Trustee shall determine the extent of the
error, and shall take action to correct the error in an equitable
manner, as determined in the sole discretion of the Committee,
consistent with the following:
(a) In the event that an amount paid in error is
less than the amount which should have been paid, the Committee
shall direct the Trustee to distribute the difference between the
amount paid and the amount which should have been paid to the
Participant, spouse or Beneficiary;
(b) In the event that the amount paid in error
exceeds the amount which should have been paid, the Committee, to
the extent possible, shall reduce any benefit then remaining
payable to the Participant, spouse or Beneficiary by the excess
of the amount paid over the amount which should have been paid,
and shall make other reasonable efforts to recover such excess
from the Participant, spouse or Beneficiary.
87
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Plan by
and through its authorized agents, this 4th day of October,
--- -------
1996 effective as of the 1st day of April, l996.
ANHEUSER-BUSCH COMPANIES, INC.
By /s/Jacquelyn G. Johnson
-------------------------------
Jacquelyn G. Johnson
Chair, Administrative Committee
88
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES
(CONTINUING OPERATIONS)
The following table sets forth the ratio of the Company's earnings
to fixed charges, on a consolidated basis, for the periods
indicated:
Nine Months
Ended
Sept. 30, Year Ended December 31,
------------- ------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
9.1X 1/ 8.7X 6.6X 2/ 7.7X 5.8X 3/ 7.7X 6.3X
For purposes of this ratio, earnings have been calculated by adding
to income before income taxes the amount of fixed charges. Fixed
charges consist of interest on all indebtedness, amortization of
debt discount and that portion of rental expense deemed to
represent interest.
1/ The ratio for 1996 includes the gain from the sale of the
Cardinals, which increased income before income taxes by $54.7
million. Excluding this one-time gain, the ratio would have been
8.8X.
2/ The ratio for 1995 includes the impact of the Tampa Brewery
shutdown and the reduction of wholesaler inventories. Excluding
these non-recurring items, the ratio would have been 7.6X.
3/ Includes the impact of the one-time, pre-tax restructuring
charge of $401 million as a result of the company's Profitability
Enhancement Program. Excluding this non-recurring special charge,
the ratio would have been 7.5X.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from
the Form 10-Q for the quarter ended September 30, 1996 and is
qualified in its entirety by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> SEP-30-1996
<CASH> 121,216
<SECURITIES> 1,262
<RECEIVABLES> 653,104
<ALLOWANCES> 3,944
<INVENTORY> 527,431
<CURRENT-ASSETS> 1,562,302
<PP&E> 11,878,997
<DEPRECIATION> 4,831,744
<TOTAL-ASSETS> 10,393,455
<CURRENT-LIABILITIES> 1,365,876
<BONDS> 3,235,264
0
0
<COMMON> 704,869
<OTHER-SE> 3,357,946
<TOTAL-LIABILITY-AND-EQUITY> 10,393,455
<SALES> 9,727,162
<TOTAL-REVENUES> 9,727,162
<CGS> 5,270,099
<TOTAL-COSTS> 6,603,007
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 178,522
<INCOME-PRETAX> 1,647,760
<INCOME-TAX> 641,673
<INCOME-CONTINUING> 1,006,087
<DISCONTINUED> 33,786
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,039,873
<EPS-PRIMARY> 2.06
<EPS-DILUTED> 2.04
</TABLE>
