AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1999
Registration Statement No. 33-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
Registration Statement
Under the
Securities Act of 1933
-----------------------------------------------------------------
ANHEUSER-BUSCH COMPANIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 43-1162835
(State or Other Jurisdiction (IRS Employer
of Incorporation or Organization) Identification No.)
One Busch Place
St. Louis, Missouri 63118
(Address of Principal Executive Offices)
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For
Certain Hourly Employees of Anheuser-Busch Companies, Inc.
and its Subsidiaries)
(Full Title of the Plan)
JoBeth G. Brown
Vice President and Corporate Secretary
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
(Name and Address of Agent for Service)
(314) 577-3314
Telephone Number, Including Area Code of Agent for Service
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================
<S> <C> <C> <C> <C>
Proposed
Title of Securities Amount Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Registration
Registered Per Share* Offering Price Fee
================================================================================
Common Stock, par 500,000 Shares $67 1/2 $33,750,000 $9,383
value $1.00 per
share, including
preferred stock
purchase rights
================================================================================
</TABLE>
*Estimated solely for purposes of calculating the registration fee. In
accordance with Rule 457(h)(1), the proposed offering price of shares was based
on the average of the high and low prices reported on the New York Stock
Exchange on January 22, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART I
The Section 10(a) prospectus relating to the Plan is omitted from this
Registration Statement pursuant to the Note to Part I of Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The descriptions of the Registrant's shares of common stock,
including the preferred stock purchase rights relating thereto, contained
in the Registrant's registration statements filed under the Securities
Exchange Act of 1934, File No. 1-7823, including any amendment or report
filed for the purpose of updating such descriptions.
(d) The Plan's Annual Report on Form 11-K for the fiscal year ended
March 31, 1998 (filed as Exhibit 99.3 to the Registrant's Form 10-K/A for
the year ended December 31, 1997).
All documents subsequently filed by the Registrant or the Plan pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
The Registrant's common stock is registered under Section 12(b) of the
Securities Exchange Act of 1934, as amended.
Item 5. Interests of Named Experts and Counsel.
PricewaterhouseCoopers LLP, the Registrant's independent accountants, have
no interest in the Registrant.
Thomas Larson, Esq., Associate General Counsel of the Registrant, has
passed upon the legality of the shares offered under this registration
statement.
Roberta Warren, Esq., Associate General Counsel of the Registrant, has
passed upon the compliance of the Plan with the requirements of ERISA.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they acted in good
faith in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was illegal. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of an action and requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
The Registrant's Restated Certificate of Incorporation provides that each
person who was or is made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of the Registrant (or was serving at the request of the Registrant as a
director, officer, employee or agent for another entity) while serving in such
capacity will be indemnified and held harmless by the Registrant to the full
extent authorized or permitted by Delaware law. The Restated Certificate also
provides that the Registrant may purchase and maintain insurance, may also
create a trust fund, grant a security interest and/or use other means (including
establishing letters of credit, surety bonds and other similar arrangements),
and may enter into contracts providing for indemnification, to ensure full
payment of indemnifiable amounts.
The Registrant has entered into indemnification agreements with its
directors and its executive officers.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 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.
4.2 First Amendment to the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Certain Hourly Employees of Anheuser-Busch Companies,
Inc. and it subsidiaries).
II-2
<PAGE>
4.3 Second Amendment to the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Certain Hourly Employees of Anheuser-Busch Companies and
its subsidiaries).
5.1 Opinion and consent of Thomas Larson, Esq., Associate General Counsel of
the Registrant, concerning the legality of the shares of common stock being
registered hereunder.
5.2 Opinion and consent of Roberta Warren, Esq., Associate General Counsel of
the Registrant, relating to the compliance of the Plan as amended with the
requirements of ERISA.
23 Consent of Independent Accountants
24.1 Power of Attorney executed by directors and officers of the Registrant.
24.2 Power of Attorney executed by the members of the Plan's Administrative
Committee.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously
II-3
<PAGE>
disclosed in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of St. Louis, State of Missouri, on January 22,
1999.
ANHEUSER-BUSCH COMPANIES, INC.
By: /s/ JoBeth G. Brown
----------------------------------------
JoBeth G. Brown
(Vice President and Corporate Secretary)
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
Title Date
----- ----
AUGUST A. BUSCH III * Chairman of the Board November 25, 1998
- ------------------------------ and President and
August A. Busch III Director (Principal
Executive Officer)
W. RANDOLPH BAKER * Vice President November 25, 1998
- ------------------------------ President and Chief
W. Randolph Baker Financial Officer and
Director (Principal
Financial Officer)
JOHN F. KELLY * Vice President and November 25, 1998
- ------------------------------ Controller (Principal
John F. Kelly Controller (Principal
Accounting Officer)
BERNARD A. EDISON * Director November 25, 1998
- ------------------------------
Bernard A. Edison
CARLOS FERNANDEZ G. * Director November 25, 1998
- ------------------------------
Carlos Fernandez G.
JOHN E. JACOB * Director November 25, 1998
- ------------------------------
John E. Jacob
JAMES R. JONES * Director November 25, 1998
- ------------------------------
James R. Jones
Director November 25, 1998
- ------------------------------
Charles F. Knight
VERNON R. LOUCKS, JR. * Director November 25, 1998
- ------------------------------
Vernon R. Loucks, Jr.
VILMA S. MARTINEZ * Director November 25, 1998
- ------------------------------
Vilma S. Martinez
II-5
<PAGE>
SYBIL C. MOBLEY * Director November 25, 1998
- ------------------------------
Sybil C. Mobley
JAMES B. ORTHWEIN * Director November 25, 1998
- ------------------------------
James B. Orthwein
WILLIAM PORTER PAYNE * Director November 25, 1998
- ------------------------------
William Porter Payne
ANDREW C. TAYLOR * Director November 25, 1998
- ------------------------------
Andrew C. Taylor
DOUGLAS A. WARNER III * Director November 25, 1998
- ------------------------------
Douglas A. Warner III
WILLIAM H. WEBSTER * Director November 25, 1998
- ------------------------------
William H. Webster
EDWARD E. WHITACRE, JR. * Director November 25, 1998
- ------------------------------
Edward E. Whitacre, Jr.
* By: /s/ JoBeth G. Brown
----------------------------
JoBeth G. Brown
Attorney-in-Fact
II-6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee of the Plan has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Louis, State of Missouri, as of December 14,
1998.
ANHEUSER-BUSCH GLOBAL
EMPLOYEE STOCK OWNERSHIP PLAN
Title Date
JOBETH G. BROWN * Committee Member December 14, 1998
- -----------------------
JoBeth G. Brown
JOHN D. CASTAGNO * Committee Member December 14, 1998
- -----------------------
John D. Castagno
J. TIMOTHY FARRELL * Committee Member December 14, 1998
- -----------------------
J. Timothy Farrell
MICHAEL J. FORTE * Committee Member December 14, 1998
- -----------------------
Michael J. Forte
JACKIE G. JOHNSON * Committee Member December 14, 1998
- -----------------------
Jackie G. Johnson
* By: /s/ JoBeth G. Brown
----------------------------
JoBeth G. Brown
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
4.1 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.
4.2 First Amendment to the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Certain Hourly Employees of Anheuser-Busch Companies,
Inc. and it subsidiaries).
4.3 Second Amendment to the Anheuser-Busch Deferred Income Stock Purchase and
Savings Plan (For Certain Hourly Employees of Anheuser-Busch Companies and
its subsidiaries).
5.1 Opinion and consent of Thomas Larson, Esq., Associate General Counsel of
the Registrant, concerning the legality of the shares of common stock being
registered hereunder.
5.2 Opinion and consent of Roberta Warren, Esq., Associate General Counsel of
the Registrant, relating to the compliance of the Plan as amended with the
requirements of ERISA.
23 Consent of Independent Accountants
24.1 Power of Attorney executed by directors and officers of the Registrant.
24.2 Power of Attorney executed by the members of the Plan's Administrative
Committee.
II-8
EXHIBIT 4.1
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>
Table of Contents
ARTICLE I..................................................................1
Establishment of Plan....................................................1
1.1. Action By Company............................................1
1.2. Named Plan Fiduciaries.......................................1
ARTICLE II.................................................................2
Definitions of General Applicability.....................................2
2.1. "Account"....................................................2
2.2. "After-Tax Contributions"....................................2
2.3. "Before-Tax Contributions"...................................2
2.4. "Beneficiary"................................................2
2.5. "Base Pay"...................................................2
2.6. "Board"......................................................3
2.7. "Closing Price"..............................................3
2.8. "Code".......................................................3
2.9. "Committee"..................................................3
2.10. "Company"...................................................3
2.11. "Company Matching Contributions"............................3
2.12. "Company Stock Fund"........................................3
2.13. "Company Year"..............................................4
2.14. "Consolidated Net Income For Plan Purposes".................4
2.15. "Effective Date"............................................4
2.16. "Eligible Employee".........................................4
2.17. "Employee"..................................................4
2.18. "Employing Companies".......................................4
2.19. "Equity Index Fund".........................................4
2.20. "ERISA".....................................................4
2.21. "Fund"......................................................4
2.22. "Highly Compensated Employee"...............................5
2.23. "Hour of Service"...........................................6
2.24. "Indexed Balanced Fund".....................................7
2.25. "Managed Balanced Fund".....................................8
2.26. "Medium-Term Fixed Income Fund".............................8
2.27. "Non-Highly Compensated Employee"...........................8
2.28. "Participant"...............................................8
2.29. "Participating Employer"....................................8
2.30. "Personal Contributions"....................................8
2.31. "Plan"......................................................8
2.32. "Plan Year".................................................8
2.33. "Processing Period".........................................9
2.34. "Related Plans".............................................9
2.35. "Share".....................................................9
2.36. "Share Equivalents..........................................9
2.37. "Short-Term Fixed Income Fund"..............................9
2.38. "Subsidiary"................................................9
2.39. "Supplemental Contributions"................................9
2.40. "Taxable Compensation"......................................9
i
<PAGE>
2.41. "Trust Agreement"...........................................9
2.42. "Trustee"...................................................9
ARTICLE III...............................................................10
Eligibility and Participation...........................................10
3.1. Eligibility.................................................10
3.2. Becoming a Participant......................................10
3.3. Re-employment Following a Break in Service..................10
3.4. Year of Service; Break in Service...........................10
3.5. Transfers of Participants and Lay-Offs......................11
ARTICLE IV................................................................12
Matched Contributions...................................................12
4.1. Before-Tax Matched Contributions............................12
4.2. After-Tax Matched Contributions.............................12
4.3. Limitation on Total Matched Contributions...................12
ARTICLE V.................................................................13
Unmatched Contributions.................................................13
5.1. Contributions Permitted.....................................13
5.2. Before-Tax Unmatched Contributions..........................13
5.3. After-Tax Unmatched Contributions...........................13
5.4. Limitation on Total Unmatched Contributions.................13
ARTICLE VI................................................................14
Company Contributions...................................................14
6.1. Required Contributions......................................14
6.2. Contribution Rate For Company MatchingContributions.........14
6.3 Determination of Supplemental Contribution..................14
6.4. Payment and Payment Date....................................15
6.5. Allocation to Participants' Accounts........................15
ARTICLE VII...............................................................16
Procedures and Limitations on Personal Contributions and Elections......16
7.1. Election Procedures.........................................16
7.2. Special Dollar Limitation On Before-TaxContributions........16
7.3. Required Adjustment of Before-Tax Personal
Contributions..................................................17
7.4. Required Adjustment of After-Tax and Company Matching
Contributions..................................................18
7.5. Suspension and Reinstatement of MatchedPersonal
Contributions After Withdrawal.................................19
7.6. Payroll Deductions..........................................20
ii
<PAGE>
ARTICLE VIII..............................................................21
Investment of Contributions.............................................21
8.1. Investment of Company Matching andSupplemental
Contributions..................................................21
8.2. Investment of the Matched Contributions Part of an
Account........................................................21
8.3. Investment of the Unmatched Contributions Part of an
Account........................................................21
8.4. A Participant's Investment Direction for Current
Contributions..................................................21
8.5. A Participant's Investment Direction for Accumulated
Account Balances...............................................21
8.6. Special Diversification After Attainment of Age 55..........21
8.7. The Company Stock Fund......................................22
8.8. The Short-Term Fixed Income Fund............................22
8.9. The Medium-Term Fixed Income Fund...........................23
8.10. The Equity Index Fund......................................23
8.11. The Indexed Balanced Fund..................................24
8.12. The Managed Balanced Fund..................................24
8.13. The Earthgrains Stock Fund.................................25
8.14. Earnings, etc..............................................25
8.15. Reports to Participants....................................25
8.16. Voting of Shares...........................................25
8.17. Tendering of Shares and Rights.............................26
8.18. Plan Mergers...............................................27
ARTICLE IX................................................................28
Maintenance and Valuation of Accounts...................................28
9.l. Separate Accounts...........................................28
9.2. Company Stock Fund Portion..................................28
9.3. Other Investment Fund Portions..............................28
9.4. Transfers Between Funds.....................................28
9.5. Valuation of the Fund.......................................29
9.6. Effect of Valuations........................................29
9.7. No Liability for Fluctuations in Value......................29
9.8. Adjustments to Accounts.....................................29
9.9. Ordering of Distributions...................................30
9.10. Special Valuation of Company Stock in Extraordinary
Circumstances..................................................30
ARTICLE X.................................................................31
Vesting.................................................................31
10.1. Amounts Contributed by the Participant.....................31
10.2. Company Matching and SupplementalContributions.............31
10.3. Vesting Rules..............................................31
10.4. Change in Control of the Company...........................32
iii
<PAGE>
ARTICLE XI................................................................34
Distributions...........................................................34
11.1. Distributions Upon Termination ofEmployment................34
11.2. Time and Method of Distribution............................34
11.3. Eligible Rollover Distributions............................36
11.4. Determination of Disability................................36
11.5. Transfer of Accounts.......................................36
11.6. Early Distribution under Domestic Relations Order..........37
11.7. Absolute Right to Receive StockDistribution................37
ARTICLE XII...............................................................38
Withdrawals While Employed..............................................38
12.1. Elective Right to Make Certain Withdrawals.................38
12.2. Protected Withdrawal Rights................................39
12.3. Withdrawal Procedure.......................................39
12.4. Frequency of Withdrawals...................................39
ARTICLE XIII..............................................................40
Hardship Withdrawals....................................................40
l3.l. Eligibility and Procedure..................................40
ARTICLE XIV...............................................................41
Loans to Participants...................................................41
14.l. Procedure and Terms........................................41
ARTICLE XV................................................................43
Designation of a Beneficiary............................................43
15.1. Procedure and Effect.......................................43
15.2. Renunciation of Death Benefit..............................45
ARTICLE XVI...............................................................46
Lost Distributees.......................................................46
16.1. Disposition of Accounts Payable to Persons Who Cannot
Be Located.....................................................46
16.2. Efforts To Locate Distributees.............................46
ARTICLE XVII..............................................................47
Amendment or Termination................................................47
17.1. Company's Power to Amend or Terminate......................47
17.2. Termination by a Participating Employer....................48
17.3. Disposition of Assets on Termination.......................48
17.4. Effect of Termination by the Company.......................49
iv
<PAGE>
ARTICLE XVIII.............................................................50
Administrative Committee................................................50
18.1. Appointment................................................50
18.2. Organization...............................................50
18.3. Powers.....................................................50
18.4. Forms and Procedures.......................................52
18.5. Meetings...................................................52
18.6. Records....................................................52
18.7. Applications for Benefits; Appeal FromDenial of
Benefits.......................................................52
18.8. Liability of Committee.....................................53
18.9 Standard of Review.........................................54
ARTICLE XIX...............................................................55
Prohibition Against Voluntary or Involuntary Assignments................55
19.1. No Liability for Participants' Debts.......................55
ARTICLE XX................................................................56
Competency of Distributees..............................................56
20.1. Distributees Presumed Competent............................56
20.2. Facility of Payment........................................56
ARTICLE XXI...............................................................57
Becoming a Participating Employer.......................................57
21.1. Authorization and Procedure................................57
21.2. Effect of Being a Participating Employer...................57
21.3. Pooled Funds...............................................57
21.4. Costs and Expenses.........................................57
21.5. Adoption of Plan Conditional...............................57
ARTICLE XXII..............................................................58
Limitations Applicable to All Contributions to This Plan................58
22.1. Special Limitation on Annual Additions For Any
Participant For Any Year.......................................58
ARTICLE XXIII.............................................................59
Special Rules for Years When Plan is Top-Heavy..........................59
23.1. Special Definitions and Rules ofConstruction...............59
23.2. Special Rules Applicable to Top-Heavy Years................61
23.3. Operating Rules............................................61
v
<PAGE>
ARTICLE XXIV..............................................................63
Miscellaneous...........................................................63
24.1. Return of Contributions....................................63
24.2. Limitations of Liability and Rights........................63
24.3. General Administration and Expenses........................63
24.4. Notice of Address..........................................64
24.5. Data.......................................................64
24.6. Trust Agreement Related....................................64
24.7. Severability Clause........................................64
24.8. Situs......................................................64
24.9. Succession.................................................64
24.10. Execution.................................................64
24.11. Merger of Plan or Transfer of Trust Assets................64
24.12. Miscellaneous Rules of Construction.......................65
24.13. Delayed Payments..........................................65
24.14. Mistakes in Benefit Payments..............................65
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 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.
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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:
(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.
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(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.
(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.
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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 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 "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
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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 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
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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
(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.
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(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 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. 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.
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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.
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.
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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 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.
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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
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
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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.
(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.
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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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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.
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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 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.
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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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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.
(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
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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 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
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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.
(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 the basis of the
respective portions of such amount attributable to each such Participant, in
accordance with the following:
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(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 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
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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.
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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 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
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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:
(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
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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;
(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 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
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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.
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
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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 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
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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.
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
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.
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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.
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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 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.
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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 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.
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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 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.
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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 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.
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(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 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
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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 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.
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.
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(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
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
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(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.
(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.
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
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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.
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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 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.
(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.
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(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.
12.4. 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 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. 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 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 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.
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(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 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.
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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 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
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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 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.
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(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 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 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.
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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.
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(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 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
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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 and fully vest in favor of the person for whom it was established,
and shall become non-forfeitable.
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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 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 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.
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(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 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.
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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 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;
(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.
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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. ss.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 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
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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.
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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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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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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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 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 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 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 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
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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.
(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
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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:
(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.
(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.
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(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.
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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 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. ss.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 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
63
<PAGE>
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 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
64
<PAGE>
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, 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.
65
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Plan by and through its
authorized agents, this day of , 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
66
EXHIBIT 4.2
FIRST AMENDMENT TO THE 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
Effective as of April 1, 1996, Anheuser-Busch Companies, Inc. (the
"Company") amended and restated the Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan (for Employees Covered by a Collective Bargaining
Agreement) the "Plan"). The Company reserved the right to further amend the Plan
from time to time and hereby amends the Plan as follows:
1. Section 2.17 of the Plan is hereby deleted and replaced to read in its
entirety as follows:
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. An individual who is not classified by his
Participating Employer as a common law employee, but who for some other
purpose is found or deemed to be a common law employee of a Participating
Employer, shall not be an "Employee" for purposes of this Plan,
notwithstanding such finding or determination.
2. Subsection (b) of Section 3.1 of the Plan is hereby amended by adding to
the end of such subsection the following:
In addition, an individual who is not classified by his Participating
Employer as an Employee, but who for some other purpose is nonetheless
found or deemed to be an employee of the Participating Employer, shall not
be eligible to participate in the Plan.
IN WITNESS WHEREOF, the Company has executed this Amendment by and through
its authorized agent this ____ day of ________, 1997, effective as of January 1,
1997.
ANHEUSER-BUSCH COMPANIES, INC.
By: /s/ JACQUELYN G. JOHNSON
Jacquelyn G. Johnson
Chair, Administrative Committee
EXHIBIT 4.3
SECOND AMENDMENT TO THE ANHEUSER-BUSCH
DEFERRED INCOME STOCK PURCHASE & SAVINGS PLAN
(For Certain Hourly Employees of Anheuser-Busch Companies, Inc. and its
Subsidiaries)
AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1996
Effective as of April 1, 1996, Anheuser-Busch Companies, Inc. (the "Company")
amended and restated the Anheuser-Busch Deferred Income Stock Purchase & Savings
Plan (for Certain Hourly Employees of Anheuser-Busch Companies, Inc. and its
Subsidiaries) ("the Plan") and has subsequently amended the Plan one time. The
Company reserved the right to further amend the Plan from time to time and
hereby amends the Plan as follows:
1. Section 1.2 of the Plan is hereby amended to read in its entirety as follows:
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, and the
Trustee. 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 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 Shares
as to which no instructions have been received by the Trustee and voting
Unallocated Shared as described in Section 8.16, the Administrative Committee
shall be the named fiduciary. For purposes of tendering Unallocated Shares as
described in Section 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. Section 8.16 of the Plan is hereby amended to read in its entirety as
follows:
8.16 Voting of Shares. (a) Prior to each shareholder meeting, each
Participant (or, if deceased, the Participant's Beneficiary), shall be entitled
<PAGE>
to direct the Trustee to vote 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, the Company or the Committee shall 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 Share Equivalents which
such Participant is entitled to vote are to be voted at such meeting.
(b) 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.
(c) The Committee (as a named fiduciary) shall direct the Trustee as to the
manner in which all Unallocated Shares and any Share Equivalents as to which
proper voting instructions have not been timely received from Participants (or
Beneficiaries) are to voted.
IN WITNESS WHEREOF, the Company has executed this Amendment by and through its
authorized agent this _____ day of ___________, 1998, effective immediately.
ANHEUSER-BUSCH COMPANIES, INC.
By /s/ WILLIAM L. RAMMES
William L. Rammes
Vice President- Corporate
Human Resources
2
EXHIBIT 5.1
January 27, 1999
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-8 Relating to 500,000
shares of Common Stock, Par Value $1.00 Per Share, To Be
Issued Pursuant to Anheuser-Busch Deferred Income Stock
Purchase and Savings Plan (For Certain Hourly Employees of
Anheuser-Busch Companies, Inc. and its Subsidiaries)
Gentlemen:
I am an Associate General Counsel of Anheuser-Busch Companies, Inc. (the
"Company") and have represented the Company in connection with the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Hourly Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries) (the
"Plan"). I have examined such documents, records and matters of law as I have
deemed necessary for purposes of this opinion letter, and based thereupon I am
of the opinion that:
(1) The shares of common stock that may be issued pursuant to the Plan
will be, when issued in accordance with the Plan, duly authorized,
validly issued, fully paid and nonassessable.
(2) The participations in the Plan to be extended to participants in the
Plan will be, when extended in accordance with the Plan, validly
issued.
I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
registration statement on Form S-8 filed by the Company to effect registration
of the common stock under the Securities Act of 1933 and to the reference to me
under the caption "Interests of Named Experts and Counsel" therein.
Very truly yours,
/s/ THOMAS D. LARSON
Thomas D. Larson
Associate General Counsel
EXHIBIT 5.2
January 27, 1999
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-8 Relating to 500,000 shares of
Common Stock, Par Value $1.00 Per Share, To Be Issued Pursuant to
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(For Certain Hourly Employees of Anheuser-Busch Companies, Inc.
and its Subsidiaries)
Gentlemen:
I am an Associate General Counsel of Anheuser-Busch Companies, Inc. (the
"Company") and have represented the Company in connection with the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Hourly Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries), as
amended to the date hereof (the "Plan"). I have examined such documents, records
and matters of law as I have deemed necessary for purposes of this opinion
letter, and based thereupon I am of the opinion that the Plan is in compliance
with the applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
I hereby consent to the filing of this opinion letter as Exhibit 5.2 to the
registration statement on Form S-8 filed by the Company to effect registration
of the common stock under the Securities Act of 1933 and to the reference to me
under the caption "Interests of Named Experts and Counsel" therein.
Very truly yours,
/s/ ROBERTA WARREN
Roberta Warren
Associate General Counsel
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 3, 1998, which appears on
page 49 of the 1997 Annual Report to Shareholders of Anheuser-Busch Companies,
Inc., which is incorporated by reference in Anheuser-Busch Companies, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1997. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedule, which appears on page F-1 of such Annual Report on Form 10-K. We also
consent to the incorporation by reference in this Registration Statement of our
report dated July 31, 1998 on the Anheuser-Busch Deferred Income Stock Purchase
and Savings Plan's Annual Report on Form 11-K for the fiscal year ended March
31, 1998 (filed as Exhibit 99.3 to the Registrant's Form 10-K/A for the year
ended December 31, 1997). We also consent to references to us under the heading
"Interests of Named Experts and Counsel."
PRICEWATERHOUSECOOPERS LLP
St. Louis, Missouri
January 27, 1999
EXHIBIT 24.1
ANHEUSER-BUSCH COMPANIES, INC.
POWER OF ATTORNEY
Each of the undersigned directors and officers of Anheuser-Busch
Companies, Inc., a Delaware corporation (the "Company"), hereby appoints August
A. Busch III, W. Randolph Baker and JoBeth G. Brown, and each of them acting
singly, the true and lawful agents and attorneys of the undersigned, with full
power of substitution, to do all things and to execute all instruments which any
of them may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the proposed registration under said Act pursuant to a Registration Statement on
Form S-8 of 500,000 shares of the common stock of the Company for issuance and
sale under the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan
(For Certain Hourly Employees of Anheuser-Busch Companies, Inc. and its
Subsidiaries); this authorization to include the authority to sign the name of
each of the undersigned in the capacities indicated below to the said proposed
Registration Statement to be filed with the Securities and Exchange Commission
in respect of said securities, and to any amendments to said proposed
Registration Statement.
IN WITNESS WHEREOF, each of the undersigned has executed a copy of this
Power of Attorney as of November 25, 1998.
/s/ AUGUST A. BUSCH III /s/ W. RANDOLPH BAKER
- ------------------------------- ------------------------------
August A. Busch III W. Randolph Baker
Chairman of the Board Vice President and
and President Chief Financial Officer
(Principal Executive Officer) (Principal Financial Officer)
/s/ JOHN F. KELLY /s/ BERNARD A. EDISON
- ------------------------------- ------------------------------
John F. Kelly Bernard A. Edison
Vice President and Controller Director
(Principal Accounting Officer)
/s/ CARLOS FERNANDEZ G. /s/ JOHN E. JACOB
- ------------------------------- ------------------------------
Carlos Fernandez G. John E. Jacob
Director Director
/s/ JAMES R. JONES
- ------------------------------- ------------------------------
James R. Jones Charles F. Knight
Director Director
/s/ VERNON R. LOUCKS, JR. /s/ VILMA S. MARTINEZ
- ------------------------------- ------------------------------
Vernon R. Loucks, Jr. Vilma S. Martinez
Director Director
/s/ SYBIL C. MOBLEY /s/ JAMES B. ORTHWEIN
- ------------------------------- ------------------------------
Sybil C. Mobley James B. Orthwein
Director Director
/s/ WILLIAM PORTER PAYNE /s/ ANDREW C. TAYLOR
- ------------------------------- ------------------------------
William Porter Payne Andrew C. Taylor
Director Director
/s/ DOUGLAS A. WARNER III /s/ WILLIAM H. WEBSTER
- ------------------------------- ------------------------------
Douglas A. Warner III William H. Webster
Director Director
/s/ EDWARD E. WHITACRE, JR.
-------------------------------
Edward E. Whitacre, Jr.
Director
EXHIBIT 24.2
ANHEUSER-BUSCH DEFERRED INCOME STOCK PURCHASE AND SAVINGS PLAN
(FOR CERTAIN HOURLY EMPLOYEES OF
ANHEUSER-BUSCH COMPANIES, INC. AND ITS SUBSIDIARIES)
STOCK PLANS COMMITTEE
POWER OF ATTORNEY
Each of the undersigned members of the Stock Plans Committee of the
Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (For Certain
Hourly Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries)(the
"Plan") hereby appoints August A. Busch III, W. Randolph Baker and JoBeth G.
Brown, and each of them acting singly, the true and lawful agents and attorneys
of the undersigned, with full power of substitution, to do all things and to
execute all instruments which any of them may deem necessary or advisable to
enable the Plan to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the proposed registration under said Act
pursuant to a Registration Statement on Form S-8 of 500,000 shares of the common
stock of the Anheuser-Busch Companies, Inc. for issuance and sale under the
Plan; this authorization to include the authority to sign the name of each of
the undersigned in the capacities indicated below to the said proposed
Registration Statement to be filed with the Securities and Exchange Commission
in respect of said securities, and to any amendments to said proposed
Registration Statement.
IN WITNESS WHEREOF, each of the undersigned has executed a copy of this
Power of Attorney as of December 14, 1998.
/s/ JOBETH G. BROWN
-------------------------------
JoBeth G. Brown
Committee Member
/s/ JOHN D. CASTAGNO
-------------------------------
John D. Castagno
Committee Member
/s/ J. TIMOTHY FARRELL
-------------------------------
J. Timothy Farrell
Committee Member
/s/ MICHAEL J. FORTE
-------------------------------
Michael J. Forte
Committee Member
/s/ JACKIE G. JOHNSON
-------------------------------
Jackie G. Johnson
Committee Member
