<PAGE>
As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------
Whitman Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-6167838
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3501 Algonquin Road 60008
Rolling Meadows, Illinois (Zip Code)
(Address of principal executive offices)
Whitman Corporation Retirement Savings Plan
Whitman Corporation Master Retirement Savings Plan
(Full title of the plans)
William B. Moore
Senior Vice President, Secretary and General Counsel
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
(312) 818-5000
(Name, address, and telephone number,
including area code, of agent for service)
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate
Securities to be to be Price Per Offering Amount of
Registered Registered Share Price Registration Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,000,000 shares (1) 17.0625 (2) $34,125,000 (2) $9,487 (2)
$.01 par value
========================================================================================
</TABLE>
(1) This registration statement also covers such additional and
indeterminate number of shares as may become issuable because of the
provisions of the employee benefit plans described herein relating to
adjustments for changes resulting from a stock dividend, stock split or
similar change. 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 pursuant to the
employee benefit plans described herein.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low sale prices of the Common Stock
reported on the New York Stock Exchange on May 17, 1999.
==============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Whitman Corporation, a Delaware
corporation formerly known as Heartland Territories Holdings, Inc. (the
"Company"), the Whitman Corporation Retirement Savings Plan (the "RSP") and the
Whitman Corporation Master Retirement Savings Plan (the "Master RSP" and
together with the RSP, the "Plans") are incorporated herein by reference:
(a) The Company's proxy statement/prospectus dated April 19, 1999 which
was filed with the Commission on April 19, 1999 pursuant to the
Securities Act of 1933, as amended (the "Securities Act");
(b) All of the Company's other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since April 19, 1999;
(c) The description of the securities being registered contained in the
registration statement filed pursuant to Section 12 of the Exchange
Act relating to the Common Stock, including any amendments or
reports filed for the purpose of updating such description; and
(d) The consolidated financial statements and other information included
on pages F-1 through F-27 of the Annual Report on Form 10-K/A
(Commission File No. 001-04710) for the fiscal year ended January 2,
1999, which was filed with the Commission on April 16, 1999 by
Whitman Corporation, a Delaware corporation and a predecessor of the
Company ("Old Whitman"), prior to the merger of Old Whitman with and
into the Company on May 20, 1999; and
(e) The Annual Reports on Form 11-K for the fiscal year ended December
31, 1997, which were filed by the Plans with the Commission on June
29, 1998.
All documents filed by the Company or either of the Plans with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this registration statement and prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents listed above, being
hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations.
Article V of the Company's By-Laws provides for indemnification of any director,
officer, employee or agent of the Company, or any person serving in the same
capacity in any other enterprise at the request of the Company, under certain
circumstances. Article NINTH of the Company's Certificate of Incorporation
eliminates the liability of directors of the Company under certain circumstances
for breaches of fiduciary duty to the Company and its shareholders.
Directors and officers of the Company are insured, at the expense of the
Company, against certain liabilities which might arise out of their employment
and which might not be subject to indemnification under the By-Laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index for a list of Exhibits to this registration
statement.
The Company will submit or has submitted each Plan and any amendment to
either of them to the Internal Revenue Service (the "IRS") in a timely manner
and has made or will make all changes required by the IRS in order to qualify
each respective Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
Item 9. Undertakings.
(a) The Company 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;
II-2
<PAGE>
(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 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 a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (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
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the
II-3
<PAGE>
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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 Rolling Meadows, State of Illinois on this 21st
day of May, 1999.
WHITMAN CORPORATION
By: WILLIAM B. MOORE
---------------------------------
William B. Moore
Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated, on this 21st day of May, 1999.
Signature Title
--------- -----
*Bruce S. Chelberg Chairman and Chief Executive Officer
- --------------------------- (principal executive officer)
Bruce S. Chelberg
*Martin M. Ellen Senior Vice President and Chief
- --------------------------- Financial Officer
Martin M. Ellen (principal financial and accounting
officer)
*Herbert M. Baum Director
- ---------------------------
Herbert M. Baum
*Richard G. Cline Director
- ---------------------------
Richard G. Cline
*Pierre S. du Pont Director
- ---------------------------
Pierre S. du Pont
II-5
<PAGE>
*Archie R. Dykes Director
- ---------------------------
Archie R. Dykes
*Charles W. Gaillard Director
- ---------------------------
Charles W. Gaillard
*Jarobin Gilbert, Jr. Director
- ---------------------------
Jarobin Gilbert, Jr.
*Victoria B. Jackson Director
- ---------------------------
Victoria B. Jackson
*Charles S. Locke Director
- ---------------------------
Charles S. Locke
Director
- ---------------------------
Robert F. Sharpe, Jr.
Director
- ---------------------------
Karl von der Heyden
By: * WILLIAM B. MOORE
- ---------------------------
William B. Moore
Attorney-in-fact
II-6
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act of 1933,
as amended, the undersigned administrator of the Whitman Corporation Retirement
Savings Plan and the Whitman Corporation Master Retirement Savings Plan has duly
caused this registration statement to be signed on their respective behalf by
the undersigned, thereunto duly authorized, in the City of Rolling Meadows,
State of Illinois, on this 21st day of May, 1999.
WHITMAN CORPORATION RETIREMENT
SAVINGS PLAN
WHITMAN CORPORATION MASTER
RETIREMENT SAVINGS PLAN
By: PETER M. PEREZ
--------------------------------
Peter M. Perez
Administrator
II-7
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- -----------
4.1** Certificate of Incorporation of the Company
4.2** Certificate of Merger
4.3** Amended and Restated By-Laws of the Company
4.4* Whitman Corporation Retirement Savings Plan
4.5* Whitman Corporation Master Retirement Savings Plan
5* Opinion of Sidley & Austin
23.1* Consent of KPMG LLP (Chicago)
23.2* Consent of KPMG LLP (New York)
23.3* Consent of Sidley & Austin (contained in Exhibit 5)
24* Powers of Attorney
- ------------------------
* Filed herewith
** Incorporated by reference to the exhibits with the same document number
filed with the Company's Post-Effective Amendment No. 1 to Form S-4 on
Form S-8 (Registration No. 333-76549)
II-8
<PAGE>
Exhibit 4.4
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Whitman Corporation
---------------------------
WHITMAN
CORPORATION
RETIREMENT
SAVINGS PLAN
---------------------------
As Amended and Restated Effective January 1, 1998
<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Whitman Corporation Retirement Savings Plan
- ------------------------------------------------------------------------------
Whitman Corporation established the Whitman Corporation Retirement Savings Plan
for the benefit of eligible employees of the Company and its participating
affiliates. The Plan is intended to constitute a qualified profit sharing plan,
as described in Code Section 401(a), which includes a qualified cash or deferred
arrangement, as described in Code Section 401(k).
The Plan constitutes an amendment and restatement of the Whitman Corporation
Supplemental Retirement and Savings Plan, which was originally established
effective as of January 1, 1984, and the spinoff of liabilities and assets to
the Hussmann Corporation Retirement Savings Plan for Salaried Employees and the
Midas International Corporation Retirement Savings Plan for Salaried Employees
on or after January 1, 1998, the merger of the Lou Gen Ltd. Profit Sharing Plan
as of January 1, 1997, and the merger of Pepsi-Cola Bottling Company of Oshkosh,
Inc. and Beverage Bottlers Inc. 401(k) Plan as of July 1, 1995, and the merger
of Whitman Employee Stock Ownership Plan and Whitman Corporation Tax Reduction
Act Stock Ownership Plan prior to January 1, 1995. Notwithstanding any provision
of this Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with
Section 414(u) of the Internal Revenue Code.
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE I
DEFINITIONS..........................................................1
1.1 "Accounting Period".....................................1
1.2 "Accounts"..............................................1
1.3 "Accrued Benefit".......................................3
1.4 "Administrative Services Agreement".....................3
1.5 "Administrator".........................................3
1.6 "Appendix"..............................................3
1.7 "Applicable Election Period"............................3
1.8 "Authorized Leave of Absence"...........................4
1.9 "Beneficiary"...........................................4
1.10 "Board of Directors"....................................4
1.11 "Business Day"..........................................4
1.12 "CEO"...................................................4
1.13 "Change Date"...........................................4
1.14 "Commonly Controlled Entity"............................4
1.15 "Company"...............................................5
1.16 "Company Stock".........................................5
1.17 "Compensation"..........................................5
1.18 "Computation Period"....................................6
1.19 "Contract Administrator"................................6
1.20 "Contributions".........................................6
1.21 "Contribution Dollar Limit".............................6
1.22 "Contribution Election" or "Election"...................6
1.23 "Contribution Percentage"...............................6
1.24 "Conversion Election"...................................6
1.25 "Custodial Agreement"...................................7
1.26 "Custodian".............................................7
1.27 "Direct Rollover".......................................7
1.28 "Disability or Disabled"................................7
1.29 "Distributee"...........................................7
1.30 "Effective Date"........................................7
1.31 "Elective Deferral".....................................7
1.32 "Eligible Employee".....................................7
1.33 "Eligibility Service"...................................8
1.34 "Eligible Retirement Plan"..............................8
1.35 "Eligible Rollover Distribution"........................8
- i -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
1.36 "Employee"..............................................8
1.37 "Employer"..............................................8
1.38 "Employment Date".......................................9
1.39 "ERISA".................................................9
1.40 "Fiduciary".............................................9
1.41 "Highly Compensated Eligible Employee" or "HCE".........9
1.42 "Hour of Service"......................................11
1.43 "Hussmann".............................................11
1.44 "Hussmann Participant".................................12
1.45 "Hussmann Plan"........................................12
1.46 "Insurance Contract Arrangement".......................12
1.47 "Internal Revenue Code" or "Code"......................12
1.48 "Investment Election"..................................12
1.49 "Investment Fund" or "Fund"............................12
1.50 "Limited Deferrals"....................................12
1.51 "Midas"................................................12
1.52 "Midas Participant"....................................12
1.53 "Midas Plan"...........................................13
1.54 "Named Fiduciary"......................................13
1.55 "Non-Highly Compensated Employee" or "NHCE"............13
1.56 "Normal Retirement Date"...............................13
1.57 "Notice Date"..........................................13
1.58 "Participant"..........................................13
1.59 "Payment Date".........................................13
1.60 "Plan".................................................14
1.61 "Plan Year"............................................14
1.62 "QDRO".................................................14
1.63 "Qualified Joint and Survivor Annuity".................14
1.64 "Qualified Matching Contribution"......................14
1.65 "Related Plan".........................................14
1.66 "Rollover Contribution"................................15
1.67 "Settlement Date"......................................15
1.68 "Spousal Consent"......................................15
1.69 "Spouse"...............................................15
1.70 "Sweep Date"...........................................15
1.71 "Termination of Employment"............................15
1.72 "Trade Date"...........................................16
1.73 "Trust"................................................16
1.74 "Trust Agreement"......................................16
- ii -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
1.75 "Trust Fund"...........................................16
1.76 "Trustee"..............................................16
1.77 "Trustee Transfer".....................................16
1.78 "Unit Value"...........................................16
1.79 "Valuation Date".......................................17
1.80 "Year of Service"......................................17
ARTICLE II
PARTICIPATION.......................................................18
2.1 Eligibility............................................18
2.2 Reemployment...........................................18
2.3 Participation Upon Change of Job Status................18
ARTICLE III
PARTICIPANT CONTRIBUTIONS...........................................19
3.1 Pre-Tax Contribution Election..........................19
3.2 Election Procedures....................................19
3.3 Limitation of Elective Deferrals for all Participants..20
ARTICLE IV
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS..............................22
4.1 Pre-Tax Contributions..................................22
4.2 Matching Contributions.................................22
4.3 Pay Based Contributions................................23
4.4 Special Contributions..................................23
4.5 Miscellaneous..........................................24
ARTICLE V
ROLLOVERS...........................................................26
5.1 Rollovers..............................................26
- iii -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE VI
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS...................................27
6.1 Individual Participant Accounting......................27
6.2 Accounting for Investment Funds........................28
6.3 Accounts for QDRO Beneficiaries........................29
6.4 Special Accounting During Conversion Period............29
ARTICLE VII
INVESTMENT FUNDS AND ELECTIONS......................................31
7.1 Investment Funds.......................................31
7.2 Investment of Contributions............................31
7.3 Investment of Accounts.................................32
7.4 Establishment of Investment Funds......................32
7.5 Transition Rules.......................................32
ARTICLE VIII
VESTING AND FORFEITURES.............................................34
8.1 Fully Vested Contribution Accounts.....................34
ARTICLE IX
PARTICIPANT LOANS...................................................35
9.1 Participant Loans Permitted............................35
9.2 Loan Funding Limits....................................35
9.3 Maximum Number of Loans................................36
9.4 Source of Loan Funding.................................36
9.5 Interest Rate..........................................36
9.6 Repayment..............................................36
9.7 Repayment Hierarchy....................................36
9.8 Loan Application, Note and Security....................36
9.9 Default, Suspension and Acceleration Feature...........36
- iv -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE X
IN-SERVICE WITHDRAWALS..............................................38
10.1 Withdrawals for 401(k) Hardship........................38
10.2 Withdrawals for Participants over age 59 1/2 or who are
Disabled..............................................39
10.3 Withdrawals of Mature Amounts..........................40
10.4 Withdrawal Processing..................................40
ARTICLE XI
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT...........................................42
11.1 Request for Distribution of Benefits...................42
11.2 Deadline for Distribution..............................42
11.3 Payment Form and Medium................................43
11.4 Small Amounts Paid Immediately.........................43
11.5 Payment Within Life Expectancy.........................43
11.6 Incidental Benefit Rule................................44
11.7 QJSA and QPSA Information and Elections................44
11.8 Continued Payment of Amounts in Payment Status on
January 1, 1998.......................................46
11.9 TEFRA Transitional Rule................................46
11.10 Direct Rollover........................................46
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH...........................47
12.1 Payment to Beneficiary.................................47
12.2 Beneficiary Designation................................47
12.3 Benefit Election.......................................47
12.4 Payment Form...........................................48
12.5 Time Limit for Payment to Beneficiary..................48
12.6 QPSA Information and Election..........................49
12.7 Direct Rollover........................................49
- v -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE XIII
MAXIMUM CONTRIBUTIONS...............................................50
13.1 Definitions............................................50
13.2 Avoiding an Annual Excess..............................51
13.3 Correcting an Annual Excess............................51
13.4 Correcting a Multiple Plan Excess......................52
13.5 Two-Plan Limit.........................................52
13.6 Short Plan Year........................................53
13.7 Grandfathering of Applicable Limitations...............53
ARTICLE XIV
ADP AND ACP TESTS...................................................54
14.1 Contribution Limitation Definitions....................54
14.2 ADP and ACP Tests......................................55
14.3 Correction of ADP and ACP Tests........................56
14.4 Method of Calculation..................................56
14.5 Multiple Use Test......................................57
14.6 Adjustment for Investment Gain or Loss.................57
14.7 Required Records.......................................58
14.8 Incorporation by Reference.............................58
14.9 Collectively Bargained Employees.......................58
14.10 QSLOB..................................................58
ARTICLE XV
CUSTODIAL ARRANGEMENTS..............................................59
15.1 Custodial Agreement....................................59
15.2 Selection of Custodian.................................59
15.3 Custodian's Duties.....................................59
15.4 Separate Entity........................................59
15.5 Plan Asset Valuation...................................60
15.6 Right of Employers to Plan Assets......................60
- vi -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE XVI
ADMINISTRATION AND INVESTMENT MANAGEMENT............................61
16.1 General................................................61
16.2 Administrator Acting as Employer with Respect to the
Plan..................................................61
16.3 Administrator Acting as Employer with Respect to the
Trust.................................................62
16.4 Administrator as Named Fiduciary for the Plan..........62
16.5 Administrator as Named Fiduciary for the Trust.........63
16.6 Actions................................................63
16.7 Procedures for Designation of a Named Fiduciary........64
16.8 Compensation...........................................64
16.9 Discretionary Authority of each Named Fiduciary........64
16.10 Responsibility and Powers of the Administrator
Regarding Administration of the Plan..................65
16.11 Allocations and Delegations of Responsibility..........66
16.12 Bonding................................................67
16.13 Information to be Supplied by Employer.................67
16.14 Information to be Supplied by Named Fiduciary..........67
16.15 Misrepresentations.....................................67
16.16 Records................................................68
16.17 Plan Expenses..........................................68
16.18 Fiduciary Capacity.....................................68
16.19 Employer's Agent.......................................68
16.20 Plan Administrator.....................................68
16.21 Plan Administrator Duties and Power....................68
16.22 Named Fiduciary Decisions Final........................69
16.23 No Agency..............................................70
ARTICLE XVII
CLAIMS PROCEDURE....................................................71
17.1 Initial Claim for Benefits.............................71
17.2 Review of Claim Denial.................................71
- vii -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
ARTICLE XVIII
ADOPTION AND WITHDRAWAL FROM PLAN...................................73
18.1 Procedure for Adoption.................................73
18.2 Procedure for Withdrawal...............................73
ARTICLE XIX
AMENDMENT, TERMINATION AND MERGER...................................74
19.1 Amendments.............................................74
19.2 Plan Termination.......................................75
19.3 Plan Merger............................................76
ARTICLE XX
SPECIAL TOP-HEAVY RULES.............................................77
20.1 Application............................................77
20.2 Special Terms..........................................77
20.3 Minimum Contribution...................................81
20.4 Maximum Benefit Accrual................................81
ARTICLE XXI
MISCELLANEOUS PROVISIONS............................................82
21.1 Assignment and Alienation..............................82
21.2 Protected Benefits.....................................82
21.3 Plan Does Not Affect Employment Rights.................82
21.4 Deduction of Taxes from Amounts Payable................82
21.5 Facility of Payment....................................82
21.6 Source of Benefits.....................................83
21.7 Indemnification........................................83
21.8 Reduction for Overpayment..............................83
21.9 Limitation on Liability................................83
21.10 Company Merger.........................................83
21.11 Employees' Trust.......................................83
21.12 Gender and Number......................................84
21.13 Invalidity of Certain Provisions.......................84
21.14 Headings...............................................84
21.15 Uniform and Nondiscriminatory Treatment................84
- viii -
<PAGE>
Table of Contents
- -------------------------------------------------------------------------------
Page
21.16 Law Governing..........................................84
21.17 Military Service.......................................84
21.18 Notice and Information Requirements....................84
- ix -
<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE I
- -------------------------------------------------------------------------------
DEFINITIONS
-----------
The following sections of this Article I provide basic definitions of
terms used throughout the Plan, and whenever used herein in a capitalized form,
except as otherwise expressly provided, the terms shall be deemed to have the
following meanings:
1.1 "Accounting Period" means the periods designated by the
Administrator with respect to each Investment Fund not to exceed one year in
duration.
1.2 "Accounts" means the record of a Participant's interest in the
Plan's assets represented by his or her:
(a) "ESOP Account" which means a Participant's interest in the
Plan's assets composed of the amount allocated under the Plan, as of
January 1, 1998, if any (as identified by the Administrator),
(including amounts allocated from the Whitman Employee Stock Ownership
Plan prior to January 1, 1998, if any) which continue to be accounted
for under the Plan consistent with the former provisions of the Plan
(as identified by the Administrator) plus all income and gains credited
to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.
(b) "Former Matching Contribution Account" which means a
Participant's interest in the Plan's assets composed of the amount
allocated under the Plan prior to January 1, 1998, if any (as
identified by the Administrator), plus all income and gains credited
to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.
(c) "Matching Account" which means a Participant's interest in
the Plan's assets composed of Matching Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), an amount allocated from the Lou Gen Ltd. Profit
Sharing Plan as of January 1, 1998, if any, which continues to be
accounted for under the Plan (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(d) "Pay Based Account" which means a Participant's interest
in the Plan's assets composed of Pay Based Contributions allocated on
or after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), an
- 1 -
<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
amount allocated from the Lou Gen Ltd. Profit Sharing Plan as of
January 1, 1998, if any, which continues to be accounted for under the
Plan (as identified by the Administrator), plus all income and gains
credited to, and minus all losses, expenses, withdrawals and
distributions charged to, such Account.
(e) "Post-Tax Account" which means a Participant's interest in
the Plan's assets composed of post-tax contributions made prior to
January 1, 1998, an amount allocated from the Lou Gen Ltd. Profit
Sharing Plan as of January 1, 1998, if any, which continues to be
accounted for under the Plan (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(f) "Pre-Tax Account" which means a Participant's interest in
the Plan's assets composed of Pre-Tax Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), an amount allocated from the Pepsi-Cola General
Bottling Company of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k)
Plan prior to January 1, 1998, if any, and an amount allocated from the
PepsiCo Long Term Savings Program as of May 21, 1999 (or, if later, the
date of he transfer of assets and liabilities from the PepsiCo Long
Term Savings Program to the Plan), if any, which continues to be
accounted for under the Plan (as identified by the Administrative
Committee), plus all income and gains credited to, and minus all
losses, expenses, withdrawals and distributions charged to, such
Account.
(g) "QVEC Account" which means a Participant's interest in the
Plan's assets composed of the amount allocated under the Plan, as of
January 1, 1998, if any (as identified by the Administrator), an amount
allocated from the Lou Gen Ltd. Profit Sharing Plan as of January 1,
1998, if any, which continues to be accounted for under the Plan (as
identified by the Administrator), plus all income and gains credited
to, and minus all losses, expenses, withdrawals and distributions
charged to, such Account.
(h) "Rollover Account" which means a Participant's interest in
the Plan's assets composed of Rollover Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), an amount allocated from the Lou Gen Ltd. Profit
Sharing Plan as of January 1, 1998, if any, which continues to be
accounted for under the Plan (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(i) "Special Account" which means a Participant's interest in
the Plan's assets composed of Special Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
the Plan, as of January 1, 1998, if any (as identified by the
Administrator), an amount allocated from the Lou Gen Ltd. Profit
Sharing Plan as of January 1, 1998, if any, which continues to be
accounted for under the Plan (as identified by the Administrator), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(j) "TRASOP Account" which means a Participant's interest in
the Plan's assets composed of the amount allocated under the Plan, as
of January 1, 1998, if any (as identified by the Administrator),
(including amounts allocated from the Whitman Corporation Tax Reduction
Act Stock Ownership Plan, if any) which continue to be accounted for
under the Plan consistent with the former provisions of the Plan (as
identified by the Administrator) plus all income and gains credited to,
and minus all losses, expenses, withdrawals and distributions charged
to, such Account.
Notwithstanding the above, each of the Accounts for each Hussmann
Participant and Midas Participant shall be reduced to zero effective as of the
date of transfer of liabilities and assets of such Accounts to the Hussmann Plan
and Midas Plan, respectively.
1.3 "Accrued Benefit" means the shares or units held in or posted to
Accounts on the Settlement Date in accordance with the terms of this Plan,
including any applicable Administrative Services Agreement.
1.4 "Administrative Services Agreement" means a contractual arrangement
with, or if no separate contractual arrangement exists, that portion of an
Insurance Contract Arrangement with, a Trustee, Named Fiduciary or a Contract
Administrator which describes the services to be rendered by the Trustee, Named
Fiduciary or Contract Administrator to or on behalf of the Plan and which
Administrative Services Agreement is incorporated into and made a part of the
Plan.
1.5 "Administrator" means the Senior Vice-President-Human Resources of
Pepsi-Cola General Bottlers, Inc., or any person who shall succeed to the
functional responsibilities of said office.
1.6 "Appendix" means a written supplement attached to this Plan and
made a part hereof which has been added in accordance with the provisions of the
Plan.
1.7 "Applicable Election Period" means, with respect to an election
described in Section 11.3 to waive the Normal Form, a period of time beginning
90 days before the Payment Date and ending with the Payment Date, or if later,
at any time prior to the expiration of the 7-day period that begins the day
after the explanation of the Qualified Joint and Survivor Annuity is provided to
the Participant.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.8 "Authorized Leave of Absence" means an absence, with or without
Compensation, authorized on a nondiscriminatory basis by a Commonly Controlled
Entity under its standard personnel practices applicable to the Employee,
including any period of time during which such person is covered by a short-term
disability plan of his or her Employer. An Employee who leaves the service of a
Commonly Controlled Entity to enter the Armed Forces of the United States of
America and who reenters the service of the Commonly Controlled Entity with
reemployment rights under any statute granting reemployment rights to persons in
the Armed Forces shall be deemed to have been on an Authorized Leave of Absence.
The date that an Employee's Authorized Leave of Absence ends shall be determined
in accordance with the personnel policies of such Commonly Controlled Entity,
which ending date shall be no earlier than the date that the Authorized Leave of
Absence is scheduled to end, unless the Employee communicates to such Commonly
Controlled Entity that he or she is to have a Termination of Employment as of an
earlier date.
1.9 "Beneficiary" means any person designated by a Participant to
receive any benefits which shall be payable with respect to the death of a
Participant under the Plan or as a result of a QDRO.
1.10 "Board of Directors" means the board of directors of the Company.
1.11 "Business Day" means any day or part of a day on which the New
York Stock Exchange and the Trustee are open for business.
1.12 "CEO" means the Chief Executive Officer of the Company.
1.13 "Change Date" means the one or more dates during the Plan Year
designated by the Administrator as the dates available for implementing or
changing a Participant's Contribution Election.
1.14 "Commonly Controlled Entity" means (1) an Employer and any
corporation, trade or business, but only for so long as it and the Employer are
members of a controlled group of corporations as defined in Section 414(b) of
the Code or under common control as defined in Section 414(c) of the Code;
provided, however, that solely for purposes of the limitations of Code Section
415, the standard of control under Sections 414(b) and 414(c) of the Code shall
be deemed to be "more than 50%" rather than "at least 80%," (2) an Employer and
an organization, but only for so long as it and the Employer are, on and after
the Effective Date, members of an affiliated service group as defined in Section
414(m) of the Code, (3) an Employer and an organization, but only for so long as
the employees of it and the Employer are required to be aggregated, on and after
the Effective Date, under Section 414(o) of the Code, or (4) any other
organization designated as such by the Administrator.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.15 "Company" means Whitman Corporation or any successor corporation
by merger, consolidation, purchase, or otherwise, which elects to adopt the Plan
and the Trust.
1.16 "Company Stock" means common stock issued by Whitman Corporation.
1.17 "Compensation" means:
(a) for purposes of allocating Contributions and for purposes
of applying Section 415 of the Code to the Plan and its Participants
for any limitation year, such compensation, as determined by the
Administrator and satisfying the definition of compensation under
Section 415 of the Code (within the meaning of Treasury Regulation
1.415-2(d)(2) and (3)); provided however, for purposes of allocating
Contributions, a car allowance paid to an HCE shall be excluded; and
(b) for any determination period with respect to an applicable
provision of the Code other than Section 415, such compensation from a
Commonly Controlled Entity, as determined by the Administrator, and
which satisfies the requirements of Section 414(s) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner of Internal Revenue for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
twelve (12) months, over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than twelve (12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
determination periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
1.18 "Computation Period" means with respect to Eligibility Service,
the twelve (12) consecutive month period commencing with an Employee's
Employment Date and the Plan Year which includes the first anniversary of the
Employment Date and each subsequent Plan Year.
1.19 "Contract Administrator" means each individual and entity
designated by the Administrator or another Named Fiduciary, pursuant to this
Plan, to render services to the Plan or Trust as a Fiduciary.
1.20 "Contributions" means amounts contributed to the Plan by the
Employer or an Eligible Employee. Specific types of contributions include:
(a) "Matching". An amount contributed by the Employer
based upon the amount contributed by the eligible
Participant.
(b) "Pay Based". An amount contributed by the Employer
and allocated on a pay based formula to eligible
Participants' Accounts.
(c) "Pre-Tax". An amount contributed on a pre-tax basis
in conjunction with a Participant's Code Section
401(k) salary deferral agreement.
(d) "Special". An amount contributed by the Employer to
avoid prohibited discrimination under Section
401(a)(4) of the Code.
1.21 "Contribution Dollar Limit" means the annual limit imposed on each
Participant pursuant to Section 402(g) of the Code, which shall be seven
thousand dollars ($7,000) per calendar year (as indexed for cost of living
adjustments pursuant to Code Section 402(g)(5) and 415(d)).
1.22 "Contribution Election" or "Election" means the election made by a
Participant to reduce his or her Compensation by an amount equal to the product
of his or her Contribution Percentage and such Compensation from the Employer
subject to the Contribution Election.
1.23 "Contribution Percentage" means the percentage of a Participant's
Compensation which is to be contributed to the Plan by his or her Employer as a
Contribution.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.24 "Conversion Election" means an election by a Participant to change
the investment of all or some specified portion of such Participant's Accounts
by voice response to the telephone number provided by the Named Fiduciary to
whom it is spoken, or on such form that may be required by the Named Fiduciary
to whom it is delivered. No Conversion Election shall be deemed to have been
given to the Named Fiduciary unless it is complete and delivered in accordance
with the procedures established by such Named Fiduciary for this purpose.
1.25 "Custodial Agreement" means the Trust Agreement or an insurance
contract to provide for the holding of the assets of the Plan.
1.26 "Custodian" means the Trustee or an insurance company if the
contract issued by such company is not held by the Trustee.
1.27 "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
1.28 "Disability or Disabled" means the Participant is disabled for
purposes of the Employer's long term disability plan.
1.29 "Distributee" includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving Spouse and the
Employee's or former Employee's Spouse or former Spouse who is the alternate
payee under a QDRO are Distributees with regard to the interest of the Spouse or
former Spouse.
1.30 "Effective Date" means January 1, 1998, the date upon which the
provisions of this document become effective. In general, the provisions of this
document only apply to Participants who are Employees on or after the Effective
Date. However, investment and distribution provisions apply to all Participants
with Account balances to be invested or distributed after the Effective Date.
1.31 "Elective Deferral" means amounts subject to the Contribution
Dollar Limit.
1.32 "Eligible Employee" means any salaried Employee (including an
Employee on an Authorized Leave of Absence) of an Employer on and after the
Effective Date of the adoption of this Plan by the Employer, excluding any
salaried Employee:
(a) who is a member of a group of Employees represented by a
collective bargaining representative, unless a currently effective
collective bargaining agreement between his or her Employer and the
collective bargaining representative of the group of Employees of which
he or she is a member provides for coverage by the Plan;
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(b) who is considered an Employee solely because of the
application of Section 414(n) of the Code;
(c) who is not a U.S. citizen or a resident alien; and
(d) who is scheduled in Appendix 1.32.
1.33 "Eligibility Service" means the sum of an Employee's Years of
Service.
1.34 "Eligible Retirement Plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.35 "Eligible Rollover Distribution" means any distribution of all or
any portion of the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the joint
lives (or joint life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code; and the portion any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
1.36 "Employee" means any person who renders services as a common law
employee to a Commonly Controlled Entity or is on an Authorized Leave of
Absence, including the period of time before which the trade or business became
a Commonly Controlled Entity, but excluding the period of time after which it
ceases to be a Commonly Controlled Entity. No person who was hired through a
temporary agency (including but not limited to any leased Employee) shall be
considered an Employee and no person, the terms of whose services are governed
by an independent contractor or consulting agreement with an Employer, shall be
considered an Employee except to the extent explicitly provided to the contrary
in such agreement; provided, however, any individual considered an Employee of a
Commonly Controlled Entity under Section 414(n) of the Code shall be deemed
employed by the Commonly Controlled Entity for which the individual performed
services.
1.37 "Employer" means the Company and any Commonly Controlled Entity
which has adopted the Plan; provided, that an entity will cease to be an
Employer
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
when it ceases to be a Commonly Controlled Entity; provided further,
Hussmann and Midas will cease to be an Employer effective January 1, 1998.
1.38 "Employment Date" means the day an Employee first earns an Hour of
Service.
1.39 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Reference to any specific Section shall include such Section, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such Section.
1.40 "Fiduciary" means (a) any individual or entity who performs a
Fiduciary function under the Plan as defined in accordance with Section 3(21) of
ERISA; (b) such individual or entity which the Administrator or Employee
Benefits Committee, acting on behalf of the Plan Sponsor, designates to be a
Named Fiduciary with respect to such person's authority to control and manage
the operation and administration of the Plan or Trust; or (c) such individual or
entity which a Named Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary with respect to such person's authority to control and manage the
operation and administration of the Plan or Trust.
1.41 "Highly Compensated Eligible Employee" or "HCE" means a highly
compensated active employee or a highly compensated former employee.
A highly compensated active employee includes any Employee who performs
service for the Employer during the determination year and who, during the
look-back year: (i) received Compensation from the Employer in excess of $75,000
(as adjusted pursuant to Section 415(d) of the Code); (ii) received Compensation
from the Employer 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
an officer of the Employer and received Compensation during such year that is
greater than fifty percent (50%) of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code. The term highly compensated active employee
also includes: (i) Employees who are both described in the preceding sentence if
the term "determination year" is substituted for the term "look-back year" and
the Employee is one of the one-hundred (100) Employees who received the most
Compensation from the Employer during the determination year; and (ii) Employees
who are five percent (5%) owners at any time during the look-back year or
determination year.
If no officer has satisfied the Compensation requirement of (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 active employee.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve(12)-month period immediately preceding the
determination year. Pursuant to Code Section 414(q), the Administrator may elect
for the look-back year to be the calendar year ending with or within the
applicable Plan Year determination year.
If the Employer at all times during the Plan Year maintains significant
business activities (and employs Employees in such activities) in at least two
significantly separate geographic areas and satisfies such other conditions as
the Secretary of the Treasury may prescribe, the Administrator may elect to
apply a simplified definition of Highly Compensated Employee under the Plan by
substituting "$50,000" for "$75,000" in paragraph (i) above, and disregarding
paragraph (ii) above.
An Employee who performs services for the Employer any time during the
year is in the top-paid group of Employees for any year if such Employee is in
the group consisting of the top twenty percent (20%) of the Employees when
ranked on the basis of Compensation paid during such year. For purposes of
determining the number of Employees in the top-paid group (but not for
identifying the particular Employees in the top-paid group), the following
Employees shall be excluded:
(i) Employees who have not completed six (6) months of
service;
(ii) Employees who normally work less than seventeen and
one-half (17 1/2) Hours of Service per week;
(iii) Employees who normally work not more than six (6)
months during any year;
(iv) Employees who have not attained age twenty-one (21);
(v) Employees who are included in a unit of Employees
covered by a bona fide collective bargaining agreement with the
Employer; and
(vi) Employees who are nonresident aliens and who receive
no earned income (within the meaning of Section 911(d)(2) of the Code)
from the Employer which constitutes income from sources within the
United States (within the meaning of Section 861(a)(3) of the Code).
The Administrator may elect to apply paragraph (i), (ii) or (iv) of this Section
by substituting a shorter period of service, smaller number of hours or months,
or lower age for that specified in such subparagraphs.
A highly compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year,
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
performs no service for the Employer during the determination year, and was a
Highly Compensated Employee for either the separation year or any determination
year ending on or after the Employee's 55th birthday. If a former Employee
separated from service with the Employer prior to January 1, 1987, and the
Administrator irrevocably elects to apply this special rule, he is a Highly
Compensated Employee only if he or she was described in any one or more of the
following groups during either the Employee's separation year (or the year
preceding such separation year) or any year ending on or after such individual's
55th birthday (or the last year ending before such Employee's 55th birthday):
(i) 5-percent owner. The Employee was a five percent (5%)
owner of the Employer at any time during the year.
(ii) Compensation amount. The Employee received
Compensation in excess of $50,000 during the year.
The determination of who is a Highly Compensated Employee, including
the determination of the number and identity of Employees in the top-paid group,
the top 100 Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
1.42 "Hour of Service" means, as it applies to Computation Periods,
each hour for which an Employee is entitled to:
(a) payment for the performance of duties for any Commonly
Controlled Entity;
(b) payment from any Commonly Controlled Entity for any period
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
sickness, incapacity (including disability), layoff, leave of absence,
jury duty or military service;
(c) back pay, irrespective of mitigation of damages, by award
or agreement with any Commonly Controlled Entity (and these hours shall
be credited to the period to which the agreement pertains); or
(d) no payment, but is on an Authorized Leave of Absence (and
these hours shall be based upon his or her normally scheduled hours per
week or a 40 hour week if there is no regular schedule).
The crediting of hours shall be made in accordance with Department of Labor
regulation Section 2530.200b-2 and 3, but in no event shall hours be credited in
excess of the minimum number required thereunder for a Computation Period in
order
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to avoid a Break in Service. An equivalent number of hours shall be credited for
each payroll period in which the full-time Employee would be credited with at
least 1 hour. The payroll period equivalences are 190 hours monthly.
With respect to a person who becomes an Employee as the result of the
merger of Whitman Corporation and Heartland Territories Holdings, Inc., Hours of
Service shall include each hour which would have been an Hour of Service prior
to May 21, 1999, if Commonly Controlled Entity was determined by reference to
include Heartland Territories Holdings, Inc. rather than the Company.
1.43 "Hussmann" means Hussmann Corporation or a subsidiary of Hussmann
Corporation.
1.44 "Hussmann Participant" means a person who (1) has a balance in one
or more of the Accounts or had accrued a right to have a balance in one or more
of the Accounts; and (2) is an Employee of Hussmann or a person whose last
employment with a Commonly Controlled Entity was with Hussmann, or a Beneficiary
of either such person.
1.45 "Hussmann Plan" means the Hussmann Corporation Retirement Savings
Plan for Salaried Employees.
1.46 "Insurance Contract Arrangement" means a contractual arrangement
of one or more contracts with an entity, whether or not subject to the
applicable regulations of a State regarding reserve requirements, which assumes
the risk of payment of a Benefit primarily from its assets and which Insurance
Contract Arrangement is incorporated and made a part of this Plan, but only to
the extent it is specifically referred to herein and is not inconsistent with
the terms and provisions of this Plan.
1.47 "Internal Revenue Code" or "Code" means the Internal Revenue Code
of 1986, as amended, any subsequent Internal Revenue Code and final Treasury
Regulations. If there is a subsequent Internal Revenue Code, any references
herein to Internal Revenue Code Sections shall be deemed to refer to comparable
Sections of any subsequent Internal Revenue Code.
1.48 "Investment Election" means an election by which a Participant
directs the investment of his or her Contributions by voice response to the
telephone number provided by the Named Fiduciary to whom it is spoken, or on
such form that may be required by the Named Fiduciary to whom it is delivered.
No Investment Election shall be deemed to have been given to the Named Fiduciary
unless it is complete and delivered in accordance with the procedures
established by such Named Fiduciary for this purpose.
1.49 "Investment Fund" or "Fund" means one or more collective
investment funds, a pool of assets, or deposits with the Custodian, a mutual
fund, insurance contract, or managed pool of assets. The Investment Funds
authorized by the Administrator are listed in Appendix 7.4.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.50 "Limited Deferrals" means Elective Deferrals subject to the limits
of Code Section 401(a)(30).
1.51 "Midas" means Midas International Corporation or a subsidiary of
Midas International Corporation.
1.52 "Midas Participant" means a person who (1) has a balance in one or
more of the Accounts or had accrued a right to have a balance in one or more of
the Accounts; and (2) is an Employee of Midas or a person whose last employment
with a Commonly Controlled Entity was with Midas, or a Beneficiary of either
such person.
1.53 "Midas Plan" means the Midas International Corporation Retirement
Savings Plan for Salaried Employees.
1.54 "Named Fiduciary" means:
(a) with respect to the authority each has over management and
control of the Plan's administration and operation or discretionary
authority and control it may have with respect to the Plan, the
Administrator and such other person who may be designated to be a Named
Fiduciary pursuant to Article XVI;
(b) with respect to the management and control of the Plan's
assets or the discretionary authority it may have with respect to the
Plan's assets, the Trustee, the Administrator, and other such person
who may be designated to be a Named Fiduciary pursuant to Article XVI.
1.55 "Non-Highly Compensated Employee" or "NHCE" means an Employee who
is not an HCE.
1.56 "Normal Retirement Date" means the date a Participant attains
sixty-five (65) years of age.
1.57 "Notice Date" means the date established by the responsible Named
Fiduciary as the deadline for it to receive notification with respect to an
administrative matter in order to be processed as of a Change Date designated by
the responsible Named Fiduciary.
1.58 "Participant" means an Eligible Employee who begins to participate
in the Plan after completing the eligibility requirements. A Participant's
participation continues until his or her Termination of Employment and his or
her Accrued Benefit is distributed or forfeited; provided however, each Hussmann
Participant and Midas Participant shall cease to be a Participant on the date of
transfer of assets and liabilities to the Hussmann Plan or Midas Plan,
respectively.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.59 "Payment Date" means the date on or after the Settlement Date on
which a Participant's Accrued Benefit is distributed or commences to be
distributed, which date shall be at least the minimum number of days required by
law, if any, after the date the Participant has received any notice required by
law, if any. If a distribution is one to which Sections 411(a)(11) and 417 of
the Internal Revenue Code do not apply, such distribution may commence less than
thirty (30) days after the notice required under Section 401(a)(11) of the
Income Tax Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant
that the Participant has a right to a period of at least thirty (30)
days after receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option); and
(b) the Participant, after receiving the notice, affirmatively
elects a distribution.
Notwithstanding the determination of a Payment Date hereunder, distribution in
accordance with an affirmative election will not commence before the expiration
of the 7-day period that begins the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
1.60 "Plan" means the Whitman Corporation Retirement Savings Plan, as
set forth herein and as hereafter may be amended from time to time.
1.61 "Plan Year" means the Annual Accounting period of the Plan and
Trust which ends on each December 31.
1.62 "QDRO" means a domestic relations order which the Administrator
has determined to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code.
1.63 "Qualified Joint and Survivor Annuity" means the QJSA described in
Article XI.
1.64 "Qualified Matching Contribution" means a Matching Contribution
that is treated as a Pre-Tax Contribution and posted to the Pre-Tax Account.
1.65 "Related Plan" means:
(a) with respect to Section 401(k) and 401(m) of the Code, any
plan or plans maintained by a Commonly Controlled Entity which is
treated with this Plan as a single plan for purposes of Sections
401(a)(4) or 410(b) of the Code; and
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(b) with respect to Section 415 of the Code, any other defined
contribution plan or a defined benefit plan (as defined in Section
415(k) of the Code) maintained by a Commonly Controlled Entity,
respectively called a "Related Defined Contribution Plan" and a
"Related Defined Benefit Plan".
1.66 "Rollover Contribution" means:
(a) a rollover contribution as described in Section 402(c) of
the Code (or its predecessor); or
(b) a Trustee Transfer (1) to the Custodian of an amount by
the custodian of a retirement plan qualified for tax-favored treatment
under Code Section 401(a), which plan provides for such transfer; (2)
with respect to which the benefits otherwise protected by Code Section
411 in such transferor plan are no longer required by Code Section 411
to be protected in this Plan; and (3) which does not include amounts
subject to Code Section 401(k).
1.67 "Settlement Date" means the date on which the transactions from
the most recent Trade Date are settled.
1.68 "Spousal Consent" means the irrevocable written consent given by a
Spouse to a Participant's election (or waiver) of a specified form of benefit or
Beneficiary designation. The Spouse's consent must acknowledge the effect on the
Spouse of the Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal Consent shall be
valid only with respect to the spouse who signs the Spousal Consent and only for
the particular choice made by the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior election, waiver or
designation that required Spousal Consent at any time before the Sweep Date
associated with the Settlement Date upon which payments will begin. Spousal
Consent also means a determination by the Administrator that there is no Spouse,
the Spouse cannot be located or such other circumstances as may be established
by applicable law.
1.69 "Spouse" means a person, not of the same sex, who, as of the
earlier of a Participant's Payment Date and death, is alive and married to the
Participant within the meaning of the laws of the State of the Participant's
residence as evidenced by a valid marriage certificate or other proof acceptable
to the Administrator. A spouse who was the Spouse on the Payment Date but who is
divorced from the Participant at the Participant's death shall still be the
Spouse at the date of the Participant's death, except as otherwise provided in a
QDRO.
1.70 "Sweep Date" means the date established by the responsible Named
Fiduciary as the cutoff date and time for the responsible Named Fiduciary to
receive notification with respect to a financial transaction for an Accounting
Period in order
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to be processed with respect to a Trade Date designated by the responsible Named
Fiduciary.
1.71 "Termination of Employment" occurs when a person ceases to be an
Employee, as determined by the personnel policies of the Commonly Controlled
Entity to whom he or she rendered services; provided, however, where a Commonly
Controlled Entity ceases to be such with respect to an Employee as a result of
either an asset sale or stock sale an Employee of the Commonly Controlled Entity
shall be deemed not to have incurred a Termination of Employment: (a) unless the
Administrator shall make a determination that the transaction satisfies Section
401(k) of the Code, or if no such determination is made, until such Employee
ceases to be employed by the successor to the Commonly Controlled Entity; or (b)
if the Administrator shall make a Trustee Transfer of his or her Accrued
Benefit. Transfer of employment from one Commonly Controlled Entity to another
Commonly Controlled Entity shall not constitute a Termination of Employment for
purposes of the Plan.
1.72 "Trade Date" means the Business Day as of which a financial
transaction occurs, however with respect to a transaction involving Investment
Funds maintained on a share accounting methodology, the transaction shall be
executed based upon the daily average of the proceeds or purchase price of sales
and purchases, respectively, of a share.
1.73 "Trust" means the legal entity resulting from the agreement
between the Company and the Trustee and all amendments thereto, in which some or
all of the assets of this Plan will be received, held, invested and distributed
to or for the benefit of Participants and Beneficiaries.
1.74 "Trust Agreement" means the agreement between the Company and the
Trustee establishing the Trust, and any amendments thereto.
1.75 "Trust Fund" means any property, real or personal, received by and
held by the Trustee, plus all income and gains and minus all losses, expenses,
withdrawals and distributions chargeable thereto.
1.76 "Trustee" means any corporation, individual or individuals
designated in the Trust Agreement who shall accept the appointment as Trustee to
execute the duties of the Trustee as set forth in the Trust Agreement.
1.77 "Trustee Transfer" means (a) a transfer to the Custodian of an
amount by the custodian of a retirement plan qualified for tax-favored treatment
under Section 401(a) of the Code or by the trustee(s) of a trust forming part of
such a plan, which plan provides for such transfer; or (b) a Direct Rollover
within the meaning of Section 402(c)(8)(B) of the Code; provided that with
respect to any withdrawal or distribution from the Plan, a Participant may elect
a transfer to only one eligible retirement plan,
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
except as may otherwise be determined by the Administrator, in a uniform and
nondiscriminatory manner.
1.78 "Unit Value" means the value of a unit in the applicable
Investment Fund, as determined in good faith by the Trustee or the
Administrator.
1.79 "Valuation Date" means the close of business on each Business Day.
1.80 "Year of Service" means, as it applies to Eligibility Service,
each Computation Period in which an Employee is credited with at least 1,000
Hours of Service.
An Employee's service with a company, the assets of which are acquired
by a Commonly Controlled Entity, shall only be counted as employment with such
Commonly Controlled Entity in the determination of his or her Years of Service
if (1) the Administrator directs that credit for such service be granted in
Appendix 1.68, or (2) a qualified plan of the acquired company is subsequently
maintained by any Employer or Commonly Controlled Entity.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE II
- -------------------------------------------------------------------------------
PARTICIPATION
-------------
2.1 Eligibility. On or after the Effective Date as to each Employer:
(a) Participant on January 1, 1998. Each person who has an
Accrued Benefit on January 1, 1998 shall become a Participant as of
January 1, 1998.
(b) Participant in the Lou Gen Ltd. Profit Sharing Plan . Each
person who was a participant in the Lou Gen Ltd. Profit Sharing Plan
whose accrued benefit under the Lou Gen Ltd. Profit Sharing Plan was
(or is to be) transferred to this Plan shall become a Participant as of
January 1, 1998, or, if later, the date of such transfer.
(c) Participant in the PepsiCo Long Term Savings Program. Each
person who has become a participant in the PepsiCo Long Term Savings
Program (in accordance with Section 3.2 thereof) and who is an Eligible
Employee as a result of the merger of Whitman Corporation and Heartland
Territories Holdings, Inc. shall be a Participant as of May 21, 1999.
(d) Other Eligible Employee. Each other Eligible Employee
shall become a Participant on the first day of the month on or after
the date he or she completes at least one year of Eligibility Service.
2.2 Reemployment.
(a) Eligible Employee Was Previously a Participant. An
Eligible Employee who previously was a Participant prior to his or her
Termination of Employment shall become a Participant on the first day
he or she earns an Hour of Service.
(b) Eligible Employee Had a Termination. An Eligible Employee
who previously completed the service requirement to become a
Participant and who had a Termination of Employment before he or she
became a Participant shall be eligible to become a Participant on the
later of (1) the date he or she would have become a Participant but for
his or her Termination of Employment, or (2) the date he or she
performs an Hour of Service.
2.3 Participation Upon Change of Job Status. An Employee who is not an
Eligible Employee shall become a Participant on the later of (1) the date he or
she would have become a Participant had he or she always been an Eligible
Employee, or (2) the date he or she becomes an Eligible Employee.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE III
- -------------------------------------------------------------------------------
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Pre-Tax Contribution Election.
(a) A Participant who is an Eligible Employee and who desires
to have Pre-Tax Contributions made on his or her behalf by his or her
Employer shall file a Contribution Election pursuant to procedures
specified by the responsible Named Fiduciary specifying his or her
Contribution Percentage of not less than two percent (2.00%) nor more
than ten percent (10%) (stated as a whole integer percentage) and
authorizing the Compensation otherwise payable to him or her to be
reduced.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year
the Administrator may determine that the maximum Contribution
Percentage shall be greater or lesser than the percentages set forth in
Subsection (a) hereof. Otherwise, the maximum Contribution Percentage
as provided in Subsection (a) hereof shall apply.
(c) A Participant's Contribution Election shall be effective
only with respect to Compensation not yet paid as of the date the
Contribution Election is effective. A Contribution Election received on
or before a Notice Date shall become initially effective with respect
to payroll cycles ended after the applicable Change Date or if
reemployed on the first day of the next month. However, the
Administrator, in its sole discretion, may declare an additional window
period to Participants. Any Contribution Election which has not been
properly completed or which does not contain a properly completed
Investment Election will be deemed not to have been received and be
void.
3.2 Election Procedures. A Participant's Contribution Election shall
continue in effect (with automatic adjustment for any change in his or her
Compensation) until the earliest of the date (1) his or her Contribution
Election is changed in accordance with paragraph (a) hereof; (2) he or she
ceases to be paid as an Eligible Employee; or (3) his or her Contribution
Election is cancelled in accordance with paragraph (b) hereof.
(a) Changing the Election. A Participant may increase or
decrease his or her Contribution Percentage (subject to the percentage
limits stated above) only once each Change Date by making a new
Contribution Election, pursuant to procedures specified by the
responsible Named Fiduciary, on which is specified the amount of the
Contribution Percentage.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(1) If such Contribution Election is received by
the Notice Date, the change shall be
effective with respect to the first payroll
cycle ended after the Change Date.
(2) However, if the Administrator deems it
necessary, the Administrator may specify an
additional window period to Participants.
(3) The amount of increase or decrease of such
Contribution Percentage shall be effective
only with respect to Compensation not yet
paid.
(4) Any Contribution Election which has not been
properly completed will be deemed not to
have been received and be void.
(b) Canceling the Election. A Participant desiring to cancel
his or her existing Contribution Election and reduce his or her
Contribution Percentage to zero must make a new Contribution Election,
pursuant to procedures specified by the responsible Named Fiduciary.
The responsible Named Fiduciary will establish procedures, to be
administered in a uniform and nondiscriminatory manner, for allowing a
Participant to cancel his or her Contribution Election. Any
Contribution Election received on or before a Notice Date shall become
effective with respect to the payroll cycle ended after the next Change
Date. A Participant who is an Eligible Employee and who has cancelled
his or her Election may again make a Contribution Election at any time.
If such Contribution Election is received by the Notice Date, it shall
become effective with respect to the first payroll cycle ended after
the next Change Date. Any Participant who has improperly completed a
Contribution Election will be deemed not to have made an Election.
3.3 Limitation of Elective Deferrals for all Participants. A
Participant's Limited Deferrals for any calendar year shall not exceed the
Contribution Dollar Limit. If a Participant advises the Administrator that he or
she has Elective Deferrals (reduced by Elective Deferrals previously distributed
or which are recharacterized as a result of the application of Code Section
401(k)(3) to such Participant) in excess of the Contribution Dollar Limit
("Excess Deferral"), the Administrator shall return such Excess Deferrals for
the taxable year to the Participant. To the extent the Participant's Limited
Deferrals exceed the Contribution Dollar Limit, the Employer may notify the Plan
on behalf of the Participant (and "Excess Deferral" shall be calculated by
taking into account only Limited Deferrals). If such advice was received by the
Administrator during the taxable year, the Plan shall distribute the Excess
Deferral as soon as administratively feasible. If such advice was received by
the Administrator after the taxable year but no later than March 1 following the
close of the taxable
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
year, the Administrator shall cause the Plan to return such Excess Deferral no
later than April 15 immediately following the end of such taxable year, adjusted
by income allocable to that amount.
The net investment gain or loss associated with the Excess Deferral is
calculated as follows:
G
E x -------- x (1 + (10% x ~ M ))
(AB-G)
where:
E = the Excess Deferral amount,
G = the net gain or loss for the Plan Year in the
Participant's Pre-Tax Account,
AB = the total value of the Participant's Pre-Tax Account,
determined as of the end of the calendar year being
corrected,
M = the number of full months from the calendar year end
to the date the excess amount is paid, plus one for
the month during which payment is to be made if
payment will occur after the 15th of that month.
If the application of the limitations in this Section results in a reduction of
previously contributed Pre-Tax Contributions on behalf of a Participant,
Matching Contributions allocable with respect thereto (prior to such reduction)
which are not distributed under the ACP Test shall be forfeited.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE IV
- -------------------------------------------------------------------------------
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------
4.1 Pre-Tax Contributions.
----------------------
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the terms of this Plan, for each period for which a Contribution
Election is in effect, the Employer shall contribute to the Plan on
behalf of each Participant an amount equal to the amount designated by
the Participant as a Pre-Tax Contribution on his or her Contribution
Election.
(b) Allocation. The Pre-Tax Contribution shall be allocated to
the Pre-Tax Account of the Participant with respect to whom the amount
is paid.
(c) Timing, Medium and Posting. Pre-Tax Contributions shall be
paid to the Custodian in cash and posted to each Participant's Pre-Tax
Account by the Administrator as soon as such amounts can reasonably be
balanced against the specific amount made on behalf of each
Participant. Pre-Tax Contributions shall be paid to the Custodian not
later than the fifteenth (15th) day of the month next following the
month in which amounts are deducted from the Participant's
Compensation.
4.2 Matching Contributions.
-----------------------
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each period for which Participants' Contributions are
made, the Employer shall make Matching Contributions as described in
the following Allocation Method paragraph on behalf of each Participant
who contributed during the period and was an Eligible Employee at any
time during each payroll period.
(b) Allocation Method. The Matching Contributions for each
period shall total one hundred percent (100%) of each eligible
Participant's Pre-Tax Contributions for the period, provided that no
Matching Contributions shall be made based upon a Participant's
Contributions in excess of six percent (6%) of his or her Compensation.
The Employer may change the one hundred percent (100%) matching rate or
the six percent (6%) of considered Compensation to any other
percentages, including zero (0%).
(c) Timing, Medium and Posting. The Employer shall make each
period's Matching Contribution in cash as soon as is feasible, and not
later
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
than the Employer's federal tax filing date, including extensions, for
deducting such Contribution. The Administrator shall post such amount
to each Participant's Matching Account once the total Contribution
received by the Custodian has been balanced against the specific amount
to be credited to each Participant's Matching Account.
(d) Compensation. Compensation from the Employer shall be
measured by the period (not to exceed the Plan Year) for which the
Contribution is being made provided the Eligible Employee is a
Participant during such period.
4.3 Pay Based Contributions.
------------------------
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each Plan Year, the Employer may make a Pay Based
Contribution in an amount determined by the Whitman Corporation on
behalf of each Participant who was an Eligible Employee on the last day
of each Plan Year. In addition, such Contribution shall be made on
behalf of each Participant who ceased being an Employee during the
period after having attained his or her Normal Retirement Date, or by
reason of his or her Disability or death.
(b) Allocation Method. The Pay Based Contribution for each
period shall be allocated among eligible Participants in direct
proportion to their Compensation from the Employer.
(c) Timing, Medium and Posting. The Employer shall make each
period's Pay Based Contribution in cash as soon as is feasible, and not
later than the Employer's federal tax filing date, including
extensions, for deducting such Contribution. The Administrator shall
post such amount to each Participant's Pay Based Account once the total
Contribution received by the Custodian has been balanced against the
specific amount to be credited to each Participant's Pay Based Account.
(d) Compensation. Compensation from the Employer shall be
measured by the period (not to exceed the Plan Year) for which the
Contribution is being made provided the Eligible Employee is a
Participant during such period.
4.4 Special Contributions.
----------------------
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each Plan Year, the Employer may make a Special
Contribution in an amount
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
determined by the Administrator on behalf of each Non-Highly
Compensated Employee Participant who was an Eligible Employee at any
time during the Plan Year.
(b) Allocation Method. The Special Contribution for each
period shall be allocated among eligible Participants as determined by
the Administrator, subject to a maximum dollar amount which may be
contributed on behalf of any Participant as determined by the
Administrator.
(c) Timing, Medium and Posting. The Employer shall make each
period's Special Contribution in cash as soon as is feasible, but no
later than twelve (12) months after the end of the Plan Year to which
it is allocated. The Administrator shall post such amount to each
Participant's Special Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be
credited to each Participant's Special Account.
(d) True-Up Contribution. For each Participant who is an
Employee on the last Business Day of the Plan Year and who has elected
to contribute at least six percent (6%) of his or her Compensation as a
Pre-Tax Contribution for all periods during such Plan Year in which he
or she could make Pre-Tax Contributions, the Employer shall make a
Matching Contribution equal to the least of:
(1) six percent (6%) of the Participant's
Compensation for the Plan Year;
(2) the Participant's Pre-Tax Contributions for
the Plan Year; or
(3) six percent (6%) of the dollar limit in Code
Section 401(a)(17),
minus the aggregate amount of any Matching Contribution already made
for the Participant under Section 4.2 hereof for the Plan Year.
(e) Compensation. Compensation shall be measured by the period
(not to exceed the Plan Year) for which the Contribution is being made,
provided the Eligible Employee is a Participant during such period.
4.5 Miscellaneous.
--------------
(a) Deduction Limits. In no event shall the Employer
Contributions for a Plan Year exceed the maximum the Company estimates
will be deductible (or which would be deductible if the Employers had
taxable income) by any
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Employer or Commonly Controlled Entity under Section 404 of the Code
("Deductible Amount"). Any amount in excess of the Deductible Amount
shall not be contributed in the following order of Contribution type,
to the extent needed to eliminate the excess:
(1) Each Participant's allocable share of
Pre-Tax Contributions for the Plan Year will
be reduced by an amount equal to the excess
of the Participant's Pre-Tax Contributions
over an amount which bears the same ratio to
the amount of Pre-Tax Contributions made to
the Plan on behalf of such Participant
during the Plan Year as the Deductible
Amount available for the Plan Year (reduced
by the total amount of other types of
Employer Contributions for the Plan Year)
bears to the aggregate Pre-Tax Contributions
made to the Plan on behalf of all
Participants subject to such Deductible
Amount during the Plan Year (before the
application of this provision).
(2) If the application of Section (a)(1) would
result in a reduction of a Participant's
Pre-Tax Contributions which are matched by
Matching Contributions, the rate at which
Pre-Tax Contributions are reduced shall be
offset by a reduction for each Matching
Contribution not made as a result.
(3) Pay Based Contributions.
(b) Profit Sharing Plan. Notwithstanding anything herein to
the contrary, the Plan shall constitute a profit sharing plan for all
purposes of the Code.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE V
- -------------------------------------------------------------------------------
ROLLOVERS
---------
5.1 Rollovers. The Administrator may authorize the Custodian to accept
a Rollover Contribution from an Eligible Employee in cash, even if he or she is
not yet a Participant. The Employee shall furnish satisfactory evidence to the
Administrator that the amount is eligible for rollover treatment. Such amount
shall be posted to the Employee's Rollover Account by the Administrator as of
the date received by the Custodian.
If it is later determined that an amount transferred pursuant to the
above paragraph did not in fact qualify as a Rollover Contribution, the balance
credited to the Employee's Rollover Account shall immediately be (1) segregated
from all other Plan assets, (2) treated as a non-qualified trust established by
and for the benefit of the Employee, and (3) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the
Plan.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VI
- -------------------------------------------------------------------------------
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS
---------------------------------
6.1 Individual Participant Accounting.
----------------------------------
(a) Account Maintenance. The responsible Named Fiduciary shall
cause the Accounts for each Participant to reflect transactions
involving assets of the Accounts in accordance with this Article.
Financial transactions during or with respect to an Accounting Period
shall be accounted for at the individual Account level by "posting"
each transaction to the appropriate Account of each affected
Participant. Participant Account values shall be maintained in units.
At any point in time, the value of a Participant's Accrued Benefit
shall be equal to the net Unit Value of his or her Account determined
by using the most recent Trade Date values provided by the Custodian.
(b) Trade Date Accounting and Investment Cycle. For any
transaction to be processed as of a Trade Date, the responsible Named
Fiduciary must receive instructions by the Sweep Date and such
instructions shall apply only to amounts held in or posted to the
Accounts as of the Trade Date. Financial transactions in an Investment
Fund shall be posted to a Participant's Account as of the Trade Date
and based upon the Trade Date values provided by the Custodian. All
transactions shall be effected on the Settlement Date relating to the
Trade Date (or as soon as is administratively feasible).
(c) Suspension of Transactions. Whenever the responsible Named
Fiduciary considers such action to be in the best interest of the
Participants, the Administrator in its discretion may suspend from time
to time the Trade Date.
(d) Temporary Investment. To the extent practicable, the
responsible Named Fiduciary shall direct the Custodian to make
temporary investments in a short term interest fund of assets in an
Account held pending a Trade Date.
(e) How Fees and Expenses are Charged to Participants. Account
maintenance fees to the extent not paid by the Employer shall be
charged prorata to each Participant's Account on the basis of each
Participant's Accrued Benefit, provided that no fee shall reduce a
Participant's Account balance below zero. Transaction type fees (such
as special asset fees, Conversion Election change fees, etc.) shall be
charged to the Accounts involved in the transaction. Fees and expenses
incurred for the management and maintenance of Investment Funds shall
be charged at the Investment Fund
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
level and reflected in the net gain or loss of each Fund to the extent
not paid by the Employer.
(f) Error Correction. The Administrator may correct any errors
or omissions in the administration of the Plan by restoring or charging
any Participant's Accrued Benefit with the amount that would be
credited or charged to the Account had no error or omission been made.
Funds necessary for any such restoration shall be provided through
payment made by the responsible Named Fiduciary.
(g) Accounting for Participant Loans. Participant loans shall
be held in a separate Fund for investment only by such Participant and
accounted for in dollars as an earmarked asset of the borrowing
Participant's Account.
6.2 Accounting for Investment Funds.
--------------------------------
(a) Unit Accounting. The investments in each Investment Fund
designated in Appendix 7.4 shall be maintained in full and fractional
units. The responsible Named Fiduciary is responsible for determining
the number of full and fractional units of each such Fund. To the
extent an Investment Fund is comprised of a collective investment fund
of the Custodian, the net asset and unit values shall be determined in
accordance with the rules governing such collective investment funds,
which are incorporated herein by reference. Fees and expenses incurred
for the management and maintenance of Investment Funds shall be charged
at the Investment Fund level and reflected in the net gain or loss of
each Fund to the extent not paid by the Employer.
(b) Accounting for Company Stock. The following additional
rules shall apply to the Company Stock Fund:
(1) Shareholder Rights. Shareholder Rights with
respect to all Company Stock in an Account
shall be exercised by the Trustee in
accordance with directions from the
Participant pursuant to the procedures of
the Trust Agreement.
(2) Tender Offer. If a tender offer is commenced
for Company Stock, the provisions of the
Trust Agreement regarding the response to
such tender offer, the holding and
investment of proceeds derived from such
tender offer and the substitution of new
securities for such proceeds shall be
followed.
(3) Dividends and Income. Dividends (whether in
cash or in property) and other income
received by the Custodian in
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
respect of Company Stock shall be reinvested
in Company Stock and shall constitute income
and be recognized on an accrual basis for
the Accounting Period in which occurs the
record date with respect to such dividend;
provided that, with respect to any dividend
which is reflected in the market price of
the underlying stock, the Administrator
shall direct the Custodian during such
trading period to trade such stock the
regular way to reflect the value of the
dividend, and all Fund transfers and cash
distributions shall be transacted
accordingly with no accrual of such
dividend, other than as reflected in such
market price.
(4) Transaction Costs. Any brokerage
commissions, transfer taxes, transaction
charges, and other charges and expenses in
connection with the purchase or sale of
Company Stock shall be added to the cost
thereof in the case of a purchase or
deducted from the proceeds thereof in the
case of a sale; provided, however, where the
purchase or sale of Company Stock is with a
"disqualified person" as defined in Section
4975(e)(2) of the Code or a "party in
interest" as defined in Section 3(14) of
ERISA, no commissions may be charged with
respect thereto.
6.3 Accounts for QDRO Beneficiaries. A separate Account shall be
established for a Beneficiary entitled to any portion of a Participant's Account
under a QDRO as of the date and in accordance with the directions specified in
the QDRO. Such Account shall be valued and accounted for in the same manner as
any other Account.
(a) Investment Direction. A QDRO Beneficiary may direct the
investment of such Account in the same manner as any other Participant.
(b) Distributions. A QDRO Beneficiary shall be entitled to
payment as provided in the QDRO and permissible under the otherwise
applicable terms of this Plan, regardless of whether the Participant is
an Employee, and to name a Beneficiary as specified in the QDRO.
(c) Participant Loans. A QDRO Beneficiary shall not be
entitled to borrow from his or her Account. If a QDRO specifies that
the QDRO Beneficiary is entitled to any portion of the Account of a
Participant who has an outstanding loan balance, all outstanding loans
shall continue to be held in the Participant's Account and shall not be
divided between the Participant's and QDRO Beneficiary's Accounts.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
6.4 Special Accounting During Conversion Period. The responsible Named
Fiduciary and Custodian may use any reasonable accounting methods in performing
their respective duties during the period of converting the prior accounting
system of the Plan and Trust to conform to the individual Participant accounting
system described in this Section. This includes, but is not limited to, the
method for allocating net investment gains or losses and the extent, if any, to
which contributions received by and distributions paid from the Trust during
this period share in such allocation. All or a portion of the Trust assets may
be held, if necessary, in a short term interest bearing vehicle, which may
include deposits of the Trustee, during the conversion period for establishing
such individual Participant Accounts.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VII
- -------------------------------------------------------------------------------
INVESTMENT FUNDS AND ELECTIONS
------------------------------
7.1 Investment Funds. Except for a Participant's loan Account, the
Trust shall be maintained in various Investment Funds. The Administrator may
change the number or composition of the Investment Funds, subject to the terms
and conditions agreed to with the Custodian.
7.2 Investment of Contributions.
----------------------------
(a) Investment Election. Each Participant may direct the
Trustee, by submission to the responsible Named Fiduciary of a
completed Investment Election provided for that purpose by the
responsible Named Fiduciary, to invest Contributions posted to his or
her Accounts in one or more Investment Funds. If the Administrator
directs, for any Accounting Period, Contributions with respect to which
the Participant has investment control may be invested separately in
Funds. Notwithstanding the above, no Investment Election may be made by
a Participant or Beneficiary which directs the investment of any
Contributions into the PepsiCo Stock Fund.
(b) Effective Date of Investment Election; Change of
Investment Election. A Participant's initial Investment Election will
be effective with respect to a Fund on the Trade Date which relates to
the Sweep Date on which or prior to which the Investment Election is
received pursuant to procedures specified by the responsible Named
Fiduciary. Any Investment Election which has not been properly
completed will be deemed not to have been received. A Participant's
Investment Election shall continue in effect, notwithstanding any
change in his or her Compensation or his or her Contribution
Percentage, until the earliest of (1) the effective date of a new
Investment Election, or (2) the date he or she ceases to be paid as an
Eligible Employee. A change in Investment Election shall be effective
with respect to a Fund on the Trade Date which relates to the Sweep
Date on which or prior to which the Administrator receives the
Participant's new Investment Election. Any Investment Election which
has not been properly completed will be deemed not to have been
received.
(c) Switching Fees. A reasonable processing fee may be charged
directly to a Participant's Account for Investment Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
7.3 Investment of Accounts.
-----------------------
(a) Conversion Election. Notwithstanding a Participant's
Investment Election, a Participant or Beneficiary may direct the
Trustee, by submission of a completed Conversion Election provided for
that purpose to the responsible Named Fiduciary, to change the interest
his or her Accrued Benefit has in one or more Investment Funds;
provided however, no Conversion Election may be made by a Participant
or Beneficiary which directs the investment of any part of his or her
Accrued Benefit into the PepsiCo Stock Fund.
(b) Effective Date of Conversion Election. A Conversion
Election to change a Participant's or Beneficiary's investment of his
or her Accrued Benefit in one Investment Fund to another Fund shall be
effective with respect to such Funds on the Trade Date(s) which relates
to the Sweep Date on which or prior to which the Election is received
pursuant to procedures specified by the responsible Named Fiduciary.
Notwithstanding the foregoing, to the extent required by any provisions
of an Investment Fund, the effective date of any Conversion Election
may be delayed or the amount of any permissible Conversion Election may
be reduced. Any Conversion Election which has not been properly
completed will be deemed not to have been received.
(c) Switching Fees. A reasonable processing fee may be charged
directly to a Participant's Account for Conversion Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
7.4 Establishment of Investment Funds. The Administrator shall cause to
be established one or more Investment Funds set forth in Appendix 7.4. In
addition, the Administrator may, from time to time, in its discretion:
(a) limit investments in or transfers from an Investment
Fund;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise reorganize an
existing Investment Fund; or
(d) add new Investment Funds to Appendix 7.4 which are
available through the Trust.
7.5 Transition Rules. Effective as of the date any Investment Fund is
added or deleted, each Participant and Beneficiary shall have the opportunity to
submit new Investment Elections and Conversion Elections to the responsible
Named Fiduciary no later than the applicable Sweep Date. The responsible Named
Fiduciary and Custodian may use any reasonable accounting methods in performing
their respective duties during the period of transition from one Investment Fund
to another, including, but not limited to:
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(a) designating into which Investment Fund a Participant's
Accrued Benefit will be invested if the Participant fails to submit a
proper Conversion Election;
(b) the method for allocating net investment gains or losses
and the extent, if any, to which amounts received by and distributions
paid from the Trust during this period share in such allocation;
(c) investing all or a portion of the Trust's assets in a
short-term, interest-bearing Fund during such transition period; or
(d) delaying any Trade Date during a designated transition
period or changing any Notice Date, Sweep Date or Change Date during
such transition period.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VIII
- -------------------------------------------------------------------------------
VESTING AND FORFEITURES
-----------------------
8.1 Fully Vested Contribution Accounts.
-----------------------------------
A Participant who is an Employee on January 1, 1998, shall be
fully vested and have a nonforfeitable right to his or her Accrued Benefit in
all Accounts at all times. A Participant who is not an Employee on or after
January 1, 1998 shall have a vested and nonforfeitable right to his or her
Accrued Benefit in the manner determined under this Plan as it existed on his or
her Termination of Employment.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE IX
- -------------------------------------------------------------------------------
PARTICIPANT LOANS
-----------------
9.1 Participant Loans Permitted. The Administrator is authorized to
establish and administer a loan program for a Participant who is an Eligible
Employee or a former Eligible Employee who is a "party in interest" under ERISA
pursuant to the terms and conditions set forth in this Article. All loan limits
are determined as of the Trade Date the Trustee reserves funds for the loan. The
funds will be disbursed to the Participant as soon as is administratively
feasible after the next following Settlement Date.
9.2 Loan Funding Limits.
--------------------
The loan amount must meet the following limits:
(a) Plan Minimum Limit. The minimum amount for any loan is
$1,000.00.
(b) Plan Maximum Limit. Subject to the legal limit described
in (c) below, the maximum a Participant may borrow, including the
outstanding balance of existing Plan loans, is fifty percent (50%) of
vested balance of the following Accounts:
Pre-Tax Account
Special Account
Matching Account
Pay Based Account Former Matching
Contribution Account ESOP Account
TRASOP Account Rollover Account and
Post-Tax Account.
(c) Legal Maximum Limit. The maximum a Participant may borrow,
including the outstanding balance of existing loans, is based upon the
value of his or her vested interest in this Plan and all other
qualified plans maintained by a Commonly Controlled Entity (the "Vested
Interest"). The maximum amount is equal to fifty percent (50%) of his
or her Vested Interest, not to exceed $50,000. However, the $50,000
amount is reduced by the Participant's highest outstanding balance of
all loans from any Commonly Controlled Entity's qualified plans during
the 12-month period ending on the day before the Trade Date on which
the loan is made.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
9.3 Maximum Number of Loans. A Participant may have only one loan
outstanding at any given time, and any prior existing loan must be fully repaid
for three (3) months before a new loan may be secured.
9.4 Source of Loan Funding. A loan to a Participant shall be made
solely from the assets of his or her own Accounts. The available assets shall be
determined first by Contribution Account and then by investment type within each
type of Contribution Account. The hierarchy for loan funding by type of
Contribution Account shall be the order listed in the preceding Plan Maximum
Limit paragraph. Within each Account used for funding, amounts shall first be
taken from the available cash in the Account and then taken by type of
investment in direct proportion to the market value of the Participant's
interest in each Investment Fund as of the Sweep Date on which the loan is made.
9.5 Interest Rate. The interest rate charged on Participant loans shall
be fixed and equal to the Trustee's prime rate.
9.6 Repayment. Substantially level amortization shall be required of
each loan with payments made at least monthly, through payroll deduction,
provided that payment can be made by check for advance loan payments, or when a
Participant is on an Authorized Leave of Absence, Disabled or transferred to the
employ of a Commonly Controlled Entity which is not participating in the Plan.
Loans may be prepaid in full or in part at any time. The loan repayment period
shall be as mutually agreed upon by the Participant and Administrator, not to
exceed five (5) years.
9.7 Repayment Hierarchy. Loan principal repayments shall be credited to
the Participant's Contribution Accounts in the inverse of the order used to fund
the loan. Loan interest shall be credited to the Contribution Account in direct
proportion to the principal repayment. Loan payments are credited by investment
type based upon the Participant's current Conversion Election for that Account.
9.8 Loan Application, Note and Security. A Participant shall apply for
any loan in accordance with a procedure established by the responsible Named
Fiduciary. The responsible Named Fiduciary shall administer Participant loans
and shall specify the time frame for approving loan applications. All loans
shall be evidenced by a promissory note and security agreement and secured only
by a Participant's Account balance. The Plan shall have a lien on a
Participant's Account to the extent of any outstanding loan balance.
9.9 Default, Suspension and Acceleration Feature.
---------------------------------------------
(a) Default. A loan is treated as a default on the earlier of
(i) the date any scheduled loan payment is more than ninety (90) days
late, provided that the Administrator may agree to a suspension of loan
payments for up to twelve
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(12) months for a Participant who is on an Authorized Leave of Absence;
or (ii) thirty (30) days from the time the Participant receives written
notice of the note being due and payable and a demand for past due
amounts.
(b) Actions upon Default. In the event of default, the
Administrator will direct the Trustee to report the default as a
taxable distribution. As soon as a Plan withdrawal or distribution to
such Participant would otherwise be permitted, the Administrator will
direct the Trustee to execute upon its security interest in the
Participant's Account by segregating the unpaid loan balance from the
Account, including interest to the date of default, and to distribute
the note to the Participant.
(c) Acceleration. A loan shall become due and payable in full
once the Participant incurs a Termination of Employment.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE X
- -------------------------------------------------------------------------------
IN-SERVICE WITHDRAWALS
----------------------
10.1 Withdrawals for 401(k) Hardship.
--------------------------------
(a) Requirements. A Participant may request the withdrawal
of any amount from the portion of his or her Accounts needed to satisfy
a financial need by making a withdrawal request in accordance with a
procedure established by the Administrator. The Administrator shall
only approve those requests for withdrawals (1) on account of a
Participant's "Deemed Financial Need", and (2) which are "Deemed
Necessary" to satisfy the financial need.
(b) "Deemed Financial Need". Financial commitments relating
to:
(1) costs directly related to the purchase or
construction (excluding mortgage payments
or balloon payments) of a Participant's
principal residence;
(2) the payment of expenses for medical care
described in Section 213(d) of the Code
previously incurred by the Participant, the
Participant's Spouse, or any dependents of
the Participant (as defined in Section 152
of the Code) or necessary for those persons
to obtain medical care described in Section
213(d) of the Code;
(3) payment of tuition and related educational
fees and room and board expenses for the
next twelve (12) months of post-secondary
education for the Participant, his or her
Spouse, children or dependents (as defined
in Section 152 of the Code); or
(4) necessary payments to prevent the eviction
of the Participant from his or her
principal residence or the foreclosure on
the mortgage of the Participant's principal
residence.
(c) "Deemed Necessary". A withdrawal is "deemed necessary"
to satisfy the financial need only if all of these conditions are met:
(1) the withdrawal may not exceed the dollar
amount needed to satisfy the Participant's
documented Financial Hardship, plus an
amount necessary to pay federal, state,
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
or local income taxes or penalties
reasonably anticipated to result from such
withdrawal;
(2) the Participant must have obtained all
distributions, other than Financial
Hardship distributions, and all nontaxable
loans under all plans maintained by the
Company or any Commonly Controlled Entity;
(3) the Participant will be suspended from
making Pre-Tax Contributions, post-tax
contributions, (or similar contributions
under any other qualified or nonqualified
plan of deferred compensation maintained by
a Commonly Controlled Entity) for at least
twelve (12) months from the date the
withdrawal is received; and
(4) the Contribution Dollar Limit for the
taxable year immediately following the
taxable year in which the Financial
Hardship withdrawal is received shall be
reduced by the Elective Deferrals for the
taxable year in which the Financial
Hardship withdrawal is received.
(d) Account Sources for Withdrawal. All available amounts
must first be withdrawn from his or her Accounts under Section 10.2 or
10.3. The remaining withdrawal amount shall come only from his or her
Accounts, in the following priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account
Former Matching Contribution Account
Pay Based Account
Pre-Tax Account
The amount that may be withdrawn from a Participant's Pre-Tax Account
shall not include earnings and Qualified Matching Contributions posted
to his or her Pre-Tax Account after the end of the Plan Year which ends
before July 1, 1989.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
10.2 Withdrawals for Participants over age 59 1/2 or who are
Disabled.
-------------------------------------------------------
(a) Requirements. A Participant who is over age 59 1/2 or
who is Disabled may withdraw from the portion of his or her Accounts
listed in paragraph (b) below.
(b) Account Sources for Withdrawal. When requesting a
withdrawal, any withdrawal amount shall come only from his or her
Accounts, in the following priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account Former Matching
Contribution Account Pay Based
Account Matching Account Pre-Tax
Account Special Account.
10.3 Withdrawals of Mature Amounts.
------------------------------
(a) Requirements. Withdrawal is permitted from an amount
credited to any of the Accounts listed in paragraph (b) below.
(b) Contribution Account Sources for Withdrawal. When
requesting a withdrawal, any withdrawal amount shall come only from his
or her Accounts, in the following priority order of Accounts:
Post-Tax Account
QVEC Account
TRASOP Account
ESOP Account
Rollover Account
Former Matching Contribution Account.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
10.4 Withdrawal Processing.
----------------------
(a) Ordering. To the extent of the outstanding principal
amount (excluding earnings) as of December 31, 1986 attributable to his
or her Post-Tax Account, any withdrawal hereunder shall be deemed first
to be made therefrom, second from Post-Tax Contributions, if any, made
after December 31, 1986, plus earnings thereon in the same pro rata
manner as required by Code Section 72(e), and, thirdly, from earnings
on such principal amount as of December 31, 1986.
(b) Minimum Amount. There is no minimum payment for any type
of withdrawal.
(c) Permitted Frequency. The maximum number of withdrawals
permitted in any Plan Year (other than for 401(k) Hardship) is two. For
this purpose, two types of withdrawals distributed in one payment shall
constitute one withdrawal.
(d) Application by Participant. A Participant must submit a
withdrawal request in accordance with a procedure established by the
responsible Named Fiduciary to the responsible Named Fiduciary to apply
for any type of withdrawal. Only a Participant who is an Employee may
make a withdrawal request.
(e) Approval by Responsible Named Fiduciary. The responsible
Named Fiduciary is responsible for determining that a withdrawal
request conforms to the requirements described in this Section and
notifying the Custodian of any payments to be made in a timely manner.
(f) Time of Processing. The Custodian shall process all
withdrawal requests which it receives by a Sweep Date, based on the
value as of the Trade Date to which it relates, and fund them on the
next Settlement Date. The Custodian shall then make payment to the
Participant as soon thereafter as is administratively feasible.
(g) Medium and Form of Payment. The medium of payment for
withdrawals is either cash or direct deposit; provided however, a
withdrawal under either Section 10.2 or 10.3 may be paid, as directed
by the Participant, in whole shares of Company Stock to the extent the
withdrawal is funded from the Whitman Stock Fund. The form of payment
for withdrawals shall be a single installment.
(h) Investment Fund Sources. Within each Account used for
funding a withdrawal, amounts shall be taken by type of investment in
direct proportion
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to the market value of the Participant's interest in each Investment
Fund (which excludes the Participant's loans) at the time the
withdrawal is made.
(i) Direct Rollover. With respect to any cash payment
hereunder in excess of $200 which constitutes an Eligible Rollover
Distribution, a Distributee may direct the responsible Named Fiduciary
to have all or some portion of such payment (other than from a Post-Tax
Account) paid in the form of a Trustee Transfer, in accordance with
procedures established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written notice of such direction
with specific instructions as to the Eligible Retirement Plan on or
prior to the applicable Sweep Date for payment. If the Participant does
not transfer all of such payment, the minimum amount which can be
transferred is $500.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XI
- -------------------------------------------------------------------------------
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT
---------------------------
11.1 Request for Distribution of Benefits.
-------------------------------------
(a) Request for Distribution. Subject to the other
requirements of this Article, a Participant may elect to have his or
her vested Accrued Benefit paid to him or her beginning upon any
Settlement Date following his or her Termination of Employment by
submitting a completed distribution election in accordance with a
procedure established by the responsible Named Fiduciary. Such election
form shall include or be accompanied by a notice which provides the
Participant with information regarding all optional times and forms of
payment available. The election must be submitted to the responsible
Named Fiduciary by the Sweep Date that relates to the Payment Date.
(b) Failure to Request Distribution. If a Participant has a
Termination of Employment and fails to submit a distribution request in
accordance with a procedure established by the responsible Named
Fiduciary by the last Payment Date permitted under this Article, his or
her vested Accrued Benefit shall be valued as of the Valuation Date
which immediately precedes such latest date of distribution (called the
"Default Valuation Date") and a notice of such deemed distribution
shall be issued to his or her last known address as soon as
administratively possible. If the Participant does not respond to the
notice or cannot be located, his or her vested Accrued Benefit
determined on the Default Valuation Date shall be treated as a
Forfeiture. If the Participant subsequently files a claim, the amount
forfeited (unadjusted for gains and losses) shall be reinstated to his
or her Accounts and distributed as soon as administratively feasible,
and such payment shall be accounted for by charging it against the
Forfeiture Account or by a contribution from the Employer of the
affected Participant.
11.2 Deadline for Distribution. In addition to any other Plan
requirements and unless the Participant elects otherwise, or cannot be located,
the Payment Date of a Participant's vested Accrued Benefit shall be not later
than sixty (60) days after the latest of the close of the Plan Year in which (i)
the Participant attains the earlier of age sixty-five (65) or his or her Normal
Retirement Date, (ii) occurs the tenth (10th) anniversary of the Plan Year in
which the Participant commenced participation, or (iii) the Participant had a
Termination of Employment. However, if the amount of the payment or the location
of the Participant (after a reasonable search) cannot be ascertained by that
deadline, payment shall be made no later than sixty (60) days after the earliest
date on which such amount or location is ascertained. In any case,
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
the Payment Date of the Accrued Benefit of a Participant (i) who is not an
Employee or (ii) who is an Employee and who is a 5-percent owner (as defined in
Code Section 416), shall not be later than April 1 following the calendar year
in which the Participant attains age seventy and one-half (70 1/2) and each
December 31 thereafter and shall comply with the requirements of Section
401(a)(9) of the Code and the Treasury Regulations promulgated thereunder.
11.3 Payment Form and Medium.
------------------------
(a) General. A Participant's vested Accrued Benefit shall be paid in
the form of:
(1) a single sum,
(2) periodic installments as selected by the
Participant, not to exceed 15 years,
(3) a single or joint life annuity, or
(4) periodic distributions of at least $500.00, each in
an amount designated by the Participant but not to
exceed two distributions per Plan Year.
Within each Account used for funding a distribution, amounts shall be taken by
type of investment in direct proportion to the market value of the Participant's
interest in each Investment Fund at the time the distribution is made.
(b) Medium of Payment. Payments will generally be made in cash
(generally by check), alternatively, if the Participant elects a single sum
distribution, a single sum payment will be made, as directed by the Participant,
in a combination of cash and whole shares of Company Stock to the extent the
distribution is funded from the Whitman Stock Fund. Any annuity option permitted
will be provided through the purchase of a non-transferable single premium
contract from an insurance company which must conform to the terms of the Plan
and Section 401(a)(9) of the Code and which will be distributed to the
Participant or Beneficiary in complete satisfaction of the benefit due.
11.4 Small Amounts Paid Immediately. If a Participant has a Termination
of Employment and the Participant's vested Accrued Benefit is $5,000 or less,
the Participant's Accrued Benefit shall be paid as a single sum as soon as
administratively feasible after his or her Termination of Employment.
11.5 Payment Within Life Expectancy. The Participant's payment
election must be consistent with the requirement of Code Section 401(a)(9) that
all payments
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
are to be completed within a period not to exceed the lives or the joint and
last survivor life expectancy of the Participant and his or her Beneficiary. The
life expectancies of a Participant and his or her spouse may be recomputed
annually.
11.6 Incidental Benefit Rule. The Participant's payment election must
be consistent with the requirement that, if the Participant's Spouse is not his
or her sole primary Beneficiary, the minimum annual distribution for each
calendar year, beginning with the year in which he or she attains age seventy
and one-half (70 1/2), shall not be less than the quotient obtained by dividing
(a) the Participant's vested Accrued Benefit as of the last Trade Date of the
preceding year by (b) the applicable divisor as determined under the incidental
benefit requirements of Code Section 401(a)(9).
11.7 QJSA and QPSA Information and Elections. The following information
and election rules will apply to any Participant who elects an annuity option:
(a) "QJSA". A qualified joint and fifty percent (50%)
survivor annuity, meaning a form of benefit payment which is the
actuarial equivalent of the Participant's vested Accrued Benefit at the
Payment Date, payable to the Participant in monthly payments for life
and providing that, if the Participant's Spouse survives him or her,
monthly payments equal to fifty percent (50%) of the amount payable to
the Participant during his or her lifetime will be paid to the Spouse
for the remainder of such person's lifetime.
(b) "QPSA". A qualified pre-retirement survivor annuity,
meaning that upon the death of a Participant before the Payment Date of
his or her vested Accrued Benefit, such benefit will become payable to
the surviving Spouse as an annuity, unless Spousal Consent has been
given to a different Beneficiary or the surviving Spouse chooses a
different form of payment.
(c) QJSA Information to a Participant. No more than ninety
(90) days before the Payment Date, each Participant who has a Spouse
and requests an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of the QJSA to his or her
annuity; (2) the right to make an election to waive this form of
payment and choose an optional form of payment and the effect of this
election; (3) the right to revoke this election and the effect of this
revocation; and (4) the need for Spousal Consent; and (5) the right of
the Participant to consider, for at least thirty (30) days, whether to
waive the Qualified Joint and Survivor Annity.
(d) QJSA Election. A Participant may elect (and such
election shall include Spousal Consent if married), at any time within
the ninety (90) day period ending on the Payment Date, to (1) waive the
right to receive the QJSA
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
and elect an optional form of payment; or (2) revoke or change any such
election.
(e) QJSA Spousal Consent to Participant Loans. Spousal
Consent must be obtained for any Participant loan which is funded from
any amount to which the election in paragraph (d) above applies within
the ninety (90) day period ending on the date such loan is secured.
(f) QJSA Spousal Consent to Participant In-Service
Withdrawals. Spousal Consent must be obtained for any Participant
in-service withdrawal which is funded from any portion of an Account to
which the election in paragraph (d) above applies within the ninety
(90) day period ending on the date of such in-service withdrawal.
(g) QPSA Beneficiary Information to Participant. Each
married Participant who has requested an annuity form of payment shall
be given written information stating that (1) his or her death benefit
is payable to his or her surviving Spouse; (2) his or her ability to
choose that the benefit be paid to a different Beneficiary; (3) the
right to revoke or change a prior designation and the effects of such
revocation or change; and (4) the need for Spousal Consent. Such
information shall be provided during whichever of the following periods
ends later:
(1) the period that begins one year before the
date on which the Participant requests an
annuity form of payment and that ends one
year after such date; and
(2) the period that begins with the first day
of the Plan Year in which the Participant
attains age thirty-two (32) and that ends
with the close of the Plan Year in which
the Participant attains age thirty-five
(35).
Notwithstanding the foregoing, if the Participant incurs a Termination
of Employment after requesting an annuity form of payment, but before
attaining age thirty-five (35), the information described in the first
sentence of this Subsection shall be provided during the period that
begins one year before the date of the Participant's Termination of
Employment and that ends one year after such date.
(h) QPSA Beneficiary Designation by Participant. A married
Participant may designate (with Spousal Consent) a non-spouse
Beneficiary at any time after the Participant has been given the
information in the QPSA Beneficiary Information to Participant
paragraph above and upon the earlier of
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(1) the date the Participant incurs a Termination of Employment, or (2)
the beginning of the Plan Year in which that Participant attains age
thirty-five (35).
11.8 Continued Payment of Amounts in Payment Status on January 1, 1998.
Any person who became a Participant prior to January 1, 1998 only because he or
she had an Accrued Benefit and who had commenced to receive payments prior to
January 1, 1998 shall continue to receive such payments in the same form and
payment schedule under this Plan.
11.9 TEFRA Transitional Rule. Notwithstanding any other provisions of
this Plan, distribution on behalf of any Participant may be made in accordance
with the following requirements (regardless of when such distribution
commences):
(a) The distribution must have been one provided for in the
Plan.
(b) The distribution by the Plan is one which would not have
disqualified the Plan under Code Section 401(a)(9) as in effect prior
to amendment by TEFRA.
(c) The distribution is in accordance with a method of
distribution designated by the Participant whose interest is being
distributed or, if the Participant is deceased, by a Beneficiary of
such Participant.
(d) Such designation was in writing, was signed by the
Participant or the Beneficiary, and was made before January 1, 1984.
(e) The Participant had accrued a benefit under the Plan as
of December 31, 1983.
(f) The method of distribution designated by the Participant
or the Beneficiary specifies the time at which distribution will
commence, the period over which distribution will be made, and in the
case of any distribution upon the Participant's death, the
Beneficiaries of the Participant listed in order of priority.
11.10 Direct Rollover. With respect to any cash payment in excess of
$200 hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment (other than from a
Post-Tax Account) paid in the form of a Trustee Transfer, in accordance with
procedures established by the Administrator, provided the responsible Named
Fiduciary receives written notice of such direction with specific instructions
as to the Eligible Retirement Plan on or prior to the applicable Sweep Date for
payment. If the Participant does not transfer all of such payment, the minimum
amount which can be transferred is $500.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XII
- -------------------------------------------------------------------------------
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
-----------------------------------------
12.1 Payment to Beneficiary. On the death of a Participant prior to his
or her Payment Date, his or her vested Accrued Benefit shall be paid to the
Beneficiary or Beneficiaries designated by the Participant in accordance with
the procedure established by the responsible Named Fiduciary. Death of a
Participant on or after his or her Payment Date shall result in payment to his
or her Beneficiary of whatever death benefit is provided by the form of payment
in effect on his or her Payment Date.
12.2 Beneficiary Designation. Each Participant shall complete a
beneficiary designation indicating the Beneficiary who is to receive the
Participant's remaining Plan interest at the time of his or her death. The
Participant may change such designation of Beneficiary from time to time by
filing a new beneficiary designation with the Administrator. No designation of
Beneficiary or change of Beneficiary shall be effective until properly filed
with the Administrator. Notwithstanding any designation to the contrary, if a
Participant has earned an Hour of Service on or after August 23, 1984, the
Participant's Beneficiary shall be the Participant's Spouse to whom the
Participant is legally married under the laws of the State of the Participant's
residence on the date of the Participant's death and surviving him or her on
such date, unless such designation includes Spousal Consent. If the Participant
dies leaving no Spouse and either (1) the Participant shall have failed to file
a valid beneficiary designation, or (2) all persons designated on the
beneficiary designation shall have predeceased the Participant, the
Administrator shall have the Custodian distribute such Participant's Accrued
Benefit in a single sum to his or her estate.
12.3 Benefit Election.
-----------------
(a) Request for Distribution. In the event of a
Participant's death prior to his or her Payment Date, a Beneficiary may
elect to have the Accrued Benefit of a deceased Participant paid to him
or her beginning upon any Settlement Date following the Participant's
date of death by submitting a completed distribution election in
accordance with the procedure established by the responsible Named
Fiduciary. The election must be submitted to the responsible Named
Fiduciary by the Sweep Date that relates to the Settlement Date upon
which payments are to begin.
(b) Failure to Request Distribution. In the event a
Beneficiary fails to submit a timely distribution request, his or her
vested Accrued Benefit shall be valued as of the Valuation Date which
immediately precedes such latest date of distribution (called the
"Default Valuation Date") and a notice of such
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
deemed distribution shall be issued to his or her last known address as
soon as administratively possible. If the Beneficiary does not respond
to the notice or cannot be located, his or her vested Accrued Benefit
determined on the Default Valuation Date shall be treated as a
Forfeiture. If the Beneficiary subsequently files a claim, the amount
forfeited (unadjusted for gains and losses) shall be reinstated to his
or her Accounts and distributed as soon as administratively feasible,
and such payment shall be accounted for by charging it against the
Forfeiture or by a Contribution from the Employer of the affected
Beneficiary.
12.4 Payment Form. In the event of a Participant's death after his or
her Payment Date, payment shall be made in the form selected by the Participant.
Otherwise, a Beneficiary shall be limited to the same form and medium of payment
to which the Participant was limited. Payments will generally be made in cash
(by check); alternatively, if the Beneficiary elects an in-kind distribution, a
single sum payment will be made in a combination of cash and whole shares.
12.5 Time Limit for Payment to Beneficiary. Payment to a Beneficiary
must either:
(a) be completed within five (5) years of the
Participant's death; or
(b) begin within one year of his or her death and be
completed within the period of the Beneficiary's lifetime, except that:
(1) If the Participant dies after the April 1
immediately following the end of the
calendar year in which he or she attains
age seventy and one-half (70 1/2), payment
to his or her Beneficiary must be made at
least as rapidly as provided in the
Participant's distribution election;
(2) If the surviving Spouse is the Beneficiary,
payments need not begin until the date on
which the Participant would have attained
age seventy and one-half (70 1/2) and must
be completed within the Spouse's lifetime;
and
(3) If the Participant and the surviving Spouse
who is the Beneficiary die (A) before the
April 1 immediately following the end of
the calendar year in which the Participant
would have attained age seventy and
one-half (70 1/2); and (B) before payments
have begun to the Spouse, the Spouse will
be treated as the Participant in applying
these rules.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
12.6 QPSA Information and Election. The following information and
election rules will apply to any Beneficiary of a Participant who dies prior to
his or her Payment Date after having elected a life annuity option.
(a) Form of Payment. The Participant's vested Accrued
Benefit will be paid in the form of a QPSA.
(b) QPSA Information to a Surviving Spouse. Each surviving
Spouse who requests an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of being paid his or her
vested Accrued Benefit in the form of a single life annuity, (2) the
right to make an election to waive this form of payment and choose an
optional form of payment and the effect of making this election, and
(3) the right to revoke this election and the effect of this
revocation.
(c) QPSA Election by Surviving Spouse. A surviving Spouse
may elect, at any time up to the Sweep Date associated with the
Settlement Date upon which payments will begin, to (1) waive the single
life annuity and elect an optional form of payment, or (2) revoke or
change any such election.
(d) Small Amounts Paid Immediately. If a Beneficiary's
vested Accrued Benefit is $5,000 or less, the Beneficiary's Accrued
Benefit shall be paid as a single sum as soon as administratively
feasible.
12.7 Direct Rollover. With respect to any cash payment in excess of
$200 hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment (other than from a
Post-Tax Account) paid in the form of a Trustee Transfer, in accordance with the
procedure established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written Notice of such direction with
specific instructions as to the Eligible Retirement Plan on or prior to the
applicable Sweep Date for payment. If the Participant does not transfer all of
such payment, the minimum amount which can be transferred is $500.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIII
- -------------------------------------------------------------------------------
MAXIMUM CONTRIBUTIONS
---------------------
13.1 Definitions.
------------
(a) "Annual Additions" means with respect to a Participant
for any Plan Year the sum of:
(1) Contributions and Forfeitures (and any
earnings thereon) allocated as of a date
within the Plan Year;
(2) All contributions, forfeitures and
suspended amounts (and income thereon) for
such Plan Year, allocated to such
Participant's account(s) under any Related
Defined Contribution Plan as of a date
within such Plan Year;
(3) The sum of all after-tax contributions of
the Participant to Related Plans for the
Plan Year and allocated to such
Participant's accounts under such Related
Plan as of a date within such Plan Year
("Aggregate Employee Contributions");
(4) Solely for purposes of this Section, all
contributions to any "separate account" (as
defined in Section 419A(d) of the Code)
allocated to such Participant as of a date
within the Plan Year if such Participant is
a "Key Employee" within the meaning of Code
Section 416(i); and
(5) Solely for purposes of this Section, all
contributions to any "individual medical
benefit account" (as defined in Section
415(l) of the Code) allocated to such
Participant as of a date within the Plan
Year.
(b) "Maximum Annual Additions" of a Participant for a Plan
Year means the lesser of:
(1) twenty-five percent (25%) of the
Participant's Compensation, or
(2) the greater of thirty thousand dollars
($30,000) or one-quarter of the dollar
limitation in Code Section 415(b)(1)(A) as
adjusted for cost of living increases
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(determined in accordance with regulations
prescribed by the Secretary of the Treasury
or his or her delegate pursuant to the
provisions of Section 415(d) of the Code).
(c) "Annual Excess" means, for each Participant affected,
the amount by which the allocable Annual Additions for such Participant
exceeds or would exceed the Maximum Annual Addition for such
Participant.
13.2 Avoiding an Annual Excess. Notwithstanding any other provision of
this Plan, a Participant's "Annual Additions" for any Plan Year, which is hereby
designated as the "limitation year" for the Plan, as that term is used in
Section 415 of the Code, shall not exceed his or her "Maximum Annual Additions."
If, at any time during a Plan Year, the allocation of additional Contributions
for a Plan Year would produce an Annual Excess, the affected Participant shall
receive only the Maximum Annual Addition from Contributions, and, at the
direction of the responsible Named Fiduciary, for the remainder of the Plan Year
Contributions will be reduced, if possible, to the amount needed for each
affected Participant to receive only the Maximum Annual Addition.
13.3 Correcting an Annual Excess. If for any Plan Year as a result of a
reasonable error in estimating a person's Compensation, Elective Deferrals, or
such other facts and circumstances which the Internal Revenue Service will
permit, a Participant's Annual Excess shall be treated in the following manner:
(a) Aggregate Employee Contributions allocable under a
Related Plan shall be distributed to the Participant, if permitted, by
the amount of the Annual Excess.
(b) If any Annual Excess remains, Pre-Tax Contributions (and
earnings thereon) shall be distributed to such Participant.
(c) If any Annual Excess (adjusted for investment gains and
losses) remains, Contributions shall be a Forfeiture for such
Participant in the following order:
(1) Matching Contributions;
(2) Pay-Based Contributions.
(d) Any Forfeiture of a Participant's allocations of
Contributions under subparagraph 13.3(c) above shall be held and shall
be used for the Plan Year to reduce or applied as Contributions. If any
such amount remains, it shall again be held in suspense and be utilized
to reduce future Contributions for succeeding Plan Years.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(e) Any amounts held in suspense pursuant to subparagraph
13.3(d) above remaining upon Plan termination shall be returned to the
Employers in such proportions as shall be determined by the
Administrator.
13.4 Correcting a Multiple Plan Excess. If a Participant's Accounts
have or would have an Annual Excess, the Annual Excess shall be corrected by
reducing the Annual Addition to this Plan before reductions have been made to
other Related Defined Contribution Plans.
13.5 Two-Plan Limit. If a Participant participates in any Related
Defined Benefit Plan, the sum of the "Defined Benefit Plan Fraction" (as defined
below) and the "Defined Contribution Plan Fraction" (as defined below) for such
Participant shall not exceed one (called the "Combined Fraction").
(a) "Defined Benefit Plan Fraction" means, for any Plan
Year, a fraction, the numerator of which is the projected benefit
payable pursuant to Code Section 415(e)(2)(A) under all Related Defined
Benefit Plans and the denominator of which is the lesser of: (i) the
product of 1.25 and the dollar limit in effect for the Plan Year under
Code Section 415(b)(1)(A), and (ii) the product of 1.4 and one hundred
percent (100%) of the Participant's average Compensation for his or her
high three (3) years.
(b) "Defined Contribution Plan Fraction" means, for any Plan
Year, a fraction, the numerator of which is the sum of the Annual
Additions (as determined pursuant to Section 415(c) of the Code in
effect for such Plan Year) to a Participant's Accounts as of the end of
the Plan Year under the Plan or any Related Defined Contribution Plan,
and the denominator of which is the lesser of:
(1) The sum of the products of 1.25 and the
dollar limit under Code Section
415(c)(1)(A) for such Plan Year and for
each prior year of service with a Commonly
Controlled Entity and its predecessor, and
(2) the sum of the products of 1.4 and
twenty-five percent (25%) of the
Participant's Compensation for such Plan
Year and for each prior year of service
with a Commonly Controlled Entity and its
predecessor.
If the Combined Fraction of such Participant exceeds one and if the
Related Defined Benefit Plan permits it, the Participant's Defined
Benefit Plan Fraction shall be reduced by limiting the Participant's
annual benefits payable from the Related Defined Benefit Plan in which
he or she participates to the extent necessary to reduce the Combined
Fraction of such Participant to one.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
13.6 Short Plan Year. With respect to any change of the Plan Year (and
co-existent limitation year), the dollar limitation of the Maximum Annual
Addition for such Plan Year shall be determined by multiplying such dollar
amount by a fraction, the numerator of which is the number of months (including
fractional parts of a month) in the short Plan Year, and the denominator of
which is twelve (12).
13.7 Grandfathering of Applicable Limitations. The Plan shall recognize
and apply any grandfathering of applicable benefits and contributions
limitations which are permitted under ERISA, the Tax Equity and Fiscal
Responsibility Act of 1982 and the Tax Reform Act of 1986.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIV
- -------------------------------------------------------------------------------
ADP AND ACP TESTS
-----------------
14.1 Contribution Limitation Definitions. For purposes of this Article,
the following terms are defined as follows:
(a) "Average Contribution Percentage" or "ACP" means,
separately, the average of the Calculated Percentage for Participants
within the HCE Group and the NHCE Group, respectively, for a Plan Year.
(b) "Average Deferral Percentage" or "ADP" means,
separately, the average of the Calculated Percentage calculated for
Participants within the HCE Group and the NHCE Group, respectively, for
a Plan Year.
(c) "Calculated Percentage" means the calculated
percentage for a Participant. The calculated percentage refers to
either the K-Contributions (including amounts distributed because they
exceeded the Contribution Dollar Limit) with respect to Compensation
which would have been received by the Participant in the Plan Year but
for his or her Contribution Election, or M-Contributions allocated to
the Participant's Account as of a date within the Plan Year, divided by
his or her Compensation for such Plan Year.
(d) "M-Contributions" shall include Matching Contributions
(excluding Qualified Matching Contributions). In addition,
M-Contributions may include Pre-Tax Contributions and Special
Contributions treated as Matching Contributions, but only to the extent
that (1) the Administrator elects to use them; and (2) they meet the
requirements of Code Section 401(m) to be regarded as Matching
Contributions. M-Contributions shall not include Matching Contributions
which become a Forfeiture because the Contribution to which it relates
is in excess of the ADP Test, ACP Test or the Contribution Dollar
Limit.
(e) "K-Contributions" shall include Pre-Tax Contributions
(excluding Pre-Tax Contributions treated as Matching Contributions),
but shall exclude Limited Deferrals to this Plan made on behalf of any
NHCE in excess of the Contribution Dollar Limit. In addition, Deferrals
may include Qualified Matching Contributions and Special Contributions,
but only to the extent that (1) the Administrator elects to use them
and (2) they meet the requirements of Code Section 401(k) to be
regarded as elective contributions.
(f) "HCE Group" and "NHCE Group" means, with respect to
each Employer and its Commonly Controlled Entities, the respective
group of HCEs
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
and NHCEs who are eligible to have amounts contributed on their behalf
for the Plan Year, including Employees who would be eligible but for
their election not to participate or to contribute, or because their
pay is greater than zero but does not exceed a stated minimum, but
subject to the following:
(1) If the Related Plans are subject to the
ADP or ACP Test, and are considered as
one plan for purposes of Code Sections
401(a)(4) or 410(b) (other than
410(b)(2)), all such plans shall be
aggregated and treated as one plan for
purposes of meeting the ADP and ACP Tests
provided that, for Plan Years beginning
after December 31, 1989, plans may only
be aggregated if they have the same Plan
Year.
(2) If an HCE is covered by more than one
cash or deferred arrangement maintained
by the Related Plans, all such
arrangements (other than arrangements in
plans that are not required to be
aggregated for this purpose under Treas.
Reg. Section 1.401(k)-1(g)(l)(ii)(B))
with respect to the Plan Years ending
with or within the same calendar year
shall be aggregated and treated as one
arrangement for purposes of calculating
the separate percentage for the HCE which
is used in the determination of the
Average Percentage.
14.2 ADP and ACP Tests. For each Plan Year, the ADP and ACP for the HCE
Group must meet either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group:
(a) Basic Limitation. The ADP or ACP for the HCE Group may
not exceed 1.25 times the ADP or ACP, respectively, for the NHCE Group.
(b) Alternative Limitation. The ADP or ACP for the HCE
Group is limited by reference to the ADP or ACP, respectively, for the
NHCE Group as follows:
If the NHCE Group Then the Maximum HCE
Percentage is : Group Percentage is:
----------------- -----------------------------
Less than 2% 2 times ADP or ACP for the
NHCE Group
2% to 8% ADP or ACP for the NHCE Group
plus 2%
More than 8% Basic Limitation applies
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
14.3 Correction of ADP and ACP Tests.
--------------------------------
(a) Reduction of K-Contributions or M-Contributions. If
the ADP or ACP are not met or will not be met, the Administrator
shall determine a maximum percentage to be used in place of the
Calculated Percentage for each HCE that would reduce the ADP or ACP
of the HCE Group by a sufficient amount to meet the ADP and ACP
Tests.
(b) ADP Correction. Pre-Tax Contributions (including
amounts previously refunded because they exceeded the Contribution
Dollar Limit) shall be refunded to the Participant by the end of the
next Plan Year in an amount equal to the actual K-Contribution minus
the product of the maximum percentage for that HCE and the HCE's
Compensation. Matching Contributions with respect to such distributed
Pre-Tax Contributions shall be forfeited (unless paid to the
Participant due to an ACP Correction).
(c) ACP Correction. Matching Contribution amounts in
excess of the maximum percentage of an HCE's Compensation shall, by
the end of the next Plan Year, be refunded to the Participant.
(d) Investment Fund Sources. Once the amount of Pre-Tax
and Matching Contributions to be refunded is determined, amounts
shall then be taken by type of investment in direct proportion to the
market value of the Participant's interest in each Investment Fund
(which excludes Participant loans) as of the Trade Date as of which
the correction is processed.
14.4 Method of Calculation. The Administrator shall determine the
maximum percentage for each HCE whose Calculated Percentage(s) is(are) the
highest at any one time by reducing his or her Calculated Percentage in the
following manner until the ADP and/or ACP Test is satisfied:
(a) The Calculated Percentage for each HCE under a Related
Plan shall be reduced to the extent permitted under such Related
Plan.
(b) If more reduction is needed, the Calculated Percentage
of each HCE whose Calculated Percentage (stated in absolute terms) is
the greatest shall be reduced by one-hundredth (1/100) of one
percentage point.
(c) If more reduction is needed, the Calculated Percentage
of each HCE whose Calculated Percentage (stated in absolute terms) is
the greatest (including the Calculated Percentage of any HCE whose
Calculated Percentage was adjusted under Paragraph (b) shall be
reduced by one-hundredth (1/100) of one percentage point.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(d) If more reduction is needed, the procedures of
Paragraph (c) shall be repeated.
14.5 Multiple Use Test. If the Average Contribution Percentage and
the Average Deferral Percentage for the HCE Group exceeds the Basic Limitation
in both the ADP or the ACP Tests (after correction of the ADP and ACP Test), the
ADP and ACP (as corrected) for the HCE Group must also comply with the
requirements of Code Section 401(m)(9), which as of the Effective Date require
that the sum of these two percentages (as determined after any corrections
needed to meet the ADP or ACP Tests have been made) must not exceed the greater
of:
(a) the sum of
(1) the larger of the ADP or ACP for the NHCE
Group times 1.25; and
(2) the smaller of the ADP or ACP for the
NHCE Group, times two (2) if the NHCE
Average Percentage is less than two
percent (2%), or plus two percent (2%) if
it is two percent (2%) or more; or
(b) the sum of
(1) the lesser of the ADP or ACP for the NHCE
Group times 1.25; and
(2) the greater of the ADP or ACP for the
NHCE Group, times two (2) if the NHCE
Average Percentage is less than two
percent (2%), or plus two percent (2%) if
it is two percent (2%) or more.
If the multiple use limit is exceeded, the Administrator shall
determine a maximum ADP or ACP for the HCE Group and shall reduce the
ADP or ACP for each HCE in the same manner as would be used to
correct to ADP or ACP.
14.6 Adjustment for Investment Gain or Loss. The net investment gain
or loss associated with the K-Contributions and/or M-Contributions to be
distributed shall be distributed or charged against a distribution within two
and one-half (2 1/2) months
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
but no later than twelve (12) months following the close of the applicable Plan
Year. Such gain or loss is calculated as follows:
G
E x -------- x (1 + (10% x M ))
(AB - G)
where:
E = the total excess Deferrals or Contributions,
G = the net gain or loss for the Plan Year from
all of an HCE's affected Accounts,
AB = the total value of an HCE's affected
Accounts, determined as of the end of the
Plan Year being corrected,
M = the number of full months from the Plan Year
end to the date excess amounts are paid,
plus one for the month during which payment
is to be made if payment will occur after
the fifteenth (15th) of the month.
14.7 Required Records. The Administrator shall maintain records which
are sufficient to demonstrate that the ADP, ACP and Multiple Use Test has been
met for each Plan Year for at least as long as the Employer's corresponding tax
year is open to audit.
14.8 Incorporation by Reference. The provisions of this Section are
intended to satisfy the requirements of Code Sections 401(k)(3), (m)(2), (m)(9)
and Treas. Reg. Sections 1.401(k)-1(b), 1.401(m)-1(b) and 1.401(m)-2 and, to the
extent not otherwise stated in this Section, those Code Sections and Treasury
Regulations are incorporated herein by reference.
14.9 Collectively Bargained Employees. The provisions of this Article
shall apply separately to Participants who are collectively bargained employees
within the meaning of Treas. Reg. Section 1.410(b)-6(d)(2) and for Participants
who are not collectively bargained employees.
14.10 QSLOB. The Administrator in its sole discretion may apply the
provisions of this Article separately with respect to each qualified separate
line of business, as defined in Section 414(r) of the Code.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XV
- -------------------------------------------------------------------------------
CUSTODIAL ARRANGEMENTS
----------------------
15.1 Custodial Agreement. The Administrator may enter into one or more
Custodial Agreements to provide for the holding, investment and payment of Plan
assets, or direct by execution of an insurance contract that all or a specified
portion of the Plan's assets be held, invested and paid under such a contract.
All Custodial Agreements, as from time to time amended, shall continue in force
and shall be deemed to form a part of the Plan. Subject to the requirements of
the Code and ERISA, the Administrator may cause assets of the Plan which are
securities to be held in the name of a nominee or in street name provided such
securities are held on behalf of the Plan by:
(a) a bank or trust company that is subject to supervision
by the United States or a State, or a nominee of such bank or trust
company;
(b) a broker or dealer registered under the Securities
Exchange Act of 1934, or a nominee of such broker or dealer; or
(c) a "clearing agency" as defined in Section 3(a)(23) of
the Securities Exchange Act of 1934, or its nominee.
15.2 Selection of Custodian. The Administrator shall select, remove or
replace the Custodian in accordance with the Custodial Agreement. The subsequent
resignation or removal of a Custodian and the approval of its accounts shall all
be accomplished in the manner provided in the Custodial Agreement.
15.3 Custodian's Duties. Except as provided in ERISA, the powers,
duties and responsibilities of the Custodian shall be as stated in the Custodial
Agreement, and unless expressly stated or delegated to the Custodian (with the
Custodian's acceptance), nothing contained in this Plan shall be deemed by
implication to impose any additional powers, duties or responsibilities upon the
Custodian. All Employer Contributions and Rollover Contributions shall be paid
into the Trust, and all benefits payable under the Plan shall be paid from the
Trust, except to the extent such amounts are paid to a Custodian other than the
Trustee. An Employer shall have no rights or claims of any nature in or to the
assets of the Plan except the right to require the Custodian to hold, use, apply
and pay such assets in its hands, in accordance with the directions of the
Administrator, for the exclusive benefit of the Participants and their
Beneficiaries, except as hereinafter provided.
15.4 Separate Entity. The Custodial Agreement under this Plan from its
inception shall be a separate entity aside and apart from Employers or their
assets,
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
and the corpus and income thereof shall in no event and in no manner whatsoever
be subject to the rights or claims of any creditor of any Employer.
15.5 Plan Asset Valuation. As of each Valuation Date, the Unit Value of
the Plan's assets held or posted to an Investment Fund shall be determined by
the Administrator or the Custodian, as appropriate.
15.6 Right of Employers to Plan Assets. The Employers shall have no
right or claim of any nature in or to the assets of the Plan except the right to
require the Custodian to hold, use, apply, and pay such assets in its possession
in accordance with the Plan for the exclusive benefit of the Participants or
their Beneficiaries and for defraying the reasonable expenses of administering
the Plan; provided, that:
(a) if the Plan receives an adverse determination with
respect to its initial qualification under Sections 401(a), 401(k) and
401(m) of the Code, Contributions conditioned upon the qualification of
the Plan shall be returned to the appropriate Employer within one (1)
year of such denial of qualification; provided, that the application
for determination of initial qualification is made by the time
prescribed by law for filing the respective Employer's return for the
taxable year in which the Plan is adopted, or by such later date as is
prescribed by the Secretary of the Treasury under Section 403(c)(2)(B)
of ERISA;
(b) if, and to the extent that, deduction for a Contribution
under Section 404 of the Code is disallowed, Contributions conditioned
upon deductibility shall be returned to the appropriate Employer within
one (1) year after the disallowance of the deduction;
(c) if, and to the extent that, a Contribution is made
through mistake of fact, such Contribution shall be returned to the
appropriate Employer within one year of the payment of the
Contribution; and
(d) any amounts held suspended pursuant to the limitations
of Code Section 415 shall be returned to the Employers upon termination
of the Plan.
All Contributions made hereunder are conditioned upon the Plan being
qualified under Sections 401(a) or 401(k) and 401(m) of the Code and a
deduction being allowed for such contributions under Section 404 of the
Code. Pre-Tax Contributions returned to an Employer pursuant to this
Section shall be paid to the Participant for whom contributed as soon
as administratively convenient. If these provisions result in the
return of Contributions after such amounts have been allocated to
Accounts, such Accounts shall be reduced by the amount of the
allocation attributable to such amount, adjusted for any losses or
expenses.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XVI
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ADMINISTRATION AND INVESTMENT MANAGEMENT
----------------------------------------
16.1 General. The Company, through the authority vested in the Board of
Directors, has appointed, by separate documentation, the Administrator, and has
enabled it to have the power and authority to act, to the extent delegated to
it, on behalf of the Company (and therefore all Employers), with respect to
matters which relate to the Plan and Trust, but not on behalf of the Plan and
Trust. Furthermore, the Company has adopted the Plan and Trust, thereby:
(a) appointing a separate Administrator, and enabling it
to have the power and authority to act, to the extent provided in the Plan or
Trust, on behalf of the Plan or Trust, but not on behalf of the Company; and
(b) enabling the Administrator to have the power and
authority to act, to the extent provided in and the manner provided in the Plan
or Trust, on behalf of the Company, but not on behalf of the Plan or Trust.
16.2 Administrator Acting as Employer with Respect to the Plan. The
Administrator has the following authority and control and such other authority
and control as shall be granted to it, from time to time, to act on behalf of
the Company:
(a) amend or terminate the Plan to the extent permitted in
the Plan;
(b) designate which employee groups are eligible to
participate in the Plan to the extent permitted in the Plan;
(c) select, monitor and remove, as necessary, consultants,
actuaries, underwriters, insurance companies, third party administrators, or
other service providers, and to appoint and remove any such person as a Named
Fiduciary, and determine and delegate to them their duties and responsibilities,
either directly or by the adoption of Plan provisions which specify such duties
and responsibilities (the provisions of the Plan documents will control in the
case of a conflict);
(d) appoint and consult with legal counsel, independent
consulting or evaluation firms, accountants, actuaries, or other advisors, as
necessary, to perform its functions;
(e) determine what expenses, if any, related to the
operation and administration of the Plan and the investment of Plan assets, may
be paid from Plan assets, subject to applicable law; and
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(f) establish such policies and make such other
delegations or designations necessary or incidental to the Company's sponsorship
of the Plan; and
(g) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
16.3 Administrator Acting as Employer with Respect to the Trust. The
Administrator has the following authority and control and such other authority
and control, as shall be granted to it, from time to time, to act on behalf of
the Company:
(a) adopt, amend or terminate, in part or completely, a
Trust document, provided such action is consistent with the Plan for which the
Trust is established;
(b) appoint and consult with legal counsel, investment
advisors, independent consulting or evaluation firms, accountants, actuaries, or
other advisors, as necessary, to perform its functions;
(c) determine the funding policies of the Plan and related
matters;
(d) report to the CEO any Plan funding or investment
policies of significance to the Company;
(e) review with the CEO any proposals which would be
submitted to the Board of Directors;
(f) establish such policies and make such other
delegations or designations necessary or incidental to the Company's sponsorship
of the Plan or Trust;
(g) select, monitor and remove, as necessary, consultants,
actuaries, underwriters, insurance companies, third party administrators, or
other service providers, and to appoint and remove any such person as a Named
Fiduciary, and determine and delegate to them their duties and responsibilities,
either directly or by the adoption of Trust provisions which specify such duties
and responsibilities (the provisions of the Plan or Trust documents will control
in the case of a conflict); and
(h) take any other actions necessary or incidental to the
performance of the above-stated powers and duties.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
16.4 Administrator as Named Fiduciary for the Plan.
----------------------------------------------
(a) The Administrator, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to the authority to manage and control the administration and operation
of the Plan, including without limitation, the management and control with
respect to the operation and administration of the Plan contained in an
agreement with a Named Fiduciary but only to the extent it has been specifically
designated in such agreement as being the responsibility of the Administrator,
an Employer, the Company, or any employee, member or delegate of any of them.
(b) The Administrator shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Administrator shall cease to be a Named Fiduciary with respect to some specified
portion of the operation and administration of the Plan or Trust, to the extent
that a Named Fiduciary is designated pursuant to the procedure in the Plan or
Trust to severally have authority to manage and control such portion of the
operation and administration of the Plan or Trust.
16.5 Administrator as Named Fiduciary for the Trust.
-----------------------------------------------
(a) The Administrator, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to its authority to manage and control the Plan or Trust or the Plan's
assets, but only to the extent not inconsistent with the Plan or Trust.
(b) The Administrator shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Administrator shall cease to be a Named Fiduciary with respect to some specified
portion of the operation and administration of the Plan or Trust, to the extent
that a Named Fiduciary is designated pursuant to the procedure in the Plan or
Trust to severally have authority to manage and control such portion of the
operation and administration of the Plan or Trust.
16.6 Actions. The Administrator may act, whether as a Named Fiduciary
on behalf of the Plan or on behalf of the Company, as follows:
(a) Any action by the Administrator on behalf of this Plan
or Trust involving its authority to manage and control the operation and
administration of the Plan or Trust or the Plan's assets shall be treated as an
action of a Named Fiduciary under this Plan.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(b) Where reference is made in this Plan (or where the
Administrator designates in writing) that its action is on behalf of the
Company, the Administrator shall be acting only on behalf of the Company and not
as a Named Fiduciary.
(c) Except as provided in Section 16.23, the Administrator
may, in writing delivered to the Trustee, empower a representative to act on its
behalf and such person shall have the authority to act within the scope of such
empowerment to the full extent the Administrator could have acted.
16.7 Procedures for Designation of a Named Fiduciary. The
Administrator, acting on behalf of the Company, may from time to time, designate
a person to be a Named Fiduciary with respect to some portion of the authority
it may have with respect to management and control of the operation and
administration of the Plan or the management and control of the Plan's assets.
Such designation shall specify the person designated by name and either (a)
specify the management and control authority with respect to which the person
will be a Named Fiduciary; or (b) incorporate by reference an agreement with
such person to provide services to or on behalf of the Plan or Trust and use
such agreement as a means for specifying the management and control authority
with respect to which such person will be a Named Fiduciary. No person who is
designated as a Named Fiduciary hereunder must consent to such designation nor
shall it be necessary for the Administrator to seek such person's acquiescence.
The authority to manage and control, which any person who is designated to be a
Named Fiduciary hereunder may have, shall be several and not joint with the
Administrator, and shall result in the Administrator no longer being a Named
Fiduciary with respect to, nor having any longer, such authority to manage and
control. On and after the designation of a person as a Named Fiduciary, the
Employer, the Administrator, and any other Named Fiduciary with respect to the
Plan or Trust, shall have no liability for the acts (or failure to act) of any
such Named Fiduciary except to the extent of its co-Fiduciary duty under ERISA.
16.8 Compensation. The Administrator, acting on behalf of the Plan or
Trust, shall serve without compensation for its services as such.
16.9 Discretionary Authority of each Named Fiduciary. Each Named
Fiduciary on behalf of the Plan and Trust will enforce the Plan and Trust in
accordance with their terms. Each Named Fiduciary shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control) over that portion of the management,
administration, and operation of the Plan or Trust allocated to such Named
Fiduciary, including, but not limited to, the authority and discretion to:
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(a) formulate, adopt, issue and apply procedures and rules
and change, alter or amend such procedures and rules in accordance with law and
as may be consistent with the terms of the Plan or Trust;
(b) specify the basis upon which payments are to be made
under the Plan and, as the final appeals Fiduciary under ERISA Section 503, to
make a final determination, based upon the information known to the Named
Fiduciary within the scope of its authority and control as a Named Fiduciary,
based upon determinations made and such other information made available from an
Employer plus such final determinations made by each other Named Fiduciary
within the scope of its authority and control, as are determined to be relevant
to the final appeals Fiduciary;
(c) exercise such discretion as may be required to
construe and apply the provisions of the Plan or Trust, subject only to the
terms and conditions of the Plan or Trust; and
(d) take all necessary and proper acts as are required for
such Named Fiduciary to fulfill its duties and obligations under the Plan or
Trust.
16.10 Responsibility and Powers of the Administrator Regarding
Administration of the Plan. The Administrator shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control only if specifically provided) over that
portion of the management, administration, and operation of the Plan or Trust
allocated to the Administrator and the power to act on behalf of the Plan or
Trust, including, but not limited to, the authority and discretion to:
(a) appoint and compensate such specialists (including
attorneys, actuaries and accountants) to aid it in the administration of the
Plan, and arrange for such other services, as the Administrator considers
necessary or appropriate in carrying out the provisions of the Plan;
(b) appoint and compensate an independent outside
accountant to conduct such audits of the financial statements of the Trust as
the Administrator considers necessary or appropriate;
(c) settle or compromise any litigation against the Plan
or a Fiduciary with respect to which the Plan has an indemnity obligation;
(d) assure that the Plan does not violate any provisions
of ERISA limiting the acquisition or holding of Company Stock;
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(e) appoint the Plan Administrator to act within the
duties and responsibilities set forth in Section 16.21;
(f) act as the Fiduciary responsible for monitoring the
confidentiality and independent Fiduciary requirements associated with Company
Stock in order for the Plan to qualify as a Section 404(c) plan under Department
of Labor regulations;
(g) create a legal remedy to the Plan with respect to a
Participant or Beneficiary, or to a Participant or Beneficiary, for any loss
incurred (whether restitution or opportunity losses) by the Plan on behalf of
such Participant or Beneficiary, or by such Participant or Beneficiary, due to a
breach of Fiduciary duty to the Plan by a Named Fiduciary or other error
(whether negligent or willful) which the Administrator determines is a
substantial contributing factor to such loss (or a portion of such loss); and
(h) take all necessary and proper acts as are required for
the Administrator to fulfill its duties and obligations under the Plan or Trust.
16.11 Allocations and Delegations of Responsibility.
----------------------------------------------
(a) Delegations. Each Named Fiduciary may designate
persons (other than a Named Fiduciary) to carry out Fiduciary responsibilities
(other than trustee responsibilities as described in Section 405(c)(3) of ERISA)
it may have with respect to the Plan or Trust and make a change of delegated
responsibilities. Such delegation shall specify the delegated person by name and
either (a) specify the discretionary authority with respect to which the person
will be a Fiduciary; or (b) incorporate by reference an agreement with such
Named Fiduciary to provide services to the Plan or Trust on behalf of the
delegating Named Fiduciary as a means of specifying the discretionary authority
with respect to which such person will be a Fiduciary. No person (other than an
investment manager (as defined in Section 3(38) of ERISA) to whom Fiduciary
responsibility has been delegated must consent to being a Fiduciary nor shall it
be necessary for the Named Fiduciary to seek such person's acquiescence;
however, where such person has not contractually accepted the responsibility
delegated, he or she must be given notification of the services to be performed
and, in either case, will be deemed to have accepted such Fiduciary
responsibility if he or she performs the services described for thirty (30) days
or more without specific objection thereto. The discretionary authority any
person who is delegated Fiduciary responsibilities hereunder may have shall be
several and not joint with the Named Fiduciary delegating and each other Named
Fiduciaries. A delegation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein shall not be void; however, whether
the delegating Named Fiduciary shall have joint liability for acts of such
person shall be determined by applicable law.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(b) Allocations. The Administrator, acting on behalf of
the Company, may allocate Fiduciary responsibilities (other than trustee
responsibilities described in Section 405(c)(3) of ERISA) among Named
Fiduciaries when it designates a Named Fiduciary in the manner described in
Section 16.7, or may reallocate Fiduciary responsibilities among existing Named
Fiduciaries by action of such Administrator in accordance with Sections 16.6 and
16.7; provided each such Named Fiduciary is given notice of the services,
management and control authority allocated to it either by way of an amendment
to the Plan, Trust or a contract with such person, or by way of correspondence
from the Administrator, whichever is applicable. Each Named Fiduciary, by
signing its contract or by accepting such amendment or correspondence and
rendering the services requested without objection for thirty (30) days, shall
be conclusively bound to have assumed such Fiduciary responsibility as a Named
Fiduciary. An allocation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein shall not be void, however, such
person may not be a Named Fiduciary with respect to the Plan and Trust.
(c) Limit on Liability. Fiduciary duties and
responsibilities which have been allocated or delegated pursuant to the terms of
the Plan or the Trust, are intended to limit the liability of the Company, the
Administrator, and each Named Fiduciary, as appropriate, in accordance with the
provisions of Section 405(c) of ERISA.
16.12 Bonding. The Administrator, acting on behalf of the Plan and
Trust, shall serve without bond (except as otherwise required by federal law).
16.13 Information to be Supplied by Employer. Each Employer shall
supply to the Administrator, acting on behalf of the Plan and Trust, or a
designated Named Fiduciary, within a reasonable time of its request, the names
of all Employees, their age, their date of hire, the names and dates of all
Employees who incurred a Termination of Employment during the Plan Year,
Compensation and such other information in the Employer's possession as the
Administrator shall from time to time need in the discharge of its duties. The
Administrator and each Named Fiduciary may rely conclusively on the information
certified to it by an Employer.
16.14 Information to be Supplied by Named Fiduciary. Whenever a term,
definition, standard, protocol, policy, interpretation, rule, practice or
procedure under an Administrative Services Agreement, or other basis for
determining whether a Participant's or Beneficiary's accrued benefit, optional
form of benefit, right or feature is required or used, the Named Fiduciary who
has the authority to manage and control the administration and operation of the
Plan with respect to such accrued benefit, optional form of payment, right or
feature shall be solely responsible for establishing and maintaining such
framework of definitions, standards, protocols, policies, interpretations,
rules, practices and procedures under such Administrative Services Agreement and
shall provide a copy thereof either (1) to the Administrator, upon its
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
request, on behalf of the Company (2) to a Participant or Beneficiary but only
to the extent required by law, or (3) to the extent required in any proceeding
involving the Plan or any Named Fiduciary with respect to the Plan.
16.15 Misrepresentations. The Administrator, acting on behalf of the
Plan and Trust, may, but shall not be required to, rely upon any certificate,
statement or other representation made to it by an Employee, Participant, other
Named Fiduciary, or other individual with respect to any fact regarding any of
the provisions of the Plan. If relied upon, any such certificate, statement or
other representation shall be conclusively binding upon such Employee,
Participant, other Named Fiduciary, or other individual or personal
representative thereof, heir, or assignee (but not upon the Administrator), and
any such person shall thereafter be estopped from disputing the truth of any
such certificate, statement or other representation.
16.16 Records. The regularly kept records of the designated Named
Fiduciary (or, where applicable, the Trustee) and any Employer shall be
conclusive evidence of a person's age, his or her status as an Eligible
Employee, and all other matters contained therein applicable to this Plan;
provided that a Participant may request a correction in the record of his or her
age at any time prior to retirement, and such correction shall be made if within
ninety (90) days after such request he or she furnishes in support thereof a
birth certificate, baptismal certificate, or other documentary proof of age
satisfactory to the Administrator.
16.17 Plan Expenses. All expenses of the Plan which have been approved
by the Administrator, acting on behalf of the Plan and Trust, respectively,
shall be paid by the Trust except to the extent paid by the Employers; and if
paid by the Employers, such Employers may, if authorized by the Administrator
acting on behalf of the Company, seek reimbursement of such expenses from the
Trust and the Trust shall reimburse the Employers. If borne by the Employers,
expenses of administering the Plan shall be borne by the Employers in such
proportions as the Administrator, acting on behalf of the Company, shall
determine.
16.18 Fiduciary Capacity. Any person or group of persons may serve in
more than one Fiduciary capacity with respect to the Plan.
16.19 Employer's Agent. The Administrator shall act as agent for the
Company when acting on behalf of the Company and the Company shall act as agent
for each Employer.
16.20 Plan Administrator. The Plan Administrator (within the meaning of
Section 3(16)(A) of ERISA) shall be appointed by the Administrator, acting on
behalf of the Company, and may (but need not) be the Administrator; and in the
absence of such appointment, the Administrator, acting on behalf of the Plan and
Trust, shall be the Plan Administrator.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
16.21 Plan Administrator Duties and Power. The Plan Administrator will
have full and complete authority, responsibility and control over the
management, administration and operation of the Plan with respect to the
following:
(a) satisfy all reporting and disclosure requirements
applicable to the Plan, Trust or Plan Administrator under ERISA, the Code or
other applicable law;
(b) make appropriate determinations as to whether Rollover
Contributions constitute such;
(c) provide and deliver all written forms used by
Participants and Beneficiaries, give notices required by law, and seek a
favorable determination letter for the Plan and Trust;
(d) withhold any amounts required by the Code to be
withheld at the source and to transmit funds withheld and any and all necessary
reports with respect to such withholding to the Internal Revenue Service;
(e) where applicable, to provide each Participant or his
or her Spouse with QJSA and QPSA information;
(f) certify to the Trustee the amount and kind of benefits
payable to or withdrawn from Participants and Beneficiaries and the date of
payment, including withdrawals;
(g) respond to a QDRO;
(h) make available for inspection and to provide upon
request at such charge as may be permitted and determined by it, documents and
instruments required to be disclosed by ERISA;
(i) make a determination of whether a Participant is
suffering a deemed or demonstrated financial need and whether a withdrawal from
this Plan is deemed or demonstrated necessary to satisfy such financial need;
provided however, in making such determination, the Plan Administrator may rely,
if reasonable to do so, upon representations made by such Participant in
connection with his or her request for a withdrawal;
(j) take such actions as are necessary to establish and
maintain the Plan in full and timely compliance with any law or regulation
having pertinence to this Plan;
(k) perform whatever responsibilities are delegated to the
Plan Administrator by the Administrator; and
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(l) interpret and construe the provisions of the Plan, to
make regulations and settle disputes described above which are not inconsistent
with the terms thereof.
16.22 Named Fiduciary Decisions Final. The decision of the
Administrator, or a Named Fiduciary in matters within its jurisdiction shall be
final, binding, and conclusive upon the Employers and the Trustee and upon each
Employee, Participant, Spouse, Beneficiary, and every other person or party
interested or concerned.
16.23 No Agency. Each Named Fiduciary shall perform (or fail to
perform) its responsibilities and duties or discretionary authority with respect
to the Plan and Trust as an independent contractor and not as an agent of the
Company, any Employer, the Administrator. No agency is intended to be created
nor is the Administrator empowered to create an agency relationship with a Named
Fiduciary.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XVII
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CLAIMS PROCEDURE
----------------
17.1 Initial Claim for Benefits. Each person entitled to benefits under
this Plan (a "Claimant") must sign and submit his or her claim for benefits to
the Administrator or its agent in writing in such form as is provided or
approved by such Administrator. A Claimant shall have no right to seek review of
a denial of benefits, or to bring any action in any court to enforce a claim for
benefits prior to his or her filing a claim for benefits and exhausting his or
her rights under this Section. When a claim for benefits has been filed
properly, such claim for benefits shall be evaluated and the Claimant shall be
notified by the Administrator or agent of its approval or denial within ninety
(90) days after the receipt of such claim unless special circumstances require
an extension of time for processing the claim. If such an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant by the Administrator or agent prior to the termination of the
initial ninety (90) day period which shall specify the special circumstances
requiring an extension and the date by which a final decision will be reached
(which date shall not be later than one hundred eighty (180) days after the date
on which the claim was filed). A Claimant shall be given a written notice in
which the Claimant shall be advised as to whether the claim is granted or
denied, in whole or in part. If a claim is denied, in whole or in part, the
Claimant shall be given written notice which shall contain (1) the specific
reasons for the denial, (2) references to pertinent Plan provisions upon which
the denial is based, (3) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is necessary, and (4) the Claimant's rights to seek review of the
denial.
17.2 Review of Claim Denial. If a claim is denied, in whole or in part
(or if within the time periods prescribed for in the initial claim, the
Administrator or agent has not furnished the Claimant with a denial and the
claim is therefore deemed denied), the Claimant shall have the right to request
that the Administrator review the denial, provided that the Claimant files a
written request for review with the Administrator within sixty (60) days after
the date on which the Claimant received written notification of the denial. A
Claimant (or his or her duly authorized representative) may review pertinent
documents and submit issues and comments in writing to the Administrator. Within
sixty (60) days after a request for review is received, the review shall be made
and the Claimant shall be advised in writing by the Administrator of the
decision on review, unless special circumstances require an extension of time
for processing the review, in which case the Claimant shall be given a written
notification by the Administrator within such initial sixty (60) day period
specifying the reasons for the extension and when such review shall be completed
(provided that such review shall be completed within one hundred and twenty
(120) days after the date on which the request for review was filed). The
decision on
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
review shall be forwarded to the Claimant by the Administrator in writing and
shall include specific reasons for the decision and references to Plan
provisions upon which the decision is based. A decision on review shall be final
and binding on all persons for all purposes. If a Claimant shall fail to file a
request for review in accordance with the procedures described in this Section,
such Claimant shall have no right to review and shall have no right to bring
action in any court and the denial of the claim shall become final and binding
on all persons for all purposes.
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XVIII
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ADOPTION AND WITHDRAWAL FROM PLAN
---------------------------------
18.1 Procedure for Adoption. Any Commonly Controlled Entity may adopt
the Plan for the benefit of its Eligible Employees by resolution of such
Commonly Controlled Entity's board of directors and by completing (or the
Administrator completing pursuant to its authority to amend the Plan) one or
more Appendices with respect to such Employees, which adoption shall be
effective as of the date specified in the board resolution. No such adoption
shall be effective until such adoption and any such Appendices to be used in
connection therewith has been approved by the Administrator.
18.2 Procedure for Withdrawal. Any Employer (other than the Company)
may, by resolution of the board of directors of such Employer, with the consent
of the Administrator and subject to such conditions as may be imposed by the
Administrator (or the Administrator acting on behalf of the Company pursuant to
its authority to amend this Plan), terminate its adoption of the Plan.
Notwithstanding the foregoing, an Employer will be deemed to have terminated its
adoption of the Plan when it ceases to be a Commonly Controlled Entity.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIX
- -------------------------------------------------------------------------------
AMENDMENT, TERMINATION AND MERGER
---------------------------------
19.1 Amendments.
-----------
(a) Power to Amend. The Company, by action of its Board of
Directors on behalf of all Employers, or the Administrator as provided
in Subsection (c) below, may amend, modify, change, revise or
discontinue this Plan or any Appendix, in whole or in part, or with
respect to all persons or a designated group of persons, by amendment
at any time; provided, however, that no amendment shall:
(1) increase the duties or liabilities of the
Custodian or the Administrator without its
written consent;
(2) have the effect of vesting in any Employer
any interest in any funds, securities or
other property, subject to the terms of
this Plan and the Custodial Agreement;
(3) authorize or permit at any time any part of
the corpus or income of the Plan's assets
to be used or diverted to purposes other
than for the exclusive benefit of
Participants and Beneficiaries;
(4) except to the extent permissible under
ERISA and the Code, make it possible for
any portion of the Trust assets to revert
to an Employer to be used for, or diverted
to, any purpose other than for the
exclusive benefit of Participants and
Beneficiaries entitled to Plan benefits and
to defray reasonable expenses of
administering the Plan;
(5) permit an Employee to be paid the balance
of his or her Pre-Tax Account unless the
payment would otherwise be permitted under
Code Section 401(k); and
(6) have any retroactive effect as to deprive
any such person of any benefit already
accrued, except that no amendment made in
order to conform the Plan as a plan
described in Section 401(a) of the Code of
which amendments are permitted by the Code
or are required or permitted by any other
statute relating to employees' trusts, or
any official regulations or ruling issued
pursuant
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Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
regulations or ruling issued pursuant
thereto, shall be considered prejudicial to
the rights of any such person.
(b) Restriction on Amendment. No amendment to the Plan shall
deprive a Participant of his or her nonforfeitable rights to benefits
accrued to the date of the amendment. In addition to the foregoing, the
Plan shall not be amended so as to eliminate an optional form of
payment of an Accrued Benefit attributable to employment prior to the
date of the amendment. The foregoing limitations do not apply to
benefit accrual occurring after the date of the amendment.
(c) The Administrator. The Administrator, acting on behalf
of the Company, may amend, modify, change or revise the Plan or any
Appendix, in whole or in part, or with respect to all persons or a
designated group of persons; provided however, (i) no such action may
be taken if it could not have been adopted under this Section by the
Board of Directors; (ii) no such action may be taken if it causes a
change in the level or type of contributions to be made to the Plan or
otherwise materially increase the duties and obligations of any or all
Employers with respect to the Plans; and (iii) no such action may amend
Articles XVI and XIX.
19.2 Plan Termination. It is the expectation of the Company that it
will continue the Plan and the payment of Contributions hereunder indefinitely,
but the continuation of the Plan and the payment of Contributions hereunder is
not assumed as a contractual obligation of the Company or any other Employer.
The right is reserved by the Company to terminate the Plan at any time, and the
right is reserved by the Company by action of its Board of Directors or the
Administrator acting on behalf of the Company pursuant to its power to amend the
Plan at any time to reduce, suspend or discontinue its or any other Employer's
Contributions hereunder, provided, however, that the Contributions for any Plan
Year accrued or determined prior to the end of said year shall not after the end
of said year be retroactively reduced, suspended or discontinued except as may
be permitted by law. Upon termination of the Plan or complete discontinuance of
Contributions hereunder (other than for the reason that the Employer has had no
net profits or accumulated net profits), each Participant's Accrued Benefit
shall be fully vested. Upon termination of the Plan or a complete discontinuance
of Contributions, unclaimed amounts shall be applied as Forfeitures and any
unallocated amounts shall be allocated to Participants who are Eligible
Employees as of the date of such termination or discontinuance on the basis of
Compensation for the Plan Year (or short Plan Year). Upon a partial termination
of the Plan, the Accrued Benefit of each affected Participant shall be fully
vested. In the event of termination of the Plan, the Administrator shall direct
the Custodian to distribute to each Participant the entire amount of his or her
Accrued Benefit as soon as administratively possible, but not earlier than would
be permitted in order to retain the Plan's qualified status under
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Sections 401(a), (k) and (m) of the Code, as if all Participants who are
Employees had incurred a Termination of Employment on the Plan's termination
date. Should a Participant or a Beneficiary) not elect immediate payment of a
nonforfeitable Accrued Benefit in excess of five thousand dollars ($5,000), the
Administrator shall direct the Custodian to continue the Plan and Custodial
Agreement for the sole purpose of paying to such Participant his or her Accrued
Benefit or death benefit, respectively, unless in the opinion of the
Administrator, to make immediate single sum payments to such Participant or
Beneficiary would not adversely affect the tax qualified status of the Plan upon
termination and would not impose additional liability upon any Employer or the
Custodian.
19.3 Plan Merger.
------------
(a) General. The Plan shall not merge or consolidate with,
or transfer any assets or liabilities to any other plan, unless each
person entitled to benefits would receive a benefit immediately after
the merger, consolidation or transfer (if the Plan were then
terminated) which is equal to or greater than the benefit he or she
would have been entitled to immediately before the merger,
consolidation or transfer (if the Plan were then terminated). The
Administrator shall amend or take such other action as is necessary to
amend the Plan in order to satisfy the requirements applicable to any
merger, consolidation or transfer of assets and liabilities.
(b) Hussmann. Effective January 1, 1998, or if later the
date a Participant becomes a Hussmann Participant, the assets and
liabilities for each Hussmann Participant shall be transferred to the
Hussmann Plan based upon the Unit Value thereof as of the close of the
last Business Day in 1997, or if later the Business Day immediately
preceding the date a Participant becomes a Hussmann Participant.
(c) Midas. Effective January 1, 1998, or if later the date a
Participant becomes a Midas Participant, the assets and liabilities for
each Midas Participant shall be transferred to the Midas Plan based
upon the Unit Value thereof as of the close of the last Business Day in
1997, or if later the Business Day immediately preceding the date a
Participant becomes a Midas Participant.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XX
- -------------------------------------------------------------------------------
SPECIAL TOP-HEAVY RULES
-----------------------
20.1 Application. Notwithstanding any provisions of this Plan to the
contrary, the provisions of this Article shall apply and be effective for any
Plan Year for which the Plan shall be determined to be a "Top-Heavy Plan" as
provided and defined herein.
20.2 Special Terms. For purposes of this Article, the following terms
shall have the following meanings:
(a) "Aggregate Benefit" means the sum of:
(1) the present value of the accrued benefit
under each and all defined benefit plans in
the Aggregation Group determined on each
plan's individual Determination Date as if
there were a termination of employment on
the most recent date the plan is valued by
an actuary for purposes of computing plan
costs under Section 412 of the Code within
the twelve (12) month period ending on the
Determination Date of each such plan, but
with respect to the first plan year of any
such plan determined by taking into account
the estimated accrued benefit as of the
Determination Date; provided (A) the method
of accrual used for the purpose of this
Paragraph (1) shall be the same as that
used under all plans maintained by all
Employers and Commonly Controlled Entities
if a single method is used by all stock
plans or, otherwise, the slowest accrual
method permitted under Section 411(b)(1)(C)
of the Code, and (B) the actuarial
assumptions to be applied for purposes of
this Paragraph (1) shall be the same
assumptions as those applied for purposes
of determining the actuarial equivalents of
optional benefits under the particular
plan, except that the interest rate
assumption shall be five percent (5%);
(2) the present value of the accrued benefit
(i.e., account balances) under each and all
defined contribution plans in the
Aggregation Group, valued as of the
valuation date coinciding with or
immediately preceding the Determination
Date of each such plan, including (A)
contributions made after the valuation date
but on or prior
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to the Determination Date, (B) with respect
to the first plan year of any plan, any
contribution made subsequent to the
Determination Date but allocable as of any
date in the first plan year, or (C) with
respect to any defined contribution plan
subject to Section 412 of the Code, any
contribution made after the Determination
Date that is allocable as of a date on or
prior to the Determination Date; and
(3) the sum of each and all amounts distributed
(other than a rollover or plan-to-plan
transfer) from any Aggregation Group Plan,
plus a rollover or plan-to-plan transfer
initiated by the Employee and made to a
plan which is not an Aggregation Group Plan
within the Current Plan Year or within the
preceding four (4) plan years of any such
plan, provided such amounts are not already
included in the present value of the
accrued benefits as of the valuation date
coincident with or immediately preceding
the Determination Date.
The Aggregate Benefit shall not include the value of any rollover or
plan-to-plan transfer to an Aggregation Group Plan, which rollover or
transfer was initiated by a Participant, was from a plan which was not
maintained by an Employer or a Commonly Controlled Entity, and was made
after December 31, 1983, nor shall the Aggregate Benefit include the
value of employee contributions which are deductible pursuant to
Section 219 of the Code.
(b) "Aggregation Group" means the Plan and one or more plans
(including plans that terminated) which is described in Section 401(a)
of the Code, is an annuity contract described in Section 403(a) of the
Code or is a simplified employee pension described in Section 408(k) of
the Code maintained or adopted by an Employer or a Commonly Controlled
Entity in the Current Plan Year or one of the four preceding Plan Years
which is either a "Required Aggregation Group" or a "Permissive
Aggregation Group".
(1) A "Required Aggregation Group" means all
Aggregation Group Plans in which either (1)
a Key Employee participates or (2) which
enables any Aggregation Group Plan in which
a Key Employee participates to satisfy the
requirements of Sections 401(a)(4) and 410
of the Code.
(2) A "Permissive Aggregation Group" means
Aggregation Group Plans included in the
Required Aggregation Group, plus one or
more other Aggregation Group Plans, as
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
designated by the Administrator in its sole
discretion, which satisfy the requirements
of Sections 401(a)(4) and 410 of the Code,
when considered with the other component
plans of the Required Aggregation Group.
(c) "Aggregation Group Plan" means the Plan and each other
plan in the Aggregation Group.
(d) "Current Plan Year" means (1) with respect to the Plan,
the Plan Year in which the Determination Date occurs, and (2) with
respect to each other Aggregation Group Plan, the plan year of such
other plan in which occurs the Determination Date of such other plan.
(e) "Determination Date" means (1) with respect to the Plan
and its Plan Year, the last day of the preceding Plan Year; or (2) with
respect to any other Aggregation Group Plan in any calendar year during
which the Plan is not the only component plan of an Aggregation Group,
the determination date of each plan in such Aggregation Group to occur
during the calendar year as determined under the provisions of each
such plan.
(f) "Former Key Employee" means an Employee (including a
terminated Employee) who is not a Key Employee but who was a Key
Employee.
(g) "Key Employee" means an Employee (or a terminated
Employee) who at any time during the Current Plan Year or at any time
during the four preceding Plan Years is:
(1) an officer of a Commonly Controlled Entity
whose compensation from a Commonly
Controlled Entity during the Plan Year is
greater than fifty percent (50%) of the
amount specified in Section 415(b)(1)(A) of
the Code (as adjusted for cost-of-living
increases by the Secretary of the Treasury)
for the calendar year in which the Plan
Year ends; provided, however, that no more
than the lesser of (A) fifty (50)
Employees, or (B) the greater of (i) three
(3) Employees or (ii) ten percent (10%)
(rounded to the next whole integer) of the
greatest number of Employees during the
Current Plan Year or any of the preceding
four Plan Years shall be considered as
officers for this purpose. Such officers
considered will be those with the greatest
annual compensation as an officer during
the five (5) year period ending on the
Determination Date;
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(2) One of the ten employees who owns (or is
considered to own within the meaning of
Section 318 of the Code) more than a one
half percent (1/2%) interest in value and
the largest percentage ownership interest
in value in a Commonly Controlled Entity
and whose total annual compensation from a
Commonly Controlled Entity is not less than
the amount specified in Section
415(b)(1)(A) of the Code (as adjusted for
cost-of-living increases by the Secretary
of the Treasury) for the calendar year in
which the Plan Year ends;
(3) A person who owns more than five percent
(5%) of the value of the outstanding stock
of any Commonly Controlled Entity or more
than five percent (5%) of the total
combined voting power of all stock of any
Commonly Controlled Entity (considered
separately) or;
(4) A person who owns more than one percent
(1%) of the value of the outstanding stock
of a Commonly Controlled Entity or more
than one percent (1%) of the total combined
voting power of all stock of a Commonly
Controlled Entity (considered separately)
and whose total annual compensation (as
defined in Section 1.415-2(d) of the
Treasury Regulations) from the Employer or
a Commonly Controlled Entity is in excess
of one hundred and fifty thousand dollars
($150,000).
The rules of Section 416 (i)(1)(B) and (C) of the Code shall be applied
for purposes of determining an Employee's ownership interest in a
Commonly Controlled Entity for purposes of Paragraphs (3) and (4)
herein. A Beneficiary (who would not otherwise be considered a Key
Employee) of a deceased Key Employee shall be deemed to be a Key
Employee in substitution for such deceased Key Employee. Any person who
is a Key Employee under more than one of the four Paragraphs of this
Section shall have his or her Aggregate Benefit under the Aggregation
Group Plans counted only once with respect to computing the Aggregate
Benefit of Key Employees as of any Determination Date. Any Employee who
is not a Key Employee shall be a Non-Key Employee.
(h) "Top-Heavy Plan" means the Plan with respect to any Plan
Year if the Aggregate Benefit of all Key Employees or the Beneficiaries
of Key Employees determined on the Determination Date is an amount in
excess of sixty percent (60%) of the Aggregate Benefit of all persons
who are Employees within the Current Plan Year; provided, that if an
individual has not performed services for an Employer or a Commonly
Controlled Entity at any time during
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
the five (5) year period ending on the Determination Date, the
individuals's Accrued Benefit shall not be taken into account. With
respect to any calendar year during which the Plan is not the only
Aggregation Group Plan, the ratio determined under the preceding
sentence shall be computed based on the sum of the Aggregate Benefits
of each Aggregation Group Plan totaled as of the last Determination
Date of any Aggregation Group Plan to occur during the calendar year.
20.3 Minimum Contribution. For any Plan Year that the Plan shall be a
Top-Heavy Plan, each Participant who is an Eligible Employee but who is neither
a Key Employee nor a Former Key Employee on the last day of the Plan Year shall
have allocated to his or her Matching Account on the last day of the Plan Year a
Pay Based Contribution in an amount equal to three percent (3%) of such
Participant's Compensation not in excess of two hundred thousand dollars
($200,000); provided, however, in no event shall such contribution on behalf of
such Participant be less than five percent (5%) of such Compensation if any
Aggregation Group Plan is a defined benefit plan which does not satisfy the
minimum benefit requirements with respect to such Participant. The amount of Pay
Based Contributions required to be allocated under this Section for any Plan
Year shall be reduced by the amount of Employer Contributions and Forfeitures
allocated under this Plan on behalf of the Participant and employer
contributions and forfeitures allocated on behalf of the Participant under any
other defined contribution plan in the Aggregation Group for the Plan Year.
Elective Deferrals to any Aggregation Group Plan made on behalf of a Participant
in Plan Years beginning after December 31, 1984 but before January 1, 1989 shall
be deemed to be Employer Contributions for the purpose of this Section. Elective
Deferrals and matching contributions to Aggregation Group Plans in Plan Years
beginning on or after January 1, 1989 shall not be used to meet the minimum
contribution requirements of this Section. Where Employer Contributions and
Forfeitures allocated on behalf of a Participant are insufficient to satisfy the
minimum contribution otherwise required by this Section, an additional employer
contribution shall be made and allocated to the Matching or Pay Based Account of
such Participant.
20.4 Maximum Benefit Accrual. For any Plan Year that the Plan is a
Top-Heavy Plan, the denominator of the "defined benefit plan fraction" and the
denominator of the "defined contribution plan fraction" shall be determined by
substituting "1.0" for "1.25"; provided, however, this limit shall not apply
with respect to an Employee for any Plan Year during which he or she accrues no
benefit under any plan of the Aggregation Group. The preceding sentence shall
not apply if, within this Article, there is substituted "four percent (4%)" for
"three percent (3%)" and "seven and one-half percent (7.5%)" for "five percent
(5%)" and "ninety percent (90%)" for "sixty percent (60%)."
- 83 -
<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XXI
- -------------------------------------------------------------------------------
MISCELLANEOUS PROVISIONS
------------------------
21.1 Assignment and Alienation. As provided by Code Section 401(a)(13)
and to the extent not otherwise required by law, no benefit provided by the Plan
may be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit
with respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as
security for a loan from the Plan which is permitted pursuant to Code
Section 4975.
21.2 Protected Benefits. All benefits which are protected by the terms
of Code Section 411(d)(6) and ERISA Section 204(g), which cannot be eliminated
without adversely affecting the qualified status of the Plan on and after
January 1, 1998, shall be provided under this Plan to Participants for whom such
benefits are protected. The Administrator shall cause such benefits to be
determined and the terms and provisions of the Plan immediately prior to January
1, 1998 are incorporated herein by reference and made a part hereof, but only to
the extent such terms and provisions are so protected. Otherwise, they shall
operate within the terms and provisions of this Plan, as determined by the
Administrator.
21.3 Plan Does Not Affect Employment Rights. The Plan does not provide
any employment rights to any Employee. The Employer expressly reserves the right
to discharge an Employee at any time, with or without Cause, without regard to
the effect such discharge would have upon the Employee's interest in the Plan.
21.4 Deduction of Taxes from Amounts Payable. The Custodian shall
deduct from the amount to be distributed such amount as the Custodian, in its
sole discretion, deems proper to protect the Custodian and the Plan's assets
held under the Custodial Agreement against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted,
the Custodian may discharge any such liability and pay the amount remaining to
the Participant, the Beneficiary or the deceased Participant's estate, as the
case may be.
21.5 Facility of Payment. If a Participant or Beneficiary is declared
an incompetent or is a minor and a conservator, guardian, or other person
legally charged with his or her care has been appointed, any benefits to which
such Participant or Beneficiary is entitled shall be payable to such
conservator, guardian, or other person legally charged with his or her care. The
decision of the Administrator in such matters shall be final, binding, and
conclusive upon the
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Employer and the Custodian and upon each Employee, Participant, Beneficiary, and
every other person or party interested or concerned. An Employer, the Custodian
and the Administrator shall not be under any duty to see to the proper
application of such payments.
21.6 Source of Benefits. All benefits payable under the Plan shall be
paid or provided for solely from the Plan's assets held under the Custodial
Agreement and the Employers assume no liability or responsibility therefor.
21.7 Indemnification. To the extent permitted by law each Employer
shall indemnify and hold harmless each member (and former member) of the Board
of Directors, the Administrator (and each former Administrator), and each
officer and employee (and each former officer and employee) of an Employer to
whom are (or were) delegated duties, responsibilities, and authority with
respect to the Plan against all claims, liabilities, fines and penalties, and
all expenses reasonably incurred by or imposed upon him or her (including but
not limited to reasonable attorney fees and amounts paid in any settlement
relating to the Plan) by reason of his or her service under the Plan if he or
she did not act dishonestly, with gross negligence, or otherwise in knowing
violation of the law under which such liability, loss, cost or expense arises.
This indemnity shall not preclude such other indemnities as may be available
under insurance purchased or provided by an Employer under any by-law,
agreement, or otherwise, to the extent permitted by law. Payments of any
indemnity, expenses or fees under this Section shall be made solely from assets
of the Employer and shall not be made directly or indirectly from the assets of
the Plan.
21.8 Reduction for Overpayment. The Administrator shall, whenever it
determines that a person has received benefit payments under this Plan in excess
of the amount to which the person is entitled under the terms of the Plan, make
two reasonable attempts to collect such overpayment from the person.
21.9 Limitation on Liability. No Employer nor any agent or
representative of any Employer who is an employee, officer, or director of an
Employer in any manner guarantees the assets of the Plan against loss or
depreciation, and to the extent not prohibited by federal law, none of them
shall be liable (except for his or her own gross negligence or willful
misconduct), for any act or failure to act, done or omitted in good faith, with
respect to the Plan. No Employer shall be responsible for any act or failure to
act of any Custodian appointed to administer the assets of the Plan.
21.10 Company Merger. In the event any successor corporation to the
Company, by merger, consolidation, purchase or otherwise, shall elect to adopt
the Plan, such successor corporation shall be substituted hereunder for the
Company upon filing in writing with the Custodian its election so to do.
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<PAGE>
Whitman Corporation Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
21.11 Employees' Trust. The Plan and Custodial Agreement are created
for the exclusive purpose of providing benefits to the Participants in the Plan
and their Beneficiaries and defraying reasonable expenses of administering the
Plan, and the Plan and Custodial Agreement shall be interpreted in a manner
consistent with their being, respectively, a Plan described in Sections 401(a),
401(k) and 401(m) of the Code and Custodial Agreements exempt under Section
501(a) of the Code. At no time shall the assets of the Plan be diverted from the
above purpose.
21.12 Gender and Number. Except when the context indicates to the
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.
21.13 Invalidity of Certain Provisions. If any provision of this Plan
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Plan shall be construed and
enforced as if such provisions, to the extent invalid or unenforceable, had not
been included.
21.14 Headings. The headings or articles are included solely for
convenience of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
21.15 Uniform and Nondiscriminatory Treatment. Any discretion
exercisable hereunder by an Employer or the Administrator shall be exercised in
a uniform and nondiscriminatory manner.
21.16 Law Governing. The Plan shall be construed and enforced according
to the laws of the state in which the Trust is located, to the extent not
preempted by ERISA.
21.17 Military Service. Notwithstanding any provision of this Plan to
the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Code.
21.18 Notice and Information Requirements. Except as otherwise provided
in this Plan or in the Custodial Agreement or as otherwise required by law, the
Employer shall have no duty or obligation to affirmatively disclose to any
Participant or Beneficiary, nor shall any Participant or Beneficiary have any
right to be advised of, any material information regarding the Employer, at any
time prior to, upon or in connection with the Employer's purchase, or any other
distribution or transfer (or decision to defer any such distribution) of any
Company Stock or any other stock held under the Plan.
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<PAGE>
APPENDIX 7.4
Investment Funds
The Investment Funds offered to Participants and Beneficiaries as of
January 1, 1998, based upon share accounting, are:
1. Fixed Income Fund
2. Whitman Stock Fund
3. Large Company Fund
4. Small Company Fund
5. International Fund
6. Conservative Portfolio
7. Moderate Portfolio
8. Growth Portfolio
9. Aggressive Growth Portfolio
10. PepsiCo Stock Fund, effective only from the date
assets and liabilities are transferred from the
PepsiCo Long Term Savings Program to and including
May 20, 2001.
The Investment Funds prior to January 1, 1998 are those Investment
Funds that were in the Plan on the Business Day prior to January 1, 1998.
Appendix 7.4 - Page 1
<PAGE>
APPENDIX 1.28
Excluded Employees
The following Employees shall not be an Eligible Employee:
(a) Any Employee who is eligible to participate in the
Whitman Management Incentive Compensation Plan ("MIC Plan") at any time
during the Plan Year which begins on or after the date such Employee is
designated by an Employer as being eligible for such MIC Plan; except
that (1) a person who becomes an Employee as the result of the merger
of Whitman Corporation and Heartland Territories Holdings, Inc. shall
not be subject to this restriction and shall not, therefore, fail to be
an Eligible Employee as a consequence of being eligible for the MIC
Plan, and (2) with respect to an Employee of Pepsi-Cola General
Bottlers, Inc. (or any subsidiary thereof), this restriction shall
lapse in its entirety on the last day of 1999 so that, as of January 1,
2000, no Employee of Pepsi-Cola General Bottlers, Inc. (or any
subsidiary thereof) shall fail to be an Eligible Employee as a
consequence of being eligible for the MIC Plan.
(b) Union employees, leased employees and non-resident
aliens.
Appendix 1.28 - Page 1
<PAGE>
Exhibit 4.5
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Whitman Corporation
---------------------------
WHITMAN
CORPORATION
MASTER
RETIREMENT
SAVINGS PLAN
---------------------------
As Amended and Restated Effective January 1, 1998
<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Whitman Corporation Master Retirement Savings Plan
- -------------------------------------------------------------------------------
Whitman Corporation established the Whitman Corporation Master Retirement
Savings Plan for the benefit of eligible employees of the Company and its
participating affiliates. The Plan is intended to constitute a qualified profit
sharing plan, as described in Code Section 401(a), which includes a qualified
cash or deferred arrangement, as described in Code Section 401(k).
The Plan constitutes an amendment and restatement of the Supplemental Retirement
and Savings Plan for Hourly Employees of IC Industries, Inc. and the spinoff of
liabilities and assets to the Hussmann Corporation Retirement Savings Plan for
Hourly Employees and the Midas International Corporation Retirement Savings Plan
for Hourly Employees on or after January 1, 1998, the merger of Pepsi-Cola
General Bottling Company of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan
as of July 1, 1995, and the merger of the Lou Gen Ltd. Profit Sharing Plan and
Trust as of January 1, 1997. Notwithstanding any provision of this Plan to the
contrary, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Section 414(u) of the
Internal Revenue Code.
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ARTICLE I
DEFINITIONS.........................................................1
1.1 "Accounting Period"....................................1
1.2 "Accounts".............................................1
1.3 "Accrued Benefit"......................................2
1.4 "Administrative Services Agreement"....................2
1.5 "Administrator"........................................3
1.6 "Appendix".............................................3
1.7 "Applicable Election Period"...........................3
1.8 "Authorized Leave of Absence"..........................3
1.9 "Beneficiary"..........................................3
1.10 "Board of Directors"...................................3
1.11 "Break in Service".....................................3
1.12 "Business Day".........................................3
1.13 "CEO"..................................................3
1.14 "Change Date"..........................................4
1.15 "Commonly Controlled Entity"...........................4
1.16 "Company"..............................................4
1.17 "Company Stock"........................................4
1.18 "Compensation".........................................4
1.19 "Computation Period"...................................5
1.20 "Contract Administrator"...............................5
1.21 "Contributions"........................................5
1.22 "Contribution Dollar Limit"............................6
1.23 "Contribution Election" or "Election"..................6
1.24 "Contribution Percentage"..............................6
1.25 "Conversion Election"..................................6
1.26 "Custodial Agreement"..................................6
1.27 "Custodian"............................................6
1.28 "Direct Rollover"......................................6
1.29 "Disability or Disabled"...............................7
1.30 "Distributee"..........................................7
1.31 "Early Retirement Date"................................7
1.32 "Effective Date".......................................7
1.33 "Elective Deferral"....................................7
1.34 "Eligible Employee"....................................7
1.35 "Eligibility Service"..................................7
1.36 "Eligible Retirement Plan".............................8
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1.37 "Eligible Rollover Distribution".......................8
1.38 "Employee".............................................8
1.39 "Employer".............................................8
1.40 "Employment Date"......................................8
1.41 "ERISA"................................................8
1.42 "Fiduciary"............................................9
1.43 "Forfeiture"...........................................9
1.44 "Forfeiture Account"...................................9
1.45 "Highly Compensated Eligible Employee" or "HCE"........9
1.46 "Hour of Service".....................................11
1.47 "Hussmann"............................................12
1.48 "Hussmann Participant"................................12
1.49 "Hussmann Plan".......................................12
1.50 "Insurance Contract Arrangement"......................12
1.51 "Internal Revenue Code" or "Code".....................13
1.52 "Investment Election".................................13
1.53 "Investment Fund" or "Fund"...........................13
1.54 "Limited Deferrals"...................................13
1.55 "Maternity/Paternity Absence".........................13
1.56 "Midas"...............................................13
1.57 "Midas Participant"...................................13
1.58 "Midas Plan"..........................................13
1.59 "Named Fiduciary".....................................14
1.60 "Non-Highly Compensated Employee" or "NHCE"...........14
1.61 "Normal Retirement Date"..............................14
1.62 "Notice Date".........................................14
1.63 "Participant".........................................14
1.64 "Payment Date"........................................14
1.65 "Plan"................................................15
1.66 "Plan Year"...........................................15
1.67 "QDRO"................................................15
1.68 "Qualified Joint and Survivor Annuity"................15
1.69 "Qualified Matching Contribution".....................15
1.70 "Related Plan"........................................15
1.71 "Rollover Contribution"...............................15
1.72 "Settlement Date".....................................16
1.73 "Spousal Consent".....................................16
1.74 "Spouse"..............................................16
1.75 "Sweep Date"..........................................16
1.76 "Termination of Employment"...........................16
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1.77 "Trade Date"..........................................17
1.78 "Trust"...............................................17
1.79 "Trust Agreement".....................................17
1.80 "Trust Fund"..........................................17
1.81 "Trustee".............................................17
1.82 "Trustee Transfer"....................................17
1.83 "Unit Value"..........................................17
1.84 "Valuation Date"......................................17
1.85 "Vesting Service".....................................17
1.86 "Year of Service".....................................18
ARTICLE II
PARTICIPATION......................................................19
2.1 Eligibility...........................................19
2.2 Reemployment..........................................19
2.3 Participation Upon Change of Job Status...............19
ARTICLE III
PARTICIPANT CONTRIBUTIONS..........................................20
3.1 Pre-Tax Contribution Elections........................20
3.2 Post-Tax Contribution Elections.......................20
3.3 Election Procedures...................................21
3.4 Limitation of Elective Deferrals for all Participants.22
ARTICLE IV
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS.............................24
4.1 Participant Contributions.............................24
4.2 Matching Contributions................................24
4.3 Formula Based Contributions...........................25
4.4 Special Contributions.................................25
4.5 Miscellaneous.........................................26
ARTICLE V
ROLLOVERS..........................................................28
5.1 Rollovers.............................................28
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ARTICLE VI
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS..................................29
6.1 Individual Participant Accounting.....................29
6.2 Accounting for Investment Funds.......................30
6.3 Accounts for QDRO Beneficiaries.......................31
6.4 Special Accounting During Conversion Period...........31
ARTICLE VII
INVESTMENT FUNDS AND ELECTIONS.....................................33
7.1 Investment Funds......................................33
7.2 Investment of Contributions...........................33
7.3 Investment of Accounts................................34
7.4 Establishment of Investment Funds.....................34
7.5 Transition Rules......................................34
ARTICLE VIII
VESTING AND FORFEITURES............................................36
8.1 Fully Vested Contribution Accounts....................36
8.2 Vesting; Payment of Accrued Benefit On or After
Retirement or Disability.............................36
8.3 Vesting Schedule and Forfeitures......................36
8.4 Forfeitures...........................................37
8.5 Forfeiture Account....................................38
ARTICLE IX
PARTICIPANT LOANS..................................................39
9.1 Participant Loans Permitted...........................39
9.2 Loan Funding Limits...................................39
9.3 Maximum Number of Loans...............................40
9.4 Source of Loan Funding................................40
9.5 Interest Rate.........................................40
9.6 Repayment.............................................40
9.7 Repayment Hierarchy...................................40
9.8 Loan Application, Note and Security...................40
9.9 Default, Suspension and Acceleration Feature..........41
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ARTICLE X
IN-SERVICE WITHDRAWALS.............................................42
10.1 Withdrawals for General Hardship......................42
10.2 Withdrawals for 401(k) Hardship.......................42
10.3 Withdrawals for Participants over age 59 1/2 or who
are Disabled.........................................44
10.4 Unrestricted Withdrawals..............................44
10.5 Withdrawal Processing.................................45
ARTICLE XI
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT..........................................47
11.1 Request for Distribution of Benefits..................47
11.2 Deadline for Distribution.............................47
11.3 Payment Form and Medium...............................48
11.4 Small Amounts Paid Immediately........................48
11.5 Payment Within Life Expectancy........................48
11.6 Incidental Benefit Rule...............................48
11.7 QJSA and QPSA Information and Elections...............49
11.8 Continued Payment of Amounts in Payment Status on
January 1, 1997......................................50
11.9 TEFRA Transitional Rule...............................51
11.10 Direct Rollover.......................................51
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH..........................52
12.1 Payment to Beneficiary................................52
12.2 Beneficiary Designation...............................52
12.3 Benefit Election......................................52
12.4 Payment Form..........................................53
12.5 Time Limit for Payment to Beneficiary.................53
12.6 QPSA Information and Election.........................53
12.7 Direct Rollover.......................................54
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ARTICLE XIII
MAXIMUM CONTRIBUTIONS..............................................55
13.1 Definitions...........................................55
13.2 Avoiding an Annual Excess.............................56
13.3 Correcting an Annual Excess...........................56
13.4 Correcting a Multiple Plan Excess.....................57
13.5 Two-Plan Limit........................................57
13.6 Short Plan Year.......................................58
13.7 Grandfathering of Applicable Limitations..............58
ARTICLE XIV
ADP AND ACP TESTS..................................................59
14.1 Contribution Limitation Definitions...................59
14.2 ADP and ACP Tests.....................................60
14.3 Correction of ADP and ACP Tests.......................61
14.4 Method of Calculation.................................61
14.5 Multiple Use Test.....................................62
14.6 Adjustment for Investment Gain or Loss................62
14.7 Required Records......................................63
14.8 Incorporation by Reference............................63
14.9 Collectively Bargained Employees......................63
14.10 QSLOB.................................................63
ARTICLE XV
CUSTODIAL ARRANGEMENTS.............................................64
15.1 Custodial Agreement...................................64
15.2 Selection of Custodian................................64
15.3 Custodian's Duties....................................64
15.4 Separate Entity.......................................64
15.5 Plan Asset Valuation..................................65
15.6 Right of Employers to Plan Assets.....................65
ARTICLE XVI
ADMINISTRATION AND INVESTMENT MANAGEMENT...........................66
16.1 General...............................................66
16.2 Administrator Acting as Employer with Respect to the
Plan.................................................66
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16.3 Administrator Acting as Employer with Respect to the
Trust................................................67
16.4 Administrator as Named Fiduciary for the Plan.........67
16.5 Administrator as Named Fiduciary for the Trust........68
16.6 Actions...............................................68
16.7 Procedures for Designation of a Named Fiduciary.......69
16.8 Compensation..........................................69
16.9 Discretionary Authority of each Named Fiduciary.......69
16.10 Responsibility and Powers of the Administrator
Regarding Administration of the Plan.................70
16.11 Allocations and Delegations of Responsibility.........71
16.12 Bonding...............................................72
16.13 Information to be Supplied by Employer................72
16.14 Information to be Supplied by Named Fiduciary.........72
16.15 Misrepresentations....................................72
16.16 Records...............................................72
16.17 Plan Expenses.........................................73
16.18 Fiduciary Capacity....................................73
16.19 Employer's Agent......................................73
16.20 Plan Administrator....................................73
16.21 Plan Administrator Duties and Power...................73
16.22 Named Fiduciary Decisions Final.......................74
16.23 No Agency.............................................74
ARTICLE XVII
CLAIMS PROCEDURE...................................................75
17.1 Initial Claim for Benefits............................75
17.2 Review of Claim Denial................................75
ARTICLE XVIII
ADOPTION AND WITHDRAWAL FROM PLAN..................................77
18.1 Procedure for Adoption................................77
18.2 Procedure for Withdrawal..............................77
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ARTICLE XIX
AMENDMENT, TERMINATION AND MERGER..................................78
19.1 Amendments............................................78
19.2 Plan Termination......................................79
19.3 Plan Merger...........................................80
ARTICLE XX
SPECIAL TOP-HEAVY RULES............................................82
20.1 Application...........................................82
20.2 Special Terms.........................................82
20.3 Minimum Contribution..................................86
20.4 Maximum Benefit Accrual...............................86
20.5 Special Vesting.......................................86
ARTICLE XXI
MISCELLANEOUS PROVISIONS...........................................88
21.1 Assignment and Alienation.............................88
21.2 Protected Benefits....................................88
21.3 Plan Does Not Affect Employment Rights................88
21.4 Deduction of Taxes from Amounts Payable...............88
21.5 Facility of Payment...................................88
21.6 Source of Benefits....................................89
21.7 Indemnification.......................................89
21.8 Reduction for Overpayment.............................89
21.9 Limitation on Liability...............................89
21.10 Company Merger........................................89
21.11 Employees' Trust......................................89
21.12 Gender and Number.....................................90
21.13 Invalidity of Certain Provisions......................90
21.14 Headings..............................................90
21.15 Uniform and Nondiscriminatory Treatment...............90
21.16 Notice and Information Requirements...................90
21.17 Military Service......................................90
21.18 Law Governing.........................................90
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE I
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DEFINITIONS
-----------
The following sections of this Article I provide basic definitions of
terms used throughout the Plan, and whenever used herein in a capitalized form,
except as otherwise expressly provided or defined in an Appendix (but in such
case only with respect to persons covered by such Appendix), the terms shall be
deemed to have the following meanings:
1.1 "Accounting Period" means the periods generally designated by the
Administrator with respect to each Investment Fund not to exceed one year in
duration.
1.2 "Accounts" means the record of a Participant's interest in the
Plan's assets represented by his or her:
(a) "Formula Based Account" which means a Participant's
interest in the Plan's assets composed of Formula Based Contributions
allocated on or after January 1, 1998 to the Participant under the
Plan, the amount allocated under the Plan, as of January 1, 1998, if
any (as identified by the Administrator), and an amount allocated from
the Lou Gen Ltd. Profit Sharing Plan as of January 1, 1998, if any,
which continues to be accounted for under the Plan (as identified by
the Administrator), plus all income and gains credited to, and minus
all losses, expenses, withdrawals and distributions charged to, such
Account.
(b) "Matching Account" which means a Participant's interest in
the Plan's assets composed of Matching Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), and an amount allocated from the Lou Gen Ltd.
Profit Sharing Plan as of January 1, 1998, if any, which continues to
be accounted for under the Plan (as identified by the Administrator),
plus all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(c) "Post-Tax Account" which means a Participant's interest in
the Plan's assets composed of post-tax contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan as of January 1, 1998, if any (as identified
by the Administrator), and an amount allocated from the Lou Gen Ltd.
Profit Sharing Plan as of January 1, 1998, if any, which continues to
be accounted for under the Plan (as identified
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
by the Administrator), plus all income and gains credited to, and minus
all losses, expenses, withdrawals and distributions charged to, such
Account.
(d) "Pre-Tax Account" which means a Participant's interest in
the Plan's assets composed of Pre-Tax Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrative Committee), an amount allocated from the Pepsi-
Cola General Bottling Company of Oshkosh, Inc. and Beverage Bottlers
Inc. 401(k) Plan prior to January 1, 1998, if any, which continue to be
accounted for under the Plan (as identified by the Administrative
Committee), an amount allocated from the Lou Gen Ltd. Profit Sharing
Plan, if any, prior to January 1, 1998, and an amount allocated from
the PepsiCo Long Term Savings Program as of May 21, 1999 (or, if later,
the date of the transfer of assets and liabilities from the PepsiCo
Long Term Savings Program), if any, which continues to be accounted for
under the Plan (as identified by the Administrative Committee), plus
all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(e) "Rollover Account" which means a Participant's interest in
the Plan's assets composed of Rollover Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998, if any (as identified
by the Administrator), and an amount allocated from the Lou Gen Ltd.
Profit Sharing Plan as of January 1, 1998, if any, which continues to
be accounted for under the Plan (as identified by the Administrator),
plus all income and gains credited to, and minus all losses, expenses,
withdrawals and distributions charged to, such Account.
(f) "Special Account" which means a Participant's interest in
the Plan's assets composed of Special Contributions allocated on or
after January 1, 1998 to the Participant under the Plan, the amount
allocated under the Plan, as of January 1, 1998 if any (as identified
by the Administrator), plus all income and gains credited to, and minus
all losses, expenses, withdrawals and distributions charged to, such
Account.
Notwithstanding the above, each of the Accounts for each Hussmann
Participant and Midas Participant shall be reduced to zero effective as of the
date of transfer of liabilities and assets of such Accounts to the Hussmann Plan
and Midas Plan, respectively.
1.3 "Accrued Benefit" means the units held in or posted to Accounts on
the Settlement Date in accordance with the terms of this Plan, including any
applicable Administrative Services Agreement.
1.4 "Administrative Services Agreement" means a contractual arrangement
with, or if no separate contractual arrangement exists, that portion of an
Insurance Contract Arrangement with, a Trustee, Named Fiduciary or a Contract
Administrator which describes the services to be rendered by the Trustee, Named
Fiduciary or Contract Administrator to or on behalf of the Plan and which
Administrative Services Agreement is incorporated into and made a part of the
Plan.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.5 "Administrator" means the Senior Vice-President-Human Resources of
Pepsi-Cola General Bottlers, Inc., or any person who shall succeed to the
functional responsibilities of said office.
1.6 "Appendix" means a written supplement attached to this Plan and
made a part hereof which has been added in accordance with the provisions of the
Plan.
1.7 "Applicable Election Period" means, with respect to an election
described in Section 11.3 to waive the Normal Form, a period of time beginning
90 days before the Payment Date and ending with the Payment Date, or if later,
at any time prior to the expiration of the 7-day period that begins the day
after the explanation of the Qualified Joint and Survivor Annuity is provided to
the Participant.
1.8 "Authorized Leave of Absence" means an absence, with or without
Compensation, authorized on a nondiscriminatory basis by a Commonly Controlled
Entity under its standard personnel practices applicable to the Employee,
including any period of time during which such person is covered by a short-term
disability plan of his or her Employer and any period of time required to be
recognized by the collective bargaining agreement between the Employer and such
Employee's collective bargaining representative. An Employee who leaves the
service of a Commonly Controlled Entity to enter the Armed Forces of the United
States of America and who reenters the service of the Commonly Controlled Entity
with reemployment rights under any statute granting reemployment rights to
persons in the Armed Forces shall be deemed to have been on an Authorized Leave
of Absence. The date that an Employee's Authorized Leave of Absence ends shall
be determined in accordance with the personnel policies of such Commonly
Controlled Entity, which ending date shall be no earlier than the date that the
Authorized Leave of Absence is scheduled to end, unless the Employee
communicates to such Commonly Controlled Entity that he or she is to have a
Termination of Employment as of an earlier date.
1.9 "Beneficiary" means any person designated by a Participant to
receive any benefits which shall be payable with respect to the death of a
Participant under the Plan or as a result of a QDRO.
1.10 "Board of Directors" means the board of directors of the Company.
1.11 "Break in Service" means the end of five consecutive Computation
Periods (or six consecutive Computation Periods if absence from employment was
due to a Maternity/Paternity Absence) for which a Participant is credited with
less than 501 Hours of Service.
1.12 "Business Day" means any day or part of a day on which the New
York Stock Exchange and the Trustee are open for business.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.13 "CEO" means the Chief Executive Officer of the Company.
1.14 "Change Date" means the one or more dates during the Plan Year
generally designated by the Administrator (or, with respect to a specific
Employee group, as may be provided in an Appendix) as the dates available for
implementing or changing a Participant's Contribution Election.
1.15 "Commonly Controlled Entity" means (1) an Employer and any
corporation, trade or business, but only for so long as it and the Employer are
members of a controlled group of corporations as defined in Section 414(b) of
the Code or under common control as defined in Section 414(c) of the Code;
provided, however, that solely for purposes of the limitations of Code Section
415, the standard of control under Sections 414(b) and 414(c) of the Code shall
be deemed to be "more than 50%" rather than "at least 80%," (2) an Employer and
an organization, but only for so long as it and the Employer are, on and after
the Effective Date, members of an affiliated service group as defined in Section
414(m) of the Code, (3) an Employer and an organization, but only for so long as
the employees of it and the Employer are required to be aggregated, on and after
the Effective Date, under Section 414(o) of the Code, or (4) any other
organization designated as such by the Administrator.
1.16 "Company" means Whitman Corporation or any successor corporation
by merger, consolidation, purchase, or otherwise, which elects to adopt the Plan
and the Trust.
1.17 "Company Stock" means common stock issued by Whitman Corporation.
1.18 "Compensation" means:
(a) for purposes of allocating Contributions with respect to a
Participant, compensation as specified in an Appendix which applies to
such Participant;
(b) for purposes of applying Section 415 of the Code to the
Plan and its Participants for any limitation year, such compensation
from a Commonly Controlled Entity, as determined by the Administrator,
and satisfying the definition of compensation under Section 415 of the
Code (within the meaning of Treasury Regulation 1.415-2(d)(2) and (3));
and
(c) for any determination period with respect to an applicable
provision of the Code other than Section 415, such compensation from a
Commonly Controlled Entity, as determined by the Administrator, and
which satisfies the requirements of Section 414(s) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
- 4 -
<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
beginning on or after January 1, 1994 the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner of Internal Revenue for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
twelve (12) months, over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than twelve (12) months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994 any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994 the OBRA '93 annual
compensation limit is $150,000.
1.19 "Computation Period" means:
(a) with respect to Eligibility Service, and any Break in
Service with respect to Eligibility Service, the twelve (12)
consecutive month period commencing with an Employee's Employment Date
(or if Eligibility Service is disregarded due to the occurrence of a
Break in Service, the Employment Date thereafter) and the Plan Year
which includes the first anniversary of the Employment Date and each
subsequent Plan Year; and
(b) with respect to Vesting Service, and any Break in Service
with respect to Vesting Service, the Plan Year beginning with the Plan
Year in which occurs the Employee's Employment Date (or if Vesting
Service is disregarded due to the occurrence of a Break in Service, the
Employment Date thereafter) and each Plan Year thereafter.
1.20 "Contract Administrator" means each individual and entity
designated by the Administrator or another Named Fiduciary, pursuant to this
Plan, to render services to the Plan or Trust as a Fiduciary.
1.21 "Contributions" means amounts contributed to the Plan by the
Employer or an Eligible Employee. Specific types of contributions include:
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(a) "Formula Based". An amount contributed by the
Employer and allocated based on a formula to eligible
Participants' Accounts.
(b) "Matching". An amount contributed by the Employer
based upon the amount contributed by the eligible
Participant as a Pre-Tax or Post-Tax Contribution.
(c) "Post-Tax". An amount contributed on a post-tax
basis.
(d) "Pre-Tax". An amount contributed on a pre-tax basis
in conjunction with a Participant's Code Section
401(k) salary deferral agreement.
(e) "Special". An amount contributed by the Employer to
avoid prohibited discrimination under Section
401(a)(4) of the Code.
1.22 "Contribution Dollar Limit" means the annual limit imposed on each
Participant pursuant to Section 402(g) of the Code, which shall be seven
thousand dollars ($7,000) per calendar year (as indexed for cost of living
adjustments pursuant to Code Section 402(g)(5) and 415(d)).
1.23 "Contribution Election" or "Election" means the election made by a
Participant to reduce his or her Compensation from the Employer by an amount
equal to the product of his or her Contribution Percentage and such Compensation
subject to the Contribution Election.
1.24 "Contribution Percentage" means the percentage (or flat dollar
amount which results in a percentage) of a Participant's Compensation which is
to be contributed to the Plan by his or her Employer as a Pre-Tax or a Post-Tax
Contribution.
1.25 "Conversion Election" means an election by a Participant to change
the investment of all or some specified portion of such Participant's Accounts
by voice response to the telephone number provided by the Named Fiduciary to
whom it is spoken, or on such form that may be required by the Named Fiduciary
to whom it is delivered. No Conversion Election shall be deemed to have been
given to the Named Fiduciary unless it is complete and delivered in accordance
with the procedures established by such Named Fiduciary for this purpose.
1.26 "Custodial Agreement" means the Trust Agreement or an insurance
contract to provide for the holding of the assets of the Plan.
1.27 "Custodian" means the Trustee or an insurance company if the
contract issued by such company is not held by the Trustee.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.28 "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
1.29 "Disability or Disabled" means a Participant is eligible to
receive disability benefits under the Social Security Act.
1.30 "Distributee" includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving Spouse and the
Employee's or former Employee's Spouse or former Spouse who is the alternate
payee under a QDRO are Distributees with regard to the interest of the Spouse or
former Spouse.
1.31 "Early Retirement Date" has the meaning given to it in an
Appendix.
1.32 "Effective Date" means January 1, 1998, the date upon which the
provisions of this document become effective (unless otherwise specified in an
Appendix with respect to a specific Employee group). In general, the provisions
of this document only apply to Participants who are Employees on or after the
Effective Date. However, investment and distribution provisions apply to all
Participants with Account balances to be invested or distributed after the
Effective Date.
1.33 "Elective Deferral" means amounts subject to the Contribution
Dollar Limit.
1.34 "Eligible Employee" means any Employee (including an Employee on
an Authorized Leave of Absence) of an Employer, on and after the Effective Date
of the adoption of this Plan by the Employer, who is included in a group of
Employees of an Employer to whom the Plan has been extended either unilaterally
by an Employer or pursuant to a collective bargaining or other agreement entered
into between an Employer and any other union or non-union group, and that is
described in an Appendix, but excluding any Employee:
(a) who is considered an Employee solely because of the
application of Section 414(n) of the Code; or
(b) who is not a U.S. citizen or a resident alien.
1.35 "Eligibility Service" means the sum of an Employee's Years of
Service; provided however, Years of Service shall be disregarded:
(a) if the Employee had no vested interest in his or her
Contributions by an Employer, Years of Service earned before a Break in
Service shall be disregarded; or
(b) if such Years of Service were earned prior to the date
the Employee's Employer became a Commonly Controlled Entity, unless the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Administrator makes such a determination not to apply this exclusion
with respect to each such Employee in a uniform and nondiscriminatory
manner.
1.36 "Eligible Retirement Plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to the surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.37 "Eligible Rollover Distribution" means any distribution of all or
any portion of the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the joint
lives (or joint life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code; and the portion any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
1.38 "Employee" means any person who renders services as a common law
employee to a Commonly Controlled Entity or is on an Authorized Leave of
Absence, including the period of time before which the trade or business became
a Commonly Controlled Entity, but excluding the period of time after which it
ceases to be a Commonly Controlled Entity. No person who was hired through a
temporary agency (including but not limited to any leased Employee) shall be
considered an Employee and no person, the terms of whose services are governed
by an independent contractor or consulting agreement with an Employer, shall be
considered an Employee except to the extent explicitly provided to the contrary
in such agreement; provided, however, any individual considered an Employee of a
Commonly Controlled Entity under Section 414(n) of the Code shall be deemed
employed by the Commonly Controlled Entity for which the individual performed
services.
1.39 "Employer" means the Company and any Commonly Controlled Entity
which has adopted the Plan; provided, that an entity will cease to be an
Employer when it ceases to be a Commonly Controlled Entity; provided further,
Hussmann and Midas will cease to be an Employer effective January 1, 1998.
1.40 "Employment Date" means the day an Employee first earns an Hour of
Service.
1.41 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Reference to any specific Section shall include such Section, any
valid
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
regulation promulgated thereunder, and any comparable provision of any future
legislation amending, supplementing or superseding such Section.
1.42 "Fiduciary" means (a) any individual or entity who performs a
Fiduciary function under the Plan as defined in accordance with Section 3(21) of
ERISA; (b) such individual or entity which the Administrator or Employee
Benefits Committee, acting on behalf of the Plan Sponsor, designates to be a
Named Fiduciary with respect to such person's authority to control and manage
the operation and administration of the Plan or Trust; or (c) such individual or
entity which a Named Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary with respect to such person's authority to control and manage the
operation and administration of the Plan or Trust.
1.43 "Forfeiture" means the portion of the Participant's Accrued
Benefit which is forfeited pursuant to the terms of the Plan.
1.44 "Forfeiture Account" means an account holding amounts forfeited by
Participants.
1.45 "Highly Compensated Eligible Employee" or "HCE" means a highly
compensated active employee or a highly compensated former employee.
A highly compensated active employee includes any Employee who performs
service for the Employer during the determination year and who, during the
look-back year: (i) received Compensation from the Employer in excess of $75,000
(as adjusted pursuant to Section 415(d) of the Code); (ii) received Compensation
from the Employer 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
an officer of the Employer and received Compensation during such year that is
greater than fifty percent (50%) of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code. The term highly compensated active employee
also includes: (i) Employees who are both described in the preceding sentence if
the term "determination year" is substituted for the term "look-back year" and
the Employee is one of the 100 Employees who received the most Compensation from
the Employer during the determination year; and (ii) Employees who are 5-percent
owners at any time during the lookback year or determination year.
If no officer has satisfied the Compensation requirement of (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 active employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding the
determination year. Pursuant to Code Section 414(q), the Administrator may elect
for the lookback year
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Whitman Corporation Master Retirement Savings Plan
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Working Copy - As Amended Through May 21, 1999
to be the calendar year ending with or within the applicable Plan Year
determination year.
If the Employer at all times during the Plan Year maintains significant
business activities (and employs Employees in such activities) in at least two
significantly separate geographic areas and satisfies such other conditions as
the Secretary of the Treasury may prescribe, the Administrator may elect to
apply a simplified definition of Highly Compensated Employee under the Plan by
substituting "$50,000" for "$75,000" in paragraph (i) above, and disregarding
paragraph (ii) above.
An Employee who performs services for the Employer any time during the
year is in the top-paid group of Employees for any year if such Employee is in
the group consisting of the top twenty percent (20%) of the Employees when
ranked on the basis of Compensation paid during such year. For purposes of
determining the number of Employees in the top-paid group (but not for
identifying the particular Employees in the top-paid group), the following
Employees shall be excluded:
(i) Employees who have not completed six (6) months of
service;
(ii) Employees who normally work less than seventeen and
one-half (17 1/2) Hours of Service;
(iii) Employees who normally work not more than six (6)
months during any year;
(iv) Employees who have not attained age twenty-one (21);
(v) Employees who are included in a unit of Employees
covered by a bona fide collective bargaining agreement with the
Employer; and
(vi) Employees who are nonresident aliens and who receive
no earned income (within the meaning of Section 911(d)(2) of the Code)
from the Employer which constitutes income from sources within the
United States (within the meaning of Section 861(a)(3) of the Code).
The Administrator may elect to apply paragraph (i), (ii) or (iv) of this Section
by substituting a shorter period of service, smaller number of hours or months,
or lower age for that specified in such subparagraphs.
A highly compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year, and was a Highly Compensated Employee for either the
separation year or any determination year ending on or after the Employee's 55th
birthday. If a former Employee separated from service with the Employer prior to
January 1, 1987, and the Administrator
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Whitman Corporation Master Retirement Savings Plan
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Working Copy - As Amended Through May 21, 1999
irrevocably elects to apply this special rule, he is a Highly Compensated
Employee only if he or she was described in any one or more of the following
groups during either the Employee's separation year (or the year preceding such
separation year) or any year ending on or after such individual's 55th birthday
(or the last year ending before such Employee's 55th birthday):
(i) 5-percent owner. The Employee was a 5-percent owner of
the Employer at any time during the year.
(ii) Compensation amount. The Employee received
Compensation in excess of $50,000 during the year.
The determination of who is a Highly Compensated Employee, including
the determination of the number and identity of Employees in the top-paid group,
the top 100 Employees, the number of Employees treated as officers and the
Compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
1.46 "Hour of Service" means:
(a) as it applies to Eligibility Service, each hour for which
an Employee is entitled to:
(1) payment for the performance of duties for any
Commonly Controlled Entity;
(2) payment from any Commonly Controlled Entity for
any period during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, sickness, incapacity (including
disability), layoff, leave of absence, jury duty or military
service;
(3) back pay, irrespective of mitigation of damages,
by award or agreement with any Commonly Controlled Entity (and
these hours shall be credited to the period to which the
agreement pertains); or
(4) no payment, but is on an Authorized Leave of
Absence (and these hours shall be based upon his or her
normally scheduled hours per week or a 40 hour week if there
is no regular schedule).
The crediting of hours shall be made in accordance with Department of
Labor regulation Section 2530.200b-2 and 3, but in no event shall hours
be credited in excess of the minimum number required thereunder for a
Computation Period in order to avoid a Break in Service. An equivalent
number of hours shall be
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
credited for each payroll period in which the Employee would be
credited with at least 1 hour. The payroll period equivalences are 190
hours monthly.
(b) as it applies to Vesting Service, each hour for which an
Employee is entitled to:
(1) payment for the performance of duties for any
Commonly Controlled Entity;
(2) payment from any Commonly Controlled Entity for
any period during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, sickness, incapacity (including
disability), layoff, leave of absence, jury duty or military
service;
(3) back pay, irrespective of mitigation of damages,
by award or agreement with any Commonly Controlled Company
(and these hours shall be credited to the period to which the
agreement pertains); or
(4) no payment, but is on an Authorized Leave of
Absence (and these hours shall be based upon his or her
normally scheduled hours per week or a 40 hour week if there
is no regular schedule).
The crediting of hours shall be made in accordance with Department of
Labor regulation Section 2530.200b-2 and 3, but in no event shall hours be
credited in excess of the minimum number required thereunder for a Computation
Period in order to avoid a Break in Service. An equivalent number of hours shall
be credited for each payroll period in which the Employee would be credited with
at least 1 hour. The payroll period equivalences are 190 hours monthly.
1.47 "Hussmann" means Hussmann Corporation or a subsidiary of Hussmann
Corporation.
1.48 "Hussmann Participant" means a person who (1) has a balance in one
or more of the Accounts or had accrued a right to have a balance in one or more
of the Accounts; and (2) is an Employee of Hussmann or a person whose last
employment with a Commonly Controlled Entity was with Hussmann, or a Beneficiary
of either such person.
1.49 "Hussmann Plan" means the Hussmann Corporation Retirement Savings
Plan for Hourly Employees.
1.50 "Insurance Contract Arrangement" means a contractual arrangement
of one or more contracts with an entity, whether or not subject to the
applicable regulations of a State regarding reserve requirements, which assumes
the risk of
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
payment of a Benefit primarily from its assets and which Insurance Contract
Arrangement is incorporated and made a part of this Plan, but only to the extent
it is specifically referred to herein and is not inconsistent with the terms and
provisions of this Plan.
1.51 "Internal Revenue Code" or "Code" means the Internal Revenue Code
of 1986, as amended, any subsequent Internal Revenue Code and final Treasury
Regulations. If there is a subsequent Internal Revenue Code, any references
herein to Internal Revenue Code Sections shall be deemed to refer to comparable
Sections of any subsequent Internal Revenue Code.
1.52 "Investment Election" means an election by which a Participant
directs the investment of his or her Contributions by voice response to the
telephone number provided by the Named Fiduciary to whom it is spoken, or on
such form that may be required by the Named Fiduciary to whom it is delivered.
No Investment Election shall be deemed to have been given to the Named Fiduciary
unless it is complete and delivered in accordance with the procedures
established by such Named Fiduciary for this purpose.
1.53 "Investment Fund" or "Fund" means one or more collective
investment funds, a pool of assets, or deposits with the Custodian, a mutual
fund, insurance contract, or managed pool of assets. The Investment Funds which
are authorized for investment by a particular Participant are described in an
Appendix which applies to such Participant.
1.54 "Limited Deferrals" means Elective Deferrals subject to the limits
of Code Section 401(a)(30).
1.55 "Maternity/Paternity Absence" means a paid or unpaid and
unapproved absence from employment with a Commonly Controlled Entity (1) by
reason of the pregnancy of the Employee; (2) by reason of the birth of a child
of the Employee; (3) by reason of the placement of a child under age eighteen
(18) in connection with the adoption of such child by the Employee (including a
trial period prior to adoption); and (4) for the purpose of caring for a child
of the Employee immediately following the birth or adoption of such child. The
Employee must prove to the satisfaction of the Administrator or its agent that
the absence meets the above requirements and must supply information concerning
the length of the absence unless the Administrator has access to relevant
information without the Employee submitting it.
1.56 "Midas" means Midas International Corporation or a subsidiary of
Midas International Corporation.
1.57 "Midas Participant" means a person who (1) has a balance in one or
more of the Accounts or had accrued a right to have a balance in one or more of
the
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Accounts; and (2) is an Employee of Midas or a person whose last employment with
a Commonly Controlled Entity was with Midas, or a Beneficiary of either such
person.
1.58 "Midas Plan" means the Midas International Corporation Retirement
Savings Plan for Hourly Employees.
1.59 "Named Fiduciary" means:
(a) with respect to the authority each has over management and
control of the Plan's administration and operation or discretionary
authority and control it may have with respect to the Plan, the
Administrator and such other person who may be designated to be a Named
Fiduciary pursuant to Article XV;
(b) with respect to the management and control of the Plan's
assets or the discretionary authority it may have with respect to the
Plan's assets, the Trustee, the Administrator, and other such person
who may be designated to be a Named Fiduciary pursuant to Article XVI.
1.60 "Non-Highly Compensated Employee" or "NHCE" means an Employee who
is not an HCE.
1.61 "Normal Retirement Date" means the date a Participant attains
sixty-five (65) years of age.
1.62 "Notice Date" means the date established by the responsible Named
Fiduciary as the deadline for it to receive notification with respect to an
administrative matter in order to be processed as of a Change Date designated by
the responsible Named Fiduciary.
1.63 "Participant" means an Eligible Employee who begins to participate
in the Plan after completing the eligibility requirements. A Participant's
participation continues until his or her Termination of Employment and his or
her Accrued Benefit is distributed or forfeited; provided however, each Hussmann
Participant and Midas Participant shall cease to be a Participant on the date of
transfer of assets and liabilities to the Hussmann Plan or Midas Plan,
respectively.
1.64 "Payment Date" means the date on or after the Settlement Date on
which a Participant's Accrued Benefit is distributed or commences to be
distributed, which date shall be at least the minimum number of days required by
law, if any, after the date the Participant has received any notice required by
law, if any.
If a distribution is one to which Sections 411(a)(11) and 417 of the
Internal Revenue Code do not apply, such distribution may commence less than
thirty (30)
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
days after the notice required under Section 401(a)(11) of the Income Tax
Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant
that the Participant has a right to a period of at least thirty (30)
days after receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(b) the Participant, after receiving the notice, affirmatively
elects a distribution.
Notwithstanding the determination of a Payment Date hereunder, distribution in
accordance with an affirmative election will not commence before the expiration
of the 7-day period that begins the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
1.65 "Plan" means the Whitman Corporation Master Retirement Savings
Plan, as set forth herein and as hereafter may be amended from time to time.
1.66 "Plan Year" means the Annual Accounting period of the Plan and
Trust which ends on each December 31.
1.67 "QDRO" means a domestic relations order which the Administrator
has determined to be a qualified domestic relations order within the meaning of
Section 414(p) of the Code.
1.68 "Qualified Joint and Survivor Annuity" means the QJSA described in
Article XI.
1.69 "Qualified Matching Contribution" means a Matching Contribution
that is treated as a Pre-Tax Contribution and posted to the Pre-Tax Account.
1.70 "Related Plan" means:
(a) with respect to Section 401(k) and 401(m) of the Code, any
plan or plans maintained by a Commonly Controlled Entity which is
treated with this Plan as a single plan for purposes of Sections
401(a)(4) or 410(b) of the Code; and
(b) with respect to Section 415 of the Code, any other defined
contribution plan or a defined benefit plan (as defined in Section
415(k) of the Code) maintained by a Commonly Controlled Entity,
respectively called a "Related Defined Contribution Plan" and a
"Related Defined Benefit Plan".
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.71 "Rollover Contribution" means:
(a) a rollover contribution as described in Section 402(c) of
the Code (or its predecessor); or
(b) a Trustee Transfer (1) to the Custodian of an amount by
the custodian of a retirement plan qualified for tax-favored treatment
under Code Section 401(a), which plan provides for such transfer; (2)
with respect to which the benefits otherwise protected by Code Section
411 in such transferor plan are no longer required by Code Section 411
to be protected in this Plan; and (3) which does not include amounts
subject to Code Section 401(k).
1.72 "Settlement Date" means the date on which the transactions from
the most recent Trade Date are settled.
1.73 "Spousal Consent" means the irrevocable written consent given by a
Spouse to a Participant's election (or waiver) of a specified form of benefit or
Beneficiary designation. The Spouse's consent must acknowledge the effect on the
Spouse of the Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal Consent shall be
valid only with respect to the spouse who signs the Spousal Consent and only for
the particular choice made by the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior election, waiver or
designation that required Spousal Consent at any time before the Sweep Date
associated with the Settlement Date upon which payments will begin. Spousal
Consent also means a determination by the Administrator that there is no Spouse,
the Spouse cannot be located or such other circumstances as may be established
by applicable law.
1.74 "Spouse" means a person, not of the same sex, who, as of the
earlier of a Participant's Payment Date and death, is alive and married to the
Participant within the meaning of the laws of the State of the Participant's
residence as evidenced by a valid marriage certificate or other proof acceptable
to the Administrator. A spouse who was the Spouse on the Payment Date but who is
divorced from the Participant at the Participant's death shall still be the
Spouse at the date of the Participant's death, except as otherwise provided in a
QDRO.
1.75 "Sweep Date" means the date established by the responsible Named
Fiduciary as the cutoff date and time for the responsible Named Fiduciary to
receive notification with respect to a financial transaction for an Accounting
Period in order to be processed with respect to a Trade Date designated by the
responsible Named Fiduciary (or, with respect to a specific Employee group, as
may be provided in an Appendix).
1.76 "Termination of Employment" occurs when a person ceases to be an
Employee, as determined by the personnel policies of the Commonly Controlled
Entity
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to whom he or she rendered services; provided, however, where a Commonly
Controlled Entity ceases to be such with respect to an Employee as a result of
either an asset sale or stock sale an Employee of the Commonly Controlled Entity
shall be deemed not to have incurred a Termination of Employment: (a) unless the
Administrator shall make a determination that the transaction satisfies Section
401(k) of the Code, or if no such determination is made, until such Employee
ceases to be employed by the successor to the Commonly Controlled Entity; or (b)
if the Administrator shall make a Trustee Transfer of his or her Accrued
Benefit. Transfer of employment from one Commonly Controlled Entity to another
Commonly Controlled Entity shall not constitute a Termination of Employment for
purposes of the Plan.
1.77 "Trade Date" means the Business Day as of which a financial
transaction occurs, however with respect to a transaction involving Investment
Funds maintained on a share accounting methodology, the transaction shall be
executed based upon the daily average of the proceeds or purchase price of sales
and purchases, respectively, of a share.
1.78 "Trust" means the legal entity resulting from the agreement
between the Company and the Trustee and all amendments thereto, in which some or
all of the assets of this Plan will be received, held, invested and distributed
to or for the benefit of Participants and Beneficiaries.
1.79 "Trust Agreement" means the agreement between the Company and the
Trustee establishing the Trust, and any amendments thereto.
1.80 "Trust Fund" means any property, real or personal, received by and
held by the Trustee, plus all income and gains and minus all losses, expenses,
withdrawals and distributions chargeable thereto.
1.81 "Trustee" means any corporation, individual or individuals
designated in the Trust Agreement who shall accept the appointment as Trustee to
execute the duties of the Trustee as set forth in the Trust Agreement.
1.82 "Trustee Transfer" means (a) a transfer to the Custodian of an
amount by the custodian of a retirement plan qualified for tax-favored treatment
under Section 401(a) of the Code or by the trustee(s) of a trust forming part of
such a plan, which plan provides for such transfer; or (b) a Direct Rollover
within the meaning of Section 402(c)(8)(B) of the Code; provided that with
respect to any withdrawal or distribution from the Plan, a Participant may elect
a transfer to only one eligible retirement plan, except as may otherwise be
determined by the Administrator, in a uniform and nondiscriminatory manner.
1.83 "Unit Value" means the value of a unit in the applicable
Investment Fund, as determined in good faith by the Trustee or the
Administrator.
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
1.84 "Valuation Date" means the close of business on each Business Day.
1.85 "Vesting Service" means the sum of the Years of Service of an
Employee; provided however, Years of Service shall be disregarded
(a) if the Employee had no vested interest in his or her
Contributions by an Employer, and such Years of Service were earned
before the Break in Service; or
(b) if such Years of Service were earned after a Break in
Service, for purposes of determining the nonforfeitable percentage of
his or her Accrued Benefit earned before such Break in Service; or
(c) if applicable as provided in the Appendix for such
Employee, such Years of Service were earned prior to the date the
Employee's Employer became a Commonly Controlled Entity, unless the
Administrator makes such a determination not to apply this exclusion
with respect to each such Employee in a uniform and nondiscriminatory
manner; or
(d) if applicable as provided in the Appendix for such
Employee, such Years of Service were earned before the Effective Date
with respect to an Eligible Employee.
1.86 "Year of Service" means:
(a) as it applies to Eligibility Service, each Computation
Period in which an Employee is credited with at least 1,000 Hours of
Service.
(b) as it applies to Vesting Service, a Computation Period in
which an Employee is credited with at least 1,000 Hours of Service and
such other periods of employment continuation recognized by an
applicable Appendix.
An Employee's service with a company, the assets of which are acquired
by a Commonly Controlled Entity, shall only be counted as employment with such
Commonly Controlled Entity in the determination of his or her Years of Service
if (1) the Administrator directs that credit for such service be granted, or (2)
a qualified plan of the acquired company is subsequently maintained by any
Employer or Commonly Controlled Entity. Notwithstanding the above, prior to the
date this Plan was first amended to comply with ERISA, a Year of Service was
each year earned and recognized as of such date under the terms and provisions
of the Plan used to measure service immediately prior to such date.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE II
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PARTICIPATION
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2.1 Eligibility. On or after the Effective Date as to each Employer:
(a) Participant on January 1, 1998. Each person who has an
Accrued Benefit on January 1, 1998 shall become a Participant as of
January 1, 1998.
(b) Participant in the Lou Gen Ltd. Profit Sharing Plan. Each
person who was a participant in the Lou Gen Ltd. Profit Sharing Plan
whose accrued benefit under the Lou Gen Ltd. Profit Sharing Plan was
(or is to be) transferred to this Plan shall become a Participant as of
January 1, 1998, or, if later, the date of such transfer.
(c) Participant in the PepsiCo Long Term Savings Program. Each
Employee who has become a participant in the PepsiCo Long Term Savings
Program (in accordance with Section 3.2 thereof) and who is an Eligible
Employee as a result of the merger of Whitman Corporation and Heartland
Territories Holdings, Inc. shall be a Participant as of May 21, 1999,
in accordance with the Adoption Agreement applicable to such Employee.
(d) Other Eligible Employee. Each other Eligible Employee
shall become a Participant on the first day of the month on or after
the date he or she completes at least one year of Eligibility Service.
2.2 Reemployment.
(a) Eligible Employee Was Previously a Participant. An
Eligible Employee who has at least one year of Eligibility Service and
previously was a Participant prior to his or her Termination of
Employment shall become a Participant on the first day he or she earns
an Hour of Service.
(b) Eligible Employee Had a Termination. An Eligible Employee
who previously completed the service requirement to become a
Participant and who had a Termination of Employment before he or she
became a Participant shall be eligible to become a Participant on the
later of (1) the date he or she would have become a Participant but for
his or her Termination of Employment, or (2) the date he or she again
performs an Hour of Service.
2.3 Participation Upon Change of Job Status. An Employee who is not an
Eligible Employee shall become a Participant on the later of (1) the date he or
she would have become a Participant had he or she always been an Eligible
Employee, or (2) the date he or she becomes an Eligible Employee.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE III
- -------------------------------------------------------------------------------
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Pre-Tax Contribution Elections.
(a) A Participant who is an Eligible Employee and who desires
to have Pre-Tax Contributions made on his or her behalf by his or her
Employer shall file a Contribution Election, pursuant to procedures
adopted by the responsible Named Fiduciary, specifying his or her
Contribution Percentage, which percentage shall be no less nor more
than the percentages authorized in an Appendix which applies to such
Eligible Employee, and authorizing the Compensation otherwise payable
to him or her to be reduced in the contribution periods selected in
such Appendix.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year
the Administrator may determine that the maximum Contribution
Percentage shall be greater or lesser than the percentages set forth in
an Appendix. Otherwise, the maximum Contribution Percentage as provided
in an Appendix shall apply.
(c) A Participant's Contribution Election shall be effective
only with respect to Compensation not yet paid as of the date the
Contribution Election is effective. A Contribution Election received on
or before a Notice Date shall become initially effective with respect
to payroll cycles ended after the applicable Change Date or, if
reemployed, on the first day of the next month. However, the
Administrator, in its sole discretion, may declare an additional window
period to Participants. Any Contribution Election which has not been
properly completed or which does not contain a properly completed
Investment Election will be deemed not to have been received and be
void.
3.2 Post-Tax Contribution Elections.
(a) A Participant who is an Eligible Employee and who desires
to have Post-Tax Contributions made on his or her behalf by his or her
Employer shall file a Contribution Election, pursuant to procedures
adopted by the responsible Named Fiduciary, specifying his or her
Contribution Percentage, which percentage shall be no less nor more
than the percentages authorized in an Appendix which applies to such
Eligible Employee, and authorizing the Compensation otherwise payable
to him or her to be reduced in the contribution periods selected in
such Appendix.
(b) Notwithstanding Subsection (a) hereof, for any Plan Year
the Administrator may determine that the maximum Contribution
Percentage shall
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
be greater or lesser than the percentages set forth in an Appendix.
Otherwise, the maximum Contribution Percentage as provided in an
Appendix shall apply.
(c) A Participant's Contribution Election shall be effective
only with respect to Compensation not yet paid as of the date the
Contribution Election is effective. A Contribution Election received on
or before a Notice Date shall become initially effective with respect
to payroll cycles ended after the applicable Change Date or, if
reemployed, on the first day of the next month. However, the
Administrator, in its sole discretion, may declare an additional window
period to Participants. Any Contribution Election which has not been
properly completed or which does not contain a properly completed
Investment Election will be deemed not to have been received and be
void.
3.3 Election Procedures. A Participant's Contribution Election shall
continue in effect (with automatic adjustment for any change in his or her
Compensation) until the earliest of the date (1) his or her Contribution
Election is changed in accordance with paragraph (a) hereof; (2) he or she
ceases to be paid as an Eligible Employee; or (3) his or her Contribution
Election is cancelled in accordance with paragraph (b) hereof.
(a) Changing the Election. A Participant may increase or
decrease his or her Contribution Percentage (subject to the percentage
limits stated above) only once each Change Date by making a new
Contribution Election, pursuant to procedures specified by the
responsible Named Fiduciary, on which is specified the amount of the
Contribution Percentage.
(1) If such Contribution Election is received by
the Notice Date, the change shall be
effective with respect to the first payroll
cycle ended after the Change Date.
(2) However, if the Administrator deems it
necessary, the Administrator may specify an
additional window period to Participants.
(3) The amount of increase or decrease of such
Contribution Percentage shall be effective
only with respect to Compensation not yet
paid.
(4) Any Contribution Election which has not been
properly completed will be deemed not to
have been received and be void.
(b) Canceling the Election. A Participant desiring to cancel
his or her existing Contribution Election and reduce his or her
Contribution Percentage to zero must make a new Contribution Election,
pursuant to procedures specified
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
by the responsible Named Fiduciary. The responsible Named Fiduciary
will establish procedures, to be administered in a uniform and
nondiscriminatory manner, for allowing a Participant to cancel his or
her Contribution Election. Any Contribution Election received on or
before a Notice Date shall become effective with respect to the payroll
cycle ended after the next Change Date. A Participant who is an
Eligible Employee and who has cancelled his or her Election may again
make a Contribution Election at any time. If such Contribution Election
is received by the Notice Date, it shall become effective with respect
to the first payroll cycle ended after the next Change Date, provided
at least the number of months of suspension required in an Appendix
applicable to the Employee have elapsed since the effective date of the
cancellation. Any Participant who has improperly completed a
Contribution Election will be deemed not to have made an Election.
3.4 Limitation of Elective Deferrals for all Participants. A
Participant's Limited Deferrals for any calendar year shall not exceed the
Contribution Dollar Limit. If a Participant advises the Administrator that he or
she has Elective Deferrals (reduced by Elective Deferrals previously distributed
or which are recharacterized as a result of the application of Code Section
401(k)(3) to such Participant) in excess of the Contribution Dollar Limit
("Excess Deferral"), the Administrator shall return such Excess Deferrals for
the taxable year to the Participant. To the extent the Participant's Limited
Deferrals exceed the Contribution Dollar Limit, the Employer may notify the Plan
on behalf of the Participant (and "Excess Deferral" shall be calculated by
taking into account only Limited Deferrals). If such advice was received by the
Administrator during the taxable year, the Plan shall distribute the Excess
Deferral as soon as administratively feasible. If such advice was received by
the Administrator after the taxable year but no later than March 1 following the
close of the taxable year, the Administrator shall cause the Plan to return such
Excess Deferral no later than April 15 immediately following the end of such
taxable year, adjusted by income allocable to that amount.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
The net investment gain or loss associated with the Excess Deferral is
calculated as follows:
G
E x -------- x (1 + (10% x M))
(AB - G)
where:
E = the Excess Deferral amount,
G = the net gain or loss for the Plan Year in the
Participant's Pre-Tax Account,
AB = the total value of the Participant's Pre-Tax Account,
determined as of the end of the calendar year being
corrected,
M = the number of full months from the calendar year end
to the date the excess amount is paid, plus one for
the month during which payment is to be made if
payment will occur after the 15th of that month.
If the application of the limitations in this Section results in a reduction of
previously contributed Pre-Tax Contributions on behalf of a Participant,
Matching Contributions allocable with respect thereto (prior to such reduction)
which are not distributed under the ACP Test shall be forfeited.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE IV
- -------------------------------------------------------------------------------
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------
4.1 Participant Contributions.
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the terms of this Plan, for each period for which a Contribution
Election is in effect, the Employer shall contribute to the Plan on
behalf of each Participant who is an Eligible Employee an amount equal
to the amount designated by the Participant as a Pre-Tax or Post-Tax
Contribution on his or her Contribution Election.
(b) Allocation. Any Pre-Tax Contribution shall be allocated to
the Pre-Tax Account of the Participant with respect to whom the amount
is paid and any Post-Tax Contribution shall be allocated to the
Post-Tax Account of the Participant with respect to whom the amount is
paid.
(c) Timing, Medium and Posting. Pre-Tax and Post-Tax
Contributions shall be paid to the Custodian in cash and posted to each
Participant's Pre-Tax or Post-Tax Account, respectively, by the
Administrator as soon as such amounts can reasonably be balanced
against the specific amount made on behalf of each Participant. Pre-Tax
and Post-Tax Contributions shall be paid to the Custodian not later
than the fifteenth (15th) day of the month next following the month in
which amounts are deducted from the Participant's Compensation.
4.2 Matching Contributions.
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each period for which Participants' Contributions are
made, the Employer shall make Matching Contributions as described in
the following Allocation Method paragraph on behalf of each Participant
who is an Eligible Employee and who contributed during the period.
(b) Allocation Method. The Matching Contributions for each
period with respect to each Participant shall be the amount, if any, as
is described in an Appendix which applies to such Participant. The
Employer may change the matching rate to any other percentages,
including zero (0%).
(c) Timing, Medium and Posting. The Employer shall make each
period's Matching Contribution in cash as soon as is feasible as of or
after the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
date provided in an applicable Appendix, and not later than the
Employer's federal tax filing date, including extensions, for deducting
such Contribution. The Administrator shall post such amount to each
Participant's Matching Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be
credited to each Participant's Matching Account.
(d) Compensation. Compensation from the Employer shall be
measured by the period (not to exceed the Plan Year) for which the
Contribution is being made provided the Eligible Employee is a
Participant during such period.
4.3 Formula Based Contributions.
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each period the formula is in effect, the Employer shall
make a Formula Based Contribution with respect to each Participant who
is an Eligible Employee in the amount, if any, as is described in an
Appendix which applies to such Participant.
(b) Allocation Method. The Formula Based Contribution for each
period shall be allocated among eligible Participants in the manner
provided in an Appendix which applies to each such Participant.
(c) Timing, Medium and Posting. The Employer shall make each
period's Formula Based Contribution in cash as soon as is feasible as
of or after the date provided in an applicable Appendix, and not later
than the Employer's federal tax filing date, including extensions, for
deducting such Contribution. The Administrator shall post such amount
to each Participant's Formula Based Account once the total Contribution
received by the Custodian has been balanced against the specific amount
to be credited to each Participant's Formula Based Account.
(d) Compensation. Compensation from the Employer shall be
measured by the period (not to exceed the Plan Year) for which the
Contribution is being made provided the Eligible Employee is a
Participant during such period.
4.4 Special Contributions.
(a) Frequency and Eligibility. Subject to the limits of the
Plan and to the Administrator's authority to limit Contributions under
the Plan, for each Plan Year, the Employer may make a Special
Contribution in an amount
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
determined by the Administrator on behalf of each Non-Highly
Compensated Employee Participant who is an Eligible Employee.
(b) Allocation Method. The Special Contribution for each
period shall be allocated among eligible Participants as determined by
the Administrator, subject to a maximum dollar amount which may be
contributed on behalf of any Participant as determined by the
Administrator.
(c) Timing, Medium and Posting. The Employer shall make each
period's Special Contribution in cash as soon as is feasible, but no
later than twelve (12) months after the end of the Plan Year to which
it is allocated. The Administrator shall post such amount to each
Participant's Special Account once the total Contribution received by
the Custodian has been balanced against the specific amount to be
credited to each Participant's Special Account.
(d) Compensation. Compensation from the Employer shall be
measured by the period (not to exceed the Plan Year) for which the
Contribution is being made, provided the Eligible Employee is a
Participant during such period.
4.5 Miscellaneous.
(a) Deduction Limits. In no event shall the Employer
Contributions for a Plan Year exceed the maximum the Company estimates
will be deductible (or which would be deductible if the Employers had
taxable income) by any Employer or Commonly Controlled Entity under
Section 404 of the Code ("Deductible Amount"). Any amount in excess of
the Deductible Amount shall not be contributed in the following order
of Contribution type, to the extent needed to eliminate the excess:
(1) Each Participant's allocable share of
Pre-Tax Contributions for the Plan Year will
be reduced by an amount equal to the excess
of the Participant's Pre-Tax Contributions
over an amount which bears the same ratio to
the amount of Pre-Tax Contributions made to
the Plan on behalf of such Participant
during the Plan Year as the Deductible
Amount available for the Plan Year (reduced
by the total amount of other types of
Employer Contributions for the Plan Year)
bears to the aggregate Pre-Tax Contributions
made to the Plan on behalf of all
Participants subject to such Deductible
Amount during the Plan Year (before the
application of this provision).
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(2) If the application of Section (a)(1) would
result in a reduction of a Participant's
Pre-Tax Contributions which are matched by
Matching Contributions, the rate at which
Pre-Tax Contributions are reduced shall be
offset by a reduction for each Matching
Contribution not made as a result.
(3) Formula Based Contributions.
(b) Profit Sharing Plan. Notwithstanding anything herein to
the contrary, the Plan shall constitute a profit sharing plan for all
purposes of the Code.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE V
- -------------------------------------------------------------------------------
ROLLOVERS
---------
5.1 Rollovers. The Administrator may authorize the Custodian to accept
a Rollover Contribution from an Eligible Employee if Rollover Contributions are
allowed with respect to such Eligible Employee in an Appendix which applies to
such Eligible Employee. In such case, the Employee shall furnish satisfactory
evidence to the Administrator that the amount is eligible for rollover
treatment. Such amount shall be posted to the Employee's Rollover Account by the
Administrator as of the date received by the Custodian.
If it is later determined that an amount transferred pursuant to the
above paragraph did not in fact qualify as a Rollover Contribution, the balance
credited to the Employee's Rollover Account shall immediately be (1) segregated
from all other Plan assets, (2) treated as a non-qualified trust established by
and for the benefit of the Employee, and (3) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the
Plan.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VI
- -------------------------------------------------------------------------------
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT FUNDS
---------------------------------
6.1 Individual Participant Accounting.
(a) Account Maintenance. The responsible Named Fiduciary shall
cause the Account for each Participant to reflect transactions
involving assets of the Account in accordance with this Article.
Financial transactions during or with respect to an Accounting Period
shall be accounted for at the individual Account level by "posting"
each transaction to the appropriate Account of each affected
Participant. Participant Account values shall be maintained in units.
At any point in time, the value of a Participant's Accrued Benefit
shall be equal to the net Unit Value of his or her Account determined
by using the most recent Trade Date values provided by the Custodian.
(b) Trade Date Accounting and Investment Cycle. For any
transaction to be processed as of a Trade Date, the responsible Named
Fiduciary must receive instructions by the Sweep Date and such
instructions shall apply only to amounts held in or posted to the
Accounts as of the Trade Date. Financial transactions in an Investment
Fund shall be posted to a Participant's Account as of the Trade Date
and based upon the Trade Date values provided by the Custodian. All
transactions shall be effected on the Settlement Date relating to the
Trade Date (or as soon as is administratively feasible).
(c) Suspension of Transactions. Whenever the responsible Named
Fiduciary considers such action to be in the best interest of the
Participants, the Administrator in its discretion may suspend from time
to time the Trade Date.
(d) Temporary Investment. To the extent practicable, the
responsible Named Fiduciary shall direct the Custodian to make
temporary investments in a short term interest fund of assets in an
Account held pending a Trade Date.
(e) How Fees and Expenses are Charged to Participants. Account
maintenance fees to the extent not paid by the Employer shall be
charged prorata to each Participant's Account on the basis of each
Participant's Accrued Benefit, provided that no fee shall reduce a
Participant's Account balance below zero. Transaction type fees (such
as special asset fees, Conversion Election change fees, etc.) shall be
charged to the Accounts involved in the transaction. Fees and expenses
incurred for the management and maintenance of Investment Funds shall
be charged at the Investment Fund
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
level and reflected in the net gain or loss of each Fund to the extent
not paid by the Employer.
(f) Error Correction. The Administrator may correct any errors
or omissions in the administration of the Plan by restoring or charging
any Participant's Accrued Benefit with the amount that would be
credited or charged to the Account had no error or omission been made.
Funds necessary for any such restoration shall be provided through
payment made by the responsible Named Fiduciary.
(g) Accounting for Participant Loans. Participant loans shall
be held in a separate Fund for investment only by such Participant and
accounted for in dollars as an earmarked asset of the borrowing
Participant's Account.
6.2 Accounting for Investment Funds.
(a) Unit Accounting. The investments in each Investment Fund
designated in the Appendix shall be maintained in full and fractional
units. The responsible Named Fiduciary is responsible for determining
the number of full and fractional units of each such Fund. To the
extent an Investment Fund is comprised of a collective investment fund
of the Custodian, the net asset and Unit Values shall be determined in
accordance with the rules governing such collective investment funds,
which are incorporated herein by reference. Fees and expenses incurred
for the management and maintenance of Investment Funds shall be charged
at the Investment Fund level and reflected in the net gain or loss of
each Fund to the extent not paid by the Employer.
(b) Accounting for Company Stock. The following additional
rules shall apply to the Company Stock Fund:
(1) Shareholder Rights. Shareholder Rights with
respect to all Company Stock in an Account
shall be exercised by the Trustee in
accordance with directions from the
Participant pursuant to the procedures of
the Trust Agreement.
(2) Tender Offer. If a tender offer is commenced
for Company Stock, the provisions of the
Trust Agreement regarding the response to
such tender offer, the holding and
investment of proceeds derived from such
tender offer and the substitution of new
securities for such proceeds shall be
followed.
(3) Dividends and Income. Dividends (whether in
cash or in property) and other income
received by the Custodian in respect of
Company Stock shall be reinvested in Company
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Stock and shall constitute income and be
recognized on an accrual basis for the
Accounting Period in which occurs the record
date with respect to such dividend; provided
that, with respect to any dividend which is
reflected in the market price of the
underlying stock, the Administrator shall
direct the Custodian during such trading
period to trade such stock the regular way
to reflect the value of the dividend, and
all Fund transfers and cash distributions
shall be transacted accordingly with no
accrual of such dividend, other than as
reflected in such market price.
(4) Transaction Costs. Any brokerage
commissions, transfer taxes, transaction
charges, and other charges and expenses in
connection with the purchase or sale of
Company Stock shall be added to the cost
thereof in the case of a purchase or
deducted from the proceeds thereof in the
case of a sale; provided, however, where the
purchase or sale of Company Stock is with a
"disqualified person" as defined in Section
4975(e)(2) of the Code or a "party in
interest" as defined in Section 3(14) of
ERISA, no commissions may be charged with
respect thereto.
6.3 Accounts for QDRO Beneficiaries. A separate Account shall be
established for a Beneficiary entitled to any portion of a Participant's Account
under a QDRO as of the date and in accordance with the directions specified in
the QDRO. Such Account shall be valued and accounted for in the same manner as
any other Account.
(a) Investment Direction. A QDRO Beneficiary may direct the
investment of such Account in the same manner as any other Participant.
(b) Distributions. A QDRO Beneficiary shall be entitled to
payment as provided in the QDRO and permissible under the otherwise
applicable terms of this Plan, regardless of whether the Participant is
an Employee, and to name a Beneficiary as specified in the QDRO.
(c) Participant Loans. A QDRO Beneficiary shall not be
entitled to borrow from his or her Account. If a QDRO specifies that
the QDRO Beneficiary is entitled to any portion of the Account of a
Participant who has an outstanding loan balance, all outstanding loans
shall continue to be held in the Participant's Account and shall not be
divided between the Participant's and QDRO Beneficiary's Accounts.
6.4 Special Accounting During Conversion Period. The responsible Named
Fiduciary and Custodian may use any reasonable accounting methods in performing
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
their respective duties during the period of converting the prior accounting
system of the Plan and Trust to conform to the individual Participant accounting
system described in this Section. This includes, but is not limited to, the
method for allocating net investment gains or losses and the extent, if any, to
which contributions received by and distributions paid from the Trust during
this period share in such allocation. All or a portion of the Trust assets may
be held, if necessary, in a short term interest bearing vehicle, which may
include deposits of the Trustee, during the conversion period for establishing
such individual Participant Accounts.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VII
- -------------------------------------------------------------------------------
INVESTMENT FUNDS AND ELECTIONS
------------------------------
7.1 Investment Funds. Except for a Participant's loan Account, the
Trust shall be maintained in various Investment Funds. The Administrator may
change the number or composition of the Investment Funds, subject to the terms
and conditions agreed to with the Custodian.
7.2 Investment of Contributions.
(a) Investment Election. Each Participant may direct the
Trustee, by submission to the responsible Named Fiduciary of a
completed Investment Election provided for that purpose by the
responsible Named Fiduciary, to invest Contributions posted to his or
her Accounts in one or more Investment Funds which are available for
investments by such Participant, as described in an Appendix which
applies to such Participant. Notwithstanding the above, no Investment
Election may be made by a Participant or Beneficiary which directs the
investment of any Contributions into the PepsiCo Stock Fund.
(b) Effective Date of Investment Election; Change of
Investment Election. A Participant's initial Investment Election will
be effective with respect to a Fund on the Trade Date which relates to
the Sweep Date on which or prior to which the Investment Election is
received pursuant to procedures specified by the responsible Named
Fiduciary. Any Investment Election which has not been properly
completed will be deemed not to have been received. A Participant's
Investment Election shall continue in effect, notwithstanding any
change in his or her Compensation or his or her Contribution
Percentage, until the earliest of (1) the effective date of a new
Investment Election, or (2) the date he or she ceases to be paid as an
Eligible Employee. A change in Investment Election shall be effective
with respect to a Fund on the Trade Date which relates to the Sweep
Date on which or prior to which the Administrator receives the
Participant's new Investment Election. Any Investment Election which
has not been properly completed will be deemed not to have been
received.
(c) Switching Fees. A reasonable processing fee may be charged
directly to a Participant's Account for Investment Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
7.3 Investment of Accounts.
(a) Conversion Election. Notwithstanding a Participant's
Investment Election, a Participant or Beneficiary may direct the
Trustee, by submission of a completed Conversion Election provided for
that purpose to the responsible Named Fiduciary, to change the interest
his or her Accrued Benefit has in one or more Investment Funds to one
or more Investment Funds which are available for investments by such
Participant, as described in an Appendix which applies to such
Participant; provided however, no Conversion Election may be made by a
Participant or Beneficiary which directs the investment of any part of
his or her Accrued Benefit into the PepsiCo Stock Fund.
(b) Effective Date of Conversion Election. A Conversion
Election to change a Participant's or Beneficiary's investment of his
or her Accrued Benefit in one Investment Fund to another Fund shall be
effective with respect to such Funds on the Trade Date(s) which relates
to the Sweep Date on which or prior to which the Election is received
pursuant to procedures specified by the responsible Named Fiduciary.
Notwithstanding the foregoing, to the extent required by any provisions
of an Investment Fund, the effective date of any Conversion Election
may be delayed or the amount of any permissible Conversion Election may
be reduced. Any Conversion Election which has not been properly
completed will be deemed not to have been received.
(c) Switching Fees. A reasonable processing fee may be charged
directly to a Participant's Account for Conversion Election changes in
excess of a specified number per Plan Year as determined by the
Administrator.
7.4 Establishment of Investment Funds. The Administrator shall cause to
be established one or more Investment Funds set forth in the Appendix. In
addition, the Administrator may, from time to time, in its discretion:
(a) limit investments in or transfers from an Investment Fund;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise reorganize an existing
Investment Fund; or
(d) add a new Investment Fund to the Appendix.
7.5 Transition Rules. Effective as of the date any Investment Fund is
added or deleted to an Appendix which applies to any Participant or Beneficiary,
each such Participant and Beneficiary shall have the opportunity to submit new
Investment Elections and Conversion Elections to the responsible Named Fiduciary
no later than the applicable Sweep Date. The responsible Named Fiduciary and
Custodian may use any reasonable accounting methods in performing their
respective duties during the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
period of transition from one Investment Fund to another, including, but not
limited to:
(a) designating into which Investment Fund a Participant's
Accrued Benefit will be invested if the Participant fails to submit a
proper Conversion Election;
(b) the method for allocating net investment gains or losses
and the extent, if any, to which amounts received by and distributions
paid from the Trust during this period share in such allocation;
(c) investing all or a portion of the Trust's assets in a
short-term, interest-bearing Fund during such transition period; or
(d) delaying any Trade Date during a designated transition
period or changing any Notice Date, Sweep Date or Change Date during
such transition period.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE VIII
- -------------------------------------------------------------------------------
VESTING AND FORFEITURES
-----------------------
8.1 Fully Vested Contribution Accounts.
A Participant shall be fully vested and have a nonforfeitable
right to his or her Accrued Benefit in these Accounts at all times:
Post-Tax Account
Pre-Tax Account
Rollover Account
Special Account
8.2 Vesting; Payment of Accrued Benefit On or After Retirement or
Disability. A Participant's Accrued Benefit shall be fully vested and
nonforfeitable upon the occurrence of any one or more of the following events:
(a) completion of at least the minimum number of years of
Vesting Service in the Vesting Schedule for a 100% nonforfeitable
percentage;
(b) attainment of Normal Retirement Date or Early
Retirement Date;
(c) his or her Termination of Employment for reason of a
Disability; or
(d) he or she dies while an Employee.
8.3 Vesting Schedule and Forfeitures.
(a) Vesting. If a Participant has a Termination of Employment,
the Participant shall be vested and have a nonforfeitable right to his
or her Accrued Benefit in his or her Matching and Formula Based
Accounts, determined in accordance with the following vesting schedule
(unless a separate vesting schedule is otherwise provided for in an
Appendix which applies to such Participant):
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Years of Vesting Service Nonforfeitable Percentage
------------------------ -------------------------
Less than 1 year 0%
1 year but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 years or more 100%
Notwithstanding the preceding sentence, with respect to that portion of
a Participant's Accounts that is attributable to amounts transferred
from the Pepsi-Cola General Bottling Company of Oshkosh, Inc. and
Beverage Bottlers Inc. 401(k) Plan or the Lou Gen Ltd. Profit Sharing
Plan, the vested percentage of such Accounts shall be no less than
their vested percentage under the Pepsi-Cola General Bottling Company
of Oshkosh, Inc. and Beverage Bottlers Inc. 401(k) Plan or the Lou Gen
Ltd. Profit Sharing Plan, respectively, as of the transfer's effective
date.
8.4 Forfeitures.
(a) Forfeiture Where Payment Commences After a Break in
Service. If no Payment Date of a Participant's nonforfeitable Accrued
Benefit occurs before having incurred a Break in Service, that portion
of the Participant's Accrued Benefit (which is Employer-derived) which
is forfeitable as of his or her Termination of Employment shall be
forfeited as of the completion of a Break in Service. If the
Participant is reemployed as an Employee prior to having incurred a
Break in Service, the Forfeiture shall not occur. If the Participant is
reemployed as an Employee after incurring a Break in Service, the
Participant shall be fully vested and have a nonforfeitable interest in
that portion of his or her Accounts accrued prior to the Break in
Service and not forfeited as a result of such Break in Service. A
Participant who incurs a Termination of Employment with a zero vested
interest in his or her Accrued Benefit (which is Employer-derived)
shall be deemed to have a Payment Date and a Forfeiture of his or her
Accrued Benefit as of such Termination of Employment.
(b) Forfeiture Where Payment Commences Prior to a Break in
Service. If the Payment Date of a Participant's nonforfeitable
percentage of his or her Accrued Benefit occurs prior to having
incurred a Break in Service, that portion of his or her Accrued Benefit
which is forfeitable shall be forfeited as of the Payment Date.
Thereafter, if such person is rehired as an Employee prior to incurring
a Break in Service, he or she shall be entitled to make repayment to
the Plan of the full amount distributed to him or her on or after the
Payment Date no later than (1) the date he or she incurs a Break in
Service, and (2) the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
last day of the 5-year period commencing on or after his or her date of
reemployment. Upon making repayment in a single payment of the amount
distributed to him or her, the amount repaid shall be credited to the
Participant's Account from which paid and the Forfeiture shall be
reinstated to his or her Accounts and invested in the same manner as
the Account to which it is posted. The amount required to restore such
Participant's Accounts shall be charged against the Plan's Forfeitures,
and if insufficient, be made up from additional Employer Contributions.
Where a Participant has been deemed to have a Payment Date because he
or she had a zero vested interest in his or her Accrued Benefit, he or
she will be deemed to have made the repayment required by this
subparagraph on his or her date of hire.
If the Employee makes the above-described repayment, such
repayment shall be considered to be the "investment in the contract"
for purposes of Sections 72(c)(1)(A), 72(f) and 402(e)(4)(D)(i) of the
Code in relation to the amount reinstated in his or her Account on
account of the repayment.
8.5 Forfeiture Account.
A Forfeiture will be posted, no later than the end of the Plan Year in
which the Forfeiture arises, to the Forfeiture Account on the Settlement Date
for the Trade Date on which the Custodian, at the direction of the
Administrator, has converted the Forfeiture to cash. The Forfeiture Account
shall be invested in interest bearing deposits of the Custodian or short term
money market instruments. No later than the end of such Plan Year, the
Forfeiture Account shall be used in the following order: to reinstate Accrued
Benefits and to reduce Employer Contributions, as determined by the
Administrator and to pay expenses of the Plan.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE IX
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PARTICIPANT LOANS
-----------------
9.1 Participant Loans Permitted. The Administrator is authorized to
establish and administer a loan program for a Participant who is an Eligible
Employee or a former Eligible Employee who is a "party in interest" under ERISA
pursuant to the terms and conditions set forth in this Article. All loan limits
are determined as of the Trade Date the Trustee reserves funds for the loan. The
funds will be disbursed to the Participant as soon as is administratively
feasible after the next following Settlement Date. Loans will be available to a
Participant only to the extent provided in the Appendix applicable to that
Participant.
9.2 Loan Funding Limits.
The loan amount must meet the following limits:
(a) Plan Minimum Limit. The minimum amount for any loan is
$1,000.00.
(b) Plan Maximum Limit. Subject to the legal limit described
in (c) below, the maximum a Participant may borrow, including the
outstanding balance of existing Plan loans, is fifty percent (50%) of
his or her following Accounts which are fully vested:
Pre-Tax Account
Special Account
Matching Account
Formula Based Account
Rollover Account
Post-Tax Account.
(c) Legal Maximum Limit. The maximum a Participant may borrow,
including the outstanding balance of existing loans, is based upon the
value of his or her vested interest in this Plan and all other
qualified plans maintained by a Commonly Controlled Entity (the "Vested
Interest"). The maximum amount is equal to fifty percent (50%) of his
or her Vested Interest, not to exceed $50,000. However, the $50,000
amount is reduced by the Participant's highest outstanding balance of
all loans from any Commonly Controlled Entity's qualified plans during
the 12-month period ending on the day before the Trade Date on which
the loan is made.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
9.3 Maximum Number of Loans. A Participant may have only one loan
outstanding at any given time, and any prior existing loan must be fully repaid
for sixty (60) days before a new loan may be secured.
9.4 Source of Loan Funding. A loan to a Participant shall be made
solely from the assets of his or her following Accounts which are fully vested:
Pre-Tax Account
Special Account
Matching Account
Formula Based Account
Rollover Account
Post-Tax Account.
The available assets shall be determined first by Contribution Account and then
by investment type within each type of Contribution Account. The hierarchy for
loan funding by type of Contribution Account shall be the order listed in the
preceding Plan Maximum Limit paragraph. Within each Account used for funding,
amounts shall first be taken from the available cash in the Account and then
taken by type of investment in direct proportion to the market value of the
Participant's interest in each Investment Fund as of the Sweep Date on which the
loan is made.
9.5 Interest Rate. The interest rate charged on Participant loans shall
be fixed and equal to the Trustee's prime rate.
9.6 Repayment. Substantially level amortization shall be required of
each loan with payments made at least monthly, through payroll deduction,
provided that payment can be made by check for advance loan payments, or when a
Participant is on an Authorized Leave of Absence, Disabled or transferred to the
employ of a Commonly Controlled Entity which is not participating in the Plan.
Loans may be prepaid in full or in part at any time. The loan repayment period
shall be as mutually agreed upon by the Participant and Administrator, not to
exceed five (5) years.
9.7 Repayment Hierarchy. Loan principal repayments shall be credited to
the Participant's Contribution Accounts in the inverse of the order used to fund
the loan. Loan interest shall be credited to the Contribution Account in direct
proportion to the principal repayment. Loan payments are credited by investment
type based upon the Participant's current Conversion Election for that Account.
9.8 Loan Application, Note and Security. A Participant shall apply for
any loan in accordance with a procedure established by the responsible Named
Fiduciary. The responsible Named Fiduciary shall administer Participant loans
and shall specify the time frame for approving loan applications. All loans
shall be evidenced by a promissory note and security agreement and secured only
by a Participant's vested
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Account balance. The Plan shall have a lien on a Participant's Account to the
extent of any outstanding loan balance.
9.9 Default, Suspension and Acceleration Feature.
(a) Default. A loan is treated as a default on the earlier of
(i) the date any scheduled loan payment is more than ninety (90) days
late, provided that the Administrator may agree to a suspension of loan
payments for up to twelve (12) months for a Participant who is on an
Authorized Leave of Absence; or (ii) thirty (30) days from the time the
Participant receives written notice of the note being due and payable
and a demand for past due amounts.
(b) Actions upon Default. In the event of default, the
Administrator will direct the Trustee to report the default as a
taxable distribution. As soon as a Plan withdrawal or distribution to
such Participant would otherwise be permitted, the Administrator will
direct the Trustee to execute upon its security interest in the
Participant's Account by segregating the unpaid loan balance from the
Account, including interest to the date of default, and to distribute
the note to the Participant.
(c) Acceleration. A loan shall become due and payable in full
once the Participant incurs a Termination of Employment.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE X
- -------------------------------------------------------------------------------
IN-SERVICE WITHDRAWALS
----------------------
10.1 Withdrawals for General Hardship.
(a) Requirements. To the extent permitted by an Appendix, a
Participant may request the withdrawal of any amount from the vested
portion of his or her Accounts needed to satisfy a general hardship by
submitting a completed withdrawal request to the Administrator.
(b) General Hardship. General hardship will mean
circumstances of sufficient severity that a Participant is confronted
by present or impending financial ruin or his or her family is clearly
endangered by present or impending want or privation.
(c) Contribution Account Sources for Withdrawal. All
available amounts must first be withdrawn from his or her Accounts
under Sections 10.2 or 10.3 to the extent either such Section applies
to such Participant (as specified in an applicable Appendix). The
remaining withdrawal amount shall come only from his or her Accounts,
in the following priority order of Post-Tax Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
10.2 Withdrawals for 401(k) Hardship.
(a) Requirements. To the extent permitted in an Appendix
which applies to a Participant, each such Participant may request the
withdrawal of any amount from the portion of his or her Accounts to the
extent vested needed to satisfy a financial need by making a withdrawal
request in accordance with a procedure established by the
Administrator. The Administrator shall only approve those requests for
withdrawals (1) on account of a Participant's "Deemed Financial Need",
and (2) which are "Deemed Necessary" to satisfy the financial need.
(b) "Deemed Financial Need". Financial commitments relating
to:
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(1) costs directly related to the purchase or
construction (excluding mortgage payments
or balloon payments) of a Participant's
principal residence;
(2) the payment of expenses for medical care
described in Section 213(d) of the Code
previously incurred by the Participant, the
Participant's Spouse, or any dependents of
the Participant (as defined in Section 152
of the Code) or necessary for those persons
to obtain medical care described in Section
213(d) of the Code;
(3) payment of tuition and related educational
fees and room and board expenses for the
next twelve (12) months of post-secondary
education for the Participant, his or her
Spouse, children or dependents (as defined
in Section 152 of the Code); or
(4) necessary payments to prevent the eviction
of the Participant from his or her
principal residence or the foreclosure on
the mortgage of the Participant's principal
residence.
(c) "Deemed Necessary". A withdrawal is "deemed necessary"
to satisfy the financial need only if all of these conditions are met:
(1) the withdrawal may not exceed the dollar
amount needed to satisfy the Participant's
documented Financial Hardship, plus an
amount necessary to pay federal, state, or
local income taxes or penalties reasonably
anticipated to result from such withdrawal;
(2) the Participant must have obtained all
distributions, other than Financial
Hardship distributions, and all nontaxable
loans under all plans maintained by the
Company or any Commonly Controlled Entity;
(3) the Participant will be suspended from
making Pre-Tax Contributions and Post-Tax
Contributions (or similar contributions
under any other qualified or nonqualified
plan of deferred compensation maintained by
a Commonly Controlled Entity) for at least
twelve (12) months from the date the
withdrawal is received; and
(4) the Contribution Dollar Limit for the
taxable year immediately following the
taxable year in which the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Financial Hardship withdrawal is received
shall be reduced by the Elective Deferrals
for the taxable year in which the Financial
Hardship withdrawal is received.
(d) Account Sources for Withdrawal. All available amounts
must first be withdrawn from his or her Accounts under Section 10.2 or
10.3 to the extent either such Section applies to such Participant (as
specified in an applicable Appendix). The remaining withdrawal amount
shall come only from his or her Accounts, to the extent vested, in the
following priority order of Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
Pre-Tax Account
The amount that may be withdrawn from a Participant's Pre-Tax Account
shall not include earnings and Qualified Matching Contributions posted
to his or her Pre-Tax Account after the end of the Plan Year which ends
before July 1, 1989.
10.3 Withdrawals for Participants over age 59 1/2 or who are Disabled.
(a) Requirements. To the extent permitted in an Appendix
which applies to a Participant, each such Participant who is over age
59 1/2 or who is Disabled may withdraw from the portion of his or her
Accounts to the extent vested listed in paragraph (b) below.
(b) Account Sources for Withdrawal. When requesting a
withdrawal, any withdrawal amount shall come only from his or her
Accounts, to the extent vested, in the following priority order of
Accounts:
Post-Tax Account
Rollover Account
Formula Based Account
Matching Account
Pre-Tax Account
Special Account.
10.4 Unrestricted Withdrawals.
(a) Requirements. To the extent permitted in an Appendix,
withdrawal is permitted from an amount credited to any of the Accounts
listed in paragraph (b) below.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(b) Contribution Account Sources for Withdrawal. When
requesting a withdrawal, any withdrawal amount shall come only from his
or her Accounts, in the following priority order of Accounts:
Post-Tax Account
Rollover Account
10.5 Withdrawal Processing.
(a) Ordering of Post-Tax Account Withdrawals. To the extent
of the outstanding principal amount (excluding earnings) as of December
31, 1986 attributable to his or her Post-Tax Account, any withdrawal
hereunder shall be deemed first to be made therefrom, second from
Post-Tax Contributions, if any, made after December 31, 1986, plus
earnings thereon in the same pro rata manner as required by Code
Section 72(e), and, thirdly, from earnings on such principal amount as
of December 31, 1986.
(b) Minimum Amount. There is no minimum payment for any type
of withdrawal.
(c) Permitted Frequency. The maximum number of withdrawals
permitted in any Plan Year (other than for 401(k) Hardship) is two. For
this purpose, two types of withdrawals distributed in one payment shall
constitute one withdrawal.
(d) Application by Participant. A Participant must submit a
withdrawal request in accordance with a procedure established by the
responsible Named Fiduciary to the responsible Named Fiduciary to apply
for any type of withdrawal. Only a Participant who is an Employee may
make a withdrawal request.
(e) Approval by Responsible Named Fiduciary. The responsible
Named Fiduciary is responsible for determining that a withdrawal
request conforms to the requirements described in this Section and
notifying the Custodian of any payments to be made in a timely manner.
(f) Time of Processing. The Custodian shall process all
withdrawal requests which it receives by a Sweep Date, based on the
value as of the Trade Date to which it relates, and fund them on the
next Settlement Date. The Custodian shall then make payment to the
Participant as soon thereafter as is administratively feasible.
(g) Medium and Form of Payment. The medium of payment for
withdrawals is either cash or direct deposit; provided however, a
withdrawal under either Section 10.3 or 10.4 may be paid, as directed
by the Participant,
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
in whole shares of Company Stock to the extent the withdrawal is funded
from the Whitman Stock Fund. The form of payment for withdrawals shall
be a single installment.
(h) Investment Fund Sources. Within each Account used for
funding a withdrawal, amounts shall be taken by type of investment in
direct proportion to the market value of the Participant's interest in
each Investment Fund (which excludes the Participant's loans) at the
time the withdrawal is made.
(i) Direct Rollover. With respect to any cash payment
hereunder in excess of $200 which constitutes an Eligible Rollover
Distribution, a Distributee may direct the responsible Named Fiduciary
to have all or some portion of such payment (other than from a Post-Tax
Account) paid in the form of a Trustee Transfer, in accordance with
procedures established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written notice of such direction
with specific instructions as to the Eligible Retirement Plan on or
prior to the applicable Sweep Date for payment. If the Participant does
not transfer all of such payment, the minimum amount which can be
transferred is $500.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XI
- -------------------------------------------------------------------------------
DISTRIBUTIONS ON AND AFTER
TERMINATION OF EMPLOYMENT
--------------------------
11.1 Request for Distribution of Benefits.
(a) Request for Distribution. Subject to the other
requirements of this Article, a Participant may elect to have his or
her vested Accrued Benefit paid to him or her beginning upon any
Settlement Date following his or her Termination of Employment by
submitting a completed distribution election in accordance with a
procedure established by the responsible Named Fiduciary. Such election
form shall include or be accompanied by a notice which provides the
Participant with information regarding all optional times and forms of
payment available. The election must be submitted to the responsible
Named Fiduciary by the Sweep Date that relates to the Payment Date.
(b) Failure to Request Distribution. If a Participant has a
Termination of Employment and fails to submit a distribution request in
accordance with a procedure established by the responsible Named
Fiduciary by the last Payment Date permitted under this Article, his or
her vested Accrued Benefit shall be valued as of the Valuation Date
which immediately precedes such latest date of distribution (called the
"Default Valuation Date") and a notice of such deemed distribution
shall be issued to his or her last known address as soon as
administratively possible. If the Participant does not respond to the
notice or cannot be located, his or her vested Accrued Benefit
determined on the Default Valuation Date shall be treated as a
Forfeiture. If the Participant subsequently files a claim, the amount
forfeited (unadjusted for gains and losses) shall be reinstated to his
or her Accounts and distributed as soon as administratively feasible,
and such payment shall be accounted for by charging it against the
Forfeiture Account or by a contribution from the Employer of the
affected Participant.
11.2 Deadline for Distribution. In addition to any other Plan
requirements and unless the Participant elects otherwise, or cannot be located,
the Payment Date of a Participant's vested Accrued Benefit shall be not later
than sixty (60) days after the latest of the close of the Plan Year in which (i)
the Participant attains the earlier of age sixty-five (65) or his or her Normal
Retirement Date, (ii) occurs the tenth (10th) anniversary of the Plan Year in
which the Participant commenced participation, or (iii) the Participant had a
Termination of Employment. However, if the amount of the payment or the location
of the Participant (after a reasonable search) cannot be ascertained by that
deadline, payment shall be made no later than sixty (60) days after the earliest
date on which such amount or location is ascertained. In any case,
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
the Payment Date of the Accrued Benefit of a Participant (i) who is not an
Employee or (ii) who is an Employee and who is a 5-percent owner (as defined in
Code Section 416), shall not be later than April 1 following the calendar year
in which the Participant attains age seventy and one-half (70 1/2) and each
December 31 thereafter and shall comply with the requirements of Section
401(a)(9) of the Code and the Treasury Regulations promulgated thereunder.
11.3 Payment Form and Medium.
(a) General. A Participant's vested Accrued Benefit shall be
paid in the form of:
(1) a single sum,
(2) periodic installments as selected by the
Participant, not to exceed 15 years, or
(3) periodic distributions of at least $500.00,
each in an amount designated by the Participant but not to
exceed two distributions per Plan Year.
(b) Medium of Payment. Payments will generally be made in
cash (generally by check); alternatively, if the Participant elects a
single sum distribution, a single sum payment will be made, as directed
by the Participant, in whole shares of Company Stock (to the extent his
or her distribution is funded from the Whitman Stock Fund). Any annuity
option permitted will be provided through the purchase of a
non-transferable single premium contract from an insurance company
which must conform to the terms of the Plan and Section 401(a)(9) of
the Code and which will be distributed to the Participant or
Beneficiary in complete satisfaction of the benefit due.
11.4 Small Amounts Paid Immediately. If a Participant has a Termination
of Employment and the Participant's vested Accrued Benefit is $5,000 or less,
the Participant's Accrued Benefit shall be paid as a single sum as soon as
administratively feasible after his or her Termination of Employment.
11.5 Payment Within Life Expectancy. The Participant's payment election
must be consistent with the requirement of Code Section 401(a)(9) that all
payments are to be completed within a period not to exceed the lives or the
joint and last survivor life expectancy of the Participant and his or her
Beneficiary. The life expectancies of a Participant and his or her spouse may be
recomputed annually.
11.6 Incidental Benefit Rule. The Participant's payment election must
be consistent with the requirement that, if the Participant's Spouse is not his
or her sole primary Beneficiary, the minimum annual distribution for each
calendar year,
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
beginning with the year in which he or she attains age seventy and one-half (70
1/2), shall not be less than the quotient obtained by dividing (a) the
Participant's vested Accrued Benefit as of the last Trade Date of the preceding
year by (b) the applicable divisor as determined under the incidental benefit
requirements of Code Section 401(a)(9).
11.7 QJSA and QPSA Information and Elections. The following information
and election rules will apply to any Participant who elects an annuity option
with respect to that portion of the Participant's Account which includes a
transfer from (1) the Pepsi-Cola General Bottling Company of Oshkosh, Inc. and
Beverage Bottlers Inc. 401(k) Plan as of July 1, 1995, and (2) the Lou Gen Ltd.
Profit Sharing Plan as of January 1, 1997.
(a) "QJSA". A qualified joint and fifty percent (50%)
survivor annuity, meaning a form of benefit payment which is the
actuarial equivalent of the Participant's applicable portion of the
vested Accrued Benefit at the Payment Date, payable to the Participant
in monthly payments for life and providing that, if the Participant's
Spouse survives him or her, monthly payments equal to fifty percent
(50%) of the amount payable to the Participant during his or her
lifetime will be paid to the Spouse for the remainder of such person's
lifetime.
(b) "QPSA". A qualified pre-retirement survivor annuity,
meaning that upon the death of a Participant before the Payment Date of
the applicable portion of his or her vested Accrued Benefit, such
benefit will become payable to the surviving Spouse as an annuity,
unless Spousal Consent has been given to a different Beneficiary or the
surviving Spouse chooses a different form of payment.
(c) QJSA Information to a Participant. No more than ninety
(90) days before the Payment Date, each Participant who has a Spouse
and requests or will receive an annuity form of payment shall be given
a written explanation of (1) the terms and conditions of the QJSA to
his or her annuity; (2) the right to make an election to waive this
form of payment and choose an optional form of payment and the effect
of this election; (3) the right to revoke this election and the effect
of this revocation; and (4) the need for Spousal Consent; and (5) the
right of the Participant to consider, for at least thirty (30) days,
whether to waive the Qualified Joint and Survivor Annity.
(d) QJSA Election. A Participant may elect (and such
election shall include Spousal Consent if married), at any time within
the ninety (90) day period ending on the Payment Date, to (1) waive the
right to receive the QJSA and elect an optional form of payment; or (2)
revoke or change any such election.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(e) QJSA Spousal Consent to Participant Loans. Spousal
Consent must be obtained for any Participant loan which is funded from
any amount to which the election in paragraph (d) above applies within
the ninety (90) day period ending on the date such loan is secured.
(f) QJSA Spousal Consent to Participant In-Service
Withdrawals. Spousal Consent must be obtained for any Participant
in-service withdrawal which is funded from the applicable portion of
his or her Account or any portion of an Account to which the election
in paragraph (d) above applies within the ninety (90) day period ending
on the date of such in-service withdrawal.
(g) QPSA Beneficiary Information to Participant. Each
married Participant who has requested or will receive an annuity form
of payment shall be given written information stating that (1) his or
her death benefit is payable to his or her surviving Spouse; (2) his or
her ability to choose that the benefit be paid to a different
Beneficiary; (3) the right to revoke or change a prior designation and
the effects of such revocation or change; and (4) the need for Spousal
Consent. Such information shall be provided during whichever of the
following periods ends later:
(1) the period that begins one year before the
date on which the Participant requests an
annuity form of payment and that ends one
year after such date; and
(2) the period that begins with the first day
of the Plan Year in which the Participant
attains age thirty-two (32) and that ends
with the close of the Plan Year in which
the Participant attains age thirty-five
(35).
Notwithstanding the foregoing, if the Participant incurs a Termination
of Employment after requesting an annuity form of payment, but before
attaining age thirty-five (35), the information described in the first
sentence of this Subsection shall be provided during the period that
begins one year before the date of the Participant's Termination of
Employment and that ends one year after such date.
(h) QPSA Beneficiary Designation by Participant. A married
Participant may designate (with Spousal Consent) a non-spouse
Beneficiary at any time after the Participant has been given the
information in the QPSA Beneficiary Information to Participant
paragraph above and upon the earlier of (1) the date the Participant
incurs a Termination of Employment, or (2) the beginning of the Plan
Year in which that Participant attains age thirty-five (35).
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
11.8 Continued Payment of Amounts in Payment Status on January 1, 1997.
Any person who became a Participant prior to January 1, 1997 only because he or
she had an Accrued Benefit and who had commenced to receive payments prior to
January 1, 1997 shall continue to receive such payments in the same form and
payment schedule under this Plan.
11.9 TEFRA Transitional Rule. Notwithstanding any other provisions of
this Plan, distribution on behalf of any Participant may be made in accordance
with the following requirements (regardless of when such distribution
commences):
(a) The distribution must have been one provided for in the
Plan.
(b) The distribution by the Plan is one which would not have
disqualified the Plan under Code Section 401(a)(9) as in effect prior
to amendment by TEFRA.
(c) The distribution is in accordance with a method of
distribution designated by the Participant whose interest is being
distributed or, if the Participant is deceased, by a Beneficiary of
such Participant.
(d) Such designation was in writing, was signed by the
Participant or the Beneficiary, and was made before January 1, 1984.
(e) The Participant had accrued a benefit under the Plan as
of December 31, 1983.
(f) The method of distribution designated by the Participant
or the Beneficiary specifies the time at which distribution will
commence, the period over which distribution will be made, and in the
case of any distribution upon the Participant's death, the
Beneficiaries of the Participant listed in order of priority.
11.10 Direct Rollover. With respect to any payment in excess of $200
hereunder which constitutes an Eligible Rollover Distribution, a Distributee may
direct the Administrator to have such payment (other than from a Post-Tax
Account) paid in the form of a Trustee Transfer, in accordance with procedures
established by the Administrator, provided the responsible Named Fiduciary
receives written notice of such direction with specific instructions as to the
Eligible Retirement Plan on or prior to the applicable Sweep Date for payment.
If the Participant does not transfer all of such payment, the minimum amount
which can be transferred is $500.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XII
- -------------------------------------------------------------------------------
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
-----------------------------------------
12.1 Payment to Beneficiary. On the death of a Participant prior to his
or her Payment Date, his or her vested Accrued Benefit shall be paid to the
Beneficiary or Beneficiaries designated by the Participant in accordance with
the procedure established by the responsible Named Fiduciary. Death of a
Participant on or after his or her Payment Date shall result in payment to his
or her Beneficiary of whatever death benefit is provided by the form of payment
in effect on his or her Payment Date.
12.2 Beneficiary Designation. Each Participant shall complete a
beneficiary designation indicating the Beneficiary who is to receive the
Participant's remaining Plan interest at the time of his or her death. The
Participant may change such designation of Beneficiary from time to time by
filing a new beneficiary designation with the Administrator. No designation of
Beneficiary or change of Beneficiary shall be effective until properly filed
with the Administrator. Notwithstanding any designation to the contrary, the
Participant's Beneficiary shall be the Participant's Spouse to whom the
Participant is legally married under the laws of the State of the Participant's
residence on the date of the Participant's death and surviving him or her on
such date, unless such designation includes Spousal Consent. If the Participant
dies leaving no Spouse and either (1) the Participant shall have failed to file
a valid beneficiary designation, or (2) all persons designated on the
beneficiary designation shall have predeceased the Participant, the
Administrator shall have the Custodian distribute such Participant's Accrued
Benefit in a single sum to his or her estate.
12.3 Benefit Election.
(a) Request for Distribution. In the event of a
Participant's death prior to his or her Payment Date, a Beneficiary may
elect to have the vested Accrued Benefit of a deceased Participant paid
to him or her beginning upon any Settlement Date following the
Participant's date of death by submitting a completed distribution
election in accordance with the procedure established by the
responsible Named Fiduciary. The election must be submitted to the
responsible Named Fiduciary by the Sweep Date that relates to the
Settlement Date upon which payments are to begin.
(b) Failure to Request Distribution. In the event a
Beneficiary fails to submit a timely distribution request, his or her
vested Accrued Benefit shall be valued as of the Valuation Date which
immediately precedes such latest date of distribution (called the
"Default Valuation Date") and a notice of such deemed distribution
shall be issued to his or her last known address as soon
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
as administratively possible. If the Beneficiary does not respond to
the notice or cannot be located, his or her vested Accrued Benefit
determined on the Default Valuation Date shall be treated as a
Forfeiture. If the Beneficiary subsequently files a claim, the amount
forfeited (unadjusted for gains and losses) shall be reinstated to his
or her Accounts and distributed as soon as administratively feasible,
and such payment shall be accounted for by charging it against the
Forfeiture or by a Contribution from the Employer of the affected
Beneficiary.
12.4 Payment Form. In the event of a Participant's death after his or
her Payment Date, payment shall be made in the form selected by the Participant.
Otherwise, a Beneficiary shall be limited to the same form and medium of payment
to which the Participant was limited. Payments will generally be made in cash
(by check); alternatively, if the Beneficiary elects an in-kind distribution, a
single sum payment will be made in a combination of cash and whole shares.
12.5 Time Limit for Payment to Beneficiary. Payment to a Beneficiary
must either:
(a) be completed within five (5) years of the Participant's
death; or
(b) begin within one year of his or her death and be
completed within the period of the Beneficiary's lifetime, except that:
(1) If the Participant dies after the April 1
immediately following the end of the
calendar year in which he or she attains
age seventy and one-half (70 1/2), payment
to his or her Beneficiary must be made at
least as rapidly as provided in the
Participant's distribution election;
(2) If the surviving Spouse is the Beneficiary,
payments need not begin until the date on
which the Participant would have attained
age seventy and one-half (70 1/2) and must
be completed within the Spouse's lifetime;
and
(3) If the Participant and the surviving Spouse
who is the Beneficiary die (A) before the
April 1 immediately following the end of
the calendar year in which the Participant
would have attained age seventy and
one-half (70 1/2); and (B) before payments
have begun to the Spouse, the Spouse will
be treated as the Participant in applying
these rules.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
12.6 QPSA Information and Election. The following information and
election rules will apply to any Beneficiary of a Participant who dies prior to
his or her Payment Date after having elected a life annuity option.
(a) Form of Payment. The applicable portion of a
Participant's vested Accrued Benefit will be paid in the form of a
QPSA.
(b) QPSA Information to a Surviving Spouse. Each surviving
Spouse who requests an annuity form of payment shall be given a written
explanation of (1) the terms and conditions of being paid his or her
vested Accrued Benefit in the form of a single life annuity, (2) the
right to make an election to waive this form of payment and choose an
optional form of payment and the effect of making this election, and
(3) the right to revoke this election and the effect of this
revocation.
(c) QPSA Election by Surviving Spouse. A surviving Spouse
may elect, at any time up to the Sweep Date associated with the
Settlement Date upon which payments will begin, to (1) waive the single
life annuity and elect an optional form of payment, or (2) revoke or
change any such election.
(d) Small Amounts Paid Immediately. If a Beneficiary's
vested Accrued Benefit is $5,000 or less, the Beneficiary's Accrued
Benefit shall be paid as a single sum as soon as administratively
feasible.
12.7 Direct Rollover. With respect to any cash payment in excess of
$200 hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment (other than from a
Post-Tax Account) paid in the form of a Trustee Transfer, in accordance with the
procedure established by the responsible Named Fiduciary, provided the
responsible Named Fiduciary receives written Notice of such direction with
specific instructions as to the Eligible Retirement Plan on or prior to the
applicable Sweep Date for payment. If the Participant does not transfer all of
such payment, the minimum amount which can be transferred is $500.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIII
- -------------------------------------------------------------------------------
MAXIMUM CONTRIBUTIONS
---------------------
13.1 Definitions.
(a) "Annual Additions" means with respect to a Participant
for any Plan Year the sum of:
(1) Contributions and Forfeitures (and any
earnings thereon) allocated as of a date
within the Plan Year;
(2) All contributions, forfeitures and
suspended amounts (and income thereon) for
such Plan Year, allocated to such
Participant's account(s) under any Related
Defined Contribution Plan as of a date
within such Plan Year;
(3) The sum of all after-tax contributions of
the Participant to Related Plans for the
Plan Year and allocated to such
Participant's accounts under such Related
Plan as of a date within such Plan Year
("Aggregate Employee Contributions");
(4) Solely for purposes of this Section, all
contributions to any "separate account" (as
defined in Section 419A(d) of the Code)
allocated to such Participant as of a date
within the Plan Year if such Participant is
a "Key Employee" within the meaning of Code
Section 416(i); and
(5) Solely for purposes of this Section, all
contributions to any "individual medical
benefit account" (as defined in Section
415(l) of the Code) allocated to such
Participant as of a date within the Plan
Year.
(b) "Maximum Annual Additions" of a Participant for a Plan
Year means the lesser of:
(1) twenty-five percent (25%) of the
Participant's Compensation, or
(2) the greater of thirty thousand dollars
($30,000) or one-quarter of the dollar
limitation in Code Section 415(b)(1)(A) as
adjusted for cost of living increases
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(determined in accordance with regulations
prescribed by the Secretary of the Treasury
or his or her delegate pursuant to the
provisions of Section 415(d) of the Code).
(c) "Annual Excess" means, for each Participant affected,
the amount by which the allocable Annual Additions for such Participant
exceeds or would exceed the Maximum Annual Addition for such
Participant.
13.2 Avoiding an Annual Excess. Notwithstanding any other provision of
this Plan, a Participant's "Annual Additions" for any Plan Year, which is hereby
designated as the "limitation year" for the Plan, as that term is used in
Section 415 of the Code, shall not exceed his or her "Maximum Annual Additions."
If, at any time during a Plan Year, the allocation of additional Contributions
for a Plan Year would produce an Annual Excess, the affected Participant shall
receive only the Maximum Annual Addition from Contributions, and, at the
direction of the responsible Named Fiduciary, for the remainder of the Plan Year
Contributions will be reduced, if possible, to the amount needed for each
affected Participant to receive only the Maximum Annual Addition.
13.3 Correcting an Annual Excess. If for any Plan Year as a result of a
reasonable error in estimating a person's Compensation, Elective Deferrals, or
such other facts and circumstances which the Internal Revenue Service will
permit, a Participant's Annual Excess shall be treated in the following manner:
(a) Aggregate Employee Contributions allocable under a
Related Plan shall be distributed to the Participant, if permitted, and
then Post-Tax Contributions to the Plan shall be distributed, by the
amount of the Annual Excess.
(b) If any Annual Excess remains, Pre-Tax Contributions (and
earnings thereon) shall be distributed to such Participant.
(c) If any Annual Excess (adjusted for investment gains and
losses) remains, Contributions shall be a Forfeiture for such
Participant in the following order:
(1) Matching Contributions;
(2) Formula Based Contributions.
(d) Any Forfeiture of a Participant's allocations of
Contributions under subparagraph 13.3(c) above shall be held in the
Forfeiture Account and shall be used for the Plan Year to reduce or
applied as Contributions. If any such amount remains in the Forfeiture
Account, it shall again be held in
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
suspense in the Forfeiture Account and be utilized to reduce future
Contributions for succeeding Plan Years.
(e) Any amounts held in suspense in the Forfeiture Account
pursuant to subparagraph 13.3(d) above remaining upon Plan termination
shall be returned to the Employers in such proportions as shall be
determined by the Administrator.
13.4 Correcting a Multiple Plan Excess. If a Participant's Accounts
have or would have an Annual Excess, the Annual Excess shall be corrected by
reducing the Annual Addition to this Plan before reductions have been made to
other Related Defined Contribution Plans.
13.5 Two-Plan Limit. If a Participant participates in any Related
Defined Benefit Plan, the sum of the "Defined Benefit Plan Fraction" (as defined
below) and the "Defined Contribution Plan Fraction" (as defined below) for such
Participant shall not exceed one (called the "Combined Fraction").
(a) "Defined Benefit Plan Fraction" means, for any Plan
Year, a fraction, the numerator of which is the projected benefit
payable pursuant to Code Section 415(e)(2)(A) under all Related Defined
Benefit Plans and the denominator of which is the lesser of: (i) the
product of 1.25 and the dollar limit in effect for the Plan Year under
Code Section 415(b)(1)(A), and (ii) the product of 1.4 and one hundred
percent (100%) of the Participant's average Compensation for his or her
high three (3) years.
(b) "Defined Contribution Plan Fraction" means, for any Plan
Year, a fraction, the numerator of which is the sum of the Annual
Additions (as determined pursuant to Section 415(c) of the Code in
effect for such Plan Year) to a Participant's Accounts as of the end of
the Plan Year under the Plan or any Related Defined Contribution Plan,
and the denominator of which is the lesser of:
(1) The sum of the products of 1.25 and the
dollar limit under Code Section
415(c)(1)(A) for such Plan Year and for
each prior year of service with a Commonly
Controlled Entity and its predecessor, and
(2) the sum of the products of 1.4 and
twenty-five percent (25%) of the
Participant's Compensation for such Plan
Year and for each prior year of service
with a Commonly Controlled Entity and its
predecessor.
If the Combined Fraction of such Participant exceeds one and if the
Related Defined Benefit Plan permits it, the Participant's Defined
Benefit Plan Fraction
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
shall be reduced by limiting the Participant's annual benefits payable
from the Related Defined Benefit Plan in which he or she participates
to the extent necessary to reduce the Combined Fraction of such
Participant to one.
13.6 Short Plan Year. With respect to any change of the Plan Year (and
co-existent limitation year), the dollar limitation of the Maximum Annual
Addition for such Plan Year shall be determined by multiplying such dollar
amount by a fraction, the numerator of which is the number of months (including
fractional parts of a month) in the short Plan Year, and the denominator of
which is twelve (12).
13.7 Grandfathering of Applicable Limitations. The Plan shall recognize
and apply any grandfathering of applicable benefits and contributions
limitations which are permitted under ERISA, the Tax Equity and Fiscal
Responsibility Act of 1982 and the Tax Reform Act of 1986.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIV
- -------------------------------------------------------------------------------
ADP AND ACP TESTS
-----------------
14.1 Contribution Limitation Definitions. For purposes of this Article,
the following terms are defined as follows:
(a) "Average Contribution Percentage" or "ACP" means,
separately, the average of the Calculated Percentage for Participants
within the HCE Group and the NHCE Group, respectively, for a Plan Year.
(b) "Average Deferral Percentage" or "ADP" means,
separately, the average of the Calculated Percentage calculated for
Participants within the HCE Group and the NHCE Group, respectively, for
a Plan Year.
(c) "Calculated Percentage" means the calculated
percentage for a Participant. The calculated percentage refers to
either the K-Contributions (including amounts distributed because they
exceeded the Contribution Dollar Limit) with respect to Compensation
which would have been received by the Participant in the Plan Year but
for his or her Contribution Election, or M-Contributions allocated to
the Participant's Account as of a date within the Plan Year, divided by
his or her Compensation for such Plan Year.
(d) "HCE Group" and "NHCE Group" means, with respect to
each Employer and its Commonly Controlled Entities, the respective
group of HCEs and NHCEs who are eligible to have amounts contributed on
their behalf for the Plan Year, including Employees who would be
eligible but for their election not to participate or to contribute, or
because their pay is greater than zero but does not exceed a stated
minimum, but subject to the following:
(1) If the Related Plans are subject to the
ADP or ACP Test, and are considered as
one plan for purposes of Code Sections
401(a)(4) or 410(b) (other than
410(b)(2)), all such plans shall be
aggregated and treated as one plan for
purposes of meeting the ADP and ACP Tests
provided that, for Plan Years beginning
after December 31, 1989, plans may only
be aggregated if they have the same Plan
Year.
(2) If an HCE is covered by more than one
cash or deferred arrangement maintained
by the Related Plans, all such
arrangements (other than arrangements in
plans that are not required to be
aggregated for this purpose under
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Treas. Reg. ss.1.401(k)-1(g)(l)(ii)(B))
with respect to the Plan Years ending
with or within the same calendar year
shall be aggregated and treated as one
arrangement for purposes of calculating
the separate percentage for the HCE which
is used in the determination of the
Average Percentage.
(e) "K-Contributions" shall include Pre-Tax Contributions
(excluding Pre-Tax Contributions treated as Matching Contributions),
but shall exclude Limited Deferrals to this Plan made on behalf of any
NHCE in excess of the Contribution Dollar Limit. In addition, Deferrals
may include Qualified Matching Contributions and Special Contributions,
but only to the extent that (1) the Administrator elects to use them
and (2) they meet the requirements of Code Section 401(k) to be
regarded as elective contributions.
(f) "M-Contributions" shall include Matching and Post-Tax
Contributions (excluding Qualified Matching Contributions), and Pre-Tax
Contributions which are recharacterized as Post-Tax Contributions. In
addition, M-Contributions may include Pre-Tax Contributions and Special
Contributions treated as Matching Contributions, but only to the extent
that (1) the Administrator elects to use them; and (2) they meet the
requirements of Code Section 401(m) to be regarded as Matching
Contributions. M-Contributions shall not include Matching Contributions
which become a Forfeiture because the Contribution to which it relates
is in excess of the ADP Test, ACP Test or the Contribution Dollar
Limit.
14.2 ADP and ACP Tests. For each Plan Year, the ADP and ACP for the HCE
Group must meet either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group:
(a) Basic Limitation. The ADP or ACP for the HCE Group may
not exceed 1.25 times the ADP or ACP, respectively, for the NHCE Group.
(b) Alternative Limitation. The ADP or ACP for the HCE
Group is limited by reference to the ADP or ACP, respectively, for the
NHCE Group as follows:
If the NHCE Group Then the Maximum HCE
Percentage is : Group Percentage is:
----------------- --------------------
Less than 2% 2 times ADP or ACP for the NHCE
Group
2% to 8% ADP or ACP for the NHCE Group
plus 2%
More than 8% Basic Limitation applies
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
14.3 Correction of ADP and ACP Tests.
(a) Reduction of K-Contributions or M-Contributions. If
the ADP or ACP are not met or will not be met, the Administrator
shall determine a maximum percentage to be used in place of the
Calculated Percentage for each HCE that would reduce the ADP or ACP
of the HCE Group by a sufficient amount to meet the ADP and ACP
Tests.
(b) ADP Correction. Pre-Tax Contributions (including
amounts previously refunded because they exceeded the Contribution
Dollar Limit) shall be refunded to the Participant by the end of the
next Plan Year in an amount equal to the actual K-Contribution minus
the product of the maximum percentage for that HCE and the HCE's
Compensation. Matching Contributions with respect to such distributed
Pre-Tax Contributions shall be forfeited (unless paid to the
Participant due to an ACP Correction).
(c) ACP Correction. Matching Contribution amounts in
excess of the maximum percentage of an HCE's Compensation shall, by
the end of the next Plan Year, be refunded to the Participant to the
extent vested, and forfeited to the extent such amounts were not
vested as of the end of the Plan Year being tested. The excess
amounts shall first be taken from unmatched Post-Tax Contributions,
and then as a proportional combination of matched Post-Tax and
Matching Contributions.
(d) Investment Fund Sources. Once the amount of Pre-Tax,
Post-Tax and Matching Contributions to be refunded is determined,
amounts shall then be taken by type of investment in direct
proportion to the market value of the Participant's interest in each
Investment Fund (which excludes Participant loans) as of the Trade
Date as of which the correction is processed.
14.4 Method of Calculation. The Administrator shall determine the
maximum percentage for each HCE whose Calculated Percentage(s) is(are) the
highest at any one time by reducing his or her Calculated Percentage in the
following manner until the ADP and/or ACP Test is satisfied:
(a) The Calculated Percentage for each HCE under a Related
Plan shall be reduced to the extent permitted under such Related
Plan.
(b) If more reduction is needed, the Calculated Percentage
of each HCE whose Calculated Percentage (stated in absolute terms) is
the greatest shall be reduced by one-hundredth (1/100) of one
percentage point.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(c) If more reduction is needed, the Calculated Percentage
of each HCE whose Calculated Percentage (stated in absolute terms) is
the greatest (including the Calculated Percentage of any HCE whose
Calculated Percentage was adjusted under Paragraph (b) shall be
reduced by one-hundredth (1/100) of one percentage point.
(d) If more reduction is needed, the procedures of
Paragraph (c) shall be repeated.
14.5 Multiple Use Test. If the Average Contribution Percentage and
the Average Deferral Percentage for the HCE Group exceeds the Basic Limitation
in both the ADP or the ACP Tests (after correction of the ADP and ACP Test), the
ADP and ACP (as corrected) for the HCE Group must also comply with the
requirements of Code Section 401(m)(9), which as of the Effective Date require
that the sum of these two percentages (as determined after any corrections
needed to meet the ADP or ACP Tests have been made) must not exceed the greater
of:
(a) the sum of
(1) the larger of the ADP or ACP for the NHCE
Group times 1.25; and
(2) the smaller of the ADP or ACP for the
NHCE Group, times two (2) if the NHCE
Average Percentage is less than two
percent (2%), or plus two percent (2%) if
it is two percent (2%) or more; or
(b) the sum of
(1) the lesser of the ADP or ACP for the NHCE
Group times 1.25; and
(2) the greater of the ADP or ACP for the
NHCE Group, times two (2) if the NHCE
Average Percentage is less than two
percent (2%), or plus two percent (2%) if
it is two percent (2%) or more.
If the multiple use limit is exceeded, the Administrator shall
determine a maximum ADP or ACP for the HCE Group and shall reduce the
ADP or ACP for each HCE in the same manner as would be used to
correct to ADP or ACP.
14.6 Adjustment for Investment Gain or Loss. The net investment gain
or loss associated with the K-Contributions and/or M-Contributions to be
distributed shall be distributed or charged against a distribution within two
and one-half (2 1/2) months
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
but no later than twelve (12) months following the close of the applicable Plan
Year. Such gain or loss is calculated as follows:
G
E x -------- x (1 + (10% x M))
(AB - G)
where:
E = the total excess Deferrals or Contributions,
G = the net gain or loss for the Plan Year from
all of an HCE's affected Accounts,
AB = the total value of an HCE's affected
Accounts, determined as of the end of the
Plan Year being corrected,
M = the number of full months from the Plan Year
end to the date excess amounts are paid,
plus one for the month during which payment
is to be made if payment will occur after
the fifteenth (15th) of the month.
14.7 Required Records. The Administrator shall maintain records which
are sufficient to demonstrate that the ADP, ACP and Multiple Use Test has been
met for each Plan Year for at least as long as the Employer's corresponding tax
year is open to audit.
14.8 Incorporation by Reference. The provisions of this Section are
intended to satisfy the requirements of Code Sections 401(k)(3), (m)(2), (m)(9)
and Treas. Reg. ss.ss. 1.401(k)-1(b), 1.401(m)-1(b) and 1.401(m)-2 and, to the
extent not otherwise stated in this Section, those Code Sections and Treasury
Regulations are incorporated herein by reference.
14.9 Collectively Bargained Employees. The provisions of this
Article shall apply separately to Participants who are collectively bargained
employees within the meaning of Treas. Reg. ss. 1.410(b)-6(d)(2) and for
Participants who are not collectively bargained employees to the extent required
by law.
14.10 QSLOB. The Administrator in its sole discretion may apply the
provisions of this Article separately with respect to each qualified separate
line of business, as defined in Section 414(r) of the Code.
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XV
- -------------------------------------------------------------------------------
CUSTODIAL ARRANGEMENTS
----------------------
15.1 Custodial Agreement. The Administrator may enter into one or more
Custodial Agreements to provide for the holding, investment and payment of Plan
assets, or direct by execution of an insurance contract that all or a specified
portion of the Plan's assets be held, invested and paid under such a contract.
All Custodial Agreements, as from time to time amended, shall continue in force
and shall be deemed to form a part of the Plan. Subject to the requirements of
the Code and ERISA, the Administrator may cause assets of the Plan which are
securities to be held in the name of a nominee or in street name provided such
securities are held on behalf of the Plan by:
(a) a bank or trust company that is subject to supervision
by the United States or a State, or a nominee of such bank or trust
company;
(b) a broker or dealer registered under the Securities
Exchange Act of 1934, or a nominee of such broker or dealer; or
(c) a "clearing agency" as defined in Section 3(a)(23) of
the Securities Exchange Act of 1934, or its nominee.
15.2 Selection of Custodian. The Administrator shall select, remove or
replace the Custodian in accordance with the Custodial Agreement. The subsequent
resignation or removal of a Custodian and the approval of its accounts shall all
be accomplished in the manner provided in the Custodial Agreement.
15.3 Custodian's Duties. Except as provided in ERISA, the powers,
duties and responsibilities of the Custodian shall be as stated in the Custodial
Agreement, and unless expressly stated or delegated to the Custodian (with the
Custodian's acceptance), nothing contained in this Plan shall be deemed by
implication to impose any additional powers, duties or responsibilities upon the
Custodian. All Employer Contributions and Rollover Contributions shall be paid
into the Trust, and all benefits payable under the Plan shall be paid from the
Trust, except to the extent such amounts are paid to a Custodian other than the
Trustee. An Employer shall have no rights or claims of any nature in or to the
assets of the Plan except the right to require the Custodian to hold, use, apply
and pay such assets in its hands, in accordance with the directions of the
Administrator, for the exclusive benefit of the Participants and their
Beneficiaries, except as hereinafter provided.
15.4 Separate Entity. The Custodial Agreement under this Plan from its
inception shall be a separate entity aside and apart from Employers or their
assets,
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
and the corpus and income thereof shall in no event and in no manner whatsoever
be subject to the rights or claims of any creditor of any Employer.
15.5 Plan Asset Valuation. As of each Valuation Date, the Unit Value of
the Plan's assets held or posted to an Investment Fund shall be determined by
the Administrator or the Custodian, as appropriate.
15.6 Right of Employers to Plan Assets. The Employers shall have no
right or claim of any nature in or to the assets of the Plan except the right to
require the Custodian to hold, use, apply, and pay such assets in its possession
in accordance with the Plan for the exclusive benefit of the Participants or
their Beneficiaries and for defraying the reasonable expenses of administering
the Plan; provided, that:
(a) if the Plan receives an adverse determination with
respect to its initial qualification under Sections 401(a), 401(k) and
401(m) of the Code, Contributions conditioned upon the qualification of
the Plan shall be returned to the appropriate Employer within one (1)
year of such denial of qualification; provided, that the application
for determination of initial qualification is made by the time
prescribed by law for filing the respective Employer's return for the
taxable year in which the Plan is adopted, or by such later date as is
prescribed by the Secretary of the Treasury under Section 403(c)(2)(B)
of ERISA;
(b) if, and to the extent that, deduction for a Contribution
under Section 404 of the Code is disallowed, Contributions conditioned
upon deductibility shall be returned to the appropriate Employer within
one (1) year after the disallowance of the deduction;
(c) if, and to the extent that, a Contribution is made
through mistake of fact, such Contribution shall be returned to the
appropriate Employer within one year of the payment of the
Contribution; and
(d) any amounts held suspended pursuant to the limitations
of Code Section 415 shall be returned to the Employers upon termination
of the Plan.
All Contributions made hereunder are conditioned upon the Plan being
qualified under Sections 401(a) or 401(k) and 401(m) of the Code and a
deduction being allowed for such contributions under Section 404 of the
Code. Pre-Tax and Post-Tax Contributions returned to an Employer
pursuant to this Section shall be paid to the Participant for whom
contributed as soon as administratively convenient. If these provisions
result in the return of Contributions after such amounts have been
allocated to Accounts, such Accounts shall be reduced by the amount of
the allocation attributable to such amount, adjusted for any losses or
expenses.
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Working Copy - As Amended Through May 21, 1999
ARTICLE XVI
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ADMINISTRATION AND INVESTMENT MANAGEMENT
----------------------------------------
16.1 General. The Company, through the authority vested in the Board of
Directors, has appointed, by separate documentation, the Administrator, and has
enabled it to have the power and authority to act, to the extent delegated to
it, on behalf of the Company (and therefore all Employers), with respect to
matters which relate to the Plan and Trust, but not on behalf of the Plan and
Trust. Furthermore, the Company has adopted the Plan and Trust, thereby:
(a) appointing a separate Administrator, and enabling
it to have the power and authority to act, to the extent provided in the Plan or
Trust, on behalf of the Plan or Trust, but not on behalf of the Company; and
(b) enabling the Administrator to have the power and
authority to act, to the extent provided in and the manner provided in the Plan
or Trust, on behalf of the Company, but not on behalf of the Plan or Trust.
16.2 Administrator Acting as Employer with Respect to the Plan. The
Administrator has the following authority and control and such other authority
and control as shall be granted to it, from time to time, to act on behalf of
the Company:
(a) amend or terminate the Plan to the extent
permitted in the Plan;
(b) designate which employee groups are eligible to
participate in the Plan to the extent permitted in the Plan;
(c) select, monitor and remove, as necessary,
consultants, actuaries, underwriters, insurance companies, third party
administrators, or other service providers, and to appoint and remove any such
person as a Named Fiduciary, and determine and delegate to them their duties and
responsibilities, either directly or by the adoption of Plan provisions which
specify such duties and responsibilities (the provisions of the Plan documents
will control in the case of a conflict);
(d) appoint and consult with legal counsel,
independent consulting or evaluation firms, accountants, actuaries, or other
advisors, as necessary, to perform its functions;
(e) determine what expenses, if any, related to the
operation and administration of the Plan and the investment of Plan assets, may
be paid from Plan assets, subject to applicable law; and
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Working Copy - As Amended Through May 21, 1999
(f) establish such policies and make such other
delegations or designations necessary or incidental to the Company's sponsorship
of the Plan; and
(g) take any other actions necessary or incidental to
the performance of the above-stated powers and duties.
16.3 Administrator Acting as Employer with Respect to the Trust. The
Administrator has the following authority and control and such other authority
and control, as shall be granted to it, from time to time, to act on behalf of
the Company:
(a) adopt, amend or terminate, in part or completely,
a Trust document, provided such action is consistent with the Plan for which the
Trust is established;
(b) appoint and consult with legal counsel, investment
advisors, independent consulting or evaluation firms, accountants, actuaries, or
other advisors, as necessary, to perform its functions;
(c) determine the funding policies of the Plan and
related matters;
(d) report to the CEO any Plan funding or investment
policies of significance to the Company;
(e) review with the CEO any proposals which would be
submitted to the Board of Directors;
(f) establish such policies and make such other
delegations or designations necessary or incidental to the Company's sponsorship
of the Plan or Trust;
(g) select, monitor and remove, as necessary,
consultants, actuaries, underwriters, insurance companies, third party
administrators, or other service providers, and to appoint and remove any such
person as a Named Fiduciary, and determine and delegate to them their duties and
responsibilities, either directly or by the adoption of Trust provisions which
specify such duties and responsibilities (the provisions of the Plan or Trust
documents will control in the case of a conflict); and
(h) take any other actions necessary or incidental to
the performance of the above-stated powers and duties.
16.4 Administrator as Named Fiduciary for the Plan.
(a) The Administrator, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to the
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Working Copy - As Amended Through May 21, 1999
authority to manage and control the administration and operation of the Plan,
including without limitation, the management and control with respect to the
operation and administration of the Plan contained in an agreement with a Named
Fiduciary but only to the extent it has been specifically designated in such
agreement as being the responsibility of the Administrator, an Employer, the
Company, or any employee, member or delegate of any of them.
(b) The Administrator shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Administrator shall cease to be a Named Fiduciary with respect to some specified
portion of the operation and administration of the Plan or Trust, to the extent
that a Named Fiduciary is designated pursuant to the procedure in the Plan or
Trust to severally have authority to manage and control such portion of the
operation and administration of the Plan or Trust.
16.5 Administrator as Named Fiduciary for the Trust.
(a) The Administrator, acting on behalf of the Plan or
Trust and subject to subsection (b) hereof, shall be a Named Fiduciary with
respect to its authority to manage and control the Plan or Trust or the Plan's
assets, but only to the extent not inconsistent with the Plan or Trust.
(b) The Administrator shall not be a Named Fiduciary
whenever it acts on behalf of the Company and, notwithstanding any other term or
provision of the Plan, Trust, or an agreement with a Named Fiduciary, the
Administrator shall cease to be a Named Fiduciary with respect to some specified
portion of the operation and administration of the Plan or Trust, to the extent
that a Named Fiduciary is designated pursuant to the procedure in the Plan or
Trust to severally have authority to manage and control such portion of the
operation and administration of the Plan or Trust.
16.6 Actions. The Administrator may act, whether as a Named Fiduciary
on behalf of the Plan or on behalf of the Company, as follows:
(a) Any action by the Administrator on behalf of this
Plan or Trust involving its authority to manage and control the operation and
administration of the Plan or Trust or the Plan's assets shall be treated as an
action of a Named Fiduciary under this Plan.
(b) Where reference is made in this Plan (or where the
Administrator designates in writing) that its action is on behalf of the
Company, the Administrator shall be acting only on behalf of the Company and not
as a Named Fiduciary.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(c) Except as provided in Section 16.23, the
Administrator may, in writing delivered to the Trustee, empower a representative
to act on its behalf and such person shall have the authority to act within the
scope of such empowerment to the full extent the Administrator could have acted.
16.7 Procedures for Designation of a Named Fiduciary. The
Administrator, acting on behalf of the Company, may from time to time, designate
a person to be a Named Fiduciary with respect to some portion of the authority
it may have with respect to management and control of the operation and
administration of the Plan or the management and control of the Plan's assets.
Such designation shall specify the person designated by name and either (a)
specify the management and control authority with respect to which the person
will be a Named Fiduciary; or (b) incorporate by reference an agreement with
such person to provide services to or on behalf of the Plan or Trust and use
such agreement as a means for specifying the management and control authority
with respect to which such person will be a Named Fiduciary. No person who is
designated as a Named Fiduciary hereunder must consent to such designation nor
shall it be necessary for the Administrator to seek such person's acquiescence.
The authority to manage and control, which any person who is designated to be a
Named Fiduciary hereunder may have, shall be several and not joint with the
Administrator, and shall result in the Administrator no longer being a Named
Fiduciary with respect to, nor having any longer, such authority to manage and
control. On and after the designation of a person as a Named Fiduciary, the
Employer, the Administrator, and any other Named Fiduciary with respect to the
Plan or Trust, shall have no liability for the acts (or failure to act) of any
such Named Fiduciary except to the extent of its co-Fiduciary duty under ERISA.
16.8 Compensation. The Administrator, acting on behalf of the Plan or
Trust, shall serve without compensation for its services as such.
16.9 Discretionary Authority of each Named Fiduciary. Each Named
Fiduciary on behalf of the Plan and Trust will enforce the Plan and Trust in
accordance with their terms. Each Named Fiduciary shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control) over that portion of the management,
administration, and operation of the Plan or Trust allocated to such Named
Fiduciary, including, but not limited to, the authority and discretion to:
(a) formulate, adopt, issue and apply procedures and
rules and change, alter or amend such procedures and rules in accordance with
law and as may be consistent with the terms of the Plan or Trust;
(b) specify the basis upon which payments are to be
made under the Plan and, as the final appeals Fiduciary under ERISA Section 503,
to make a final determination, based upon the information known to the Named
Fiduciary within the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
scope of its authority and control as a Named Fiduciary, based upon
determinations made and such other information made available from an Employer
plus such final determinations made by each other Named Fiduciary within the
scope of its authority and control, as are determined to be relevant to the
final appeals Fiduciary;
(c) exercise such discretion as may be required to
construe and apply the provisions of the Plan or Trust, subject only to the
terms and conditions of the Plan or Trust; and
(d) take all necessary and proper acts as are required
for such Named Fiduciary to fulfill its duties and obligations under the Plan or
Trust.
16.10 Responsibility and Powers of the Administrator Regarding
Administration of the Plan. The Administrator shall have full and complete
authority, responsibility and control (unless an allocation has been made to
another Named Fiduciary in which case such Named Fiduciary shall have such
authority, responsibility and control only if specifically provided) over that
portion of the management, administration, and operation of the Plan or Trust
allocated to the Administrator and the power to act on behalf of the Plan or
Trust, including, but not limited to, the authority and discretion to:
(a) appoint and compensate such specialists (including
attorneys, actuaries and accountants) to aid it in the administration of the
Plan, and arrange for such other services, as the Administrator considers
necessary or appropriate in carrying out the provisions of the Plan;
(b) appoint and compensate an independent outside
accountant to conduct such audits of the financial statements of the Trust as
the Administrator considers necessary or appropriate;
(c) settle or compromise any litigation against the
Plan or a Fiduciary with respect to which the Plan has an indemnity obligation;
(d) assure that the Plan does not violate any
provisions of ERISA limiting the acquisition or holding of Company Stock;
(e) appoint the Plan Administrator to act within the
duties and responsibilities set forth in Section 16.21;
(f) act as the Fiduciary responsible for monitoring
the confidentiality and independent Fiduciary requirements associated with
Company Stock in order for the Plan to qualify as a Section 404(c) plan under
Department of Labor regulations;
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(g) create a legal remedy to the Plan with respect to
a Participant or Beneficiary, or to a Participant or Beneficiary, for any loss
incurred (whether restitution or opportunity losses) by the Plan on behalf of
such Participant or Beneficiary, or by such Participant or Beneficiary, due to a
breach of Fiduciary duty to the Plan by a Named Fiduciary or other error
(whether negligent or willful) which the Administrator determines is a
substantial contributing factor to such loss (or a portion of such loss); and
(h) take all necessary and proper acts as are required
for the Administrator to fulfill its duties and obligations under the Plan or
Trust.
16.11 Allocations and Delegations of Responsibility.
(a) Delegations. Each Named Fiduciary may designate
persons (other than a Named Fiduciary) to carry out Fiduciary responsibilities
(other than trustee responsibilities as described in Section 405(c)(3) of ERISA)
it may have with respect to the Plan or Trust and make a change of delegated
responsibilities. Such delegation shall specify the delegated person by name and
either (a) specify the discretionary authority with respect to which the person
will be a Fiduciary; or (b) incorporate by reference an agreement with such
Named Fiduciary to provide services to the Plan or Trust on behalf of the
delegating Named Fiduciary as a means of specifying the discretionary authority
with respect to which such person will be a Fiduciary. No person (other than an
investment manager (as defined in Section 3(38) of ERISA) to whom Fiduciary
responsibility has been delegated must consent to being a Fiduciary nor shall it
be necessary for the Named Fiduciary to seek such person's acquiescence;
however, where such person has not contractually accepted the responsibility
delegated, he or she must be given notification of the services to be performed
and, in either case, will be deemed to have accepted such Fiduciary
responsibility if he or she performs the services described for thirty (30) days
or more without specific objection thereto. The discretionary authority any
person who is delegated Fiduciary responsibilities hereunder may have shall be
several and not joint with the Named Fiduciary delegating and each other Named
Fiduciaries. A delegation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein shall not be void; however, whether
the delegating Named Fiduciary shall have joint liability for acts of such
person shall be determined by applicable law.
(b) Allocations. The Administrator, acting on behalf
of the Company, may allocate Fiduciary responsibilities (other than trustee
responsibilities described in Section 405(c)(3) of ERISA) among Named
Fiduciaries when it designates a Named Fiduciary in the manner described in
Section 16.7, or may reallocate Fiduciary responsibilities among existing Named
Fiduciaries by action of such Administrator in accordance with Sections 16.6 and
16.7; provided each such Named Fiduciary is given notice of the services,
management and control authority allocated to it either by way of an amendment
to the Plan, Trust or a contract with such person, or by way of correspondence
from the Administrator, whichever is applicable.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Each Named Fiduciary, by signing its contract or by accepting such amendment or
correspondence and rendering the services requested without objection for thirty
(30) days, shall be conclusively bound to have assumed such Fiduciary
responsibility as a Named Fiduciary. An allocation of Fiduciary responsibility
to a person which is not implemented in the manner set forth herein shall not be
void, however, such person may not be a Named Fiduciary with respect to the Plan
and Trust.
(c) Limit on Liability. Fiduciary duties and
responsibilities which have been allocated or delegated pursuant to the terms of
the Plan or the Trust, are intended to limit the liability of the Company, the
Administrator, and each Named Fiduciary, as appropriate, in accordance with the
provisions of Section 405(c) of ERISA.
16.12 Bonding. The Administrator, acting on behalf of the Plan and
Trust, shall serve without bond (except as otherwise required by federal law).
16.13 Information to be Supplied by Employer. Each Employer shall
supply to the Administrator, acting on behalf of the Plan and Trust, or a
designated Named Fiduciary, within a reasonable time of its request, the names
of all Employees, their age, their date of hire, the names and dates of all
Employees who incurred a Termination of Employment during the Plan Year,
Compensation and such other information in the Employer's possession as the
Administrator shall from time to time need in the discharge of its duties. The
Administrator and each Named Fiduciary may rely conclusively on the information
certified to it by an Employer.
16.14 Information to be Supplied by Named Fiduciary. Whenever a term,
definition, standard, protocol, policy, interpretation, rule, practice or
procedure under an Administrative Services Agreement, or other basis for
determining whether a Participant's or Beneficiary's accrued benefit, optional
form of benefit, right or feature is required or used, the Named Fiduciary who
has the authority to manage and control the administration and operation of the
Plan with respect to such accrued benefit, optional form of payment, right or
feature shall be solely responsible for establishing and maintaining such
framework of definitions, standards, protocols, policies, interpretations,
rules, practices and procedures under such Administrative Services Agreement and
shall provide a copy thereof either (1) to the Administrator, upon its request,
on behalf of the Company (2) to a Participant or Beneficiary but only to the
extent required by law, or (3) to the extent required in any proceeding
involving the Plan or any Named Fiduciary with respect to the Plan.
16.15 Misrepresentations. The Administrator, acting on behalf of the
Plan and Trust, may, but shall not be required to, rely upon any certificate,
statement or other representation made to it by an Employee, Participant, other
Named Fiduciary, or other individual with respect to any fact regarding any of
the provisions of the Plan. If relied upon, any such certificate, statement or
other representation shall be conclusively binding upon such Employee,
Participant, other Named Fiduciary, or
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
other individual or personal representative thereof, heir, or assignee (but not
upon the Administrator), and any such person shall thereafter be estopped from
disputing the truth of any such certificate, statement or other representation.
16.16 Records. The regularly kept records of the designated Named
Fiduciary (or, where applicable, the Trustee) and any Employer shall be
conclusive evidence of a person's age, his or her status as an Eligible
Employee, and all other matters contained therein applicable to this Plan;
provided that a Participant may request a correction in the record of his or her
age at any time prior to retirement, and such correction shall be made if within
ninety (90) days after such request he or she furnishes in support thereof a
birth certificate, baptismal certificate, or other documentary proof of age
satisfactory to the Administrator.
16.17 Plan Expenses. All expenses of the Plan which have been approved
by the Administrator, acting on behalf of the Plan and Trust, respectively,
shall be paid by the Trust except to the extent paid by the Employers; and if
paid by the Employers, such Employers may, if authorized by the Administrator
acting on behalf of the Company, seek reimbursement of such expenses from the
Trust and the Trust shall reimburse the Employers. If borne by the Employers,
expenses of administering the Plan shall be borne by the Employers in such
proportions as the Administrator, acting on behalf of the Company, shall
determine.
16.18 Fiduciary Capacity. Any person or group of persons may serve in
more than one Fiduciary capacity with respect to the Plan.
16.19 Employer's Agent. The Administrator shall act as agent for the
Company when acting on behalf of the Company and the Company shall act as agent
for each Employer.
16.20 Plan Administrator. The Plan Administrator (within the meaning of
Section 3(16)(A) of ERISA) shall be appointed by the Administrator, acting on
behalf of the Company, and may (but need not) be the Administrator; and in the
absence of such appointment, the Administrator, acting on behalf of the Plan and
Trust, shall be the Plan Administrator.
16.21 Plan Administrator Duties and Power. The Plan Administrator will
have full and complete authority, responsibility and control over the
management, administration and operation of the Plan with respect to the
following:
(a) satisfy all reporting and disclosure requirements
applicable to the Plan, Trust or Plan Administrator under ERISA, the Code or
other applicable law;
(b) make appropriate determinations as to whether
Rollover Contributions constitute such;
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
(c) provide and deliver all written forms used by
Participants and Beneficiaries, give notices required by law, and seek a
favorable determination letter for the Plan and Trust;
(d) withhold any amounts required by the Code to be
withheld at the source and to transmit funds withheld and any and all necessary
reports with respect to such withholding to the Internal Revenue Service;
(e) where applicable, to provide each Participant or
his or her Spouse with QJSA and QPSA information;
(f) certify to the Trustee the amount and kind of
benefits payable to or withdrawn from Participants and Beneficiaries and the
date of payment, including withdrawals;
(g) respond to a QDRO;
(h) make available for inspection and to provide upon
request at such charge as may be permitted and determined by it, documents and
instruments required to be disclosed by ERISA;
(i) make a determination of whether a Participant is
suffering a deemed or demonstrated financial need and whether a withdrawal from
this Plan is deemed or demonstrated necessary to satisfy such financial need;
provided however, in making such determination, the Plan Administrator may rely,
if reasonable to do so, upon representations made by such Participant in
connection with his or her request for a withdrawal;
(j) take such actions as are necessary to establish
and maintain the Plan in full and timely compliance with any law or regulation
having pertinence to this Plan;
(k) perform whatever responsibilities are delegated to
the Plan Administrator by the Administrator; and
(l) interpret and construe the provisions of the Plan,
to make regulations and settle disputes described above which are not
inconsistent with the terms thereof.
16.22 Named Fiduciary Decisions Final. The decision of the
Administrator, or a Named Fiduciary in matters within its jurisdiction shall be
final, binding, and conclusive upon the Employers and the Trustee and upon each
Employee, Participant, Spouse, Beneficiary, and every other person or party
interested or concerned.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
16.23 No Agency. Each Named Fiduciary shall perform (or fail to
perform) its responsibilities and duties or discretionary authority with respect
to the Plan and Trust as an independent contractor and not as an agent of the
Company, any Employer, the Administrator. No agency is intended to be created
nor is the Administrator empowered to create an agency relationship with a Named
Fiduciary.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XVII
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CLAIMS PROCEDURE
----------------
17.1 Initial Claim for Benefits. Each person entitled to benefits under
this Plan (a "Claimant") must sign and submit his or her claim for benefits to
the Administrator or its agent in writing in such form as is provided or
approved by such Administrator. A Claimant shall have no right to seek review of
a denial of benefits, or to bring any action in any court to enforce a claim for
benefits prior to his or her filing a claim for benefits and exhausting his or
her rights under this Section. When a claim for benefits has been filed
properly, such claim for benefits shall be evaluated and the Claimant shall be
notified by the Administrator or agent of its approval or denial within ninety
(90) days after the receipt of such claim unless special circumstances require
an extension of time for processing the claim. If such an extension of time for
processing is required, written notice of the extension shall be furnished to
the Claimant by the Administrator or agent prior to the termination of the
initial ninety (90) day period which shall specify the special circumstances
requiring an extension and the date by which a final decision will be reached
(which date shall not be later than one hundred eighty (180) days after the date
on which the claim was filed). A Claimant shall be given a written notice in
which the Claimant shall be advised as to whether the claim is granted or
denied, in whole or in part. If a claim is denied, in whole or in part, the
Claimant shall be given written notice which shall contain (1) the specific
reasons for the denial, (2) references to pertinent Plan provisions upon which
the denial is based, (3) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is necessary, and (4) the Claimant's rights to seek review of the
denial.
17.2 Review of Claim Denial. If a claim is denied, in whole or in part
(or if within the time periods prescribed for in the initial claim, the
Administrator or agent has not furnished the Claimant with a denial and the
claim is therefore deemed denied), the Claimant shall have the right to request
that the Administrator review the denial, provided that the Claimant files a
written request for review with the Administrator within sixty (60) days after
the date on which the Claimant received written notification of the denial. A
Claimant (or his or her duly authorized representative) may review pertinent
documents and submit issues and comments in writing to the Administrator. Within
sixty (60) days after a request for review is received, the review shall be made
and the Claimant shall be advised in writing by the Administrator of the
decision on review, unless special circumstances require an extension of time
for processing the review, in which case the Claimant shall be given a written
notification by the Administrator within such initial sixty (60) day period
specifying the reasons for the extension and when such review shall be completed
(provided that such review shall be completed within one hundred and twenty
(120) days after the date on which the request for review was filed). The
decision on
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Working Copy - As Amended Through May 21, 1999
review shall be forwarded to the Claimant by the Administrator in writing and
shall include specific reasons for the decision and references to Plan
provisions upon which the decision is based. A decision on review shall be final
and binding on all persons for all purposes. If a Claimant shall fail to file a
request for review in accordance with the procedures described in this Section,
such Claimant shall have no right to review and shall have no right to bring
action in any court and the denial of the claim shall become final and binding
on all persons for all purposes.
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XVIII
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ADOPTION AND WITHDRAWAL FROM PLAN
---------------------------------
18.1 Procedure for Adoption. Any Commonly Controlled Entity may adopt
the Plan for the benefit of its eligible employees by resolution of such
Commonly Controlled Entity's board of directors and by completing (or the
Administrator completing pursuant to its authority to amend this Plan) one or
more Appendices with respect to such Employees, which adoption shall be
effective as of the date specified in the board resolution. No such adoption
shall be effective until such adoption and any Appendix to be used in connection
therewith has been approved by the Administrator.
18.2 Procedure for Withdrawal. Any Employer (other than the Company)
may, by resolution of the board of directors of such Employer, with the consent
of the Administrator and subject to such conditions as may be imposed by the
Administrator (or the Administrator acting on behalf of the Company pursuant to
its authority to amend this Plan), terminate its adoption of the Plan.
Notwithstanding the foregoing, an Employer will be deemed to have terminated its
adoption of the Plan when it ceases to be a Commonly Controlled Entity. With
respect to any Participant whose Employer is deemed to have withdrawn from the
Plan because it ceases to be a Commonly Controlled Entity, such Participant's
Account shall be fully vested.
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Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XIX
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AMENDMENT, TERMINATION AND MERGER
---------------------------------
19.1 Amendments.
(a) Power to Amend. The Company, by action of its Board of
Directors on behalf of all Employers, or the Administrator as provided
in Subsection (c) below, may amend, modify, change, revise or
discontinue this Plan or any Appendix, in whole or in part, or with
respect to all persons or a designated group of persons, by amendment
at any time; provided, however, that no amendment shall:
(1) increase the duties or liabilities of the
Custodian or the Administrator without its
written consent;
(2) have the effect of vesting in any Employer
any interest in any funds, securities or
other property, subject to the terms of
this Plan and the Custodial Agreement;
(3) authorize or permit at any time any part of
the corpus or income of the Plan's assets
to be used or diverted to purposes other
than for the exclusive benefit of
Participants and Beneficiaries;
(4) except to the extent permissible under
ERISA and the Code, make it possible for
any portion of the Trust assets to revert
to an Employer to be used for, or diverted
to, any purpose other than for the
exclusive benefit of Participants and
Beneficiaries entitled to Plan benefits and
to defray reasonable expenses of
administering the Plan;
(5) permit an Employee to be paid the balance
of his or her Pre-Tax Account unless the
payment would otherwise be permitted under
Code Section 401(k); and
(6) have any retroactive effect as to deprive
any such person of any benefit already
accrued, except that no amendment made in
order to conform the Plan as a plan
described in Section 401(a) of the Code of
which amendments are permitted by the Code
or are required or permitted by any other
statute relating to employees' trusts, or
any official regulations or ruling issued
pursuant
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Whitman Corporation Master Retirement Savings Plan
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Working Copy - As Amended Through May 21, 1999
thereto, shall be considered prejudicial to
the rights of any such person.
(b) Restriction on Amendment. No amendment to the Plan shall
deprive a Participant of his or her nonforfeitable rights to benefits
accrued to the date of the amendment. Further, if the vesting schedule
of the Plan is amended, each Participant with at least three (3) years
of Vesting Service with the Employer may elect, within a reasonable
period after the adoption of the amendment, to have his or her
nonforfeitable percentage computed under the Plan without regard to
such amendment. The period during which the election may be made shall
commence with the date the amendment is adopted and shall end on the
latest of:
(1) sixty (60) days after the amendment is
adopted;
(2) sixty (60) days after the amendment becomes
effective; or
(3) sixty (60) days after the Participant is
issued written notice of the amendment by
the Employer or the Administrator.
The preceding language concerning an amendment to the Plan's vesting
schedule shall also apply when a Plan with a different vesting schedule
is merged into this Plan. In addition to the foregoing, the Plan shall
not be amended so as to eliminate an optional form of payment of an
Accrued Benefit attributable to employment prior to the date of the
amendment. The foregoing limitations do not apply to benefit accrual
occurring after the date of the amendment.
(c) The Administrator. The Administrator, acting on behalf
of the Company, may amend, modify, change or revise the Plan or any
Appendix, in whole or in part, or with respect to all persons or a
designated group of persons; provided however, (i) no such action may
be taken if it could not have been adopted under this Section by the
Board of Directors and (ii) except for the purpose of reflecting an
Employer's obligations pursuant to bonafide collective bargaining with
a collective bargaining representative in a collective bargaining
agreement, no such action may be taken if it causes a change in the
level or type of contributions to be made to the Plan or otherwise
materially increase the duties and obligations of any or all Employers
with respect to the Plans.
19.2 Plan Termination. It is the expectation of the Company that it
will continue the Plan and the payment of Contributions hereunder indefinitely,
but the continuation of the Plan and the payment of Contributions hereunder is
not assumed
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
as a contractual obligation of the Company or any other Employer. The right is
reserved by the Company to terminate the Plan at any time, and the right is
reserved by the Company by action of its Board of Directors or the Administrator
acting on behalf of the Company pursuant to its power to amend the Plan at any
time to reduce, suspend or discontinue its or any other Employer's Contributions
hereunder, provided, however, that the Contributions for any Plan Year accrued
or determined prior to the end of said year shall not after the end of said year
be retroactively reduced, suspended or discontinued except as may be permitted
by law. Upon termination of the Plan or complete discontinuance of Contributions
hereunder (other than for the reason that the Employer has had no net profits or
accumulated net profits), each Participant's Accrued Benefit shall be fully
vested. Upon termination of the Plan or a complete discontinuance of
Contributions, unclaimed amounts shall be applied as Forfeitures and any
unallocated amounts shall be allocated to Participants who are Eligible
Employees as of the date of such termination or discontinuance on the basis of
Compensation for the Plan Year (or short Plan Year). Upon a partial termination
of the Plan, the Accrued Benefit of each affected Participant shall be fully
vested. In the event of termination of the Plan, the Administrator shall direct
the Custodian to distribute to each Participant the entire amount of his or her
Accrued Benefit as soon as administratively possible, but not earlier than would
be permitted in order to retain the Plan's qualified status under Sections
401(a), (k) and (m) of the Code, as if all Participants who are Employees had
incurred a Termination of Employment on the Plan's termination date. Should a
Participant or a Beneficiary) not elect immediate payment of a nonforfeitable
Accrued Benefit in excess of five thousand dollars ($5,000), the Administrator
shall direct the Custodian to continue the Plan and Custodial Agreement for the
sole purpose of paying to such Participant his or her Accrued Benefit or death
benefit, respectively, unless in the opinion of the Administrator, to make
immediate single sum payments to such Participant or Beneficiary would not
adversely affect the tax qualified status of the Plan upon termination and would
not impose additional liability upon any Employer or the Custodian.
19.3 Plan Merger.
(a) General. The Plan shall not merge or consolidate with,
or transfer any assets or liabilities to any other plan, unless each
person entitled to benefits would receive a benefit immediately after
the merger, consolidation or transfer (if the Plan were then
terminated) which is equal to or greater than the benefit he or she
would have been entitled to immediately before the merger,
consolidation or transfer (if the Plan were then terminated). The
Administrator shall amend or take such other action as is necessary to
amend the Plan in order to satisfy the requirements applicable to any
merger, consolidation or transfer of assets and liabilities.
(b) Hussmann. Effective January 1, 1998, or if later the
date a Participant becomes a Hussmann Participant, the assets and
liabilities for each
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Hussmann Participant shall be transferred to the Hussmann Plan based
upon the Unit Value thereof as of the close of the last Business Day in
1997, or if later the Business Day immediately preceding the date a
Participant becomes a Hussmann Participant.
(c) Midas. Effective January 1, 1998, or if later the date a
Participant becomes a Midas Participant, the assets and liabilities for
each Midas Participant shall be transferred to the Midas Plan based
upon the Unit Value thereof as of the close of the last Business Day in
1997, or if later the Business Day immediately preceding the date a
Participant becomes a Midas Participant.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XX
- -------------------------------------------------------------------------------
SPECIAL TOP-HEAVY RULES
-----------------------
20.1 Application. Notwithstanding any provisions of this Plan to the
contrary, the provisions of this Article shall apply and be effective for any
Plan Year for which the Plan shall be determined to be a "Top-Heavy Plan" as
provided and defined herein.
20.2 Special Terms. For purposes of this Article, the following
terms shall have the following meanings:
(a) "Aggregate Benefit" means the sum of:
(1) the present value of the accrued benefit
under each and all defined benefit plans in
the Aggregation Group determined on each
plan's individual Determination Date as if
there were a termination of employment on
the most recent date the plan is valued by
an actuary for purposes of computing plan
costs under Section 412 of the Code within
the twelve (12) month period ending on the
Determination Date of each such plan, but
with respect to the first plan year of any
such plan determined by taking into account
the estimated accrued benefit as of the
Determination Date; provided (A) the method
of accrual used for the purpose of this
Paragraph (1) shall be the same as that
used under all plans maintained by all
Employers and Commonly Controlled Entities
if a single method is used by all stock
plans or, otherwise, the slowest accrual
method permitted under Section 411(b)(1)(C)
of the Code, and (B) the actuarial
assumptions to be applied for purposes of
this Paragraph (1) shall be the same
assumptions as those applied for purposes
of determining the actuarial equivalents of
optional benefits under the particular
plan, except that the interest rate
assumption shall be five percent (5%);
(2) the present value of the accrued benefit
(i.e., account balances) under each and all
defined contribution plans in the
Aggregation Group, valued as of the
valuation date coinciding with or
immediately preceding the Determination
Date of each such plan, including (A)
contributions made after the valuation date
but on or prior
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
to the Determination Date, (B) with respect
to the first plan year of any plan, any
contribution made subsequent to the
Determination Date but allocable as of any
date in the first plan year, or (C) with
respect to any defined contribution plan
subject to Section 412 of the Code, any
contribution made after the Determination
Date that is allocable as of a date on or
prior to the Determination Date; and
(3) the sum of each and all amounts distributed
(other than a rollover or plan-to-plan
transfer) from any Aggregation Group Plan,
plus a rollover or plan-to-plan transfer
initiated by the Employee and made to a
plan which is not an Aggregation Group Plan
within the Current Plan Year or within the
preceding four (4) plan years of any such
plan, provided such amounts are not already
included in the present value of the
accrued benefits as of the valuation date
coincident with or immediately preceding
the Determination Date.
The Aggregate Benefit shall not include the value of any rollover or
plan-to-plan transfer to an Aggregation Group Plan, which rollover or
transfer was initiated by a Participant, was from a plan which was not
maintained by an Employer or a Commonly Controlled Entity, and was made
after December 31, 1983, nor shall the Aggregate Benefit include the
value of employee contributions which are deductible pursuant to
Section 219 of the Code.
(b) "Aggregation Group" means the Plan and one or more plans
(including plans that terminated) which is described in Section 401(a)
of the Code, is an annuity contract described in Section 403(a) of the
Code or is a simplified employee pension described in Section 408(k) of
the Code maintained or adopted by an Employer or a Commonly Controlled
Entity in the Current Plan Year or one of the four preceding Plan Years
which is either a "Required Aggregation Group" or a "Permissive
Aggregation Group".
(1) A "Required Aggregation Group" means all
Aggregation Group Plans in which either (1)
a Key Employee participates or (2) which
enables any Aggregation Group Plan in which
a Key Employee participates to satisfy the
requirements of Sections 401(a)(4) and 410
of the Code.
(2) A "Permissive Aggregation Group" means
Aggregation Group Plans included in the
Required Aggregation Group, plus one or
more other Aggregation Group Plans, as
designated by the Administrator in its sole
discretion,
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
which satisfy the requirements of Sections
401(a)(4) and 410 of the Code, when
considered with the other component plans
of the Required Aggregation Group.
(c) "Aggregation Group Plan" means the Plan and each other
plan in the Aggregation Group.
(d) "Current Plan Year" means (1) with respect to the Plan,
the Plan Year in which the Determination Date occurs, and (2) with
respect to each other Aggregation Group Plan, the plan year of such
other plan in which occurs the Determination Date of such other plan.
(e) "Determination Date" means (1) with respect to the Plan
and its Plan Year, the last day of the preceding Plan Year; or (2) with
respect to any other Aggregation Group Plan in any calendar year during
which the Plan is not the only component plan of an Aggregation Group,
the determination date of each plan in such Aggregation Group to occur
during the calendar year as determined under the provisions of each
such plan.
(f) "Former Key Employee" means an Employee (including a
terminated Employee) who is not a Key Employee but who was a Key
Employee.
(g) "Key Employee" means an Employee (or a terminated
Employee) who at any time during the Current Plan Year or at any time
during the four preceding Plan Years is:
(1) an officer of a Commonly Controlled Entity
whose compensation from a Commonly
Controlled Entity during the Plan Year is
greater than fifty percent (50%) of the
amount specified in Section 415(b)(1)(A) of
the Code (as adjusted for cost-of-living
increases by the Secretary of the Treasury)
for the calendar year in which the Plan
Year ends; provided, however, that no more
than the lesser of (A) fifty (50)
Employees, or (B) the greater of (i) three
(3) Employees or (ii) ten percent (10%)
(rounded to the next whole integer) of the
greatest number of Employees during the
Current Plan Year or any of the preceding
four Plan Years shall be considered as
officers for this purpose. Such officers
considered will be those with the greatest
annual compensation as an officer during
the five (5) year period ending on the
Determination Date;
(2) One of the ten employees who owns (or is
considered to own within the meaning of
Section 318 of the Code)
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
more than a one half percent (1/2%)
interest in value and the largest
percentage ownership interest in value in a
Commonly Controlled Entity and whose total
annual compensation from a Commonly
Controlled Entity is not less than the
amount specified in Section 415(b)(1)(A) of
the Code (as adjusted for cost-of-living
increases by the Secretary of the Treasury)
for the calendar year in which the Plan
Year ends;
(3) A person who owns more than five percent
(5%) of the value of the outstanding stock
of any Commonly Controlled Entity or more
than five percent (5%) of the total
combined voting power of all stock of any
Commonly Controlled Entity (considered
separately) or;
(4) A person who owns more than one percent
(1%) of the value of the outstanding stock
of a Commonly Controlled Entity or more
than one percent (1%) of the total combined
voting power of all stock of a Commonly
Controlled Entity (considered separately)
and whose total annual compensation (as
defined in Section 1.415-2(d) of the
Treasury Regulations) from the Employer or
a Commonly Controlled Entity is in excess
of one hundred and fifty thousand dollars
($150,000).
The rules of Section 416 (i)(1)(B) and (C) of the Code shall be applied
for purposes of determining an Employee's ownership interest in a
Commonly Controlled Entity for purposes of Paragraphs (3) and (4)
herein. A Beneficiary (who would not otherwise be considered a Key
Employee) of a deceased Key Employee shall be deemed to be a Key
Employee in substitution for such deceased Key Employee. Any person who
is a Key Employee under more than one of the four Paragraphs of this
Section shall have his or her Aggregate Benefit under the Aggregation
Group Plans counted only once with respect to computing the Aggregate
Benefit of Key Employees as of any Determination Date. Any Employee who
is not a Key Employee shall be a Non-Key Employee.
(h) "Top-Heavy Plan" means the Plan with respect to any Plan
Year if the Aggregate Benefit of all Key Employees or the Beneficiaries
of Key Employees determined on the Determination Date is an amount in
excess of sixty percent (60%) of the Aggregate Benefit of all persons
who are Employees within the Current Plan Year; provided, that if an
individual has not performed services for an Employer or a Commonly
Controlled Entity at any time during the five (5) year period ending on
the Determination Date, the individuals's Accrued Benefit shall not be
taken into account. With respect to any calendar year during which the
Plan is not the only Aggregation Group Plan, the ratio
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
determined under the preceding sentence shall be computed based on the
sum of the Aggregate Benefits of each Aggregation Group Plan totaled as
of the last Determination Date of any Aggregation Group Plan to occur
during the calendar year.
20.3 Minimum Contribution. For any Plan Year that the Plan shall be a
Top-Heavy Plan, each Participant who is an Eligible Employee but who is neither
a Key Employee nor a Former Key Employee on the last day of the Plan Year shall
have allocated to his or her Formula Based Account on the last day of the Plan
Year a Formula Based Contribution in an amount equal to three percent (3%) of
such Participant's Compensation not in excess of two hundred thousand dollars
($200,000); provided, however, in no event shall such contribution on behalf of
such Participant be less than five percent (5%) of such Compensation if any
Aggregation Group Plan is a defined benefit plan which does not satisfy the
minimum benefit requirements with respect to such Participant. The amount of
Formula Based Contributions required to be allocated under this Section for any
Plan Year shall be reduced by the amount of Employer Contributions and
Forfeitures allocated under this Plan on behalf of the Participant and employer
contributions and forfeitures allocated on behalf of the Participant under any
other defined contribution plan in the Aggregation Group for the Plan Year.
Elective Deferrals to any Aggregation Group Plan made on behalf of a Participant
in Plan Years beginning after December 31, 1984 but before January 1, 1989 shall
be deemed to be Employer Contributions for the purpose of this Section. Elective
Deferrals and matching contributions to Aggregation Group Plans in Plan Years
beginning on or after January 1, 1989 shall not be used to meet the minimum
contribution requirements of this Section. Where Employer Contributions and
Forfeitures allocated on behalf of a Participant are insufficient to satisfy the
minimum contribution otherwise required by this Section, an additional employer
contribution shall be made and allocated to the Matching or Formula Based
Account of such Participant.
20.4 Maximum Benefit Accrual. For any Plan Year that the Plan is a
Top-Heavy Plan, the denominator of the "defined benefit plan fraction" and the
denominator of the "defined contribution plan fraction" shall be determined by
substituting "1.0" for "1.25"; provided, however, this limit shall not apply
with respect to an Employee for any Plan Year during which he or she accrues no
benefit under any plan of the Aggregation Group. The preceding sentence shall
not apply if, within this Article, there is substituted "four percent (4%)" for
"three percent (3%)" and "seven and one-half percent (7.5%)" for "five percent
(5%)" and "ninety percent (90%)" for "sixty percent (60%)."
20.5 Special Vesting. If the Plan becomes a Top-Heavy Plan after the
Effective Date, vesting for all Employees shall thereafter be accelerated to the
extent the following vesting schedule produces a greater vested percentage for
the Employee than the normal vesting schedule at any relevant time:
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Years of Vesting Service Vested Percentage
------------------------ -----------------
Less than 3 years 0%
3 years or more 100%
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<PAGE>
Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
ARTICLE XXI
- -------------------------------------------------------------------------------
MISCELLANEOUS PROVISIONS
------------------------
21.1 Assignment and Alienation. As provided by Code Section 401(a)(13)
and to the extent not otherwise required by law, no benefit provided by the Plan
may be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit
with respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as
security for a loan from the Plan which is permitted pursuant to Code
Section 4975.
21.2 Protected Benefits. All benefits which are protected by the terms
of Code Section 411(d)(6) and ERISA Section 204(g), which cannot be eliminated
without adversely affecting the qualified status of the Plan on and after
January 1, 1998, shall be provided under this Plan to Participants for whom such
benefits are protected. The Administrator shall cause such benefits to be
determined and the terms and provisions of the Plan immediately prior to January
1, 1998 are incorporated herein by reference and made a part hereof, but only to
the extent such terms and provisions are so protected. Otherwise, they shall
operate within the terms and provisions of this Plan, as determined by the
Administrator.
21.3 Plan Does Not Affect Employment Rights. The Plan does not provide
any employment rights to any Employee. The Employer expressly reserves the right
to discharge an Employee at any time, with or without Cause, without regard to
the effect such discharge would have upon the Employee's interest in the Plan.
21.4 Deduction of Taxes from Amounts Payable. The Custodian shall
deduct from the amount to be distributed such amount as the Custodian, in its
sole discretion, deems proper to protect the Custodian and the Plan's assets
held under the Custodial Agreement against liability for the payment of death,
succession, inheritance, income, or other taxes, and out of money so deducted,
the Custodian may discharge any such liability and pay the amount remaining to
the Participant, the Beneficiary or the deceased Participant's estate, as the
case may be.
21.5 Facility of Payment. If a Participant or Beneficiary is declared
an incompetent or is a minor and a conservator, guardian, or other person
legally charged with his or her care has been appointed, any benefits to which
such Participant or Beneficiary is entitled shall be payable to such
conservator, guardian, or other person legally charged with his or her care. The
decision of the Administrator in such matters shall be final, binding, and
conclusive upon the
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
Employer and the Custodian and upon each Employee, Participant, Beneficiary, and
every other person or party interested or concerned. An Employer, the Custodian
and the Administrator shall not be under any duty to see to the proper
application of such payments.
21.6 Source of Benefits. All benefits payable under the Plan shall be
paid or provided for solely from the Plan's assets held under the Custodial
Agreement and the Employers assume no liability or responsibility therefor.
21.7 Indemnification. To the extent permitted by law each Employer
shall indemnify and hold harmless each member (and former member) of the Board
of Directors, the Administrator (and each former Administrator), and each
officer and employee (and each former officer and employee) of an Employer to
whom are (or were) delegated duties, responsibilities, and authority with
respect to the Plan against all claims, liabilities, fines and penalties, and
all expenses reasonably incurred by or imposed upon him or her (including but
not limited to reasonable attorney fees and amounts paid in any settlement
relating to the Plan) by reason of his or her service under the Plan if he or
she did not act dishonestly, with gross negligence, or otherwise in knowing
violation of the law under which such liability, loss, cost or expense arises.
This indemnity shall not preclude such other indemnities as may be available
under insurance purchased or provided by an Employer under any by-law,
agreement, or otherwise, to the extent permitted by law. Payments of any
indemnity, expenses or fees under this Section shall be made solely from assets
of the Employer and shall not be made directly or indirectly from the assets of
the Plan.
21.8 Reduction for Overpayment. The Administrator shall, whenever it
determines that a person has received benefit payments under this Plan in excess
of the amount to which the person is entitled under the terms of the Plan, make
two reasonable attempts to collect such overpayment from the person.
21.9 Limitation on Liability. No Employer nor any agent or
representative of any Employer who is an employee, officer, or director of an
Employer in any manner guarantees the assets of the Plan against loss or
depreciation, and to the extent not prohibited by federal law, none of them
shall be liable (except for his or her own gross negligence or willful
misconduct), for any act or failure to act, done or omitted in good faith, with
respect to the Plan. No Employer shall be responsible for any act or failure to
act of any Custodian appointed to administer the assets of the Plan.
21.10 Company Merger. In the event any successor corporation to the
Company, by merger, consolidation, purchase or otherwise, shall elect to adopt
the Plan, such successor corporation shall be substituted hereunder for the
Company upon filing in writing with the Custodian its election so to do.
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Whitman Corporation Master Retirement Savings Plan
Amendment and Restatement January 1, 1998
Working Copy - As Amended Through May 21, 1999
21.11 Employees' Trust. The Plan and Custodial Agreement are created
for the exclusive purpose of providing benefits to the Participants in the Plan
and their Beneficiaries and defraying reasonable expenses of administering the
Plan, and the Plan and Custodial Agreement shall be interpreted in a manner
consistent with their being, respectively, a Plan described in Sections 401(a),
401(k) and 401(m) of the Code and Custodial Agreements exempt under Section
501(a) of the Code. At no time shall the assets of the Plan be diverted from the
above purpose.
21.12 Gender and Number. Except when the context indicates to the
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.
21.13 Invalidity of Certain Provisions. If any provision of this Plan
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Plan shall be construed and
enforced as if such provisions, to the extent invalid or unenforceable, had not
been included.
21.14 Headings. The headings or articles are included solely for
convenience of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
21.15 Uniform and Nondiscriminatory Treatment. Any discretion
exercisable hereunder by an Employer or the Administrator shall be exercised in
a uniform and nondiscriminatory manner.
21.16 Notice and Information Requirements. Except as otherwise provided
in this Plan or in the Custodial Agreement or as otherwise required by law, the
Employer shall have no duty or obligation to affirmatively disclose to any
Participant or Beneficiary, nor shall any Participant or Beneficiary have any
right to be advised of, any material information regarding the Employer, at any
time prior to, upon or in connection with the Employer's purchase, or any other
distribution or transfer (or decision to defer any such distribution) of any
Company Stock or any other stock held under the Plan.
21.17 Military Service. Notwithstanding any provision of this Plan to
the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Code.
21.18 Law Governing. The Plan shall be construed and enforced according
to the laws of the state in which the Trust is located, to the extent not
preempted by ERISA.
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<PAGE>
Appendix 18.1
Adoption Agreements
This Appendix 18.1 contains several adoption agreements each of which
specify, with respect to the employees identified in each, the applicable terms
of the Plan for a designated period of time.
Appendix 18.1 - Page 1
<PAGE>
EXHIBIT 5
[LETTERHEAD OF SIDLEY & AUSTIN]
May 21, 1999
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Re: Whitman Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Whitman Corporation, a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the registration of
2,000,000 shares of common stock, par value $.01 per share, of the Company (the
"Registered Shares"), to be offered to participants in the Whitman Corporation
Retirement Savings Plan (the "RSP") and the Whitman Corporation Master
Retirement Savings Plan (the "Master RSP" and together with the RSP, the
"Plans")
We are familiar with the proceedings to date with respect to
the proposed issuance of the Registered Shares and have examined such records,
documents and questions of law and satisfied ourselves as to such matters of
fact, as we have considered relevant and necessary as a basis for this opinion
letter.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Delaware.
2. Each Registered Share newly issued under the Plans will be
duly authorized, legally issued, fully paid and non-assessable when: (i) the
Registration Statement shall have become effective under the Securities Act;
(ii) the Company's Board of Directors or a duly authorized committee thereof
shall have duly adopted final resolutions authorizing the issuance and sale of
the Registered Shares as contemplated by the Registration Statement; (iii) such
Registered Share shall have been duly issued and sold in the manner contemplated
by the Plans;
<PAGE>
SIDLEY & AUSTIN Chicago
Whitman Corporation
May 21, 1999
Page 2
and (iv) a certificate representing such Registered Share shall have been duly
executed, countersigned and registered and duly delivered to the purchaser
thereof against payment of the agreed consideration therefor (not less than the
par value thereof) in accordance with the Plans.
We do not find it necessary for the purposes of this opinion
letter to cover, and accordingly we express no opinion as to the application of
the securities or blue sky laws of the various states to the sale of the
Registered Shares.
This opinion letter is limited to the General Corporation Law
of the State of Delaware.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to all references to our firm included
in or made a part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
Exhibit 23.1
CONSENT OF KPMG LLP
We consent to the incorporation by reference in this registration statement on
Form S-8 of Whitman Corporation of our report dated January 25, 1999, relating
to the consolidated balance sheets of Whitman Corporation and subsidiaries as of
the end of fiscal years 1998 and 1997 and the related consolidated statements of
income, shareholders' equity, and cash flows for each of the fiscal years 1998,
1997 and 1996 which report appears in the Whitman Corporation annual report on
Form 10-K/A.
/s/ KPMG LLP
KPMG LLP
Chicago, Illinois
May 20, 1999
<PAGE>
Exhibit 23.2
CONSENT OF KPMG LLP
We consent to the incorporation by reference in this registration statement on
Form S-8 of Whitman Corporation of our report dated February 19, 1999, relating
to the combined balance sheets of PepsiCo Bottling Operations as of December 26,
1998 and December 27, 1997 and the related combined statements of operations,
cash flows and shareholder's equity and accumulated other comprehensive loss for
each of the years in the three-year period ended December 26, 1998, which report
appears in the Whitman Corporation current report on Form 8-K dated April
22, 1999.
/s/ KPMG LLP
KPMG LLP
New York, New York
May 21, 1999
<PAGE>
EXHIBIT 24
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Bruce S. Chelberg
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Herbert M. Baum
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Richard G. Cline
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Pierre S. du Pont
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Archie R. Dykes
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Charles W. Gaillard
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Jarobin Gilbert, Jr.
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Victoria B. Jackson
---------------------------------
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which is
about to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto (including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Charles S. Locke
---------------------------------
