<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 2000
REGISTRATION NO. 33-____
================================================================================
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
DEL MONTE FOODS COMPANY
(Exact name of issuer as specified in its charter)
--------------
DELAWARE 13-3542950
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
ONE MARKET, SAN FRANCISCO, CALIFORNIA 94105
(Address of principal executive offices) (Zip Code)
DEL MONTE
SAVINGS PLAN
DEL MONTE
CERTAIN HOURLY SAVINGS PLAN
(Full title of the plans)
WILLIAM R. SAWYERS, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
DEL MONTE FOODS COMPANY
ONE MARKET
SAN FRANCISCO, CALIFORNIA 94105
(Name and address of agent for service)
(415) 247-3000
(Telephone number, including area code, of agent for service)
Copy to:
PAUL BORDEN, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
--------------
CALCULATION OF REGISTRATION FEE
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==================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE* PRICE* FEE*
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock** 1.5 million shares $9.875 $14,812,500.00 $3,910.50
==================================================================================================
</TABLE>
<PAGE> 2
* Estimated solely for the purpose of calculating the registration fee on the
basis of $9.875 per share, the average of the high and low prices for the
Common Stock on April 6, 2000 as reported by the New York Stock Exchange.
** In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
registration statement:
(i) The Registrant's latest annual report on Form 10-K for the
fiscal year ended June 30, 1999, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(ii) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1999 and December 31, 1999, filed pursuant to
Section 13(a) of the Exchange Act.
(iii) The description of the Registrant's common stock which is
contained in a Registration Statement on Form S-1 filed March 19, 1998,
including amendments filed on May 18, 1998, June 3, 1998, June 30, 1998, July
24, 1998 and July 28, 1998.
(iv) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report referred to in (i) above.
All documents filed by the Registrant or the Plan after the date
of this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment (that
indicates all securities offered have been sold or deregisters all securities
then remaining unsold), shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify
officers, directors, employees and agents of the corporation, in connection with
actual or threatened actions, suits or proceedings provided that such officer,
director, employee or agent acted in good faith and in a manner such officer
reasonably believed to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to believe his or her
conduct
3
<PAGE> 4
was unlawful. This authority is sufficiently broad to permit indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act.
The Registrant's Certificate of Incorporation provides for
indemnification of officers and directors to the fullest extent permitted by
Delaware Law. In addition, the Registrant has, and intends in the future to
enter into, agreements to provide indemnification for directors and officers in
addition to that contained in the Restated Certificate of Incorporation and
By-laws.
Del Monte Corporation's Savings Plan and Certain Hourly Savings
Plan (the "Plans") contain identical indemnification provisions, each
indemnifying the administrative committee, the investment committee, and the
individual members of those committees in connection with actions of the
individual or committee except those involving gross negligence or willful
misconduct in the performance of their duties.
The Registrant also carries liability insurance covering officers
and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Undertaking re: Status of Favorable Determination Letter Covering the
Plan.
The Registrant has received a favorable determination letter from the Internal
Revenue Service (the "IRS") concerning the qualification of the Del Monte
Savings Plan, as amended and restated on January 1, 1995, and the Del Monte
Certain Hourly Savings Plan, as amended and restated on January 1, 1996. The
Registrant will submit the Plans, as amended, to the IRS in a timely manner with
a request for a favorable determination that the Plans, as amended, continue to
so qualify.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 Del Monte Savings Plan, as amended.
99.2 Del Monte Certain Hourly Savings Plan, as amended.
4
<PAGE> 5
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(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)(l)(i) and (a)(l)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a
5
<PAGE> 6
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
6
<PAGE> 7
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 San Francisco, State of California, on the 6th day of
April, 2000.
DEL MONTE FOODS COMPANY
(Registrant)
By: /s/ RICHARD G. WOLFORD
-------------------------------------
Richard G. Wolford
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David L. Meyers and William R. Sawyers,
and each of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or her
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Principal Executive Officer:
/s/ RICHARD G. WOLFORD President and Chief March 31, 2000
- --------------------------------- Executive Officer
Richard G. Wolford
Principal Financial Officer:
/s/ DAVID L. MEYERS Executive Vice President, March 31, 2000
- --------------------------------- Administration and Chief
David L. Meyers Financial Officer
</TABLE>
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<TABLE>
<S> <C> <C>
Principal Accounting Officer:
/s/ RICHARD L. FRENCH Senior Vice President and
- --------------------------------- and Chief Accounting Officer March 31, 2000
Richard L. French
Directors:
/s/ RICHARD W. BOYCE
- --------------------------------- Director March 30, 2000
Richard W. Boyce
/s/ TIMOTHY G. BRUER
- --------------------------------- Director March 30, 2000
Timothy G. Bruer
/s/ AL CAREY
- --------------------------------- Director April 5, 2000
Al Carey
/s/ PATRICK FOLEY
- --------------------------------- Director March 30, 2000
Patrick Foley
/s/ BRIAN E. HAYCOX
- --------------------------------- Director March 31, 2000
Brian E. Haycox
/s/ DENISE M. O'LEARY
- --------------------------------- Director March 31, 2000
Denise M. O'Leary
/s/ WILLIAM S. PRICE, III
- --------------------------------- Director March 31, 2000
William S. Price, III
/s/ JEFFREY A. SHAW
- --------------------------------- Director March 31, 2000
Jeffrey A. Shaw
/s/ WESLEY J. SMITH
- --------------------------------- Director March 31, 2000
Wesley J. Smith
/s/ RICHARD G. WOLFORD
- --------------------------------- Director March 31, 2000
Richard G. Wolford
</TABLE>
A majority of the members of the Board of Directors.
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Del Monte Savings
8
<PAGE> 9
Plan and the Del Monte Certain Hourly Savings Plan have duly caused this
registration statement to be signed on their behalf by the undersigned, hereunto
duly authorized, in the City of San Francisco, State of California, on April 6,
2000.
DEL MONTE SAVINGS PLAN
By: /s/ William R. Sawyers
_________________________________
Del Monte Employee Benefits
Administrative Committee
DEL MONTE CERTAIN HOURLY SAVINGS PLAN
By: /s/ William R. Sawyers
_________________________________
Del Monte Employee Benefits
Administrative Committee
9
<PAGE> 10
EXHIBIT INDEX
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Exhibit Sequentially
No. Numbered Page
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5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Undertaking re: Status of Favorable Determination Letter Covering the
Plan:
The Registrant has received a favorable determination letter from the
Internal Revenue Service (the "IRS") concerning the qualification of
the Del Monte Savings Plan, as amended and restated on January 1,
1995, and the Del Monte Certain Hourly Savings Plan, as amended and
restated on January 1, 1996. The Registrant will submit the Plans, as
amended, to the IRS in a timely manner with a request for a favorable
determination that the Plans, as amended, continue to so qualify.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit
5.1 to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 Del Monte Savings Plan, as amended.
99.2 Del Monte Certain Hourly Savings Plan, as amended.
</TABLE>
10
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EXHIBIT 5.1
OPINION OF ORRICK, HERRINGTON & SUTCLIFFE LLP
[Letterhead of Orrick, Herrington & Sutcliffe]
April 7, 2000
Del Monte Foods Company
One Market
San Francisco, California 94105
Attention: William R. Sawyers, Esq.
Vice President, General Counsel and Secretary
Dear Sirs:
Del Monte Foods Company, a Delaware corporation, has requested
our opinion in connection with a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by it today with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to the shares of Common Stock, $.01 par value, of
Del Monte Foods Company to be issued under the Del Monte Savings Plan and the
Del Monte Certain Hourly Plan (the "Plans").
We have examined and are relying on originals, or copies
certified or otherwise identified to our satisfaction, of such corporate records
and such other instruments, certificates and representations of public
officials, officers and representatives of Del Monte Foods Company and such
other persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion expressed below.
Based on the foregoing, it is our opinion that the shares of Del
Monte Foods Company issuable under the Plans are duly authorized and, when
issued in accordance with the terms of the Plans, at prices in excess of the par
value thereof, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. By giving such consent, we do not thereby admit that
we are experts with respect to any part of the Registration Statement, including
this exhibit, within the meaning of the term "expert" as used in the Act or the
rules and regulations of the Commission issued thereunder.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Del Monte Foods Company
We consent to incorporation by reference in this registration statement on Form
S-8 of Del Monte Foods Company of our report dated July 23, 1999, relating to
the consolidated balance sheets of Del Monte Foods Company as of June 30, 1999
and 1998 and the related consolidated statements of operations, stockholders'
equity (deficit) and cash flows for each of the years in the three-year period
ended June 30, 1999, which report appears in the June 30, 1999, annual report on
Form 10-K of Del Monte Foods Company.
/s/ KPMG LLP
San Francisco, California
April 6, 2000
<PAGE> 1
EXHIBIT 99.1
DEL MONTE SAVINGS PLAN, AS AMENDED.
<PAGE> 2
Restatement
DEL MONTE CORPORATION
1997 RESTATEMENT TO SAVINGS PLAN
(As Amended and Restated as of January 1, 1997)
<PAGE> 3
DEL MONTE SAVINGS PLAN
On this 3rd day of April, 2000, Del Monte Corporation, a corporation
duly organized and existing under the laws of the State of New York (the
"Controlling Company"), hereby amends and restates the Del Monte Savings Plan
(the "Plan"). Except as provided otherwise herein, this amendment and
restatement of the Plan is effective as of January 1, 1997.
STATEMENT OF PURPOSE
A. The Plan was first adopted effective as of January 1, 1990. The Plan
is intended to comply with the requirements of the Internal Revenue Code of
1986, as amended (the "Code"), the Tax Reform Act of 1986 and all other current
laws and regulations enacted or issued prior to the effective date of the Plan.
B. The primary purpose of the Plan is to recognize the contributions
made to the Controlling Company and its participating affiliates by employees
and to reward those contributions by providing eligible employees with an
opportunity to accumulate savings for their future security. In addition, the
Controlling Company wishes to recognize certain employees with annual
profit-sharing contributions.
C. The Controlling Company intends that the Plan be a profit sharing
plan qualified under Code Sections 401(a) and 401(k).
D. The Plan accepted a spin-off of assets and liabilities from the Del
Monte Savings-Investment Plan for Regular, Full-Time Employees in which many of
the eligible employees had been participating prior to 1990. The Plan contains
special provisions relating to such spin-off of assets.
<PAGE> 4
HISTORY OF THE PLAN
Del Monte Corporation first established the Del Monte Savings-Investment
Plan for Regular, Full-Time Employees (the "RJR Plan") effective as of March 1,
1965. On February 2, 1979, Del Monte Corporation was merged into Reynolds Merger
Corp., a New York corporation and a wholly-owned subsidiary of R. J. Reynolds
Industries, Inc. ("Reynolds"), and the name of the Reynolds subsidiary was
changed to Del Monte Corporation. On the effective date of the merger, each
share of Del Monte stock held in the trust established under the RJR Plan was
converted into a share of Reynolds preferred stock. On January 1, 1982, the RJR
Plan was merged with the Morton Frozen Foods, Inc. Investment and Savings Plan
which held, among other stock, common stock of International Telephone and
Telegraph Corporation. The RJR Plan was amended and restated effective as of
June 1, 1984, and again amended and restated effective as of January 1, 1985.
The RJR Plan was further amended by four amendments, the provisions of which
became effective as of January 1, 1986, July 23, 1986, January 1, 1987, November
1, 1988, January 1, 1988 and November 1, 1989. Under the Agreement dated May 5,
1986 among Del Monte Corporation, Del Monte Frozen Foods, Inc. and ConAgra,
Inc., coverage for Del Monte Frozen Foods employees ceased and account balances
were vested and retained in the RJR Plan. Effective February 9, 1989, shares of
RJR Nabisco, Inc. common stock were exchanged for cash and RJR Holdings Corp.
preferred stock and senior converting debentures. Effective July 1, 1989, RJR
Nabisco, Inc. (formerly known as Reynolds) assumed sponsorship of the RJR Plan.
Under agreement dated June 20, 1989, certain plants and assets of the Chun King
business were sold, all contributions to the RJR Plan for Chun King participants
ceased, and the accounts of Chun King employees were transferred to a successor
plan. Effective December 4, 1989, certain assets of the Del Monte Fresh Fruit
business were sold, all contributions for the Del
<PAGE> 5
Monte Fresh Fruit participants ceased, and the accounts of Del Monte
Fresh Fruit employees were transferred to a successor plan. Effective as of
January 1, 1990, the stock and certain assets of Del Monte Corporation were
sold, and all contributions to the RJR Plan for participants employed by Del
Monte Corporation ceased. Effective as of January 1, 1990, the accounts of all
Del Monte Corporation employees and retirees were transferred to the Plan as a
successor plan to the RJR Plan.
STATEMENT OF AGREEMENT
To establish the Plan with the purposes and goals as hereinabove
described, the Controlling Company hereby sets forth the terms and provisions as
follows:
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TABLE OF CONTENTS
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PAGE
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Article I DEFINITIONS...............................................................1
1.1 Account...................................................................1
1.2 ACP or Average Contribution Percentage....................................1
1.3 ACP Tests.................................................................1
1.4 Active Participant........................................................1
1.5 Active Participation......................................................2
1.6 Administrative Committee..................................................2
1.7 ADP or Actual Deferral Percentage.........................................2
1.8 ADP Tests.................................................................2
1.9 Affiliate.................................................................2
1.10 After Tax Account.........................................................3
1.11 After Tax Contributions...................................................3
1.12 After Tax Deferral Election...............................................3
1.13 Annual Addition...........................................................3
1.14 Before Tax Account........................................................3
1.15 Before Tax Contributions..................................................3
1.16 Before Tax Deferral Election..............................................3
1.17 Beneficiary...............................................................3
1.18 Board.....................................................................3
1.19 Break in Service..........................................................3
1.20 Business Day..............................................................3
1.21 Code......................................................................4
1.22 Company Contribution Account..............................................4
1.23 Company Contributions.....................................................4
1.24 Compensation..............................................................4
1.25 Contributions.............................................................6
1.26 Controlling Company.......................................................6
1.27 Covered Employee..........................................................6
1.28 Deferral Election.........................................................7
1.29 Defined Benefit Minimum...................................................7
1.30 Defined Benefit Plan......................................................7
1.31 Defined Benefit Plan Fraction.............................................7
1.32 Defined Contribution Minimum..............................................7
1.33 Defined Contribution Plan.................................................7
1.34 Defined Contribution Plan Fraction........................................7
1.36 Determination Date........................................................7
1.37 Disability or Disabled....................................................7
1.38 Distribution Valuation Date...............................................8
1.39 Effective Date............................................................8
1.40 Elective Deferrals........................................................8
1.41 Employee..................................................................8
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
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PAGE
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1.42 Employment Date...........................................................9
1.43 Entry Date................................................................9
1.44 ERISA.....................................................................9
1.45 Forfeiture................................................................9
1.46 Highly Compensated Employee...............................................9
1.47 Hour of Retirement Service...............................................10
1.48 Hour of Service..........................................................11
1.49 Investment Committee.....................................................11
1.50 Investment Fund or Funds.................................................11
1.51 Key Employee.............................................................11
1.52 Key Employee Compensation................................................11
1.53 Leave of Absence.........................................................11
1.54 Limitation Year..........................................................11
1.55 Matching Account.........................................................11
1.56 Matching Contributions...................................................12
1.57 Maternity or Paternity Leave.............................................12
1.58 Maximum Deferral Amount..................................................12
1.59 Named Fiduciary..........................................................12
1.60 Non-Key Employee.........................................................12
1.61 Normal Retirement Age....................................................12
1.62 Participant..............................................................12
1.63 Participating Company....................................................12
1.64 Permissive Aggregation Group.............................................12
1.65 Plan.....................................................................12
1.66 Plan Year................................................................12
1.67 Qualified Account........................................................12
1.68 Qualified Contributions..................................................12
1.69 Qualified Spousal Waiver.................................................12
1.70 Required Aggregation Group...............................................13
1.71 Restoration Contributions................................................13
1.72 Retired or Retirement....................................................13
1.73 Retirement Savings Account...............................................13
1.74 Retirement Savings Compensation..........................................13
1.75 Retirement Savings Contributions.........................................14
1.76 RJR Plan.................................................................14
1.77 Rollover Account.........................................................14
1.78 Rollover Contributions...................................................14
1.79 Seasonal Employee........................................................15
1.80 Section 415 Compensation.................................................15
1.81 Severance Date...........................................................15
1.82 Spouse or Surviving Spouse...............................................15
1.83 Testing Compensation.....................................................15
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
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PAGE
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1.84 Top-Heavy Group..........................................................15
1.85 Top-Heavy Plan...........................................................15
1.86 Trust or Trust Agreement.................................................15
1.87 Trustee..................................................................16
1.88 Trust Fund...............................................................16
1.89 Valuation Date...........................................................16
1.90 Vesting Service..........................................................16
1.91 Withdrawal Valuation Date................................................16
1.92 Year of Retirement Savings Service.......................................16
1.93 Year of Service..........................................................17
1.94 Year of Qualification Service............................................18
Article II ELIGIBILITY..............................................................19
2.1 Initial Eligibility Requirements.........................................19
(a) General Rule.......................................................19
(b) RJR Plan Participants..............................................19
(c) New Participating Companies........................................19
(d) Enrollment.........................................................19
2.2 Participation Upon Reemployment..........................................19
2.3 Change in Status.........................................................20
(a) Change to Covered Employee Status..................................20
(b) Loss of Covered Employee Status....................................20
(c) Can Manufacturing Sale.............................................20
(d) Pudding Products Sale..............................................20
(e) Veteran's Reemployment.............................................20
Article III CONTRIBUTIONS............................................................20
3.1 Before Tax and After Tax Contributions...................................20
(a) Before Tax Contributions...........................................20
(b) After Tax Contributions............................................21
(c) Contributions Which Exceed Maximum Deferral Amount.................21
(d) Deferral Elections.................................................21
3.2 Matching Contributions...................................................22
3.3 Qualified Contributions..................................................23
3.4 Retirement Savings Contributions.........................................23
(a) Eligibility for Retirement Savings Contributions...................23
(b) Retirement Savings Contributions...................................23
(c) Limitation on Contributions........................................24
(d) Last Day of Plan Year Requirement..................................24
3.5 Form of Contributions....................................................24
3.6 Timing of Contributions..................................................24
(a) Before Tax and/or After Tax Contributions..........................24
(b) Matching and Qualified Contributions...............................25
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
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PAGE
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(c) Retirement Savings Contributions...................................25
3.7 Contingent Nature of Company Contributions...............................25
3.8 Restoration Contributions................................................25
(a) Restoration upon Buy-Back..........................................25
(b) Restoration of Other Forfeitures...................................26
(c) Restoration Contribution...........................................26
(d) Notice of Buy-Back Rights..........................................26
Article IV ROLLOVERS................................................................27
4.1 Rollover Contributions...................................................27
(a) Request by Participant.............................................27
(b) Acceptance of Rollover.............................................27
(c) Mistaken Rollover..................................................27
4.2 Direct Rollovers.........................................................27
(a) Definition - Eligible Rollover Distribution........................27
(b) Definition - Eligible Retirement Plan..............................28
(c) Definition - Distributee...........................................28
(d) Definition - Direct Rollover.......................................28
4.3 In-Kind Rollovers........................................................28
Article V PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS........................29
5.1 Establishment of Participants' Accounts..................................29
5.2 Allocation and Crediting of Before Tax, After Tax, Matching and
Rollover Contributions...................................................29
5.3 Allocation and Crediting of Qualified Contributions......................29
(a) Participants Receiving Allocations.................................29
(b) Formula for Allocation.............................................29
5.4 Allocation and Crediting of Retirement Savings Contributions.............30
5.5 Allocation and Crediting of Investment Experience........................30
(a) Determination of Earnings or Losses................................30
(b) Formula For Allocation.............................................30
5.6 Notice to Participants of Account Balances...............................31
5.7 Good Faith Valuation Binding.............................................31
5.8 Errors and Omissions in Accounts.........................................31
Article VI CONTRIBUTION AND SECTION 415 LIMITATIONS AND
NONDISCRIMINATION REQUIREMENTS...........................................31
6.1 Definition of "Compensation" for Compliance Purposes.....................31
(a) Section 415 Compensation...........................................31
(b) Testing Compensation...............................................31
(c) Key Employee Compensation..........................................32
6.2 Deductibility Limitations................................................32
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6.3 Maximum Limitation on Elective Deferrals.................................32
(a) Maximum Elective Deferrals Under Affiliate Plans...................32
(b) Return of Excess Before Tax Contributions..........................32
(c) Return of Excess Elective Deferrals Provided by Affiliate
Arrangements.......................................................33
(d) Discretionary Return of Elective Deferrals.........................33
(e) Return of Excess Annual Additions..................................33
6.4 Nondiscrimination Requirements for Before Tax Contributions..............33
(a) ADP Test...........................................................33
(b) Multiple Plans.....................................................34
(c) Adjustments to Actual Deferral Percentages.........................34
6.5 Nondiscrimination Requirements for After Tax and Matching Contributions..35
(a) ACP Test...........................................................35
(b) Multiple Plans.....................................................35
(c) Adjustments to Average Contribution Percentages....................36
6.6 Multiple Use of Tests....................................................37
(a) Aggregate Limitation...............................................37
(b) Multiple Plans.....................................................37
(c) Correction.........................................................38
(d) Application........................................................38
6.7 Order of Application.....................................................38
6.8 Code Section 415 Limitations on Maximum Contributions....................38
(a) General Limit on Annual Additions..................................38
(b) Combined Plan Limitation...........................................38
(c) Correction of Excess Annual Additions..............................38
(d) Special Definitions Applicable to Code Section 415 Limitations.....40
(e) Compliance with Code Section 415...................................41
6.9 Construction of Limitations and Requirements.............................42
Article VII INVESTMENT OF ACCOUNTS...................................................42
7.1 Establishment of Trust Fund..............................................42
7.2 Investment Funds.........................................................42
(a) Named Investment Funds.............................................42
(b) Other Investment Funds.............................................43
(c) Transition for Investment Funds....................................43
(d) Reinvestment of Cash Earnings......................................43
7.3 Participant Direction of Investments.....................................43
(a) Investment of Contributions........................................43
(b) Investment of Existing Account Balances............................44
(c) Conditions Applicable to Elections.................................44
(d) Investments with Distribution Made in Installments.................44
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(e) Limitations on Participant Directions..............................45
7.4 Valuations...............................................................45
(a) Timing of Valuations...............................................45
(b) Valuation of Del Monte Common Stock................................45
7.5 Voting of Del Monte Common Stock.........................................46
Article VIII VESTING IN ACCOUNTS......................................................48
8.1 General Vesting Rule.....................................................48
(a) Vested Accounts....................................................48
(b) Matching Accounts of Participants..................................48
(c) RJR Participants...................................................48
(d) Del Monte Information Systems 1992 Employment Transition Plan......48
(e) Retirement Savings Accounts........................................48
(f) Sale of Pudding Products Business..................................49
8.2 Vesting Upon Attainment of Normal Retirement Age, Disability or Death....49
8.3 Timing of Forfeitures and Vesting After Restoration Contributions........49
(a) Reemployment and Vesting After Distribution........................49
(b) Reemployment and Vesting Before Distribution or After Late
Distribution.......................................................50
Article IX PAYMENT OF BENEFITS......................................................50
9.1 Benefit Payments upon Separation from Service for Reasons Other
than Death...............................................................50
(a) General Rule Concerning Benefits Payable...........................50
(b) Timing of Distribution.............................................51
(c) Restrictions on Distributions from Before Tax and Qualified
Accounts...........................................................52
9.2 Death and Disability Benefits............................................53
(a) Prior to Benefit Commencement Date.................................53
(b) After Benefit Commencement Date....................................54
(c) Disability.........................................................54
9.3 Form of Distribution.....................................................54
(a) Method of Payment..................................................54
(c) Mandatory Cash-Out.................................................56
(d) Assets Distributed.................................................56
9.4 Beneficiary Designation..................................................57
(a) General............................................................57
(b) No Designation or Designee Dead or Missing.........................57
9.5 Qualified Domestic Relations Orders......................................57
9.6 Unclaimed Benefits.......................................................58
9.7 Explanation of Certain Rollover Distributions............................58
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Article X WITHDRAWALS WHILE EMPLOYED BY AN AFFILIATE...............................59
10.1 General Rules for All Withdrawals........................................59
(a) Ability to Withdraw................................................59
(b) Election to Withdraw...............................................59
(c) Minimum Amount of Withdrawals......................................59
(d) Frequency of Withdrawals...........................................59
(e) Payment of Withdrawal..............................................59
(f) Source of Withdrawals..............................................59
10.2 Withdrawals Before Age 59 1/2 or Disability..............................60
10.3 Withdrawals After Age 59 1/2 or Disability...............................60
10.4 Matching Contribution Suspension.........................................61
10.5 Hardship Withdrawal......................................................62
(a) General Requirements for Hardship..................................62
(b) Definition of "Hardship"...........................................62
(c) Immediate and Heavy Financial Need.................................62
(d) Necessary to Satisfy a Financial Need..............................62
(e) Ordering of Hardship Withdrawal....................................63
10.6 Loans to Participants....................................................63
(a) Grant of Authority.................................................63
(b) Nondiscriminatory Policy...........................................64
(c) Minimum Loan Amount................................................64
(d) Maximum Loan Amount................................................64
(e) Maximum Loan Term..................................................64
(f) Terms of Repayment.................................................65
(g) Adequacy of Security...............................................65
(h) Distributions......................................................65
(i) Rate of Interest...................................................65
(j) Source of Loan Amounts.............................................65
(k) Crediting Loan Payments............................................66
(l) Remedies in the Event of Default...................................66
(m) Veteran's Reemployment.............................................66
Article XI CLAIMS...................................................................67
11.1 Claims Procedure.........................................................67
11.2 Review Procedure.........................................................67
11.3 Satisfaction of Claims...................................................67
Article XII ADMINISTRATION...........................................................68
12.1 Administrative Committee; Appointment and Term of Office.................68
12.2 Organization of Administrative Committee.................................68
12.3 Powers and Responsibility................................................68
12.4 Records of Administrative Committee......................................69
12.5 Reporting and Disclosure.................................................69
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12.6 Construction of the Plan.................................................70
12.7 Assistants and Advisers..................................................70
12.8 Investment Committee.....................................................70
12.9 Direction of Trustee.....................................................71
12.10 Bonding..................................................................71
12.11 Indemnification..........................................................71
Article XIII ALLOCATION OF AUTHORITY AND RESPONSIBILITIES.............................72
13.1 Controlling Company and Board............................................72
(a) General Responsibilities...........................................72
(b) Allocation of Authority............................................72
(c) Authority of Participating Companies...............................72
13.2 Administrative Committee.................................................72
13.3 Investment Committee.....................................................73
13.4 Trustee..................................................................73
13.5 Limitations on Obligations of Fiduciaries................................73
13.6 Delegation...............................................................73
13.7 Multiple Fiduciary Roles.................................................73
Article XIV AMENDMENT, TERMINATION AND ADOPTION......................................73
14.1 Amendment................................................................73
14.2 Termination..............................................................74
(a) Right to Terminate.................................................74
(b) Vesting upon Complete Termination..................................74
(c) Dissolution of Trust...............................................74
(d) Vesting upon Partial Termination...................................75
14.3 Adoption of the Plan by a Participating Company..........................75
(a) Procedures for Participation.......................................75
(b) Single Plan........................................................75
(c) Authority under Plan...............................................76
(d) Contributions to Plan..............................................76
(e) Withdrawal from Plan...............................................76
14.4 Merger, Consolidation and Transfer of Assets or Liabilities..............76
14.5 Contingent Adoption......................................................77
Article XV TOP-HEAVY PROVISIONS.....................................................77
15.1 Top-Heavy Plan Years.....................................................77
15.2 Determination of Top-Heavy Status........................................77
(a) Application........................................................77
(b) Special Definitions................................................77
(c) Special Rules......................................................79
15.3 RESERVED.................................................................80
15.4 Top-Heavy Minimum Contribution...........................................80
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15.5 Top-Heavy Minimum Vesting................................................81
15.6 Adjustments in Code Section 415 Limitations for Top-Heavy Plans..........82
15.7 Special Effective Date...................................................82
15.8 Construction of Limitations and Requirements.............................82
Article XVI MISCELLANEOUS............................................................83
16.1 Nonalienation of Benefits and Spendthrift Clause.........................83
(a) General Nonalienation Requirements.................................83
(b) Exception for Qualified Domestic Relations Orders..................83
16.2 Headings.................................................................84
16.3 Construction, Controlling Law............................................84
16.4 No Contract of Employment................................................84
16.5 Incapacity of Participant or Beneficiary.................................84
16.6 Heirs, Assigns and Personal Representatives..............................84
16.7 Title to Assets, Benefits Supported Only by Trust Fund...................84
16.8 Legal Action.............................................................85
16.9 No Discrimination........................................................85
16.10 Severability.............................................................85
16.11 Exclusive Benefits Refund of Contributions...............................85
16.12 Predecessor Service......................................................86
16.13 Plan Expenses............................................................86
Writing Equivalents.....................................................................86
Schedule A [see Plan Section 1.36 and Section 14.3].................................88
APPENDIX I SALE OF HAWAIIAN PUNCH..................................................I-1
1.1 Definitions.......................................................I-1
1.2 Contributions Cease...............................................I-1
1.3 Transfer of Accounts..............................................I-1
APPENDIX II ASSET PURCHASE (CONTADINA SERVICES, INC.)..............................II-1
2.1 Definitions......................................................II-1
2.2 Eligibility......................................................II-1
2.3 Vesting in Accounts..............................................II-2
2.4 Payment of Benefits..............................................II-2
2.5 Transfer of Funds................................................II-5
APPENDIX III ASSET PURCHASE (AGRILINK FOODS, INC.).................................III-1
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ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with an initial
capital letter, shall have the meanings set forth below unless a different
meaning plainly is required by the context.
1.1 Account shall mean, with respect to a Participant or Beneficiary,
the amount of money or other property in the Trust Fund, as is evidenced by the
last balance posted in accordance with the terms of the Plan to the account
record established for such Participant or Beneficiary. The Administrative
Committee, as required by the terms of the Plan and otherwise as it deems
necessary or desirable in its sole discretion, may establish and maintain
separate subaccounts for each Participant and Beneficiary, provided allocations
are made to such subaccounts in the manner described in Article V of the Plan.
"Account" shall refer to the aggregate of all separate subaccounts or to
individual, separate subaccounts, as may be appropriate in context.
1.2 ACP or Average Contribution Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group and rounded to the
nearest 1/100th of a percent) of (i) the total of the amount of After Tax
Contributions and Matching Contributions and, to the extent designated by the
Administrative Committee, the Before Tax and/or Qualified Contributions
(excluding Before Tax and Qualified Contributions counted for purposes of
Section 6.4 and any Contributions returned to a Participant or otherwise removed
from his Account to correct excess Annual Additions) actually paid to the
Trustee on behalf of each such Participant for such Plan Year, to (ii) such
Participant's Testing Compensation for such Plan Year. If a Highly Compensated
Employee participates in the Plan and one or more other plans of any Affiliates
to which matching or after tax contributions are made (other than a plan for
which aggregation with the Plan is not permitted), the matching and after tax
contributions made with respect to such Highly Compensated Employee shall be
aggregated for purposes of determining his ACP. The ACP shall be rounded to the
nearest 1/100th of a percent and shall be calculated in a manner consistent with
the terms of Code Section 401(m) and the regulations promulgated thereunder. If
a Participant is eligible to participate in the Plan for all or a portion of a
Plan Year by reason of satisfying the eligibility requirements of Article II but
makes no After Tax Contributions and no Before Tax Contributions which are taken
into account (as described above) for purposes of calculating his ACP, and if he
receives no allocations of Matching Contributions or Qualified Contributions
which are taken into account (as described above) for purposes of calculating
his ACP, such Participant's ACP for such Plan Year shall be zero.
1.3 ACP Tests shall mean the nondiscrimination tests described in
Section 6.5.
1.4 Active Participant shall mean, for any Plan Year (or any portion
thereof), any Covered Employee who, pursuant to the terms of Article II, has
been admitted to, and not removed from, Active Participation in the Plan since
his Employment Date or Reemployment Date.
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1.5 Active Participation shall mean, with respect to any Participant for
any Plan Year (or any portion thereof), the making of any Contributions to the
Plan or having the Trustee receive on his behalf any Contributions or transfers
under the terms of the Plan or maintaining an Account as a Covered Employee
prior to a Severance Date.
1.6 Administrative Committee shall mean the committee which shall act on
behalf of the Controlling Company to administer the Plan as provided in Article
XII. The Administrative Committee shall be the plan administrator, as that term
is defined in Code Section 414(g); provided, the Controlling Company may act in
lieu of the Administrative Committee as it deems appropriate or desirable.
1.7 ADP or Actual Deferral Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group and rounded to the
nearest 1/100th of a percent) of (i) the total of the amount of Before Tax
Contributions (excluding Before Tax Contributions, if any, designated by the
Administrative Committee to be taken into account under Section 6.5(c) to help
satisfy the ACP Test or returned to a Participant to correct excess Annual
Additions) and, to the extent designated by the Administrative Committee, the
Qualified Contributions [excluding Qualified Contributions counted for purposes
of Section 6.4(c)] actually paid to the Trustee on behalf of each such
Participant for such Plan Year, to (ii) such Participant's Testing Compensation
for such Plan Year. If a Highly Compensated Employee participates in the Plan
and one or more other plans of any Affiliates to which before tax contributions
are made (other than a plan for which aggregation with the Plan is not
permitted), the before tax contributions made with respect to such Highly
Compensated Employee shall be aggregated for purposes of determining his ADP.
The ADP shall be rounded to the nearest 1/100th of a percent and shall be
calculated in a manner consistent with the terms of Code Section 401(k) and the
regulations promulgated thereunder. If a Participant is eligible to participate
in the Plan for all or a portion of a Plan Year by reason of satisfying the
eligibility requirements of Article II but makes no Before Tax Contributions and
receives no allocation of Qualified Contributions, which the Administrative
Committee takes into account for purposes of the ADP Tests, such Participants
ADP for such Plan Year shall be zero percent.
1.8 ADP Tests shall mean the nondiscrimination tests described in
Section 6.4.
1.9 Affiliate shall mean, as of any date, (i) a Participating Company,
and (ii) any company, person or organization which, on such date, (A) is a
Member of the same controlled group of corporations [within the meaning of Code
Section 414(b)] as is a Participating Company; (B) is a trade or business
(whether or not incorporated) which controls, is controlled by or is under
common control with [within the meaning of Code Section 414(c)] a Participating
Company; (C) is a member of an affiliated service group (as defined in Code
Section 414(m)] which includes a Participating Company; or (D) is required to be
aggregated with a Participating Company pursuant to regulations promulgated
under Code Section 414(o); provided, solely for purposes of Section 6.8, the
term "Affiliate" as defined in this section shall be deemed to include
corporations that would be Affiliates if the phrase "more than 50 percent" were
substituted for the phrase "at least 80 percent" in each place the latter phrase
appears in Code Section 1563(a)(1).
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1.10 After Tax Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to After Tax Contributions.
1.11 After Tax Contributions shall mean the amounts paid by a
Participating Company to the Trust Fund at the election of Participants, all as
pursuant to the terms of Section 3.1(b).
1.12 After Tax Deferral Election shall mean a written election by an
Active Participant directing the Participating Company of which he is an
Employee to withhold a percentage of his current Compensation from his paychecks
and to contribute such withheld amount to the Plan as an After Tax Contribution,
all as provided in Section 3.1(b) and Section 3.1(d).
1.13 Annual Addition shall mean the sum of the amounts described in
Section 6.8(d)(1).
1.14 Before Tax Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to his Before Tax Contributions.
1.15 Before Tax Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund at the election of Participants, all
pursuant to the terms of Section 3.1(a).
1.16 Before Tax Deferral Election shall mean a written election by an
Active Participant directing the Participating Company of which he is an
Employee to withhold a percentage of his current Compensation from his paychecks
and to contribute such withheld amount to the Plan as a Before Tax Contribution,
all as provided in Section 3.1(a) and Section 3.1(d).
1.17 Beneficiary shall mean the person(s) designated in accordance with
Section 9.4 to receive any death benefits that may be payable under the Plan
upon the death of a Participant.
1.18 Board shall mean the board of directors of the Controlling Company.
A reference to the board of directors of any other Participating Company shall
specify it as such.
1.19 Break in Service shall mean, with respect to an Employee, a period
of 12 consecutive months beginning on a Severance Date or an anniversary of such
date, during which an Employee does not complete an Hour of Service. A Break in
Service shall be deemed to have commenced on the first day of the year in which
it occurs.
For purposes of determining whether or not an Employee has incurred a
Break in Service, and solely for the purpose of avoiding a Break in Service, an
Employee absent from work due to a Maternity or Paternity Leave shall not have a
Break in Service until the second anniversary of the first day of such absence
from employment, provided that the period between the first and second
anniversary of such first day of absence is neither a Year of Service nor a
period of severance for any other purpose.
1.20 Business Day shall mean each day on which the Trustee operates, and
is open to the public for, its business.
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1.21 Code shall mean the Internal Revenue Code of 1986, as amended, and
any succeeding federal tax provisions.
1.22 Company Contribution Account shall mean, collectively, the separate
subaccounts established and maintained on behalf of a Participant or his
Beneficiary to reflect his interest in the Trust Fund attributable to Company
Contributions.
1.23 Company Contributions shall mean Before Tax, Matching (effective
January 1, 1996, Retirement Savings) and Qualified Contributions made by the
Participating Companies pursuant to the terms of the Plan.
1.24 Compensation shall mean and include, for any determination period,
base salary, plus the items listed in subsection (a) below, but specifically
excluding the items listed in subsection (b) below, plus such other additional
forms of compensation as the Committee may determine from time to time;
provided, in no event shall the annual Compensation taken into account under
this Section exceed $150,000 (as adjusted by the Internal Revenue Service under
Code Section 401(a)(17) for cost of living increases):
(a) Inclusions: Payments to a Participant from or pursuant to the
following plans and policies:
(i) Overtime pay - Non-Exempt Employees;
(ii) Shift Premium Pay;
(iii) Vacation with Pay Plan (except those payments
described in subsection (b) hereof);
(iv) Extra Compensation for Exempt Employees;
(v) Paid Holiday Plan;
(vi) Funeral Leave Pay Plan;
(vii) Paid Absence Policy or other leave of absence
policy;
(viii) Disability wage Plan (or similar short-term
disability plan); and
(ix) Compensation deferred pursuant to salary reduction
agreements under Code Sections 401(k) or 125 plans;
(b) Exclusions: Payments to a Participant from or pursuant to the
following plans and policies:
(i) Educational Assistance Plan;
(ii) Del Monte Corporation Retirement Plan for Salaried
Employees or the retirement plan for salaried employees
(or any successor plans thereto);
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<PAGE> 19
(iii) Suggestion Plan;
(iv) Vacation with Pay Plan payments received in lieu of
vacation taken;
(v) Annual Incentive Award Plan and any long-term
incentive compensation plan or program;
(vi) Moving and relocation expenses;
(vii) Severance payments, whether in the form of a lump
sum, salary continuation or any other form;
(viii) Commissions and bonuses;
(ix) Payments of prizes won in employee benefit contests;
(x) Monthly foreign service premiums and allowances paid
by the Company to employees located overseas;
(xi) Compensation or awards not monetary in nature;
(xii) Payments or economic benefits under programs
involving stock options or stock appreciation rights; and
(xiii) Any long-term disability plan.
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 Omnibus Budget Reconciliation
Act of 1993 ("OBRA `93") annual compensation limit. The OBRA `93
annual compensation limit is $150,000, as adjusted by the
Commissioner 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 12 months, over which the Compensation is
determined ("determination period") beginning in such calendar
year. If a determination period consists of fewer than 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 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
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<PAGE> 20
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 Plan Year beginning on or
after January 1, 1994, the OBRA `93 annual compensation limit is
$150,000.
In determining the Compensation of a Participant for
purposes of the preceding limitations, the following shall apply:
(1) Compensation shall not include any amounts received by a
Participant prior to the first day of the payroll period for
which he first becomes an Active Participant following his latest
Date of Employment; and (2) for Plan Years beginning before
January 1, 1997, in the case of a Participant who is a member of
: (i) a 5% owner or (ii) a Highly Compensated Employee in the
group consisting of the 10 Highly Compensated Employees paid the
greatest Compensation during the Plan Year, each as determined
under Section 414(q)(6) of the Code, the Participant's
Compensation shall include any Compensation received from the
Company by such Participant's spouse and any lineal descendants
of the Participant who have not attained age 19 before the close
of such Plan Year.
1.25 Contributions shall mean, individually or collectively, the Before
Tax, Matching, Qualified, After Tax, (effective January 1, 1996, Retirement
Savings,) and Rollover Contributions permitted under the Plan.
1.26 Controlling Company shall mean Del Monte Corporation, a New York
corporation with its principal office in San Francisco, California, and its
successors which adopt the Plan.
1.27 Covered Employee shall mean any Employee described in (a) and not
excluded under (b).
(a) A Covered Employee is an Employee who:
(i) has attained age 21;
(ii) has completed one Year of Qualification Service or
was otherwise eligible to participate in the Plan prior to
September 1, 1993; and
(iii) is employed by a Participating Company.
(b) A Covered Employee does not include:
(i) an Employee eligible (or who would be eligible but for
attainment of any minimum age and/or service) to
participate in the Del Monte Certain Hourly Savings Plan;
(ii) an Employee who is a nonresident alien with respect
to the United States and who derives no earned income from
a United States source (unless he has been designated an
eligible Employee by the Company);
6
<PAGE> 21
(iii) an Employee whose terms and conditions of employment
are determined by a collective bargaining agreement with
the Company; and
(iv) an Employee who is a "leased employee" as defined in
Section 414(n) of the Code and who is required by such
Section to be considered an employee of the Company or an
Affiliated Company. Notwithstanding the foregoing, if a
"leased employee" is reclassified as an employee, years of
service as a "leased employee" of the Company or an
Affiliated Company shall be considered in computing
Vesting Service.
1.28 Deferral Election shall mean a written election by an Active
Participant directing the Participating Company of which he is an Employee to
withhold a percentage of his current Compensation from his paychecks and to
contribute such withheld amount to the Plan as a Before Tax or an After Tax
Contribution, all as provided in Section 3.1.
1.29 Defined Benefit Minimum shall mean the minimum benefit level as
described in Section 15.4 (d) .
1.30 Defined Benefit Plan shall mean a plan described in Section
6.3(d)(2).
1.31 Defined Benefit Plan Fraction shall mean the fraction described in
Section 6.8 (d)(3).
1.32 Defined Contribution Minimum shall mean the minimum contribution
level as described in Section 15.4(c).
1.33 Defined Contribution Plan shall mean a plan described in Section
6.8(d)(4).
1.34 Defined Contribution Plan Fraction shall mean the fraction
described in Section 6.8(d)(5).
1.35 Del Monte Common Stock shall mean the common stock of Del Monte
Foods Company.
1.36 Determination Date shall mean the date described in Section
15.2(b)(2).
1.37 Disability or Disabled shall mean generally the condition of a
Participant that has resulted in him being approved for payment of benefits,
directly or indirectly, under any long-term disability plan of a Participating
Company; such approval shall be made by such person and pursuant to such rules
and criteria as are prescribed in the procedures of any such plan. In the event
a Participant is not covered by a long-term disability plan of a Participating
Company, the Administrative Committee shall determine whether a Participant has
suffered a Disability or is Disabled. In making such determination, the
Administrative Committee shall use the definitions and criteria established and
set forth in the long-term disability plan of the Controlling Company and, if
consistent with such criteria, may require such medical proof as it deems
necessary, including the certificate of one or more licensed physicians selected
by the Administrative Committee; the decision of the Administrative Committee as
to Disability shall be final and binding.
7
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1.38 Distribution Valuation Date, effective January 1, 1997, shall mean
with respect to any distribution pursuant to Article IX, the Valuation Date that
is generally the last Valuation Date of the month. From time to time, due to
administrative processing, the Distribution Valuation Date may be a Valuation
Date that occurs within a reasonable period before or after the last Valuation
Date of the month. Effective March 1, 2000, the Distribution Valuation Date is
generally the Valuation Date or the Valuation Date next following the day on
which the Participant elects a Distribution pursuant to Article IX. From time to
time, due to administrative processing, the Distribution Valuation Date may be a
Valuation Date that occurs more than one Valuation Date after, but no more than
a reasonable time after, the day on which the Participant elects to receive a
distribution.
1.39 Effective Date shall mean January 1, 1990, the date that the Plan
initially shall be effective; provided, any effective date specified herein, for
any provision, if different from the "Effective Date", shall control. The
effective date of participation in the Plan for each Participating Company shall
be the date set forth with respect to the Participating Company in Schedule A
hereto.
1.40 Elective Deferrals shall mean, with respect to a Participant for
any calendar year, the total amount of his Before Tax Contributions plus such
other amounts as shall be determined pursuant to the terms of Code Section
402(g)(3).
1.41 Employee shall mean any individual who is employed by a
Participating Company (including officers, but excluding directors who are not
officers or otherwise employees) and shall include those individuals included
under subsection (a), but shall in all events exclude those individuals included
under subsection (b):
(a) (i) leased employees of a Participating Company within
the meaning of Code Section 414(n); notwithstanding the
foregoing, if leased employees constitute 20 percent or less of a
Participating Company's nonhighly compensated work force within
the meaning of Code Section 414(n)(5)(C)(ii), the term "Employee"
shall not include those leased employees covered by a plan
described in Code Section 414(n)(5)(B); and
(ii) any individual who is employed by an Affiliate
outside the United States, who is a citizen of the United States
and on whose behalf no contributions are made under a funded plan
of deferred compensation (other than this Plan, the Retirement
Plan for Salaried Employees, the Retirement Plan for Hourly
Employees of Del Monte Corporation and any governmental
retirement plan) with respect to the remuneration paid to the
individual.
(b) an individual performing work in one of the following job classifications:
(i) "Temporary Employees", defined as individuals who are paid by
a non-Affiliate who the Participating Company contracts with on a
temporary basis to provide temporary employment services for the
Participating Company;
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<PAGE> 23
(ii) "Project Employees", defined as individuals who are paid by
a non-Affiliate who the Participating Company contracts with to
provide services related to a specific project for the
Participating Company;
(iii) "Independent Contractors", defined as individuals who
contract with a Participating Company to perform services
according to their own methods only subject to the Participating
Company's control as to the final result of their services;
(iv) "Consultants", defined as individuals who contract with the
Participating Company on a case by case basis to provide opinion
and expertise to specific matters in the Participating Company;
(v) Employees who have waived participation in the Plan; and
(vi) Any other individuals otherwise excluded under the terms of
the Plan.
An individual's status as an Employee shall be determined by the
Controlling Company and, subject to the claims procedure described in
Article XI, such determination shall be conclusive and binding upon all
persons.
1.42 Employment Date shall mean, with respect to any Employee, the date
on which he first completes an Hour of Service. In the case of an Employee who
incurs a Break in Service and is reemployed, "Employment Date" means: (i) with
respect to Service before the Break in Service and with respect to the Break in
Service, the date determined pursuant to the preceding sentence; and (ii) with
respect to Service after the Break in Service, the date on which he or she first
completes an Hour of Service after reemployment.
1.43 Entry Date shall mean the first day of any payroll period
applicable to a Covered Employee during the period in which the Plan remains in
effect.
1.44 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.45 Forfeiture shall mean, for any Plan Year, the dollar amount of an
Account of a former Participant which is removed from the Account during such
Plan Year and used to reduce Matching, Qualified, Retirement Savings, or
Restoration Contributions for such Plan Year.
1.46 Highly Compensated Employee shall mean an employee [other than a
nonresident alien who receives no United States source earned income from an
Affiliate, as described in Code Section 414(q)(ii)] of an Affiliate who (i)
received Key Employee Compensation in excess of $80,000 (as adjusted pursuant to
sections 414(q)(1) and 415(d) of the Code) during the Look-Back Year; or (ii) Is
or was a 5-percent owner (within the meaning of section 414(q)(2) of the Code)
at any time during the Determination Year or the Look-Back Year.
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<PAGE> 24
(a) "Determination Year" shall mean the Plan Year for which the
determination is being made, and "Look-Back Year" shall mean the Plan
Year immediately preceding the Determination Year.
1.47 Hour of Retirement Service shall mean, effective January 1, 1996,
the increments of time described in subsection (a) hereof, as modified by
subsections (b) and (c) hereof:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Affiliate during the
applicable computation period;
(b) Each hour for which an Employee is paid, or entitled to
payment, by an Affiliate on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military duty or
Leave of Absence; provided:
(i) No more than 501 Hours of Retirement Service shall be
credited under this subsection (b) to an Employee for any single
continuous period during which he performs no duties as an
employee of an Affiliate (whether or not such period occurs in a
single computation period);
(ii) An hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a period
during which he performs no duties as an employee of an Affiliate
shall not be credited as an Hour of Retirement Service if such
payment is made or due under a plan maintained solely to comply
with applicable workers' compensation, unemployment compensation
or disability insurance laws; and
(iii) Hours of Retirement Service shall not be credited to
an Employee for a payment which solely reimburses such Employee
for medical or medically related expenses incurred by him.
For purposes of this subsection (b), a payment shall be deemed to
be made by or due from an Affiliate regardless of whether such payment
is made by or due from an Affiliate directly, or indirectly through,
among others, a trust fund or insurer, to which the Affiliate
contributes or pays premiums and regardless of whether contributions
made or due to the trust fund, insurer or other entity are for the
benefit of particular employees or are on behalf of a group of employees
in the aggregate; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Affiliate; provided, the
same Hours of Retirement Service shall not be credited both under
subsection (a) or subsection (b), as the case may be, and under this
subsection (c); and, provided further, crediting of Hours of Retirement
Service for back pay awarded or agreed to with respect to periods
described in subsection (b) shall be subject to the limitations set
forth in that subsection.
Effective January 1, 1997, crediting of Hours of Retirement
Service on account of any period during which an Employee performs no
duties or is awarded back pay shall be
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<PAGE> 25
allocated ratably over such period. The rate or manner used for
crediting Hours of Retirement Service may be changed at the direction of
the Administrative Committee from time to time so as to facilitate
administration and to equitably reflect the purpose of the Plan;
provided, no change shall be effective as to any Plan Year for which
allocations have been made pursuant to Article V at the time such change
is made; and, provided further, Hours of Retirement Service shall be
credited and determined in compliance with Department of Labor
Regulations Section 2530.200b-2(b) and (c), 29 CFR Part 2530, as may be
amended from time to time, or such other federal regulations as may from
time to time be applicable.
1.48 Hour of Service shall mean an hour for which an individual is paid
or entitled to payment for the performance of duties for any Affiliate as an
employee during any period of employment. The determination of hours of service
shall be consistent with the minimum requirements of Department of Labor
Regulation Section 2530.200b-2.
1.49 Investment Committee shall mean the committee which shall act on
behalf of the Controlling Company with respect to making and effecting
investment decisions, all as provided in Article XII. Unless the Controlling
Company specifies otherwise, the Administrative Committee shall serve as the
Investment Committee. The Controlling Company may act in lieu of the Investment
Committee as it deems appropriate or desirable.
1.50 Investment Fund or Funds shall mean one or more investment funds
designated by the Investment Committee from time to time for the investment of
assets held in the Trust Fund for the Plan pursuant to the terms of Section 7.2.
1.51 Key Employee shall mean the persons described in Section
15.2(b)(3).
1.52 Key Employee Compensation shall mean compensation as defined in
Section 6.1(c).
1.53 Leave of Absence shall mean an excused leave of absence of up to 12
months (including but not limited to a Maternity or Paternity Leave) granted to
an employee by an Affiliate; provided: an employee who leaves the service of an
Affiliate, voluntarily or involuntarily, to enter the Armed Forces of the United
States shall be granted a leave of absence for the period of such service;
provided, (i) the Employee is legally entitled to reemployment the veteran's
reemployment rights provisions as codified at 38 USC Section 2021, et seq., its
predecessors and successors; and (ii) the employee applies for and reenters
service with an Affiliate within the time, in the manner and under the
conditions prescribed by law.
1.54 Limitation Year shall mean the 12-month period ending on each
December 31, which shall be the "limitation year" for purposes of Code Section
415 and the regulations promulgated thereunder.
1.55 Matching Account shall mean the separate subaccount established and
maintained on behalf of a Participant or his Beneficiary to reflect his interest
in the Trust Fund attributable to Matching Contributions.
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<PAGE> 26
1.56 Matching Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund as a match to Participants' Before Tax
and After Tax Contributions, all as pursuant to the terms of Section 3.2.
1.57 Maternity or Paternity Leave shall mean any period approved by a
Participating Company, beginning on or after January 1, 1985, during which an
Employee is absent from work as an employee of an Affiliate (i) because of the
pregnancy of such Employee; (ii) because of the birth of a child of such
Employee; (iii) because of the placement of a child with such Employee in
connection with the adoption of such child by such Employee; or (iv) for
purposes of such Employee caring for a child immediately after the birth or
placement of such child.
1.58 Maximum Deferral Amount shall mean $7,000, as adjusted from time to
time in accordance with Code Section 402(g)(5) (e.g., for 1992, the amount is
adjusted to $8,728).
1.59 Named Fiduciary shall mean the Controlling Company, the Board, the
Trustee, the Administrative Committee and the Investment Committee.
1.60 Non-Key Employee shall mean the persons described in Section
15.2(b)(4).
1.61 Normal Retirement Age shall mean age 65.
1.62 Participant shall mean any person who is eligible for participation
in the Plan pursuant to the provisions of Article II.
1.63 Participating Company shall mean each company which has adopted or
hereafter may adopt the Plan for the benefit of its employees or a specified
unit of its employees and which continues to participate in the Plan, all as
provided in Section 14.3. The term shall not include any foreign corporations or
units thereof other than a unit consisting exclusively of Employees who are U.S.
citizens on a U.S. payroll of an Affiliate.
1.64 Permissive Aggregation Group shall mean the group of plans
described in Section 15.2(b)(5).
1.65 Plan shall mean the Del Monte Savings Plan as contained herein and
all amendments thereto. The Plan is intended to be a profit sharing plan
qualified under Code Sections 401(a) and 401(k).
1.66 Plan Year shall mean the 12-month period ending on each December
31.
1.67 Qualified Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to Qualified Contributions.
1.68 Qualified Contributions shall mean the amounts paid to the Trust
Fund by each Participating Company pursuant to the terms of Section 3.3.
1.69 Qualified Spousal Waiver shall mean a written election executed by
a Spouse, delivered to the Administrative Committee and witnessed by a notary
public, which consents to
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<PAGE> 27
the payment of all or a specified portion of a Participant's death benefit to a
Beneficiary other than such Spouse and which acknowledges that such Spouse has
waived his right to be the Participant's Beneficiary under the Plan. A Qualified
Spousal Waiver shall be valid only with respect to the Spouse who signs it and
shall apply only to the alternative Beneficiary designated therein, unless the
written election expressly permits other designations without further consent of
the Spouse. A Qualified Spousal Waiver shall be irrevocable unless revoked by
the Participant by way of (i) a written statement executed by the Participant
and delivered to the Administrative Committee or (ii) a written revocation of
the nonspouse Beneficiary designation to which such Spouse has consented;
provided, any such revocation must be received by the Administrative Committee
prior to the Participant's date of death.
Provided, however, that effective December 19, 1997, the first sentence
of Section 1.94 is amended to read as follows:
"Qualified Spousal Waiver shall mean a written election executed
by a Spouse, delivered to the Administrative Committee in a form
satisfactory to the Administrative Committee and witnessed by a notary
public, which consents, as applicable, to (i) the payment of all or a
specified portion of a Participant's death benefit to a Beneficiary
other than such Spouse and which acknowledges that such Spouse has
waived his right to be the Participant's Beneficiary under the Plan, or
(ii) the payment of a benefit in the form of an annuity option described
in Appendix II, Section 9.3(a)(8)(iii) and which meets the requirements
of Section 417 of the Code."
1.70 Required Aggregation Group shall mean the group of plans described
in Section 15.2(b)(6).
1.71 Restoration Contributions shall mean the amounts paid to the Trust
Fund by or on behalf of a rehired individual pursuant to the terms of Section
8.3.
1.72 Retired or Retirement shall mean, effective January 1, 1996, for
purposes of Section 3.4, an Employee's Severance Date (a) after attaining at
least age 55 and 10 Years of Service or (b) upon or after attaining Normal
Retirement Age.
1.73 Retirement Savings Account shall mean, effective January 1, 1996,
the separate subaccount established and maintained on behalf of a Participant or
his Beneficiary to reflect his interest in the Trust Fund attributable to
Retirement Savings Contributions.
1.74 Retirement Savings Compensation shall mean, effective January 1,
1996, the compensation of a Covered Employee for each pay period during a Plan
Year for which the Employee satisfies both Section 3.4(a)(ii) and (iii), as
reported on IRS Form W-2 (determined in accordance with Section
1.415-2(d)(11)(i)), increased by all elective contributions for such periods
made by the Company on behalf of the Covered Employee under Code sections 125,
402(e)(3), 402(h) or 403(b), subject to the following:
(a) In no event shall Retirement Savings Compensation for a Plan
Year exceed $150,000, as adjusted for increases in the cost of living in
accordance with section 401(a)(17)(B) of the Code. If an Eligible
Covered Employee's Retirement Savings Compensation is based on less than
a full Plan Year, the foregoing limitation will be
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<PAGE> 28
multiplied by a fraction, the numerator of which is the number of months
during which the Covered Employee was an Eligible Covered Employee and
the denominator of which is 12.
(b) In the case of an Eligible Covered Employee who becomes
Disabled during a Plan Year, his Retirement Savings Compensation shall
be the sum of (i) his Retirement Savings Compensation determined above
for the period prior to his Disability and (ii) his base hourly rate of
pay immediately prior to Disability for the number of weeks in the Plan
Year during which he was Disabled based on 40 hours per week. For each
Plan Year that an Eligible Covered Employee continues to be Disabled
prior to any distribution of his Retirement Savings Account, his
Retirement Savings Compensation shall be his base hourly rate of pay
immediately prior to Disability multiplied by 2,080 hours. For the Plan
Year during which he attains Normal Retirement Age (or ceases to receive
benefits under the Del Monte Long Term Disability Plan ("LTD"), if
later), his Retirement Savings Compensation shall be prorated for the
number of weeks in the Plan Year prior to his attainment of Normal
Retirement Age (or cessation of LTD benefits, if later) based on 40
hours per week. After distribution of his Retirement Savings Account, a
Participant shall no longer be considered Disabled for purposes of this
Plan.
(c) In the case of a Covered Employee who transferred employment
during a Plan Year, his Retirement Savings Compensation for that portion
of the Plan Year during which he was an active participant in the Del
Monte Corporation Retirement Plan for Salaried Employees, the Del Monte
Corporation Southeast Distribution Center Retirement Plan, or the
Retirement Savings portion of the Del Monte Certain Hourly Savings Plan
shall be excluded from Retirement Savings Compensation under this Plan.
(d) Effective January 1, 1996, in the case of a Covered Employee
who first satisfies the requirements of Section 1.27(b)(i) and (ii)
during a Plan Year, Retirement Savings Compensation shall include
compensation during that period of the Plan Year coincident with the
period for satisfying Section 1.27(b)(i) and (ii).
1.75 Retirement Savings Contributions shall mean, effective January 1,
1996, the amounts paid to the Trust Fund by each Participating Company pursuant
to the terms of Section 3.4.
1.76 RJR Plan shall mean the Del Monte Savings-Investment Plan for
Regular, Full-Time Employees as sponsored by RJR Nabisco, Inc., and as in effect
on December 31, 1989.
1.77 Rollover Account shall mean the separate subaccount established and
maintained on behalf of a Participant or his Beneficiary to reflect his interest
in the Trust Fund attributable to Rollover Contributions.
1.78 Rollover Contributions shall mean the amounts contributed to the
Trust Fund as "rollover" contributions as defined in Code Section 402 and,
effective January 1, 1993, in compliance with Code Section 401(a)(31); provided,
that no such amount that is distributed from an individual retirement account as
defined in Code Section 408(a) may be contributed as a rollover amount. An
amount shall be treated as a Rollover Contribution only to the extent that its
acceptance by the
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<PAGE> 29
Trustee is permitted under the Code (including the regulations and rulings
promulgated thereunder).
1.79 Seasonal Employee shall mean, effective January 1, 1996, an
Employee who is classified as "seasonal" by the Company for a job in which the
Employee is not expected to be actively employed continuously but to be employed
for limited periods of time and laid off, with recall rights, based on recurring
events such as a processing season. All other Employees are classified as
non-Seasonal.
1.80 Section 415 Compensation shall mean compensation as defined in
Section 6.1(a).
1.81 Severance Date shall mean the earlier of: (i) the date of
termination of the employment of an employee by an Affiliate or Participating
Company; or (ii) the first anniversary of the day following the last day such
employee is first absent from his place of employment (with or without pay) for
any reason other than termination, such as, without limitation, vacation,
holiday, Leave of Absence or layoff.
In the case of the sale by the Controlling Company or an Affiliate of
all or substantially all of the assets used in a trade or business that employs
an Employee, or in the case of the sale by the Controlling Company or an
Affiliate of stock or other ownership interests in such Employee's employer, a
Severance Date shall occur with respect to such Employee if the Committee
determines that, as of the date following such sale, (i) the Employee is no
longer employed by the Controlling Company or an Affiliate, and the new employer
is not an Affiliate, (ii) neither the new employer nor any member of its
controlled group [within the meaning of Code Sections 414(b), (c), (m) or (o)]
maintains the Plan or any successor to the Plan with respect to the Employee,
(iii) the Plan does not transfer any assets or liabilities with respect to the
Employee to a qualified retirement plan of the new employer, and (iv) in the
case of a sale of stock or other ownership interest, the Controlling Company
continues to maintain the Plan after the sale.
1.82 Spouse or Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such Participant under the
laws of the state in which the Participant resides. The determination of a
Participant's Spouse or Surviving Spouse shall be made as of the earlier of the
date as of which benefit payments from the Plan to such Participant are made or
commence (as applicable) or the date of such Participant's death. In addition, a
Participant's former spouse shall be treated as his Spouse or Surviving Spouse
to the extent provided under a qualified domestic relations order, as defined in
Code Section 414(p).
1.83 Testing Compensation shall mean compensation as defined in Section
6.1(b).
1.84 Top-Heavy Group shall mean the group of plans described in Section
15.2(b)(7).
1.85 Top-Heavy Plan shall mean a plan to which the conditions set forth
in Article XV apply.
1.86 Trust or Trust Agreement shall mean the separate agreement between
the Controlling Company and the Trustee governing the creation of the Trust
Fund, and all amendments thereto.
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1.87 Trustee shall mean the party or parties so designated from time to
time pursuant to the Trust Agreement.
1.88 Trust Fund shall mean the total amount of cash and other property
held by the Trustee (or any nominee thereof) in regard to the Plan at any time
under the Trust Agreement.
1.89 Valuation Date shall mean each Business Day; provided, the value of
an Account or the Trust Fund on a day other than a Business Day shall be the
value determined for the immediately preceding Business Day. From time to time,
the Committee may designate specific Valuation Dates (such as the last Valuation
Date of a calendar month) for specific purposes (such as for distributions).
1.90 Vesting Service shall mean all Years of Service as an employee of
any Affiliate.
1.91 Withdrawal Valuation Date shall mean, effective January 1, 1997,
with respect to any withdrawal pursuant to Article X, the Valuation Date that is
generally the last Valuation Date of the week for which a Participant's form on
which he has elected to make a withdrawal pursuant to Article X is processed.
From time to time, due to administrative processing, the Withdrawal Valuation
Date may be a Valuation Date that occurs within a reasonable period before or
after the last Valuation Date of the week.
Effective March 1, 2000, Withdrawal Valuation Date shall mean, with
respect to any withdrawal pursuant to Article X, the Valuation Date this is
generally the Valuation Date or the Valuation Date next following the day on
which the Participant elects a Withdrawal pursuant to Article X. From time to
time, due to administrative processing, the Withdrawal Valuation Date may be
more than one Valuation Date after, but not more than a reasonable time after,
the day on which the Participant elects the withdrawal.
1.92 Year of Retirement Savings Service shall mean, effective January 1,
1996, the 12-month period comprising a Plan Year during which an Employee
completes at least 1,000 Hours of Retirement Service determined in the same
manner as a Year of Qualification Service is determined on the basis of a Plan
Year, using applicable equivalencies where needed. For purposes of this section,
a Break in Service occurs with a Plan Year in which the Employee completes no
more than 500 Hours of Retirement Service but not including a Plan Year the last
day of which the individual is on an authorized Leave of Absence. For purposes
of determining whether a Break in Service has occurred, an Employee absent from
work due to a Maternity or Paternity Leave shall be credited with (i) the number
of Hours of Service with which he normally would have been credited but for the
Maternity or Paternity Leave, or (ii) if the Administrative Committee is unable
to determine the hours described in (i), 8 Hours of Retirement Service for each
day of absence included in the Maternity or Paternity Leave; provided, the
maximum number of Hours of Retirement Service credited for this purpose shall
not exceed 501 hours. Hours of Retirement Service on account of a Maternity or
Paternity Leave shall only be required to be credited in the Plan Year in which
the Maternity or Paternity Leave begins, if crediting of such hours is necessary
to prevent a Break in Service in that Plan Year; otherwise, such hours shall be
credited in the following Plan Year.
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<PAGE> 31
1.93 Year of Service shall mean the number of whole and fractional years
of service commencing on the employee's Employment Date and ending on his
Severance Date, subject to the following provisions:
(a) Service prior to the Effective Date for any Participant who
was a participant in the RJR Plan shall be included in Vesting Service
and shall mean all years of service recognized by the RJR Plan as of the
Effective Date. For Vesting Service, service recognized by the RJR Plan
with respect to a Participant shall also be included if (x) assets and
liabilities would have been transferred with respect to such Participant
if he would have had an account balance under such other plan but for
the fact that he had not met the minimum participation requirements of
such other plan at the time of such transfer, or (y) the liabilities
transferred with respect to such Participant are contingent because (1)
such Participant terminated employment with the employer that sponsored
such other plan prior to acquiring a vested interest in his accrued
benefit thereunder, and (2) the transfer occurs prior to forfeiture of
his accrued benefit under such other plan's break in service rules.
(b) Service shall not include any period of employment with an
Affiliate prior to the time such company became an Affiliate, unless
specifically provided otherwise by the Administrative Committee.
(c) Service shall include any period of time prior to a Break in
Service unless the employee was not vested in his Matching Account prior
to the Break in Service or the number of consecutive 1-year Breaks in
Service equals or exceeds the greater of (i) 5, or (ii) the aggregate
number of Years of Service prior to such Break in Service.
(d) If a former employee is rehired after a 1-year Break in
Service and his prior Severance Date was on or before December 31, 1984,
and he completes 1 Year of Service after his latest Employment Date,
none of the Years of Service he earns after his latest Employment Date
shall apply to his Matching Account accrued before such Break in Service
(and, thus, any portion of his Matching Account which was forfeited due
to such Break in Service shall remain forfeited). This subsection (d)
shall apply even if his Years of Service prior to his Break in Service
are recognized under subsection (c) above.
(e) If a former employee is rehired after one or more consecutive
1-year Breaks in Service and his prior Severance Date was on or after
January 1, 1985, and he completes 1 Year of Service after his latest
Employment Date, Years of Service after his latest Employment Date shall
count in vesting his Matching Account which was not vested at the time
of such Severance Date as long as the employee has not incurred 5 or
more consecutive 1-year Breaks in Service prior to such latest
Employment Date.
(f) If an employee, who was not a Covered Employee but who was
covered by a plan of an Affiliate which used the hours of service method
of measuring service, transfers to the status of Covered Employee, his
Years of Service shall include:
(i) a number of years equal to the Years of Service
credited to the employee under the Del Monte Savings Investment
Plan for Certain Hourly
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<PAGE> 32
Employees or the Del Monte Certain Hourly Savings Plan (or such
other plan as designated by the Administrative Committee) before
the computation period during which the transfer occurs; and
(ii) the greater of (A) the Years of Service that would be
credited to such employee under the elapsed time method during
the computation period in which the transfer occurs or (B) the
service taken into account under the computation periods method
of Department of Labor Regulation Section 2530.200b-1 as of the
date of transfer; and
(iii) service after such transfer commencing on the day
after the last day of the computation period in which the
transfer occurs.
(g) Service shall include any period or time during which an
employee was absent from service with an Affiliate due to a Leave of
Absence.
(h) Separate Years of Service shall be aggregated on the basis of
days.
1.94 Year of Qualification Service shall mean a 12-month period in which
an Employee has 1,000 Hours of Service, beginning with his Date of Employment
and ending on the first anniversary thereof. If the Employee fails to complete
1,000 Hours of Service, but does not incur a Break in Service during such
period, a second computation of a Year of Qualification Service shall be made on
the basis of the Plan Year in which the first anniversary of the Employee's Date
of Employment falls. Thereafter, and unless the Employee incurs a Break in
Service, a Year of Qualification Service shall be determined on a Plan Year
basis.
For Employees for whom records are routinely maintained for the purpose
of recording Hours of Service, Hours of Service shall be determined by the
Participating Company on the basis of records of hours worked or paid for or on
such other reasonable basis as the Participating Company may adopt.
For Employees for whom records are not routinely maintained for the
purpose of determining Hours of Service and for whom the Participating Company
does not routinely keep a record of actual hours worked or paid for, Hours of
Service shall be determined by the Employee's payroll period on a daily, weekly,
semi-monthly or monthly basis as follows:
(i) If a daily basis is used, the Employee shall be credited with
ten (10) Hours of Service for each day which includes at least one Hour
of Service;
(ii) If a weekly basis is used, the Employee shall be credited
with forty-five (45) Hours of Service for each week which includes at
least one Hour of Service;
(iii) If a semi-monthly basis is used, the Employee shall be
credited with ninety-five (95) Hours of Service for each semi-monthly
period which includes at least one Hour of Service; or
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<PAGE> 33
(iv) If a monthly basis is used, the Employee shall be credited
with one hundred ninety (190) Hours of Service for each calendar month
which includes at least one Hour of Service.
The exact basis for determining the number of Hours of Service to be
credited to any Employee shall be determined by the Participating Company, but
the same basis shall be used for all similarly situated Employees.
ARTICLE II
ELIGIBILITY
2.1 Initial Eligibility Requirements.
(a) General Rule. Except as provided in subsections (b), (c) and
(d) hereof, every Covered Employee shall be eligible to become an Active
Participant in the Plan on the Entry Date coinciding with or next
following the date on which he first becomes a Covered Employee.
(b) RJR Plan Participants. Each Covered Employee who was an
active participant in the RJR Plan on the day immediately preceding the
Effective Date shall be an Active Participant in the Plan in accordance
with the terms of the Plan as of the Effective Date. In addition, each
Covered Employee who was eligible to participate in the RJR Plan on the
day immediately preceding the Effective Date shall be eligible to
participate in the Plan as of the Effective Date.
(c) New Participating Companies. For employees of companies that
become Participating Companies after the Effective Date, each designated
Covered Employee or designated unit of Covered Employees employed by a
Participating Company on the date such Participating Company first
becomes a Participating Company shall be eligible to become an Active
Participant as of such Participating Company's effective date under the
Plan.
(d) Enrollment. An eligible Covered Employee may become an Active
Participant in the Plan as of any Entry Date by completing and
submitting to the Administrative Committee a Deferral Election on which
he elects the percentage of Compensation he wishes to contribute to the
Plan and the manner in which he wishes his Contributions to be invested
(effective January 1, 1996, including his Retirement Savings
Contributions in accordance with Section 3.4). Simultaneously, the
Participant shall complete and submit a beneficiary designation form.
2.2 Participation Upon Reemployment. If a Participant separates from
service with a Participating Company (and all other Participating Companies),
his Active Participation in the Plan shall cease immediately, and he again shall
be eligible to become an Active Participant as of the day he again becomes a
Covered Employee. However, regardless of whether he again becomes an Active
Participant, he shall continue to be a Participant until he no longer has an
Account under the Plan.
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<PAGE> 34
2.3 Change in Status.
(a) Change to Covered Employee Status. If an Employee who is not
a Covered Employee subsequently changes his employment status so that he
becomes a Covered Employee, he shall be eligible to become an Active
Participant on the Entry Date coinciding with or next following the date
he becomes a Covered Employee.
(b) Loss of Covered Employee Status. If an Active Participant
changes his status of employment (but remains employed) so that he is no
longer a Covered Employee, his Active Participation in the Plan shall
cease immediately, and he shall again become eligible to become an
Active Participant in the Plan as of the day he again becomes a Covered
Employee. However, regardless of whether he again becomes an Active
Participant, he shall continue to be a Participant until he no longer
has an Account under the Plan.
(c) Can Manufacturing Sale. As of the Closing Date, as defined
under the terms of the Purchase Agreement between the Controlling
Company and Silgan Containers Corporation ("Silgan") dated September 3,
1993 (the "Purchase Agreement"), participation by each Affected
Employee, as defined in the Purchase Agreement, participating in the
Plan ceases but the Closing Date shall not be treated as a Severance
Date and, in accordance with the Purchase Agreement, the assets and
liabilities for each Affected Employee are to be transferred to a
successor plan maintained by Silgan or one of its affiliates.
(d) Pudding Products Sale. Effective November 26, 1995, an
Employee who is a Transferred Employee, as defined in the Asset Purchase
Agreement by and between the Company and Kraft Foods, Inc. (the "Sale
Agreement") shall cease to be an Eligible Employee as of the Closing
Date under the Sale Agreement, but shall be deemed to have attained a
Period of Service of sixty (60) months as of such Closing Date,
entitling such Employee to a benefit no less than a vested benefit under
Article VIII.
(e) Veteran's Reemployment. Effective for reemployment of
individuals on or after December 12, 1994 and 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.
ARTICLE III
CONTRIBUTIONS
3.1 Before Tax and After Tax Contributions.
(a) Before Tax Contributions. Each Participating Company shall
contribute to the Plan, on behalf of each Active Participant employed by
such Participating Company and for each payroll period for which such
Active Participant has a Before Tax Deferral Election in effect with
such Participating Company, a Before Tax Contribution in an amount equal
to the amount by which such Active Participant's Compensation has been
reduced for such period pursuant to his Before Tax Deferral Election.
The amount of the
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<PAGE> 35
Before Tax Contribution shall be determined in increments of 1 percent
of such Active Participant's Compensation for each payroll period. The
Active Participant may elect to reduce his Compensation for any period
by a maximum of 10 percent; provided, the maximum limitations in Article
VI shall apply.
(b) After Tax Contributions. Each Participating Company shall
contribute to the Plan, on behalf of each Active Participant employed by
such Participating Company and for each payroll period for which such
Active Participant has an After Tax Deferral Election in effect with
such Participating Company, an After Tax Contribution in an amount equal
to the amount by which such Active Participant's Compensation has been
reduced for such payroll period pursuant to such After Tax Deferral
Election. The amount of such After Tax Contribution shall be determined
in increments of 1 percent of such Active Participant's Compensation for
each payroll period. The Active Participant may elect to reduce his
Compensation for any period by a maximum of the difference between 16
percent and the percentage of his Compensation which is paid as a Before
Tax Contribution for such period; provided, the maximum limitations in
Sections 6.5 and 6.8 shall apply.
(c) Contributions Which Exceed Maximum Deferral Amount. To the
extent that the amount of an Active Participant's Before Tax
Contributions made for a calendar year pursuant to such Active
Participant's Before Tax Deferral Election would exceed the Maximum
Deferral Amount if such Before Tax Contributions are continued, those
Before Tax Contributions in all respects will be deemed to be After Tax
Contributions and will be treated as if such Active Participant elected
to make such After Tax Contributions in accordance with the terms of
subsection (b) hereof; provided, the maximum aggregate percentage of
Compensation which may be contributed for any payroll period as After
Tax Contributions pursuant to the terms of this subsection and
subsection (b) hereof is the lesser of (i) the total of the percentage
elected under the Before Tax Deferral Election and any concurrently
effective After Tax Deferral Election and (ii) 16 percent.
(d) Deferral Elections. Each Active Participant, who desires that
his Participating Company make a Before Tax and/or After Tax
Contribution on his behalf, shall complete and deliver to the
Participating Company (or its designee) a Before Tax Deferral Election
and/or an After Tax Deferral Election, respectively. Such Deferral
Election shall provide for the reduction of his Compensation for each
payroll period ending or occurring while he is an Active Participant.
The Administrative Committee, in its sole discretion, shall prescribe
the form of all Deferral Elections and may prescribe such
nondiscriminatory terms and conditions governing the use of the Deferral
Elections as it deems appropriate. Subject to any modifications,
additions or exceptions which the Administrative Committee, in its sole
discretion, deems necessary, appropriate or helpful, the following terms
shall apply to Deferral Elections:
(1) Effective Date. For Active Participants who were
participating in the RJR Plan immediately prior to the Effective
Date, existing deferral elections continued in effect as initial
elections under the Plan. Otherwise, an Active Participant's
initial Deferral Election with a Participating Company shall be
effective for the first available payroll which ends following
receipt and
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<PAGE> 36
processing of the Deferral Election by the Administrative
Committee. If an Active Participant fails to submit an initial
Deferral Election in a timely manner, he shall be deemed to have
elected a deferral of zero percent until an effective Deferral
Election has been made.
(2) Term. Each Active Participant's Deferral Election with
a Participating Company shall remain in effect in accordance with
its original terms until the earlier of (A) the date the Active
Participant ceases to be a Covered Employee, (B) the date the
Active Participant revokes such Deferral Election pursuant to the
terms of subsection (d)(3) hereof, or (C) the date the Active
Participant or the Administrative Committee modifies such
Deferral Election pursuant to the terms of subsection (d)(4) or
(d)(5) hereof. If a Participant is transferred from the
employment of a Participating Company to the employment of
another Participating Company, his Deferral Election with the
first Participating Company will remain in effect and will apply
to his Compensation from the second Participating Company until
the earlier of (A), (B) or (C) of the preceding sentence.
(3) Revocation. An Active Participant's Deferral Election
shall terminate upon his ceasing to be a Covered Employee. In
addition, at any time, an Active Participant may revoke his
Before Tax or After Tax Deferral election by written notice of
revocation to the Administrative Committee and such revocation
shall be effective as soon as administratively feasible after
receipt of such revocation. An Active Participant who revokes a
Before Tax or After Tax Deferral Election may make a new Deferral
Election, effective for the next available payroll period ending
after the new Deferral Election is made.
(4) Modification by Participant. An Active Participant
may modify any of his existing Deferral Elections at any time to
increase or decrease the percentage of his Before Tax or After
Tax Contributions by making a new Deferral Election, effective
for the next available payroll period ending after the new
Deferral Election is made.
(5) Modification by Administrative Committee.
Notwithstanding anything herein to the contrary, the
Administrative Committee may modify any Deferral Election of any
Active Participant at any time by decreasing the percentage of
any Before Tax or After Tax Contributions to any extent the
Administrative Committee believes necessary to comply with the
limitations described in Article VI.
3.2 Matching Contributions. For each Active Participant on whose behalf
a Participating Company has made, with respect to a payroll period, any Before
Tax and/or After Tax Contributions, such Participating Company shall make, with
respect to such payroll period, a Matching Contribution equal to 50 percent of
the aggregate amount of such Before Tax and After Tax Contributions; provided,
the total amount of the Matching Contributions which a Participating Company
shall make for any Active Participant for any payroll period shall not exceed 3
percent of such Active Participant's Compensation paid by such Participating
Company
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<PAGE> 37
for such payroll period (i.e., the 50-percent Matching Contribution will not be
applied to the amount of Before Tax and/or After Tax Contributions which exceed
6 percent of a Participant's Compensation), nor shall such amount exceed (or
cause the Contributions to exceed) any of the maximum limitations described in
Section 6.5 or Section 6.8. Notwithstanding anything contained herein to the
contrary, no Matching Contributions shall be made on behalf of a Participant
during any period of suspension following a withdrawal, pursuant to Article X.
3.3 Qualified Contributions. To the extent and in such amounts (but only
to the extent and in such amounts) as the Administrative Committee, in its sole
discretion, deems desirable or helpful as a method to help satisfy the ADP
and/or ACP Tests for any Plan Year and subject to the requirements and
limitations set forth in Sections 6.4 and 6.5, each Participating Company shall
make a Qualified Contribution for a Plan Year.
3.4 Retirement Savings Contributions. This Section 3.4 is effective
January 1, 1996.
(a) Eligibility for Retirement Savings Contributions. For each
Plan Year, each Covered Employee who satisfies the following shall be
eligible for allocation of Retirement Savings Contributions to his
Retirement Savings Account. An Eligible Covered Employee:
(i) After December 31, 1999, is a non-Seasonal hourly
Covered Employee on the last day of the Plan Year or otherwise
satisfies this provision under the terms of Section 3.4(d); and
(ii) Prior to January 1, 2000, is a non-Seasonal hourly
Covered Employee on the last day of the Plan Year or otherwise
satisfies this provision under the terms of Section 3.4(d), who
is not employed at the Southeast Distribution Center in
Birmingham, Alabama; and
(iii) first had an Employment Date (including an
Employment Date following rehire) or first transferred from a
non-Covered Employee status to a position otherwise eligible
under this subsection (a) after December 31, 1995 or ceased
active participation in the Del Monte Corporation Retirement Plan
for Hourly Employees on December 31, 1995; and
(iv) completed a Year of Retirement Savings Service for
the Plan Year, except that a Covered Employee who died, Retired
or was Disabled (prior to his Normal Retirement Age or cessation
of LTD benefits, if later) during a Plan Year shall be deemed to
have completed a Year of Retirement Savings Service for that Plan
Year.
(b) Retirement Savings Contributions. For each Plan Year, a
Participating Company shall make a Retirement Savings Contribution to
the Plan on behalf of its Eligible Covered Employees under Section
3.4(a) above. The Retirement Savings Contribution for an Eligible
Covered Employee is determined by multiplying the percentage set forth
below based on attained age at the end of the Plan Year by the Eligible
Covered Employee's Retirement Savings Compensation for the Plan Year:
23
<PAGE> 38
<TABLE>
<CAPTION>
Percent of Retirement
Attained Age Savings Compensation
------------ --------------------
<S> <C>
prior to age 35 2%
age 35 through 44 3%
age 45 through 54 4%
age 55 and over 5%
</TABLE>
(c) Limitation on Contributions. In no event shall the
contributions by the Controlling Company and its Affiliates under this
Section 3.4 be greater than the amount permissible under Article VI or
deductible by the Controlling Company or its Affiliates for federal
income tax purposes for the taxable year with respect to which the
contributions are made, plus such additional amount as may be deductible
by reason of a deduction carry forward from any prior year or years when
less than the maximum deductible amount was actually contributed.
(d) Last Day of Plan Year Requirement. Effective January 1, 1996,
an Employee who was a non-Seasonal Covered Employee during the Plan Year
but not an active non-Seasonal Covered Employee on the last day of the
Plan Year may otherwise satisfy Section 3.4(a)(i) if he:
(i) died or Retired during the Plan Year;
(ii) is Disabled and by the last day of the Plan Year has
not attained his Normal Retirement Age or ceased eligibility for
the Del Monte Long Term Disability Plan ("LTD"); or
(iii) is an Employee on the last day of the Plan Year who
is actively employed.
3.5 Form of Contributions. All Contributions shall be paid to the
Trustee in the form of cash or cash equivalents acceptable to the Trustee or Del
Monte Common Stock. The amount needed for Matching, Qualified, (effective
January 1, 1996, Retirement Savings) and Restoration Contributions for a Plan
Year shall be reduced by the amount of any Forfeitures available for
reallocation during that Plan Year.
3.6 Timing of Contributions.
(a) Before Tax and/or After Tax Contributions. Each Participating
Company which withholds Before Tax and/or After Tax Contributions from
an Active Participant's paychecks pursuant to a Deferral Election shall
pay such Before Tax and/or After Tax Contributions to the Trustee as of
the earliest date (not to exceed 90 days from the date on which such
amounts otherwise would have been payable to such Active Participants in
cash) on which such Contributions can reasonably be segregated from the
Participating Company's general assets.
Provided, however, that effective February 3, 1997, the preceding
parenthetical is deleted and replaced with the following:
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<PAGE> 39
"(no later than the 15th business day of the month following the
month such amounts otherwise would have been paid to such Active
Participants)."
(b) Matching and Qualified Contributions. Each Participating
Company shall pay its Matching and Qualified Contributions to the
Trustee pursuant to the terms of Sections 3.2 and 3.3, but no later than
(i) on or before the date for filing its federal income tax return
(including extensions thereof) for the tax year to which such Matching
and Qualified Contributions relate, or (ii) on or before such other date
as shall be within the time allowed to permit the Participating Company
to properly deduct, for federal income tax purposes and for the tax year
of the Participating Company in which the obligation to make such
Contributions was incurred, the full amount of such Matching and
Qualified Contributions; provided, in the event the amount of Qualified
Contributions cannot be calculated by the latest date described
hereinabove, such Qualified Contributions may be made at a later date
which is on or before the last day of the Plan Year following the Plan
Year to which such Qualified Contributions relate.
(c) Retirement Savings Contributions. Effective January 1, 1996,
each Participating Company shall pay its Retirement Savings
Contributions to the Trustee pursuant to the terms of Section 3.4 but no
later than (i) on or before the date for filing its federal income tax
return (including extensions thereof) for the tax year to which such
Retirement Savings Contributions relate, or (ii) on or before such other
date as shall be within the time allowed to permit the Participating
Company to properly deduct, for federal income tax purposes and for the
tax year of the Participating Company in which the obligation to make
such Contributions was incurred, the full amount of such Retirement
Savings Contributions.
3.7 Contingent Nature of Company Contributions. Notwithstanding Section
3.1 and subject to the terms of Section 16.11, each Company Contribution made to
the Plan by a Participating Company is made expressly contingent upon the
deductibility thereof for federal income tax purposes for the taxable year of
the Participating Company with respect to which such Company Contribution is
made.
3.8 Restoration Contributions.
(a) Restoration upon Buy-Back. If a Participant who is not vested
in his Matching Account (effective January 1, 1996, and/or his
Retirement Savings Account) has received a distribution of his entire
vested Account in a manner described in Section 8.3(a) [such that he
forfeited his nonvested Matching Account (effective January 1, 1996,
and/or his Retirement Savings Account) in accordance with the terms of
Section 8.3(a)], and such Participant subsequently is rehired as a
Covered Employee prior to the occurrence of 5 consecutive 1-year Breaks
in Service, that individual may, prior to the earlier of (i) 5 years
after the first date on which he is rehired or (ii) the close of the
first period of 5 consecutive 1-year Breaks in Service commencing after
the distribution, repay the full amount of the distribution to the
Trustee (unadjusted for gains or losses). Upon such repayment, his
Account will be credited with (i) all of the benefits (unadjusted for
gains or losses) which were forfeited, and (ii) the amount of the
repayment.
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<PAGE> 40
(b) Restoration of Other Forfeitures. If a Participant has
forfeited his nonvested Matching Account (effective January 1, 1996,
and/or his Retirement Savings Account) in accordance with Section
8.3(b), and such Participant subsequently is rehired as a Covered
Employee prior to the occurrence of 5 consecutive 1-year Breaks in
Service, his Matching Account (effective January 1, 1996, and/or his
Retirement Savings Account) shall be credited with all of the benefits
(unadjusted for gains or losses) which were forfeited, as determined
pursuant to the terms of Section 8.3(b).
(c) Restoration Contribution. The assets necessary to fund the
Account of the rehired individual (in excess of the amount of the
repayment, if any) shall be provided no later than as of the end of the
Plan Year following the Plan Year in which repayment occurs (if
subsection (a) hereof applies) or in which the individual is rehired (if
subsection (b) hereof applies), and shall be provided in the discretion
of the Administrative Committee from (i) income or gain to the Trust
Fund, (ii) Forfeitures arising from the Accounts of Participants
employed or formerly employed by the Participating Companies, or (iii)
Contributions by the Participating Companies. If Restoration
Contributions are made by the Participating Companies, each
Participating Company's portion of that Contribution shall be equal to
the product of (i) the amount of the Restoration Contribution, and (ii)
a fraction, the numerator of which is the amount of Matching
Contribution made by such Participating Company for the Plan Year in
which the Restoration Contribution is made, and the denominator of which
is the total amount of all Matching Contributions made by all
Participating Companies for such Plan Year. However, effective as of
January 1, 1996, if Restoration Contributions are made by the
Participating Companies, each Participating Company's portion of that
Contribution shall be equal to the product of (i) the amount of the
Restoration Contribution, and (ii) a fraction, the numerator of which
is, for Matching Contributions, the amount of Matching Contributions or,
for Retirement Savings Contributions, the amount of Retirement Savings
Contributions made by such Participating Company for the Plan Year in
which the Restoration Contribution is made, and the denominator of which
is for Matching Contributions, the total amount of all Matching
Contributions, or, for Retirement Savings Contributions, the total
amount of all Retirement Savings Contributions made by all Participating
Companies for such Plan Year.
(d) Notice of Buy-Back Rights. It shall be the duty of the
Administrative Committee to give timely notification to any rehired
individual who is eligible to make a repayment of his right to make such
repayment in accordance with this section and of the consequences of not
making such repayment; namely that the nonvested portion of the benefits
accrued under the Plan during his previous employment will not be
restored by the Plan, will remain forfeited, and will not become vested
even though he may perform additional years of Vesting Service.
26
<PAGE> 41
ARTICLE IV
ROLLOVERS
4.1 Rollover Contributions.
(a) Request by Participant. An Active Participant, or, solely for
purposes of this Article, an Employee who would be a Covered Employee if
he had attained age 21 and had completed a Year of Qualification
Service, may make a written request to the Administrative Committee that
he be permitted to contribute, or cause to be contributed, to the Trust
Fund a Rollover Contribution which is received by such Participant or to
which such Participant is entitled. Such written request shall contain
information concerning the type of property constituting the Rollover
Contribution and a statement, satisfactory to the Administrative
Committee, that the property constitutes a Rollover Contribution.
(b) Acceptance of Rollover. Subject to the terms of the Plan and
the Code (including regulations and rulings promulgated thereunder), the
Administrative Committee, in its sole discretion, may permit such a
Rollover Contribution to be accepted at any time by the Trustee and
allocated as of the Valuation Date coincident with or next following the
date such Rollover Contribution is accepted to a Rollover Account of
such Active Participant. Unless the Administrative Committee permits
otherwise, all Rollover Contributions shall be made in cash. Decisions
by the Administrative Committee concerning the acceptability and form of
a Rollover Contribution shall be based on objective criteria which shall
be uniformly applied to all Participants.
(c) Mistaken Rollover. If the Administrative Committee becomes
aware that a Rollover Contribution did not qualify under the Code as a
tax-free rollover, then as soon as reasonably possible the
Administrative Committee shall direct that the Participant's Rollover
Account shall be (i) segregated from all other Plan assets, (ii) treated
as a non-qualified trust established by and for the benefit of the
Participant, and (iii) distributed to the Participant. Such mistaken
Rollover Contribution shall be deemed never to have been a part of the
Plan. The Administrative Committee may take any action so that such
mistaken Rollover Contribution shall not adversely affect the tax
qualification of the Plan under the Code.
4.2 Direct Rollovers. This section applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover.
(a) Definition - Eligible Rollover Distribution. An eligible
rollover distribution is 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
of the joint lives (or
27
<PAGE> 42
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 of any distribution that
is not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
(b) Definition - Eligible Retirement Plan. An eligible retirement
plan is an individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in section 408(b)
of the Code, an annuity plan described in section 403(a) of the Code, or
a qualified trust described in section 401(a) of the Code, that accepts
the 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.
(c) Definition - Distributee. A 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 qualified domestic
relations order, as defined in section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former spouse.
(d) Definition - Direct Rollover. A direct rollover is a payment
by the Plan to the eligible retirement plan specified by the
distributee.
4.3 In-Kind Rollovers. As an additional form of direct rollover
permitted under Section 4.2, a distributee, as defined in Section 4.2(c) who is
entitled to an eligible rollover distribution, as defined in Section 4.2(a),
that is not a distribution made under Article X of the Plan, may elect to direct
payment by the Plan to an eligible retirement plan subject to all of the
following:
(a) The eligible retirement plan is an individual retirement
account ("IRA").
(b) The distributee must elect to direct all of the distributee's
Account that meets the requirements of an eligible rollover distribution
under Section 4.2 to the designated IRA.
(c) To the extent that the distributee's Account is invested in
any Investment Fund of the Plan which invests solely in shares or units
of a publicly traded mutual fund subject to the Securities Act of 1933
which shares or units are permitted by such mutual fund to be issued or
transferred directly to an IRA, the distributee may direct that all full
shares or units of such mutual fund attributable to an eligible rollover
distribution be transferred in-kind directly by the Plan to the
designated IRA, if the custodian of such designated IRA accepts such
in-kind contributions to the IRA. The remaining balance of the Account
attributable to an eligible rollover distribution shall be transferred
in cash to the same designated IRA.
(d) The Committee shall establish administrative procedures to
carry out in-kind direct rollovers under this Section 4.3.
28
<PAGE> 43
This Section 4.3 is not intended to limit the right of the Investment Committee
under Section 7.2 to remove, add, or change any Investment Fund or its
investments, including, without limitation, the replacement of publicly traded
mutual funds with any other fund or investment manager. Further, the Plan is
under no obligation to take any action to require or direct that any mutual fund
permit the issuance of shares or units other than in cash or that any IRA
custodian accept directly shares or units of any mutual fund offered in an
Investment Fund.
ARTICLE V
PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS
5.1 Establishment of Participants' Accounts. To the extent appropriate,
the Administrative Committee shall establish and maintain, on behalf of each
Participant and Beneficiary, an Account which shall be divided into segregated
subaccounts. The subaccounts shall include Before Tax, After Tax, Matching,
Qualified, (effective January 1, 1996, Retirement Savings,) and Rollover
Accounts and such other subaccounts as the Administrative Committee shall deem
appropriate or helpful. Each Account shall be credited with Contributions
allocated to such Account and generally shall be credited with income on
investments derived from the assets of such Accounts. Each Account of a
Participant or Beneficiary shall be maintained until the value thereof has been
distributed to or on behalf of such Participant or Beneficiary. An Account (and
appropriate subaccounts) shall be established on behalf of an alternate payee
under a qualified domestic relations order [determined to be such pursuant to
the provisions of Section 16.1(b)] if the alternate payee does not receive an
immediate distribution as described in Section 9.5.
5.2 Allocation and Crediting of Before Tax, After Tax, Matching and
Rollover Contributions. No later than the last Valuation Date of the calendar
month coinciding with or immediately following (a) the end of the accounting
period for which Before Tax, After Tax and Matching Contributions are made or
(b) the date on which Rollover Contributions are accepted and received on behalf
of an Active Participant, such Contributions shall be allocated and credited for
the calendar month directly to the appropriate Before Tax, After Tax, Matching
and Rollover Accounts, respectively of such Active Participant.
5.3 Allocation and Crediting of Qualified Contributions.
(a) Participants Receiving Allocations. Qualified Contributions
shall be allocated and credited as of the last day of each Plan Year
among the Qualified Accounts of those Active Participants who are not
Highly Compensated Employees for such Plan Year and for whom Matching
Contributions were made during such Plan Year.
(b) Formula for Allocation. As of the last day of each Plan Year
for which the Participating Companies make (or are deemed to have made)
Qualified Contributions, each Active Participant who is eligible to
receive an allocation of Qualified Contributions for such Plan Year
(pursuant to the terms of subsection (a) hereof) shall have allocated
and credited to his Qualified Account a portion of the Qualified
Contributions made for such Plan Year by the Participating Companies.
The Administrative Committee shall cause a portion of such Contribution
to be allocated to the Account of each such Active Participant in the
same proportion that the Testing Compensation of such Active
29
<PAGE> 44
Participant for such Plan Year bears to the total Testing Compensation
of all such Active Participants for such Plan Year; provided, that each
Active Participant's Testing Compensation shall be limited to $1.00 in
determining such Active Participant's allocable share of such
Contribution.
5.4 Allocation and Crediting of Retirement Savings Contributions.
Effective January 1, 1996, Retirement Savings Contributions shall be allocated
as of an Annual Valuation Date that is the last day of a Plan Year among the
Retirement Savings Accounts of those Participants who are Eligible Covered
Employees satisfying the requirements of Section 3.4, notwithstanding the
subsequent contribution under Section 3.6(c). As soon as practicable following
the end of the Plan Year, the Retirement Savings Contributions shall be credited
to the Retirement Savings Accounts.
5.5 Allocation and Crediting of Investment Experience. As of each
Valuation Date, the Trustee shall determine the fair market value of the Trust
Fund which shall be the sum of the fair market values of each Investment Fund.
The Administrative Committee shall determine the balance of the Accounts as
follows:
(a) Determination of Earnings or Losses. Subject to Section
9.1(a), as of each Valuation Date, the investment earnings (or losses)
of each Investment Fund shall be the amount by which the sum determined
in (1) exceeds (or is less than) the sum determined in (2), where (1)
and (2) are as follows:
(1) The sum of (A) the fair market value of such
Investment Fund as of such Valuation Date, plus (B) the amount of
distributions, withdrawals and other disbursements made since the
immediately preceding Valuation Date from amounts invested in the
Investment Fund; and
(2) The sum of (A) the fair market value of the Investment
Fund as of the immediately preceding Valuation Date, plus (B)
Contributions deposited and other receipts in such Investment
Fund since the immediately preceding Valuation Date.
(b) Formula For Allocation. As of each Valuation Date and prior
to the allocations described in Sections 5.2 and 5.3, each Participant's
Account shall be allocated and shall be credited with a portion of such
earnings or debited with a portion of such losses of each Investment
Fund, as determined in accordance with subsection (a) hereof, in the
proportion that (i) the amount credited to such Account that was
invested in such Investment Fund as of the immediately preceding
Valuation Date, bears to (ii) the total amount invested in such
Investment Fund by all Participants as of the immediately preceding
Valuation Date.
(c) Del Monte Common Stock Fund. The value of the interest of any
Participant's Account in the Del Monte Common Stock Fund shall be
measured in units (rather than shares of Del Monte Common Stock) in such
manner as the Administrative Committee (in its discretion) shall
determine.
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5.6 Notice to Participants of Account Balances. At least once for each
Plan Year, the Administrative Committee shall cause a written statement of a
Participant's Account balance to be distributed to the Participant.
5.7 Good Faith Valuation Binding. In determining the value of the Trust
Fund and the Accounts, the Trustee and the Administrative Committee shall
exercise their best judgment, and all such determinations of value (in the
absence of bad faith) shall be binding upon all Participants and Beneficiaries.
5.8 Errors and Omissions in Accounts. If an error or omission is
discovered in the Account of a Participant or Beneficiary, the Administrative
Committee shall cause appropriate, equitable adjustments to be made as of the
Valuation Date that occurs as soon as administratively feasible after the
discovery of such error or omission.
ARTICLE VI
CONTRIBUTION AND SECTION 415 LIMITATIONS
AND NONDISCRIMINATION REQUIREMENTS
6.1 Definition of "Compensation" for Compliance Purposes.
(a) Section 415 Compensation. For any applicable determination
period, "Section 415 Compensation" shall mean wages as defined in Code
Section 3401(a) for purposes of income tax withholding at the source,
but determined without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or
the services performed [such as the exemption for agricultural labor in
Code Section 3401(a)(2)]; provided, in no event shall the annual Section
415 Compensation taken into account under this Section exceed $150,000
(as adjusted by the Internal Revenue Service under Code Section
401(a)(17) for cost-of-living increases); provided further that for Plan
Years beginning after December 31, 1997, Section 415 Compensation shall
also include compensation which is not currently includable in the
Participant's gross income by reason of the application of Code Sections
125 or 402(e)(3), as provided in Code Section 402(g)(3).
(b) Testing Compensation. For any applicable determination
period, "Testing Compensation" shall have the same meaning as
"Compensation", provided the definition of "Compensation" can be shown
to be nondiscriminatory under Code Section 414(s) for such determination
period. If such a showing cannot be made for any applicable
determination period, "Testing Compensation" for such period shall be
equal to the aggregate of (i) Section 415 Compensation for such period;
plus (ii) if the Administrative Committee approves the addition of such
amounts for the applicable determination period, all amounts that would
have been treated as Section 415 Compensation for such period except
that they were deferred as elective contributions under Code Section
125, Section 402(e)(3) or Section 402(h); and minus (iii) if the
Administrative Committee approves the subtraction of such amounts for
the applicable determination period, all of the following amounts for
such period (even if includable in gross income): reimbursements or
other expense allowances, fringe benefits (cash and noncash), moving
expenses, deferred compensation
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and welfare benefits. Notwithstanding anything herein to the contrary,
(i) in no event shall the annual Testing Compensation taken into account
under this Section exceed $150,000 (as adjusted by the Internal Revenue
Service under Code Sections 401(a)(17) for cost-of-living increases);
and (ii) any definition of Testing Compensation selected under this
Section shall be used consistently to define the Testing Compensation of
all employees taken into account in satisfying the requirements of an
applicable provision for the relevant determination period.
(c) Key Employee Compensation. For any applicable determination
period, "Key Employee Compensation" shall mean the total of Section 415
Compensation for such period, plus all amounts that would have been
treated as Section 415 Compensation for such period except that they
were deferred as elective contributions under Code Section 125, Section
402(e)(3) or Section 402(h)(1)(B); provided, in no event shall the
annual Key Employee Compensation taken into account under this Section
exceed $150,000 (as adjusted by the Internal Revenue Service under Code
Section 401(a)(17) for cost-of-living increases).
6.2 Deductibility Limitations. In no event shall the total Company
Contribution amounts for any taxable year of a Participating Company exceed that
amount which is properly deductible for federal income tax purposes under the
then appropriate provisions of the Code. Generally, the maximum, tax-deductible
Company Contribution amounts for any taxable year of a Participating Company
shall be equal to 15 percent of the total Testing Compensation paid or accrued
during such taxable year to all Active Participants employed by such
Participating Company; provided, no Company Contribution amounts shall be
deductible if they cause the Plan to exceed the applicable maximum allocation
limitations under Code Section 415, as described in Section 6.8. For purposes of
this section, a Company Contribution may be deemed made by a Participating
Company for a taxable year if it is paid to the Trustee on or before the date of
filing the Participating Company's federal income tax return (including
extensions thereof) for that year or on or before such other date as shall be
within the time allowed to permit proper deduction by the Participating Company
of the amount so contributed for federal income tax purposes for the year in
which the obligation to make such Company Contribution was incurred.
6.3 Maximum Limitation on Elective Deferrals.
(a) Maximum Elective Deferrals Under Affiliate Plans. The
aggregate amount of a Participant's Elective Deferrals made for any
calendar year under the Plan and any other plans, contracts or
arrangements with the Affiliates shall not exceed the Maximum Deferral
Amount.
(b) Return of Excess Before Tax Contributions. If the aggregate
amount of a Participant's Before Tax Contributions made for any calendar
year by itself exceeds the Maximum Deferral Amount, and to the extent
such Before Tax Contributions cannot be treated as After Tax
Contributions pursuant to Section 3.1(c), the Participant shall be
deemed to have notified the Administrative Committee of such excess, and
the Administrative Committee shall cause the Trustee to distribute to
such Participant, on or before April 15 of the next succeeding calendar
year, the total of (i) the amount by which such Before Tax Contributions
exceed the Maximum Deferral Amount, plus (ii) any earnings allocable
thereto. In addition, Matching Contributions made on behalf of the
Participant
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which are attributable to the distributed Before Tax Contributions shall
be treated as a Forfeiture.
(c) Return of Excess Elective Deferrals Provided by Affiliate
Arrangements. If, after the reduction described in subsection (b)
hereof, a Participant's aggregate Elective Deferrals under plans,
contracts and arrangements with the Affiliates still exceed the Maximum
Deferral Amount, then, the Participant shall be deemed to have notified
the Administrative Committee of such excess, and, unless the
Administrative Committee directs otherwise, such excess shall be reduced
by distributing to the Participant Elective Deferrals that were made for
the calendar year under such plans, contracts and/or arrangements with
the Affiliates other than the Plan. However, if the Administrative
Committee decides to make any such distributions from Before Tax
Contributions made to the Plan, such distributions (including
Forfeitures of Matching Contributions) shall be made in a manner similar
to that described in subsection (b) hereof.
(d) Discretionary Return of Elective Deferrals. If after
distributing any amounts required to be distributed pursuant to
subsections (b) and (c) hereof, (i) a Participant's aggregate Elective
Deferrals made for any calendar year under the Plan and any other plans,
contracts or arrangements with the Affiliates and any other employers
still exceed the Maximum Deferral Amount, and (ii) such Participant
submits to the Administrative Committee, on or before the March 1
following the end of such calendar year, a written request that the
Administrative Committee distribute to such Participant all or a portion
of his remaining Before Tax Contributions made for such calendar year,
and any earnings attributable thereto, then the Administrative Committee
may, but shall not be required to, cause the Trustee to distribute such
amount to such Participant on or before the following April 15. However,
if the Administrative Committee decides to make any such distributions
from Before Tax Contributions made to the Plan, such distributions
(including Forfeitures of Matching Contributions) shall be made in a
manner similar to that described in subsection (b) hereof.
(e) Return of Excess Annual Additions. Any Before Tax
Contributions returned to a Participant to correct excess Annual
Additions shall be disregarded for purposes of determining whether the
Maximum Deferral Amounts has been exceeded.
6.4 Nondiscrimination Requirements for Before Tax Contributions.
(a) ADP Test. The annual allocation of the aggregate of all
Before Tax Contributions and, to the extent designated by the
Administrative Committee, Qualified Contributions shall satisfy at least
one of the following ADP Tests for each Plan Year:
(1) The ADP for the Highly Compensated Employees who are
Participants shall not exceed the product of (A) the ADP in the
prior Plan Year for the Participants who are not Highly
Compensated Employees, multiplied by (B) 1.25; or
(2) The ADP for the Highly Compensated Employees who are
Participants shall not exceed the ADP in the prior Plan Year for
the Participants
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<PAGE> 48
who are not Highly Compensated Employees by more than 2
percentage points, nor shall it exceed the product of (A) the ADP
in the prior Plan Year of the Participants who are not Highly
Compensated Employees, multiplied by (B) 2.
(b) Multiple Plans. If before tax and/or qualified contributions
are made to one or more other plans [other than employee stock ownership
plans as described in Code Section 4975(e)(7)] which, along with the
Plan, are considered as a single plan for purposes of Code Section
401(a)(4) or Section 410(b), such plans shall be treated as one plan for
purposes of this section, and the before tax and applicable qualified
contributions made to those other plans shall be combined with the
Before Tax and applicable Qualified Contributions for purposes of
performing the tests described in subsection (a) hereof. In addition,
the Administrative Committee may elect to treat the Plan as a single
plan along with the one or more other plans [other than employee stock
ownership plans as described in Code Section 4975(e)(7)] to which before
tax contributions are made for purposes of this section; provided, the
Plan and all of such other plans also must be treated as a single plan
for purposes of satisfying the requirements of Code Section 401(a)(4)
and Section 410(b) [other than the requirements of Code Section
410(b)(2)(A)(ii)]. However, for Plan Years beginning after December 31,
1989, plans may be aggregated for purposes of this subsection (b) only
if they have the same plan year.
(c) Adjustments to Actual Deferral Percentages. In the event that
the allocation of the Before Tax and Qualified Contributions for a Plan
Year, after the application of Section 6.3, does not satisfy one of the
ADP Tests, the Administrative Committee shall cause the Before Tax and
Qualified Contributions for such Plan Year to be adjusted in accordance
with one or a combination of the following options:
(1) The Administrative Committee may cause the
Participating Companies to make, with respect to such Plan Year,
Qualified Contributions on behalf of, and specifically allocable
to, the Active Participants described in Section 5.3(a) with
respect to such Plan Year, in the minimum amount necessary to
satisfy one of the ADP Tests. Such Qualified Contributions shall
be allocated among such Active Participants in a manner
consistent with Section 5.3.
(2) By the last day of the Plan Year following the Plan
Year in which the annual allocation failed both of the ADP Tests,
the Administrative Committee may cause the Before Tax
Contributions taken into account with respect to Highly
Compensated Employees under such failed ADP Tests to be reduced
by an amount necessary to satisfy one of the ADP Tests. Any
amount by which Before Tax Contributions are so reduced, plus any
earnings attributable thereto, shall be distributed to the Highly
Compensated Employees from whose Before Tax Accounts such
reductions shall have been made. Such reductions in Contributions
shall be made solely to the Accounts of those Highly Compensated
Employees who are affected by the following procedure:
(A) The Administrative Committee first shall direct
the Trustee to reduce the Before Tax Contributions of the
Highly Compensated Employee(s) with the highest ADP for
such Plan Year by use of a leveling
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<PAGE> 49
process, whereby the aggregate Before Tax Contributions of
the Highly Compensated Employee with the highest dollar
amount of aggregate Before Tax Contributions are reduced
to the extent required to (1) cause the ADP Test to be
satisfied or (2) cause such Highly Compensated Employee's
aggregate Before Tax Contributions to equal the aggregate
Before Tax Contributions of the Highly Compensated
Employee with the next-highest aggregate Before Tax
Contributions.
(B) The Administrative Committee shall repeat such
leveling process until the ADP Test for such Plan Year is
satisfied.
(3) The adjustments made pursuant to the terms of this
subsection (c) shall be made separately with respect to each
Affiliate.
6.5 Nondiscrimination Requirements for After Tax and Matching
Contributions.
(a) ACP Test. The amount of the aggregate of all After Tax and
Matching Contributions, and to the extent designated by the
Administrative Committee, Before Tax and/or Qualified Contributions made
for each Plan Year, shall satisfy at least one of the following ACP
Tests:
(1) The ACP for the Highly Compensated Employees who are
Participants during the Plan Year shall not exceed the product of
(A) the ACP in the prior Plan Year for the Participants who are
not Highly Compensated Employees during the Plan Year, multiplied
by (B) 1.25; or
(2) The ACP for the Highly Compensated Employees who are
Participants during the Plan Year shall not exceed the ACP in the
prior Plan Year for the Participants who are not Highly
Compensated Employees during the Plan Year by more than 2
percentage points, nor shall it exceed the product of (A) the ACP
in the prior Plan Year of the Participants who are not Highly
Compensated Employees during the Plan Year, multiplied by (B) 2.
(b) Multiple Plans. If matching, after tax, before tax and/or
qualified contributions are made to one or more other plans [other than
employee stock ownership plans as described in Code Section 4975(e)(7)]
which, along with the Plan, are considered as a single plan for purposes
of Code Section 401(a)(4) or Section 410(b), such plans shall be treated
as one plan for purposes of this section, and the matching, after tax,
before tax and applicable qualified contributions made to those other
plans shall be combined with the Matching, After Tax, Before Tax and
Qualified Contributions for purposes of performing the tests described
in subsection (a) hereof. In addition, the Administrative Committee may
elect to treat the Plan as a single plan along with one or more other
plans (other than employee stock ownership plans as described in Code
Section 4975(e)(7)] to which matching, after tax, before tax and/or
qualified contributions are made for purposes of this section; provided,
the Plan and all of such other plans also must be treated as a single
plan for purposes of satisfying the requirements of Code Section
401(a)(4) and Section 410(b) [other than the requirements
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<PAGE> 50
of Code Section 410(b)(2)(A)(ii)]. However, plans may be aggregated for
purposes of this subsection only if they have the same plan year.
(c) Adjustments to Average Contribution Percentages. In the event
that the allocation of the After Tax, Before Tax, Matching and Qualified
Contributions for a Plan Year, after the application of subsections (a)
and (b) hereof, does not satisfy one of the ACP Tests, the
Administrative Committee shall cause such After Tax, Before Tax,
Matching and/or Qualified Contributions for the Plan Year to be adjusted
in accordance with one or a combination of the following options:
(1) The Administrative Committee may cause the Company to
make, with respect to such Plan Year, Qualified Contributions on
behalf of, and specifically allocable to, the Active Participants
described in Section 5.3(a) with respect to such Plan Year, in
the minimum amount necessary to satisfy one of the ACP Tests;
such Qualified Contributions shall be allocated among the
affected Active Participants in a manner consistent with Section
5.3. Alternatively or in addition, the Administrative Committee
may add a portion of the Before Tax Contributions, that are made
for the Plan Year by the Participants who are not Highly
Compensated Employees and that are not needed for the Plan to
satisfy the ADP Tests for the Plan Year, to the After Tax and
Matching Contributions for such Participants to increase the ACP
for such Participants.
(2) By the last day of the Plan Year following the Plan
Year in which the annual allocation failed both of the ACP Tests,
the Administrative Committee may direct the Trustee to reduce the
After Tax and/or Matching Contributions taken into account with
respect to Highly Compensated Employees under such failed ACP
Tests by an amount necessary to satisfy one of the ACP Tests. Any
amount by which After Tax Contributions are so reduced, plus any
earnings attributable thereto, shall be distributed to the Highly
Compensated Employees from whose Accounts such reductions have
been made. Any Matching Contributions made on behalf of Highly
Compensated Employees which are attributable to the distributed
After Tax Contributions shall be forfeited. If these
distributions (and forfeitures) do not cause the Plan to satisfy
one of the ACP Tests, the amount by which Matching Contributions
are to be reduced, plus any earnings attributable thereto, shall
be forfeited and reallocated as Qualified Contributions to the
Qualified Accounts of the Active Participants described in
Section 5.3(a) with respect to such Plan Year; provided, if the
Matching Contributions to be reduced are vested and therefore may
not be forfeited, those Matching Contributions (plus any earnings
attributable thereto) shall be distributed to the Highly
Compensated Employees from whose Matching Accounts such
reductions have been made. Such reductions in Contributions shall
be made in accordance with, and solely to the Accounts of those
Highly Compensated Employees who are affected by, the following
procedure:
(A) First, the After Tax and Matching Contributions
of the Highly Compensated Employee(s) with the ACP of the
highest dollar amount for such Plan Year shall be reduced
by the lesser of (i) the entire
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<PAGE> 51
amount necessary to satisfy one of the ACP Tests, or (ii)
that part of the amount necessary to satisfy one of the
ACP Tests as shall cause the ACP of each such Highly
Compensated Employee to equal the ACP of each of the
Highly Compensated Employees with the ACP(s) for such Plan
Year of the next highest dollar amounts. If the total
amount of the required reduction in a Highly Compensated
Employee's After Tax and Matching Contributions is less
than the total amount of such Contributions, the required
reductions first shall be charged against such Highly
Compensated Employee's After Tax Contributions (together
with any Matching Contributions attributable to those
After Tax Contributions) until they are exhausted, and
then against his remaining Matching Contributions.
(B) The Administrative Committee shall follow
substantially identical steps for making further
reductions in the Contributions of each of the Highly
Compensated Employees with the next highest ACP for such
Plan Year until one of the ACP Tests has been satisfied.
6.6 Multiple Use of Tests.
(a) Aggregate Limitation. The sum of the ADP and the ACP for a
Plan Year for the entire group of eligible Highly Compensated Employees
who are Active Participants, following the application of Sections
6.4(c) and 6.5(c) for such Plan Year, may not exceed the sum of either
(1) or (2) below (or such other applicable limits as may be established
under the Code, regulations or otherwise):
(1) (A) 125 percent of the greater of (i) the ADP of the
group of non-Highly Compensated Employees eligible under the Plan
for the Plan Year, or (ii) the ACP of the group of non-Highly
Compensated Employees who are eligible under the Plan for the
Plan Year; plus
(B) the lesser of 2 plus or 2 times the lesser of
the amount determined in subsection (a)(1)(A)(i) or (a)(1)
(A) (ii) hereof; or,
(2) (A) 125 percent of the lesser of (i) the ADP of the
group of non-Highly Compensated Employees, eligible under the
Plan for the Plan Year, or (ii) the ACP of the group of
non-Highly Compensated Employees who are eligible under the Plan
for the Plan Year; plus
(B) the lesser of 2 plus or 2 times the greater of
the amount determined in subsection (a)(2)(A)(i) or
(a)(2)(A)(ii) hereof.
(b) Multiple Plans. If at least one Highly Compensated Employee
participates in another qualified retirement plan maintained by the
Controlling Company which (i) permits before tax contributions and/or
after tax contributions or matching contributions, and (ii) is not
aggregated with the Plan for purposes of nondiscrimination testing, then
the multiple use aggregate limitations described in subsection (a) shall
apply in testing the Plan separately against each such other plan.
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(c) Correction. If the maximum limitation of the combination of
the ADP and ACP, as described in subsection (a) hereof, is exceeded,
this excess shall be reduced or otherwise corrected by any method
permissible under Section 6.4 for satisfying the ADP Test or through any
method permitted under Section 6.5(c) to satisfy the ACP Test, or any
combination thereof. Any adjustment necessary to satisfy said maximum
limitation shall be made by adjusting the ADP's or the ACP's of Highly
Compensated Employees.
(d) Application. This section shall be operated and interpreted
in a manner consistent with regulations promulgated under Code Section
401(m).
6.7 Order of Application. For any Plan Year in which adjustments shall
be necessary or otherwise made pursuant to the terms of Sections 6.3, 6.4 and/or
6.5, such adjustments shall be applied in the following order:
(a) first, Section 6.3;
(b) second, Section 6.4(c); and
(c) third, Section 6.5(c).
6.8 Code Section 415 Limitations on Maximum Contributions.
(a) General Limit on Annual Additions. In no event shall the
Annual Addition to a Participant's Account for any Limitation Year,
under the Plan and any other Defined Contribution Plan maintained by an
Affiliate, exceed the lesser of:
(1) $30,000 [or, if greater, 25 percent of the dollar
limitation in effect under Code Section 415(b)(1)(A)I; or
(2) 25 percent of such Participant's Section 415
Compensation.
(b) Combined Plan Limitation. For Plan Years beginning before
January 1, 2000, if an Employee is a Participant in the Plan and any one
or more Defined Benefit Plans maintained by an Affiliate, the sum of his
Defined Benefit Plan Fraction and his Defined Contribution Plan Fraction
shall not exceed 1.0 for any Limitation Year. (For purposes of this
subsection, any adjustments in the definition of "Testing Compensation"
permitted by the Internal Revenue Service for purposes of determining
this combined limit are included herein by reference.) If any corrective
adjustment in any Participant's benefits is required to comply with this
subsection, such adjustment shall be made exclusively under the Defined
Benefit Plans maintained by the Affiliates. If an Employee is a
Participant in the Plan and any one or more other Defined Contribution
Plans maintained by an Affiliate and a corrective adjustment in such
Participant's benefits is required to comply with this subsection, such
adjustment shall be made under such other Defined Contribution Plan or
Plans. This Section 6.8(b) shall have no force or effect with respect to
Plan Years beginning on or after January 1, 2000.
(c) Correction of Excess Annual Additions. If, as a result of
either the allocation of Forfeitures to an Account, a reasonable error
in estimating a Participant's
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Section 415 Compensation or such other occurrences as the Internal
Revenue Service permits to trigger this subsection, the Annual Addition
made on behalf of a Participant exceeds the limitations set forth in
this section, the Administrative Committee shall direct the Trustee to
take such of the following actions as it shall deem appropriate,
specifying in each case the amount of contributions involved:
(1) A Participant's Annual Addition first shall be reduced
by reducing his After Tax Contributions to the extent of any such
excess, up to the total amount of After Tax Contributions made on
behalf of such Participant, and the amount of the reduction (plus
any investment earnings thereon) shall be returned to such
Participant.
(2) If further reduction is necessary, the Matching and
Qualified Contributions allocated to the Participant's Account
shall be reduced in the amount of the remaining excess. The
amount of the reduction shall be reallocated to the Matching and
Qualified Accounts of Active Participants who otherwise are
eligible for allocations of Contributions, who are employed by
the Participating Company or Companies employing the Participant
and who are not affected by the Annual Addition limitations, in
the same proportion as matching and Qualified Contributions
otherwise are allocated to such Accounts, disregarding the
Compensation of those Active Participants whose Annual Addition
equals or exceeds the limitations hereunder.
(3) Effective January 1, 1996, if further reduction is
necessary, the Retirement Savings Contributions, if any,
allocated to the Participant's Account shall be reduced in the
amount of the remaining excess. The amount of the reductions
shall be reallocated to the Retirement Savings Accounts of Active
Participants who otherwise are eligible for allocations of
Contributions, who are employed by the Participating Company or
Companies employing the Participant and who are not affected by
the Annual Addition limitations, in the same proportion as
Retirement Savings Contributions otherwise are allocated to such
Accounts, disregarding the Section 415 Compensation of those
Active Participants whose Annual Addition equals or exceeds the
limitations hereunder.
(4) If further reduction is necessary, the Before Tax
Contributions allocated to the Participant's Before Tax Account
shall be reduced in the amount of the remaining excess. The
amount of the reduction (plus any earnings thereon) shall be
returned to the Participant if permissible, or, if not, held in
suspense pursuant to the terms of subsection (c)(4) hereof.
(5) If the reallocation to the Accounts of other
Participants in the then current Limitation Year (as described in
subsection (c)(2) and (c)(3) hereof) is impossible without
causing them or any of them to exceed the Annual Addition
limitations described in this section, the amount that cannot be
reallocated without exceeding such limitations shall continue to
be held in a suspense account and shall be applied to reduce
permissible Contributions in each successive year until such
amount is fully allocated; provided, so long as any suspense
account is
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<PAGE> 54
maintained pursuant to this section: (A) no Contributions shall
be made to the Plan which would be precluded by this section; (B)
investment gains and losses of the Trust Fund shall not be
allocated to such suspense account; and (C) amounts in the
suspense account shall be allocated in the same manner as
Contributions as of the earliest Valuation Date possible, until
such suspense account is exhausted.
(d) Special Definitions Applicable to Code Section 415
Limitations.
(1) Annual Addition. For purposes of this section, the
term "Annual Addition" for any Participant means the sum for any
Limitation Year of:
(A) contributions made by an Affiliate on behalf of
the Participant under all Defined Contribution Plans;
(B) contributions made by the Participant under all
Defined Contribution Plans of an Affiliate [excluding
rollover contributions as defined in Code Sections 402(c),
403(a)(4), 403(b)(8) and 408(d)(3) and contributions of
previously distributed benefits which result in such a
Plan's restoration of previously forfeited benefits
pursuant to Treasury Regulations Section 1.411(a) - 7(d)];
(C) forfeitures allocated to the Participant under
all Defined Contribution Plans of a Participating Company;
(D) amounts allocated for the benefit of the
Participant after March 31, 1984, to an individual medical
account established under a pension or annuity plan
maintained by a Participating Company, as described in
Code Section 415(1); and
(E) for purposes of Section 6.8(a)(1) only, if the
Participant was a Key Employee at any time during the Plan
Year during which or coincident with which the Limitation
Year ends or during any preceding Plan Year, any amount
paid or accrued after December 31, 1985 by a Participating
Company to a special account to provide post-retirement
medical or life insurance benefits to the Participant, as
described in Code Section 419A(d)(2).
Contributions do not fail to be Annual Additions merely because they are
(i) Before Tax Contributions that exceed the Maximum Deferral Amount, (ii)
Before Tax Contributions that cause the Plan to fail the ADP Tests, or (iii)
After Tax or Matching Contributions that cause the Plan to fail the ACP Tests,
or merely because the Contributions in clauses (ii) and (iii) immediately above
are corrected through distribution or recharacterization; Contributions
described in clause (i) immediately above that are distributed in accordance
with the terms of Section 6.3 shall not be Annual Additions.
(2) Defined Benefit Plan. The term "Defined Benefit Plan"
shall mean any qualified retirement plan maintained by an
Affiliate which is not a Defined Contribution Plan.
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(3) Defined Benefit Plan Fraction. The term "Defined
Benefit Plan Fraction" shall mean, with respect to a Participant
for any Limitation Year, a fraction, the numerator of which is
his projected annual benefit under all Defined Benefit Plans
maintained by an Affiliate, as determined as of the close of the
Limitation Year, and the denominator of which is the lesser of:
(A) 125 percent of the dollar limitation in effect
for such year under Code Section 415(b)(1)(A); or
(B) 140 percent of his average compensation for his
highest three consecutive plan years of participation in
such Defined Benefit Plans.
In appropriate cases, the Defined Benefit Plan Fraction will be
adjusted to reflect applicable transition rules provided by the
Code and the regulations thereunder.
(4) Defined Contribution Plan. The term "Defined
Contribution Plan" shall mean any qualified retirement plan
maintained by an Affiliate which provides for an individual
account for each Participant and for benefits based solely on the
amount contributed to the Participant's account and any income,
expenses, gains, losses and forfeitures of accounts of other
Participants, which may be allocated to such Participant's
account.
(5) Defined Contribution Plan Fraction. The term "Defined
Contribution Plan Fraction" shall mean, with respect to a
Participant for any Limitation Year, a fraction, the numerator of
which is the sum of the Annual Additions to his Accounts in this
Plan and to his accounts in any other Defined Contribution Plans
required to be aggregated with this Plan under Code Section
415(h), as of the close of the Limitation Year, and the
denominator of which is the sum of the lesser of the following
amounts determined separately for the current Limitation Year and
for each prior Limitation Year in which the Participant was
employed by an Affiliate:
(A) 125 percent of the dollar limitation in effect
under Code Section 415(c)(1)(A) as of the last day of such
Limitation Year; or
(B) 35 percent of the Participant's Section 415
Compensation from Affiliates for the Limitation Year.
In appropriate cases, the Defined Contribution Plan Fraction will
be adjusted to reflect applicable transition rules provided by
the Code and regulations thereunder.
(e) Compliance with Code Section 415. The limitations in this
section are intended to comply with the provisions of Code Section 415
so that the maximum benefits permitted under plans of the Affiliates
shall be exactly equal to the maximum amounts allowed under Code Section
415 and the regulations promulgated thereunder. The provisions of this
section generally are effective as of the Effective Date, but to the
extent the Code requires
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an earlier or later effective date with respect to any portion(s) of
this section, such other effective date shall apply. If there is any
discrepancy between the provisions of this section and the provisions of
Code Section 415 and the regulations promulgated thereunder, such
discrepancy shall be resolved in such a way as to give full effect to
the provisions of the Code.
6.9 Construction of Limitations and Requirements. The descriptions of
the limitations and requirements set forth in this Article are intended to serve
as statements of the minimum legal requirements necessary for the Plan to remain
qualified under the applicable terms of the Code. The Participating Companies do
not desire or intend, and the terms of this Article shall not be construed, to
impose any more restrictions on the operation of the Plan than required by law.
Therefore, the terms of this Article and any related terms and definitions in
the Plan shall be interpreted and operated in a manner which imposes the least
restrictions on the Plan. For example, if use of a more liberal definition of
"Section 415 Compensation" or a more liberal multiple use test is permissible at
any time under the law, then the more liberal provisions may be applied as if
such provisions were included in the Plan.
ARTICLE VII
INVESTMENT OF ACCOUNTS
7.1 Establishment of Trust Fund. All Contributions are to be paid over
to the Trustee to be held in the Trust Fund and invested in accordance with the
terms of the Plan and the Trust Agreement.
7.2 Investment Funds.
(a) Named Investment Funds. In accordance with instructions from
the Investment Committee and the terms of the Plan, as of April 1, 1992,
the Trustee shall establish as named Investment Funds, for investment of
assets of the Trust Fund, an Interest Income Fund 1, an Interest Income
Fund 2, a Capital Fund, a Real Estate Fund, an International Fund and a
Retirement Growth Fund. As of January 1, 1997, the Trustee shall
establish as named Investment Funds the Interest Income Fund, Capital
Fund, International Fund, Growth Fund, and Equity Index Trust Fund.
Effective as of March 1, 2000, the Trustee shall establish as named
Investment Funds, for investment of assets of the Trust fund, the
following funds, which shall replace the funds in effect prior to March
1, 2000:
(i) Fidelity Managed Income Portfolio Fund;
(ii) PIMCo Total Return Fund;
(iii) Fidelity Balanced Fund;
(iv) Fidelity US Equity Index Fund;
(v) Fidelity Aggressive Growth Fund;
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(vi) MAS Mid Cap Value Fund;
(vii) Berger Small Cap Value Fund;
(viii) Robertson Stevenson Emerging Growth Fund;
(ix) Fidelity Diversified International Fund; and
(x) Del Monte Common Stock Fund.
(b) Other Investment Funds. At the direction of the Investment
Committee, the Trustee shall establish other Investment Funds in
addition to or in lieu of the Investment Funds described in Section
7.2(a). Such other Investment Funds shall be established without
necessity of amendment to the Plan or the Trust and shall have the
investment objectives established by the Investment Committee for such
Investment Fund. An Investment Fund may be established for any limited
purpose or limited duration as the Investment Committee may direct. The
Investment Committee may terminate, freeze or otherwise impose any
limitation on any Investment Fund, from time to time.
(c) Transition for Investment Funds. From time to time, the
Investment Committee shall establish the procedures, policies
limitations and options necessary or desirable to provide an orderly
transition when one or more Investment Funds change. Without limiting
the foregoing, the Investment Committee may suspend, delay or otherwise
alter the customary administrative deadlines, procedures and processing
for a reasonable period of time to permit any such transition to occur.
(d) Reinvestment of Cash Earnings. Any investment earnings
received in the form of cash with respect to any Investment Fund (in
excess of the amounts necessary to pay Plan or Trust expenses) shall be
reinvested in such Investment Fund unless the Investment Committee
directs otherwise.
7.3 Participant Direction of Investments. Each Participant or
Beneficiary generally may direct the manner in which his Accounts shall be
invested in and among the Investment Funds; provided, such investment directions
shall be made in accordance with the following terms:
(a) Investment of Contributions. Except as otherwise provided in
this section (relating to special Investment Funds described in Section
7.2(b)), each Participant may, by written election, direct the
percentage of his future Contributions that will be invested in any
Investment Fund. Notwithstanding the foregoing, the only Contributions a
Participant may elect to have contributed to the Del Monte Common Stock
Fund, are such Participant's future Before Tax Contributions, After Tax
Contributions, Matching Contributions and Retirement Savings
Contributions. An initial election of a Participant shall be made as of
the date the Participant commences or recommences participation in the
Plan shall apply to all Contributions attributable to payroll periods
ending after that date. Such Participant may subsequently change his
election as to future Contributions. A change of election shall apply to
all Contributions paid to the Trustee beginning with the first available
payroll period which ends after such change of election was made.
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A Participant shall make an election for each Rollover Contribution as
of the date of such Rollover Contribution. Any election made pursuant to
this subsection with respect to future Contributions shall remain
effective until changed by such Participant. In the event a Participant
fails to make an investment election or a Participant's investment
election is incomplete or insufficient in some manner, the Participant's
future Contributions, or Rollover Contributions, will be invested in the
Interest Income Fund.
(b) Investment of Existing Account Balances. Except as otherwise
provided in this section, each Participant or Beneficiary may, by
written election, direct the percentage, or a specific whole dollar
amount, of his existing Accounts (consisting of Contributions, Rollover
Contributions and earnings thereon) that will be transferred among and
invested in any Investment Fund. Notwithstanding the foregoing, a
Participant may elect only to have his existing Accounts invested in the
Del Monte Common Stock Fund transferred to other Investment Funds in the
Plan, but may not elect to have any existing Accounts transferred into
the Del Monte Common Stock Fund (even if such existing Accounts were
earlier invested in the Del Monte Common Stock Fund). A Participant or
Beneficiary may subsequently change his election effective as of a
Valuation Date following the date on which the change of election is
made that is not more than one Business Day after such date. Each such
election shall apply to such Participant's or Beneficiary's Account as
of the specified Valuation Date, and shall remain in effect until
changed by such Participant or Beneficiary.
In the event a Participant fails to make an election for his
existing Account pursuant to the terms of this subsection (b) which is
separate from his election made for his Contributions pursuant to the
terms of subsection (a) hereof or if a Participant's investment election
is incomplete or insufficient in some manner, the Participant's existing
Account will continue to be invested in the same manner provided under
the terms of the most recent election affecting that portion of his
Account.
(c) Conditions Applicable to Elections. Investments in the
various Investment Funds, as described in subsections (a) and (b)
hereof, shall be made in even multiples of one percent or whole dollar
amounts as directed by the Participant or Beneficiary. The
Administrative and Investment Committees shall have complete discretion
to adopt and revise procedures to be followed in making such investment
elections. Such procedures may include, but are not limited to, the
process of the election, the permitted frequency of making elections,
the deadline for making elections and the effective date of such
elections; provided, elections must be permitted at least once every 3
months. In addition, to the extent necessary or helpful in the
administration of the various Investment Funds, the Administrative
Committee may restrict or limit investments in, and transfers of
investments from, certain Investment Funds. Any procedures adopted by
the Administrative and Investment Committees that are inconsistent with
the deadlines specified in this section shall supersede such provisions
of this section without the necessity of a Plan amendment.
(d) Investments with Distribution Made in Installments. Pursuant
to the terms of Section 9.3, if a Participant or Beneficiary elects for
his Account balance to be distributed in installments, his Account shall
continue to be invested in the same manner provided
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under the terms of the most recent election affecting his Account;
provided, such Participant or Beneficiary may elect to transfer his
Account among the available Investment Funds pursuant to Section 7.3(b).
(e) Limitations on Participant Directions. The Administrative
Committee shall direct the Trustee to follow the instructions given by a
Participant with respect to his Account; provided, that the
Administrative Committee need not direct the Trustee to follow any
instruction by a Participant which, if implemented,
(i) would not be in accordance with the Plan and any other
documents and instruments governing the Plan insofar as such
documents and instruments are consistent with Title I of ERISA;
or
(ii) would cause a fiduciary of the Plan to maintain the
indicia of ownership of any assets of the Plan outside the
jurisdiction of the district courts of the United States, except
as permitted under ERISA; or
(iii) would jeopardize the Plan's tax-qualified status
under the Code; or
(iv) would result in a direct or indirect;
(1) sale, exchange, or lease of property between
any Affiliate and the Plan; or
(2) loan to an Affiliate, or
(3) acquisition or sale of any employer real
property (as defined by ERISA Section 407(d)(2); or
(4) acquisition or sale of any employer security
(as defined by ERISA Section 407(d)(5)).
7.4 Valuations.
(a) Timing of Valuations. The Trust Fund shall be valued by the
Trustee at fair market value as of the close of business on each
Valuation Date. A similar valuation of the Trust Fund may occur at any
other time upon direction of the Administrative Committee.
(b) Valuation of Del Monte Common Stock. For all purposes of the
Plan, the Trustee shall determine the fair market value of a share of
Del Monte Common Stock, which, as of any date, shall be determined (a)
by the closing price of Del Monte Common Stock as reported on the New
York Stock Exchange Composite Index for the day or days preceding the
date of the valuation as may be designated by the Administrative
Committee in a uniform or nondiscriminatory manner, or (b) pursuant to
such other method as shall be selected by the Administrative Committee.
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The value of a Participant's Account invested in Del Monte Common
Stock will be maintained in units of the Del Monte Common Stock Fund.
The value of the Del Monte Common Stock Fund on a Valuation Date is the
then current fair market value of the investments and cash held in that
Fund on such date, less liabilities and expenses accrued or paid as of
such date. The value of a unit in the Del Monte Common Stock Fund is
determined by dividing the value of the Del Monte Common Stock Fund by
the total number of units in all Participants' Accounts allocated to
that Fund.
7.5 Voting of Del Monte Common Stock. Del Monte Common Stock held in the
Del Monte Common Stock Fund shall be voted as follows:
(a) When Del Monte Foods Company prepares for any annual or
special meeting, the Controlling Company shall notify the Trustee at
least thirty (30) days in advance of the intended record date and shall
cause a copy of all proxy solicitations materials to be sent to the
Trustee. If requested by the Trustee, the Controlling Company shall
certify to the Trustee that the aforementioned materials represents the
same information that is distributed to shareholders of Del Monte Foods
Company. Based on these materials the Trustee shall prepare a voting
instruction form and shall provide a copy of all proxy solicitation
materials to be sent to each Plan Participant with an interest in Del
Monte Common Stock held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its designee. [The
form shall show the proportional interest in the number of full and
fractional shares of Del Monte Common Stock credited to the
Participant's accounts held in the Del Monte Common Stock Fund.]
(b) Each Participant with an interest in the Del Monte Common
Stock Fund shall have the right to direct the Trustee as to the manner
in which the Trustee is to vote (including not to vote) that number of
shares of Del Monte Common Stock reflecting such Participant's
proportional interest in the Del Monte Common Stock Fund (both vested
and unvested). Directions from a Participant to the Trustee concerning
the voting of Del Monte Common Stock shall be communicated in writing or
by such other means as is agreed upon by the Trustee and the Controlling
Company. These directions shall be held in confidence by the Trustee and
shall not be divulged to Del Monte Foods Company or the Controlling
Company, or any officer or employee thereof, or any other person except
to the extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's service hereunder. Upon its
receipt of the directions, the Trustee shall vote the shares of Del
Monte Common Stock reflecting the Participant's proportional interest in
the Del Monte Common Stock Fund as directed by the Participant. Except
as otherwise required by law, the Trustee shall not vote shares of Del
Monte Common Stock reflecting a Participant's proportional interest in
the Del Monte Common Stock Fund for which it has received no direction
from the Participant.
7.6 Tender of Del Monte Common Stock. Tender or exchange offers for Del
Monte Common Stock held in the Del Monte Common Stock Fund shall be administered
as follows:
(a) Upon commencement of a tender offer for any securities held
in the Trust that are Del Monte Common Stock, the Controlling Company
shall timely notify the
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Trustee in advance of the intended tender date and shall cause a copy of
all materials to be sent o the Trustee. The Controlling Company shall
certify to the Trustee that the aforementioned materials represent the
same information distributed to shareholders of Del Monte Foods Company.
Based on these materials and after consultation with the Controlling
Company the Trustee shall prepare a tender instruction form and shall
provide a copy of all tender materials to be sent to each plan
Participant with an interest in the Del Monte Common Stock Fund,
together with the foregoing tender instruction form, to be returned to
the Trustee or its designee. The tender instruction form shall show the
number of full and fractional shares of Del Monte Common Stock that
reflect the Participant's proportional interest in the Del Monte Common
Stock Fund (both vested and unvested).
(b) Each Participant with an interest in the Del Monte Common
Stock Fund shall have the right to direct the Trustee to tender or not
to tender some or all of the shares of Del Monte Common Stock reflecting
such Participant's proportional interest in the Del Monte Common Stock
Fund (both vested and unvested). Directions from a Participant to the
Trustee concerning the tender of Del Monte Common Stock shall be
communicated in writing, or by mailgram or such other means as is agreed
upon by the Trustee and the Controlling Company. These directions shall
be held in confidence by the Trustee and shall not be divulged to Del
Monte Foods Company or the Controlling Company, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Del Monte Common Stock as directed by the
Participant. Except as otherwise required by law, the Trustee shall not
tender shares of Del Monte Common Stock reflecting a Participant's
proportional interest in the Del Monte Common Stock Fund for which it
has received no direction from the Participant.
(c) A Participant who has directed the Trustee to tender some or
all of the shares of Del Monte Common Stock reflecting the Participant's
proportional interest in the Del Monte Common Stock Fund may, at any
time prior to the tender offer withdrawal date, direct the Trustee to
withdraw some or all of the tendered shares reflecting the Participant's
proportional interest, and the Trustee shall withdraw the directed
number of shares from the tender offer prior to the tender offer
withdrawal deadline. Prior to the withdrawal deadline, if any shares of
Del Monte Common Stock not credited to Participant's accounts have been
tendered, the Trustee shall predetermine the number of shares of Del
Monte Common Stock that would be tendered under subsection (b) above if
the date of the foregoing withdrawal were the date of determination, and
withdraw from the tender offer the number of shares of Del Monte Common
Stock not credited to Participant's accounts necessary to reduce the
amount of tendered Del Monte Common Stock not credited to Participants'
accounts to the amount so predetermined. A Participant shall not be
limited as to the number of directions to tender or withdraw that the
Participant may give to the Trustee.
(d) A direction by a Participant to the Trustee to tender shares
of Del Monte Common Stock reflecting the Participant's proportional
interest in the Del Monte
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Common Stock Fund shall not be considered a written election under the
Plan by the Participant to withdraw, or have distributed, any or all of
his Account balance. The Trustee shall credit to each proportional
interest of the Participant from which the tendered shares were taken
the proceeds received by the Trustee in exchange for the shares of Del
Monte Common Stock tendered from that interest. Pending receipt of
directions (through the Administrative Committee) from the Participant,
as to which of the remaining investment options the proceeds should be
invested in, the Trustee shall invest the proceeds in the investment
option described in the Trust Agreement.
7.7 Directions With Regard to Other Items. With respect to all rights
other than the right to vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Del Monte Common Stock credited to a
Participant's proportional interest in the Del Monte Common Stock Fund, the
Trustee shall follow the directions of the Participant and if no such directions
are received, the directions of the Named Fiduciary. The Trustee shall have no
duty to solicit directions from Participants.
ARTICLE VIII
VESTING IN ACCOUNTS
8.1 General Vesting Rule.
(a) Vested Accounts. All Participants shall at all times be fully
vested in their Before Tax, After Tax, Qualified, and Rollover Accounts.
(b) Matching Accounts of Participants. Except as provided in
Section 8.2, the Matching Account of all Participants who have at least
1 Hour of Service after May 31, 1992 shall vest upon completion of 2
years of Vesting Service. The Matching Account of any Participant who
does not have 1 Hour of Service after May 31, 1992 shall vest in
accordance with the terms of the Plan as effective for periods prior to
June 1, 1992.
(c) RJR Participants. Notwithstanding subsections (a) and (b)
hereof, all Participants who participated in the RJR Plan (other than
those who were terminated nonvested participants as of the Effective
Date) and for whom amounts were transferred to the Plan from the RJR
Plan and all Active Participants who were eligible to participate in the
RJR Plan immediately prior to the Effective Date shall at all times be
fully vested in their Accounts.
(d) Del Monte Information Systems 1992 Employment Transition
Plan. Notwithstanding any of the foregoing subsections, any Participant
who participated in the Del Monte Information Systems 1992 Employment
Transition Plan and had a Severance Date as a result thereof shall be
100% vested in his or her Matching Account as of his or her Severance
Date if such Participant would have completed 2 years of Vesting Service
no later than one month following his or her Severance Date.
(e) Retirement Savings Accounts. Effective January 1, 1996,
except as provided in Section 8.2, the Retirement Savings Account of a
Participant will remain 0% vested
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until the Participant's completion of five (5) Years of Service, at
which time such account will become fully (100%) vested. For purposes of
this section, all vesting service under a qualified employee benefit
plan of any Participating Company, including vesting service accrued by
a Participant under the Del Monte Corporation Retirement Plan for Hourly
Employees prior to January 1, 1996, shall be counted toward vesting.
(f) Sale of Pudding Products Business. Effective January 1, 1996,
as provided for and defined in Section 2.3(d), at the Closing Date of
the Sale Agreement, each Transferred Employee shall be deemed to have
completed two (2) Years of Vesting Service or, effective January 1,
1997, with respect to his Retirement Savings Account, if any, shall be
deemed to have completed five (5) Years of Service.
8.2 Vesting Upon Attainment of Normal Retirement Age, Disability or
Death. Notwithstanding Section 8.1, a Participant's Matching Account (and/or
effective January 1, 1996, Retirement Savings Account) shall become 100 percent
vested and nonforfeitable upon the occurrence of any of the following events:
(a) The Participant's attainment of Normal Retirement Age while
still employed as an employee of any Affiliate;
(b) The Participant's death while still employed as an employee
of any Affiliate; or
(c) The Participant's becoming Disabled while still employed as
an employee of any Affiliate.
8.3 Timing of Forfeitures and Vesting After Restoration Contributions.
If a Participant who is not yet vested in his Matching Account (and/or effective
January 1, 1996, Retirement Savings Account) separates from service as an
employee of all Affiliates, the amount in his Matching Account (and/or effective
January 1, 1996, Retirement Savings Account) shall be immediately forfeited and
shall become available for allocation as a Forfeiture as of the Valuation Date
coincident with or immediately following the end of the accounting period during
which such separation from service occurs. If such a Participant resumes
employment with an Affiliate after he has incurred 5 or more consecutive
one-year Breaks in Service, such forfeited amount shall not be restored. If such
a Participant resumes employment with an Affiliate before he has incurred 5
consecutive Breaks in Service, such forfeited amount shall be restored as
follows:
(a) Reemployment and Vesting After Distribution. If by the date
of reemployment such a Participant has received a distribution of the
entire vested interest in his Account not later than the close of the
second Plan Year following the Plan Year in which his separation from
service with all Affiliates occurred, the provisions of Section 3.8(a)
shall be applicable (requiring repayment by such a Participant as a
condition for restoration of the forfeited amount). Upon such repayment,
the rehired individual immediately shall be credited with all previously
earned years of Vesting Service (and/or effective January 1, 1996, Years
of Service). No additional years of Vesting Service
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(and/or effective January 1, 1996, Years of Service) shall be credited,
however, until he shall have completed 1 Year of Service after his
latest Employment Date.
(b) Reemployment and Vesting Before Distribution or After Late
Distribution. If by the date of reemployment such a Participant (i) has
not received a full distribution of his vested interest in his Account,
(ii) has received a distribution of the entire vested interest in his
Account later than the close of the second Plan Year following the Plan
Year in which separation from service with all Affiliates occurred, or
(iii) had no vested interest in his Account as of his separation from
service and whose nonvested interest in his Account was forfeited upon
his separation from service, the forfeited amount shall be restored
pursuant to the terms of Section 3.8(b) and shall be credited to his
Matching Account (and/or effective January 1, 1996, Retirement Savings
Account). The Participant's Matching Account (and/or effective January
1, 1996, Retirement Savings Account) then shall be subject to all of the
vesting rules in this Article VIII as if no Forfeitures or restrictions
had occurred.
ARTICLE IX
PAYMENT OF BENEFITS
9.1 Benefit Payments upon Separation from Service for Reasons Other than
Death.
(a) General Rule Concerning Benefits Payable. In accordance with
the terms of subsection (b) hereof and subject to the restrictions set
forth in subsections (c) and (d) hereof, if a Participant separates from
service with all Affiliates for any reason other than death, or if a
Participant becomes Disabled but remains an Employee of an Affiliate, he
(or his Beneficiary, if he dies after such separation from service)
shall be entitled to receive or begin receiving a distribution of the
entire vested amount credited to his Account.
Provided, however, that, effective January 1, 1996, the above
paragraph is deleted and replaced with the following:
Except as otherwise provided in Section 9.2 and in accordance
with the terms of subsection (b) hereof and subject to the restrictions
set forth in subsections (c) and (d) hereof, if a Participant separates
from service with all Affiliates for any reason other than death or
Disability, he (or his Beneficiary, if he dies after such separation
from service) shall be entitled to receive or begin receiving a
distribution of the entire vested amount credited to his Account.
The amount distributable shall be as follows:
(i) For an Account with a fair market value of $5,000
($3,500 for Plan Years beginning before January 1, 1998) or less,
determined as of the Distribution Valuation Date coincident with
or next following the date the Participant separates from service
or his Disability begins, the value of the Account as of that
Valuation Date; or
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(ii) For an Account with a fair market value in excess of
$5,000 ($3,500 for Plan Years beginning before January 1, 1998),
determined as of the Distribution Valuation Date coincident with
or next following the date on which the Participant separates
from service or his Disability begins, the value of the account
as of the Distribution Valuation Date coincident with or next
following the date as of which the Participant consents to
distribution.
In no event shall a Participant be entitled to interest, earnings or any other
investment proceeds for the period between the Valuation Date as of which the
amount of distribution is determined and the date payment of such distribution
is to be made or commenced.
(b) Timing of Distribution.
(1) Except as provided in subsections (b)(2), (b)(3) and
(d) hereof, benefits payable to a Participant under this section
shall be distributed, or shall commence to be distributed, as
soon as administratively feasible after such Participant becomes
Disabled or separates from service with all Affiliates.
(2) Notwithstanding the foregoing, in the event that (A)
the value of the vested amount of the Participant's Account
exceeds $5,000 ($3,500 for Plan Years beginning before January 1,
1998) and (B) the benefit distribution (or commencement) date
described in subsection (b)(1) hereof occurs or is to occur prior
to the Participant's Normal Retirement Age, benefits shall not be
distributed (or commence to be distributed) to such Participant
at the time set forth in subsection (b) (1) hereof without the
Participant's written consent on a form provided by the
Administrative Committee. If the Participant does not consent, in
writing, to the distribution (or commencement of distribution) of
his benefit at such time, his vested benefit shall be distributed
(or commence to be distributed) as soon as practicable after he
files a written election with the Administrative Committee
requesting such payment. If a Participant fails to file a written
election specifying the time of payment, his vested benefit shall
be distributed (or commence to be distributed) as soon as
administratively feasible after the end of the Plan Year in which
he attains Normal Retirement Age, but in no event later than the
60th day after the end of such Plan Year; provided, if the amount
of payment required to be made on such date cannot be ascertained
by such date, payment shall be made (or commence) no later than
60 days after the earliest date on which such payment can be
ascertained under the Plan.
(3) Notwithstanding anything in the Plan to the contrary,
in no event shall payment of a Participant's benefit commence (or
be made) later than 60 days after the end of the Plan Year which
includes the latest of (i) the date on which the Participant
attained Normal Retirement Age, (ii) the date which is the 10th
anniversary of the date he commenced participation in the Plan,
or (iii) the date he actually separates from service with all
Affiliates; provided, if the amount of the payment cannot be
ascertained by the date as of which payments are scheduled to
commence (or be made) hereunder, payment shall commence (or be
made) no later than 60 days after the earliest date on which such
payment can be ascertained
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under the Plan; and provided, further, the Participant's benefit
payments shall commence (or be made) no later than the April 1
following the later of the calendar year (i) in which the
Participant attains age 70 1/2, or (ii) in which the Participant
separates from service with all Affiliates. Notwithstanding the
foregoing sentence, with respect to any Participant who is a
"5-percent owner" (as defined in Section 416 of the Code),
distribution of such Participant's Account shall commence no
later than the April 1 of the Year following the Year in which
the Participant attains age 70-1/2. Furthermore, a Participant
who is not a 5-percent owner shall have the right to elect to
have benefit payments commence (or be made) on the April 1
following the calendar year in which the Participant attains age
70 1/2, without regard to whether he has actually separated from
service with all Affiliates prior to such date. All distributions
will be made in accordance with Code Section 401(a)(9), the
regulations promulgated under Code Section 401(a)(9), including
Treasury Regulation Section 1.401(a)(9)-2 (relating to incidental
benefit limitations) and any other provisions reflecting the
requirements of Code Section 401(a)(9) and prescribed by the
Internal Revenue Service; and the terms of the Plan reflecting
the requirements of Code Section 401(a)(9) override the
distribution options (if any) in the Plan which are inconsistent
with those requirements.
(4) Written consent by a Participant for purposes of
subsection (2) shall be made only after a Participant has been
informed of his right to defer receipt of his distribution,
subject to subsection (3), and has been provided with a general
description of the material features and relative values of the
optional forms of benefit, if any, available. Such information
and description shall be provided no less than 30 days and no
more than 90 days before the Valuation Date for the distribution
to the Participant. If a distribution is one to which sections
401(a)(11) and 417 of the Internal Revenue Code do not apply,
such distribution may commence less than 30 days after the notice
required under section 1.411(a)-11(c) 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 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.
(c) Restrictions on Distributions from Before Tax and Qualified
Accounts. Notwithstanding anything in the Plan to the contrary, amounts
in a Participant's Before Tax and Qualified Accounts shall not be
distributable to such Participant or, if applicable, his Beneficiary,
earlier than the earliest of the following to occur:
(1) The Participant's death, Disability or separation from
service with all Affiliates;
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(2) The termination of the Plan without the establishment
or maintenance of a successor defined contribution plan [other
than an employee stock ownership plan as defined in Code Section
4975(e)] at the time the Plan is terminated or within the period
ending 12 months after the final distribution of all assets in
all Before Tax and Qualified Accounts described above in this
subsection (c); provided, that if fewer than 2 percent of the
Employees who are or were eligible under the Plan at the time of
its termination are or were eligible under another defined
contribution plan at any time during the 24 month period
beginning 12 months before the time of termination, such other
plan shall not be a successor plan.
(3) The date of disposition by the Controlling Company of
substantially all of its assets [within the meaning of Code
Section 409 (d) (2)] that were used by the Controlling Company in
a trade or business; provided, such Participant continues
employment with the corporation acquiring such assets. For a sale
of "substantially all" of the assets used in a trade or business
to have occurred, at least 85 percent of such assets must have
been sold;
(4) The date of disposition by the Controlling Company of
its interest in a subsidiary [within the meaning of Code Section
409(d)(3)1; provided, such Participant continues employment with
such subsidiary;
(5) The attainment by such Participant of age 59 1/2; or
(6) The Participant's incurrence of a financial hardship,
as described in Section 10.5.
provided, for an event described in subsections (c) (2), (c) (3) or (c) (4)
hereof to constitute events permitting a distribution from the Before Tax and
Qualified Accounts, such distribution must be made on account of such event in
the form of a lump sum distribution, as defined in code Section 402(e) (4)
(without regard to clauses (i), (ii), (iii) and (iv) of subparagraphs (A), (B)
and (H) thereof); and provided, further, for the events described in subsections
(c)(3) or (c)(4) hereof to constitute events permitting such a distribution, the
Controlling Company must maintain the Plan after the disposition.
9.2 Death and Disability Benefits.
(a) Prior to Benefit Commencement Date. If a Participant dies
before payment of his benefits from the Plan is made or commenced, the
Beneficiary or Beneficiaries designated by such Participant in his
latest beneficiary designation form filed with the Administrative
Committee in accordance with the terms of Section 9.4 shall be entitled
to receive a distribution of the total of (i) the entire vested amount
credited to such Participant's Account, determined as of the Valuation
Date coincident with or immediately preceding the date payment of such
distribution is to be made or commenced, plus (ii) any Contributions
made on such Participant's behalf since such Valuation Date. For
purposes of this subsection, the "date payment of such distribution is
to be made or commenced" refers to the date established for such purpose
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by administrative practice, even if actual payment is made or commenced
at a later date due to delays in the valuation, administrative or any
other procedure. Benefits shall be distributed, or shall commence to be
distributed, to such Beneficiary or Beneficiaries within 90 days after
the date of the Participant's death if it is administratively feasible
to make or commence such distribution within such 90-day period; if not,
as soon as administratively feasible thereafter within any reasonable
period. Notwithstanding the foregoing, if the amount of payment required
to be made on such date cannot be ascertained by such date, payment
shall be made no later than 60 days after the earliest date on which
such payment can be ascertained under the Plan. The Administrative
Committee may direct the Trustee to distribute a Participant's Account
to a Beneficiary without the written consent of such Beneficiary.
(b) After Benefit Commencement Date. If a Participant dies after
payment of his vested benefits from the Plan has begun but before his
entire vested benefit is distributed, the remainder of his benefits
shall be paid to his Beneficiary pursuant to a method selected by the
Beneficiary in accordance with the terms of Section 9.3.
(c) Disability. Effective January 1, 1996, a Participant who
becomes Disabled shall be entitled to receive or begin receiving a
distribution of the entire amount credited to his Account, subject to
the provisions of Section 9.1 and except as follows:
(i) A Disabled Participant may elect to receive a
distribution of his Account other than his Retirement Savings
Account, if any, at any time prior to his attainment of Normal
Retirement Age and after his becoming Disabled. If a Disabled
Participant elects to receive a distribution of his Retirement
Savings Account, he must elect distribution of his entire
Account.
(ii) A Disabled Participant's election to receive a
distribution of his entire Account (including his Retirement
Savings Account), or his entire Retirement Savings Account prior
to Normal Retirement Age shall be deemed to be a separation from
service on account of Disability and he shall no longer be
considered to be Disabled for purposes of this Plan.
(iii) Upon attainment his Normal Retirement Age, or
ceasing to receive benefits under the Del Monte Long Term
Disability Plan, if later, a Disabled Participant shall Retire
and receive a distribution of his Account.
9.3 Form of Distribution.
(a) Method of Payment. Except as provided otherwise in subsection
(b) below, the method pursuant to which a Participant's or Beneficiary's
benefits under the Plan are distributed shall generally be a single sum
payment in cash; provided, in the event (i) the terms of subsection (c)
hereof do not apply; (ii) the payment is on account of (A) the
Participant's termination of employment upon or after attainment of the
earliest retirement age under a defined benefit plan sponsored by an
Affiliate in which the Participant participates or (B) his Disability;
and (iii) the Participant had an account in the
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RJR Plan on September 30, 1988, all or any part of which was transferred
to, and is held in the Plan, the method of distribution shall be
determined as follows:
(1) The payment of any distribution to a Participant or
his Beneficiary from the Plan shall be in the form selected by
the Participant or his Beneficiary, by written notice delivered
to the Administrative Committee, all in accordance with the terms
of this subsection (a)(1) and subsections (a)(2) - (a)(8) hereof.
The Participant or Beneficiary may choose between (A) a single
sum payment and (B) equal cash installments (adjusted for
investment earnings and losses between payments), paid monthly,
over a term certain; and, effective January 1, 1996, once made,
an election may not be changed except under Section
9.3(a)(3)(ii).
(2) If a Participant designates more than one Beneficiary
to receive payment of his benefit upon his death, the Participant
(and his Beneficiaries) shall be deemed to have selected a single
sum payment as the form of benefit distribution.
(3) (i) If a Participant selects payment in the form of
installments over a period certain, the maximum length thereof
shall be the shorter of 15 years or the joint life expectancy of
such Participant and his designated Beneficiary. The initial
value of the obligation for the installment payments shall be
equal to the vested amount of the Participant's Account balance
on the day payments are scheduled to commence. Notwithstanding
anything in the Plan to the contrary, the amount of each monthly
installment payment must equal or exceed the minimum amount of
$200. If the monthly installment amounts do not meet the minimum
amount, the Participant may elect to receive monthly installments
over a shorter period (to the extent the minimum is met) or to
receive his Account balance in a lump sum payment.
Notwithstanding anything herein to the contrary, distributions
from the Plan must satisfy the requirements of Code Section
401(a)(9)(G). This means that the incidental benefit rules as
described in Treasury Regulation Section 1.401(a)(9)-2 shall be
satisfied.
(ii) The Administrative Committee may accelerate
the payment of any installment or installments if it
determines that the Participant incurs an immediate and
heavy financial need. The Administrative Committee shall
make such a determination based on the criteria and
circumstances set forth in Section 10.5.
(4) If a Participant dies before payment of his benefits
from the Plan is made or commenced, he has elected payment in the
form of installments over a term certain and his Beneficiary is
an individual, the maximum length of the term certain shall be
the shorter of 15 years or the life expectancy of such
Beneficiary, and if the Beneficiary is not an individual (for
example, an estate or trust), the maximum length of the term
certain shall be 15 years.
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(5) If a Participant dies after payment of his benefits
from the Plan has begun but before his entire benefit has been
distributed, his Beneficiary may elect to receive the remainder
of the deceased Participant's Account in the form of a single sum
payment or to continue to receive the same installment payments
which would have been paid to the deceased Participant if he had
survived.
(6) If a Beneficiary who has begun receiving installment
payments pursuant to the terms of this subsection dies prior to
the full payment thereof, the remaining vested amount of the
Account balance shall be distributed to the estate of such
Beneficiary in a single, lump-sum payment.
(7) If a distribution is to be made to a Participant
and/or his Spouse Beneficiary in the form of installments payable
over the life expectancy or joint life expectancy of such
persons, the life expectancy or joint life expectancy, as
applicable, of such persons shall be calculated at the time
distributions commence and shall not thereafter be recalculated.
(8) Effective January 1, 1996, if a distribution of a
Disabled Participant's Account excluding his Retirement Savings
Account is to be made in the form of installments under this
section, any later distribution of his Retirement Savings Account
shall be an independent, separate distribution that shall not
affect the form, amount or duration of the installments elected.
(b) Del Monte Common Stock. Any distribution from such portion of
a Participant's Account as is invested in the Del Monte Common Stock
Fund as of the Valuation Date shall be made in the form of a single lump
sum payment, as elected by the distributee, in-
(1) Such whole number of shares of Del Monte Common Stock
as is equivalent to the full value of the units of the Del Monte
Common Stock Fund then credited to such portion of the Account;
or
(2) Cash (or its equivalent) equal to the full value of
the units of the Del Monte Common Stock then credited to such
portion of the Account.
If shares of Del Monte Common Stock are to be distributed, only full
shares shall be distributed and cash (or its equivalent) shall be
distributed in lieu of any fractional share.
(c) Mandatory Cash-Out. If the total vested amount of a
Participant's Account balance is less than or equal to $5,000 ($3,500
for Plan Years beginning before January 1, 1998) at the time the
distribution of such Account commences, payment of the vested amount of
such Account shall be made in the form of a single sum cash payment,
without the consent of the Participant or Beneficiary.
(d) Assets Distributed. Any lump sum distribution to a
Participant or his Beneficiary or Beneficiaries generally shall be made
in the form of cash, except as otherwise provided under Section 4.3. The
Administrative Committee may from time to time establish certain
policies with respect to the reporting for tax purposes, of
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distributions including, without limitation, the allocation of a
Participant's subaccounts under Section 5.1 among the investment funds
under Section 7.2 other than a proration basis.
(e) Effective for lump sum distributions made on or after January
1, 1993, a Participant who is otherwise entitled to receive a lump sum
distribution under the terms of the Plan shall be entitled to direct the
Trustee to make a trustee-to-trustee transfer of such distribution if
the distribution is eligible to be rolled over under Code Section
401(a)(31), to another qualified retirement plan or individual
retirement arrangement as specified by the Participant in writing on a
form provided by the Plan Administrator.
9.4 Beneficiary Designation.
(a) General. Participants shall designate and from time to time
may redesignate their Beneficiary or Beneficiaries in such form and
manner as the Administrative Committee may determine. A Participant
shall be deemed to have named his Spouse, if any, as his sole
Beneficiary unless his Spouse consents to the payment of all or a
specified portion of the Participant's death benefit to a Beneficiary
other than or in addition to the Spouse in a manner satisfying the
requirements of a Qualified Spousal Waiver and such other procedures as
the Administrative Committee may establish. Notwithstanding the
foregoing, a married Participant may designate a nonspouse Beneficiary
without a Qualified Spousal Waiver if the Participant establishes to the
satisfaction of the Administrative Committee that a Qualified Spousal
Waiver may not be obtained because his Spouse cannot be located or such
other permissible circumstances exist as the Secretary of the Treasury
may prescribe by regulation. If any Participant dies prior to receiving
his benefits under the Plan, his Account shall be changed to the name of
such deceased Participant's named or deemed Beneficiary or
Beneficiaries.
(b) No Designation or Designee Dead or Missing. In the event
that:
(i) a Participant dies without designating a Beneficiary;
(ii) the Beneficiary designated by a Participant is not
surviving when a payment is to be made to such person under the
Plan, and no contingent Beneficiary has been designated; or
(iii) the Beneficiary designated by a Participant cannot
be located by the Administrative Committee within 1 year from the
date benefits are to commence to such person;
then, in any of such events, the Beneficiary of such Participant with respect to
any benefits that remain payable under the Plan shall be the Participant's
Surviving Spouse, if any, and if not, then the estate of the Participant.
9.5 Qualified Domestic Relations Orders. In the event the Administrative
Committee receives a domestic relations order which it determines to be a
qualified domestic relations order [see Section 16.1], the Plan shall pay such
benefit to the prescribed alternate payee(s) at such time and in such form, as
shall be described in the qualified domestic relations order and permitted under
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Section 16.1. If the qualified domestic relations order requires immediate
payment, the specified benefit shall be paid to the alternate payee as soon as
administratively feasible following the determination by the Administrative
Committee that the order is qualified. The amount of the payment to an alternate
payee shall not include earnings, interest or any other form of investment
proceeds for the period between the Valuation Date as of which the amount of
distribution is determined and the date payment of that distribution is made. If
a Participant's Account is partially paid or payable to an alternate payee, the
Participant's remaining portion of his Account shall be reduced accordingly and
shall be subject to the distribution provisions in this Article IX.
9.6 Unclaimed Benefits. In the event a Participant becomes entitled to
benefits under the Plan other than death benefits and the Administrative
Committee is unable to locate such Participant (after sending a letter, return
receipt requested, to the Participant's last known address, and after such
further diligent efforts as the Administrative Committee in its sole discretion
deems appropriate) within 1 year from the date upon which he becomes so
entitled, the Administrative Committee shall direct that such benefits be paid
to the Beneficiary of such Participant; provided, if the distribution is payable
upon the termination of the Plan, the Administrative Committee shall not be
required to wait until the end of such 1-year period. If the Participant and the
Beneficiary cannot be located and fail to claim such benefits by the end of the
5th Plan Year following the Plan Year in which such Participant becomes entitled
to such benefits, then the full Account of the Participant shall be deemed
abandoned and treated as a Forfeiture; provided, in the event such Participant
or Beneficiary is located or makes a claim subsequent to the allocation of the
abandoned Account but prior to the expiration of the time within which any such
persons claim to the Account would expire under appropriate state law, then the
amount of the Forfeiture for such abandoned Account (unadjusted for any
investment gains or losses from the time of abandonment) shall be restored (from
Forfeitures, Trust earnings or Contributions made by the Participating Company
or Companies with whom the Participant formerly was employed) and paid to such
Participant or Beneficiary, as appropriate; and, provided, further, the
Administrative Committee, in its sole discretion, may delay the date of
Forfeiture of any such abandoned Account for a period longer than the prescribed
5 Plan Years if it believes that it is in the best interest of the Plan to do
so. Effective December 1, 1995, notwithstanding the foregoing, if neither a
former Participant nor his Beneficiary whose sole interest in the Plan is in the
Special Settlement Fund established under Section 7.2(e) can be located within
18 months after the creation of the Special Settlement Fund, the full Account of
such Participant or his Beneficiary shall be deemed abandoned and treated as a
Forfeiture, subject to the foregoing rules for restoration of the Account.
9.7 Explanation of Certain Rollover Distributions. The Administrative
Committee shall furnish recipients of qualifying rollover distributions a
written explanation of the provisions under which such distributions will not be
subject to tax if transferred to an eligible retirement plan within 60 days
after the date on which the recipient received the distribution and, if
applicable, of the provisions concerning taxation of lump sum distributions
pursuant to Code Sections 402(a)(2) and (e). For purposes of the preceding
sentence, "qualifying rollover distribution" and "eligible retirement plan"
shall have the respective meanings given those terms by Code Section
402(a)(5)(E).
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ARTICLE X
WITHDRAWALS WHILE EMPLOYED BY AN AFFILIATE
10.1 General Rules for All Withdrawals.
(a) Ability to Withdraw. Subject to the rules, requirements and
restrictions set forth in this Article X, a Participant may withdraw all
or a part of his Account balance (effective January 1, 1996, other than
his Retirement Savings Account, if any) but only to the extent not
pledged as security for a loan pursuant to Section 10.6, while he is an
employee of an Affiliate. This right to receive a withdrawal from the
Plan ceases as of the date the Participant separates from service with
all Affiliates. Notwithstanding the foregoing, the right of a
Participant who is an Affected Employee, as defined under the terms of
the Purchase Agreement between the Controlling Company and Silgan
Containers Corporation ("Silgan") dated September 3, 1993 (the "Purchase
Agreement"), to receive a withdrawal from the Plan shall continue from
the Closing Date under the Purchase Agreement until the assets and
liabilities with respect to such Participant are transferred to a
successor plan maintained by Silgan or an affiliate of Silgan in
accordance with the terms of the Purchase Agreement.
(b) Election to Withdraw. To request a withdrawal from the Plan,
a Participant must submit to the Administrative Committee a written
election indicating that the Participant desires to make a withdrawal
from his Account. The Administrative Committee may impose such
provisions and request such information as the Administrative Committee
deems necessary or helpful in regard to the operation of the Plan.
(c) Minimum Amount of Withdrawals. The minimum amount which a
Participant may withdraw shall be the lesser of $500 or such
Participant's Account balance (determined as of the applicable
Withdrawal Valuation Date) which is available to be withdrawn.
(d) Frequency of Withdrawals. A Participant may receive only one
withdrawal in any 6-month period; provided, a Participant who has
received a withdrawal within a 6-month period may receive one or more
additional withdrawals during that 6-month period if such additional
withdrawals are on account of hardship as described in Section 10.5. The
6-month withdrawal prohibition period relating to a withdrawal shall
begin as of the applicable Withdrawal Valuation Date.
(e) Payment of Withdrawal. The amount of a withdrawal shall be
paid to a Participant in a single sum in cash as soon as practicable
after the Valuation Date for the withdrawal.
(f) Source of Withdrawals. The withdrawal amount shall be
withdrawn from the Investment Funds in which such amount currently is
invested on a pro rata basis. Any such withdrawal shall be charged
against a Participant's Account (effective January
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1, 1996, excluding any Retirement Savings Account, if any) as of the
applicable Withdrawal Valuation Date.
10.2 Withdrawals Before Age 59 1/2 or Disability. When a Participant who
is an employee of an Affiliate makes a written election for a withdrawal, if
such Participant will not have attained age 59 1/2 or become Disabled by the
applicable Withdrawal Valuation Date, and such Participant is not making a
hardship withdrawal pursuant to the terms of Section 10.4, the withdrawal
amounts shall be withdrawn from such Participant's Account (determined as of the
applicable Withdrawal Valuation Date and exclusive of his Before Tax Account
and/or Retirement Savings Account, if any) in such order and subject to such
rules, requirements and restrictions, as are set forth below in this section.
The entire amount described in each subsection hereof must be exhausted before
any withdrawal amount shall be charged against an amount described in a
succeeding subsection hereof.
(a) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Plan as of December 31, 1986 reduced by
any prior withdrawals of After Tax Contributions from the RJR Plan or
this Plan.
(b) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's After Tax Account which is comprised of
After Tax Contributions (and all investment earnings on any After-Tax
Contributions).
(c) The withdrawal amount next shall be withdrawn from such
Participant's Rollover Account.
(d) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Matching Account which is comprised of
Matching Contributions which have been allocated to such Matching
Account for at least 24 calendar months, plus all investment earnings in
such Matching Account (whether or not attributable to the Matching
Contributions withdrawn).
(e) If a Participant has completed, on a cumulative basis, 60
months of participation in the Plan (taking into account months of
participation under the RJR Plan as if they occurred in the Plan), while
employed by an Affiliate, such Participant's withdrawal amount next
shall be withdrawn from the remainder of such Participant's Matching
Account (which shall consist of Matching Contributions allocated to the
Matching Account for less than 24 calendar months). If any amount of a
withdrawal is charged against this portion of such Participant's Account
pursuant to the terms of this subsection, the Matching Contribution
suspension described in Section 10.4 shall apply.
10.3 Withdrawals After Age 59 1/2 or Disability. When a Participant who
is an employee of an Affiliate makes a written election for a withdrawal, if
such Participant will not have attained age 59 1/2 or become Disabled by the
applicable Withdrawal Valuation Date, and such Participant is not making a
hardship withdrawal pursuant to the terms of Section 10.5, the withdrawal
amounts shall be withdrawn from such Participant's Account (determined as of the
applicable Withdrawal Valuation Date and exclusive of his Retirement Savings
Account, if any) in such order and subject to such rules, requirements and
restrictions, as are set forth below in
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this section. The entire amount described in each subsection hereof must be
exhausted before any withdrawal amount shall be charged against an amount
described in a succeeding subsection hereof.
(a) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Plan as of December 31, 1986 reduced by
any prior withdrawals of After Tax Contributions from the RJR Plan or
this Plan.
(b) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's After Tax Account which is comprised of
After Tax Contributions which have been allocated to such After Tax
Account (and all investment earnings on any After Tax Contributions).
(c) The withdrawal amount next shall be withdrawn from such
Participant's Rollover Account.
(d) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Matching Account which is comprised of
Matching Contributions which have been allocated to such Matching
Account for at least 24 calendar months, plus all investment earnings in
such Matching Account (whether or not attributable to the Matching
Contributions withdrawn).
(e) If a Participant has completed, on a cumulative basis, 60
months of participation in the Plan (taking into account months of
participation under the RJR Plan as if they occurred in the Plan), while
employed by an Affiliate, such Participant's withdrawal amount next
shall be withdrawn from the remainder of such Participant's Matching
Account (which shall consist of Matching Contributions allocated to the
Matching Account for less than 24 calendar months). If any amount of a
withdrawal is charged against this portion of such Participant's Account
pursuant to the terms of this section, the Matching Contribution
suspension described in Section 10.4 shall apply.
(f) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Before Tax Account, if any, which is
comprised of the sum of (i) the Before Tax Account balance (in the RJR
Plan) as of December 31, 1988, and (ii) Before Tax Contributions made
after said date reduced by any prior withdrawals from the Before Tax
Account. If any amount of a withdrawal is charged against this portion
of such Participant's Account pursuant to the terms of this subsection,
the Matching Contribution suspension described in Section 10.4 shall
apply.
(g) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's Before Tax Account, if any, (which shall
consist of earnings on Before Tax Contributions after December 31,
1988). If any amount of a withdrawal is charged against this portion of
such Participant's Account pursuant to the terms of this subsection, the
Matching Contribution suspension described in Section 10.4 shall apply.
10.4 Matching Contribution Suspension. If any withdrawal is made by a
Participant from the amounts described in, and pursuant to the terms of, Section
10.2(e), Section 10.3(e), Section 10.3(f), or Section 10.3(g), such
Participant's eligibility to receive Matching Contributions shall be suspended
for
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the 6-month period beginning on the first day of the month following the
applicable Withdrawal Valuation Date.
10.5 Hardship Withdrawal.
(a) General Requirements for Hardship. Subject to the terms and
conditions set forth in Section 10.1 and this section, a Participant who
is an employee of an Affiliate may make a withdrawal from his Account
(effective January 1, 1996, exclusive of his Retirement Savings Account,
if any) on account of hardship.
(b) Definition of "Hardship". A withdrawal will be on account of
"hardship" if it is necessary in light of an immediate and heavy
financial need of the Participant. A withdrawal based on financial
hardship cannot exceed the amount necessary to meet the immediate
financial need created by the hardship and not reasonably available from
other resources of the Participant. The Administrative Committee shall
make its determination as to whether a Participant has suffered an
immediate and heavy financial need and whether it is necessary to use a
hardship withdrawal from the Plan to satisfy that need on the basis of
all relevant facts and circumstances.
(c) Immediate and Heavy Financial Need. For purposes of the Plan,
an immediate and heavy financial need exists if the withdrawal is on
account of (A) medical expenses described in Code Section 213(d)
incurred by the Participant, his Spouse or dependents or necessary for
these persons to obtain such medical care, (B) the purchase (excluding
mortgage payments) of a principal residence for the Participant, (C) the
payment of tuition and related educational fees for the next twelve
months of post-secondary education for the Participant, his Spouse,
children or dependents, (D) the need to prevent eviction of the
Participant from his principal residence or foreclosure on the mortgage
of the Participant's principal residence, or (E) any other need or
occurrence which the Administrative Committee determines to be an
immediate and heavy financial need. The amount of an immediate and heavy
financial need may include any amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably anticipated to
result from the distribution.
(d) Necessary to Satisfy a Financial Need. In determining whether
the withdrawal is necessary to relieve the Participant's immediate and
heavy financial need, the Administrative Committee shall rely upon the
Participant's reasonable representation that the need cannot be
relieved: (A) through reimbursement or compensation by insurance or
otherwise; (B) by reasonable liquidation of the Participant's assets to
the extent that liquidation would not itself cause an immediate and
heavy financial need; (C) by cessation of Before or After Tax
Contributions to the Plan; or (D) by other distributions or nontaxable
(at the time of the loans) loans from plans maintained by all Affiliates
or by borrowing from commercial sources on reasonable commercial terms.
In determining the amount of a Participant's assets, the resources of
his spouse and minor dependents are considered to be reasonably
available to the Participant unless they are held for his child or
children under an irrevocable trust or under the Uniform Gifts to Minors
Act.
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(e) Ordering of Hardship Withdrawal. A Participant's hardship
withdrawal amounts shall be withdrawn from his Account (determined as of
the applicable Withdrawal Valuation Date and exclusive of his Retirement
Savings Account, if any) in such order and subject to such rules,
requirements and restrictions, as are set forth below in this
subsection. The entire amount described in each numbered clause hereof
must be exhausted before any withdrawal amount shall be charged against
an amount described in a succeeding clause hereof.
(i) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Plan as of December 31, 1986
reduced by any prior withdrawals or After Tax Contributions from
the RJR Plan or this Plan.
(ii) The withdrawal amount next shall be withdrawn from
the remainder of such Participant's After Tax Account which is
comprised of After Tax Contributions (and all investment earnings
on After Tax Contributions).
(iii) The withdrawal amount next shall be withdrawn from
such Participant's Rollover Account.
(iv) The withdrawal amount next shall be withdrawn from
the portion of such Participant's Matching Account which is
comprised of Matching Contributions which have been allocated to
such Matching Account for at least 24 calendar months, plus all
investment earnings in such Matching Account (whether or not
attributable to the Matching Contributions withdrawn).
(v) If a Participant has completed, on a cumulative basis,
60 months of participation in the Plan (taking into account
months of participation under the RJR Plan as if they occurred in
the Plan) while employed by an Affiliate, such Participant's
withdrawal amount next shall be withdrawn from the remainder of
such Participant's Matching Account (which shall consist of
Matching Contributions allocated to the Matching Account for less
than 24 calendar months).
(vi) The withdrawal amount next shall be withdrawn from
the portion of such Participant's Before Tax Account, if any,
which is comprised of the sum of (A) the Before Tax Account
balance (in the RJR Plan) as of December 31, 1988 and (B) Before
Tax Contributions made after said date, reduced by any prior
withdrawals from the Before Tax Account.
10.6 Loans to Participants.
(a) Grant of Authority. Loans to Participants and Beneficiaries,
who are "parties-in-interest" as defined in ERISA Section 3(14),
generally shall be allowed; provided, if the Administrative Committee
determines, in its sole discretion, that it is not administratively
feasible to make such loans during any period of time, no loans shall be
made during such period. Subject to the limitations set forth in this
section and to such uniform and nondiscriminatory rules as may from time
to time be adopted by the Administrative Committee and set forth in a
written loan policy statement which hereby
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is incorporated by reference, the Trustee may make a loan or loans to a
Participant or Beneficiary upon his proper application therefor.
Effective January 1, 1996, for purposes of this Section, a Participant's
vested Account, vested Account balance, and vested interest in the Plan
shall be exclusive of the Participant's Retirement Savings Account, if
any.
(b) Nondiscriminatory Policy. Loans shall be available to all
Participants and Beneficiaries on a reasonably equivalent basis, without
regard to an individual's race, color, religion age, sex or national
origin; provided, the Administrative Committee may provide for different
treatment of Participants who are active employees of Affiliates and
Participants and Beneficiaries who are not, as long as that different
treatment based on valid economic differences which may exist between
these two groups and which commercial lenders in the business of making
similar types of loans legally recognize for purposes of loan
availability. Loans shall not be made available to borrowers who are
Highly Compensated Employees in an amount greater than the amount
available to other borrowers; provided, this limitation shall be
interpreted to mean that, subject to the other limitations in this
section, the same percentage of each Participant's and Beneficiary's
vested Account balance may be loaned to each such borrower regardless of
the actual amount of his vested Account balance.
(c) Minimum Loan Amount. The minimum amount of any loan shall be
$1,000.
(d) Maximum Loan Amount. No Participant or Beneficiary may have
more than one loan outstanding at any time. In addition, no loan may be
made to any Participant or Beneficiary from the Plan if the amount of
such loan exceeds the lesser of:
(1) $50,000 minus the highest aggregate principal balance,
outstanding during the year ending on the day before such loan is
made, of all loans made to the Participant or Beneficiary by the
qualified employer plans [as defined in Code Section 72(p)(4)(A)]
maintained by the Affiliates; or
(2) 50 percent of the Participant's or Beneficiary's total
vested interest in the Plan and all other qualified employer
plans maintained by the Affiliates, minus the total amount of
loans outstanding on the date the loan is made from all qualified
employer plans maintained by the Affiliates.
Notwithstanding anything herein to the contrary, in no event shall the
amount of a loan made to a Participant or Beneficiary exceed 50 percent
of such Participant's or Beneficiary's vested Account balance
immediately after application for the loan.
(e) Maximum Loan Term. The terms of any loan made to a
Participant or Beneficiary from the Plan shall require that the full
amount of the loan be repaid within the 5-year period commencing on the
date the loan is made, and in no event shall the repayment period of the
loan subsequently be extended beyond such 5-year period. The Trustee
shall make a diligent effort to collect the full amount of the loan
within this specified repayment period and shall inform the borrower
that, in the event the loan is not
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fully repaid within the 5-year period, the borrower will be treated as
having received a taxable distribution from the Plan.
(f) Terms of Repayment. All loans shall be subject to a definite
repayment schedule which requires substantially level amortization over
the term of the loan with payments to be made not less frequently than
monthly. Unless the Administrative Committee provides for different
methods in its written loan policy statement, payments shall be made by
Participants who are employees of Affiliates on a payroll deduction
basis, and payments from other borrowers shall be made by check or money
order.
(g) Adequacy of Security. All loans to Participants and
Beneficiaries shall be secured by the pledge of a dollar amount of the
borrower's Account balance (i) which is not less than the principal
amount of the loan and (ii) which in no event is greater than 50 percent
of the Participant's or Beneficiary's vested Account immediately after
application for the loan. Notwithstanding anything herein to the
contrary, the pledge of such security shall be made in such manner and
amount as the Administrative Committee, pursuant to its written loan
policy statement, may require for the loan to be considered adequately
secured. A loan will be considered to be "adequately secured" if the
security posted for such loan is in addition to and supporting a promise
to pay, if it is pledged in a manner such that it may be sold,
foreclosed upon, or otherwise disposed of upon default of repayment of
the loan, and if the value and liquidity of that security is such that
it may reasonably be anticipated that loss of principal or interest will
not result from the loan. The adequacy of such security will be
determined in light of the type and amount of security which would be
required in the case of an otherwise identical transaction in a normal
commercial setting between unrelated parties on arm's-length terms.
(h) Distributions. If a Participant or Beneficiary who has an
outstanding loan separates from service with all Affiliates, becomes
Disabled or retires and elects to receive or begin to receive (or
otherwise is to receive) an immediate distribution of his Account, he
may repay in full his outstanding loan balance. If the outstanding loan
balance is not repaid in full, it will be subtracted from his Account
prior to distribution.
(i) Rate of Interest. All loans must bear a reasonable rate of
interest. A loan will be considered to bear "a reasonable rate of
interest" if such loan provides the Plan with a return commensurate with
interest rates charged by persons in the business of lending money for
loans which would be made under similar circumstances, The loan policy
statement will contain the method and timing for establishing the
appropriate loan interest rates.
(j) Source of Loan Amounts. The proceeds of a loan shall be
charged against the subaccounts of a Participant's or Beneficiary's
Account under Section 5.1 (effective January 1, 1996, exclusive of his
Retirement Savings Account, if any) in the same proportion as the
balance of each such subaccount bears to the total balance of his entire
Account; provided, that proceeds of a loan shall not be charged against
subaccounts containing assets that are not available for distribution
from the Plan if the Participant were to separate from service nor will
it include any assets that cannot otherwise be distributed, withdrawn or
borrowed because of restrictions placed on the Plan subaccounts or
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investment accounts by law, by a governmental agency or court, or by the
Administrative or Investment Committee on a basis applicable to all
similarly situated Participants. In addition, the proceeds of a loan
will be charged against each of the Participant's or Beneficiary's
Investment Funds as required by the loan policy statement.
(k) Crediting Loan Payments. The loan shall be considered a
directed investment of the Participant's or Beneficiary's Account and
any principal and interest paid on the loan shall be considered a part
of his total Account. Each payment of principal and interest shall be
credited to the Participant's or Beneficiary's subaccounts under Section
5.1 (effective January 1, 1996, exclusive of his Retirement Savings
Account, if any) in the same proportion as the loan proceeds were
withdrawn against such subaccounts under subsection (j) hereof. Each
payment of principal and interest shall be credited among the Investment
Funds as recruited by the loan policy statement.
(l) Remedies in the Event of Default.
(1) If any loan payments are not paid as and when due, the
loan will be in default. The Administrative Committee may take
such actions, as it deems appropriate in accordance with its
written loan policy statement, to allow the borrower to cure such
default or to otherwise collect such overdue payments or, as the
case may be, the outstanding balance of the loan. Among other
things, the Administrative Committee's actions may include
causing an in-service withdrawal on behalf of the borrower in the
amount necessary to remedy a default pursuant to the Plan's
in-service withdrawal rules in Sections 10.2 and 10.3 of the
Plan.
(2) The Administrative Committee actions may also include
using all or any portion of the Participant's or Beneficiary's
Account which has been pledged to secure the loan to repay such
loan; provided, although the Administrative Committee may treat
any portion of the loan balance that remains outstanding after a
default as taxable income to the Participant or Beneficiary in
accordance with the terms of Code Section 72(p), no portion of
such outstanding loan balance may be treated as a reduction of a
Participant's or Beneficiary's Account balance until the
Participant or Beneficiary incurs an event (such as death,
disability or separation from service) which will permit a
distribution to be made to the Participant or Beneficiary in
accordance with Section 9.1 of the Plan.
(3) In the event that the Administrative Committee does
not take all or any of these actions, it will not be regarded as
a waiver of the Administrative Committee's legal right to do so
at any future date.
(m) Veteran's Reemployment. Effective December 12, 1994, with
respect to any employee performing service in the uniformed service (as
defined in Chapter 43 of Title 38, United States Code), loan repayments
will be suspended under this Plan as permitted by Section 414(u)(4) of
the Code.
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ARTICLE XI
CLAIMS
11.1 Claims Procedure. Claims for benefits under the Plan may be filed
with the Administrative Committee on forms supplied by the Administrative
Committee. The Administrative Committee shall furnish to the claimant written
notice of the disposition of a claim within 90 days after the application
therefor is filed; provided, if special circumstances require an extension of
time for processing the claim, the Administrative Committee shall furnish
written notice of the extension to the claimant prior to the termination of the
initial 90-day period, and such extension shall not exceed one additional,
consecutive 90-day period. In the event the claim is denied, the notice of the
disposition of the claim shall provide the specific reasons for the denial,
cites of the pertinent provisions of the Plan, and, where appropriate, an
explanation as to how the claimant can perfect the claim and/or submit the claim
for review.
11.2 Review Procedure. Any Participant or Beneficiary who has been
denied a benefit, or his duly authorized representative, shall be entitled, upon
request to the Administrative Committee, to appeal the denial of his claim. To
do so, the claimant must submit a written request to the Administrative
Committee for further consideration of his position. The claimant, or his duly
authorized representative, may review pertinent documents related to the Plan
and in the Administrative Committee's possession in order to prepare the appeal.
The form containing the request for review, together with a written statement of
the claimant's position, must be filed with the Administrative Committee no
later than 60 days after receipt of the written notification of denial of a
claim provided for in subsection (a). The Administrative Committee's decision
shall be made within 120 days following the filing of the request for review and
shall be communicated in writing to the claimant. If unfavorable, the notice of
decision shall explain the reason or reasons for denial and indicate the
provisions of the Plan or other documents used to arrive at the decision.
11.3 Satisfaction of Claims. Any payment to a Participant or Beneficiary
or to their legal representative or heirs at law, all in accordance with the
provisions of the Plan, shall to the extent thereof be in full satisfaction of
all claims hereunder against the Trustee, the Administrative Committee and the
Controlling Company, any of whom may require such Participant, Beneficiary,
legal representative or heirs at law, as a condition to such payment, to execute
a receipt and release therefor in such form as shall be determined by the
Trustee, the Administrative Committee or the Controlling Company, as the case
may be. If receipt and release shall be required but execution by such
Participant, Beneficiary, legal representative or heirs at law shall not be
accomplished so that the terms of Section 9.1(b), Section 9.2 and Section 9.3
(dealing with the timing of distributions) may be fulfilled, such benefits may
be distributed or paid into any appropriate court or to such other place as such
court shall direct, for disposition in accordance with the order of such court,
and such distribution shall be deemed to comply with the requirements of Section
9.1(b), Section 9.2 and Section 9.3.
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ARTICLE XII
ADMINISTRATION
12.1 Administrative Committee; Appointment and Term of Office.
(a) The Administrative Committee shall consist of not less than
three members who shall be appointed by and serve at the pleasure of the
Board.
(b) The Board shall have the right to remove any member of the
Administrative Committee at any time. A member may resign at any time by
written resignation to the Board. If a vacancy in the Administrative
Committee should occur, a successor may be appointed by the Board.
(c) A written certification shall be given to the Trustee by the
Board of all members of the Administrative Committee together with a
specimen signature of each member. For all purposes hereunder, the
Trustee shall be conclusively entitled to rely upon such certification
until the Trustee is otherwise notified in writing.
12.2 Organization of Administrative Committee. The Administrative
Committee may elect a Chairman and a Secretary from among its members. In
addition to those powers set forth elsewhere in the Plan, the Administrative
Committee may appoint such agents, who need not be members of such
Administrative Committee, as it may deem necessary for the effective performance
of its duties and may delegate to such agents such powers and duties, whether
ministerial or interpretive, as the Administrative Committee may deem expedient
or appropriate. The compensation of such agents who are not full-time Employees
of a Participating Company shall be fixed by the Administrative Committee within
limits set by the Board and shall be paid by the Controlling Company (to be
divided equitably among the Participating Companies) or from the Trust Fund as
determined by the Administrative Committee. The Administrative Committee shall
act by majority vote. Its members shall serve as such without compensation.
12.3 Powers and Responsibility. The Administrative Committee shall
fulfill the duties of "administrator" as set forth in Section 3(16) of ERISA and
shall have complete control of the administration of the Plan hereunder, with
all powers necessary to enable it properly to carry out its duties as set forth
in the Plan and the Trust Agreement. The Administrative Committee shall have the
following duties and responsibilities, without limiting such duties and
responsibilities under Section 3(16) of ERISA:
(a) to construe the Plan and to determine all questions that
shall arise thereunder;
(b) to have all powers elsewhere herein conferred upon it;
(c) to decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan;
(d) to determine the benefits of the Plan to which any
Participant or Beneficiary may be entitled;
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(e) to maintain and retain records relating to Participants and
Beneficiaries;
(f) to prepare and furnish to Participants all information
required under federal law or provisions of the Plan to be furnished to
them;
(g) to prepare and furnish to the Trustee and/or recordkeeper
sufficient employee data and the amount of Contributions received from
all sources so that the Trustee and/or recordkeeper may maintain
separate accounts for Participants and Beneficiaries and make required
payments of benefits;
(h) to prepare and file or publish with the Secretary of Labor,
the Secretary of the Treasury, their delegates and all other appropriate
government officials all reports and other information required under
law to be so filed or published;
(i) to provide directions to the Trustee with respect to methods
of benefit payment, valuations at dates other than the monthly Valuation
Date and all other matters where called for in the Plan or requested by
the Trustee;
(j) to engage assistants and professional advisers;
(k) to arrange for fiduciary bonding;
(l) to provide procedures for determination of claims for
benefits; and
(m) to delegate any specific duty or responsibility to officers
or Employees of a Participating Company or to any other person who shall
serve at the direction and pleasure of the Administrative Committee;
all as further set forth herein.
12.4 Records of Administrative Committee.
(a) Any notice, direction, order, request, certification or
instruction of the Administrative Committee to the Trustee shall be in
writing and shall be signed by a member of the Administrative Committee.
The Trustee and every other person shall be entitled to rely
conclusively upon any and all such notices, directions, orders,
requests, certifications and instructions received from the
Administrative Committee and reasonably believed to be properly
executed, and shall act and be fully protected in acting in accordance
therewith.
(b) All acts and determinations of the Administrative Committee
shall be duly recorded by its Secretary or under his supervision, and
all such records (including records necessary to demonstrate compliance
with the nondiscrimination requirements of the Code), together with such
other documents as may be necessary for the administration of the Plan,
shall be preserved in the custody of such Secretary.
12.5 Reporting and Disclosure. The Administrative Committee shall keep
all individual and group records relating to Participants and Beneficiaries and
all other records
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necessary for the proper operation of the Plan. Such records shall be made
available to the Participating Companies and to each Participant and Beneficiary
for examination during normal business hours except that a Participant or
Beneficiary shall examine only such records as pertain exclusively to the
examining Participant or Beneficiary and the Plan and Trust Agreement. The
Administrative Committee shall prepare and shall file as required by law or
regulation all reports, forms, documents and other items required by ERISA, the
Code and every other relevant statute, each as amended, and all regulations
thereunder. This provision shall not be construed as imposing upon the
Administrative Committee the responsibility or authority for the preparation,
preservation, publication or filing of any document required to be prepared,
preserved or filed by the Trustee or by any other Named Fiduciary to whom such
responsibilities are delegated by law or by the Plan.
12.6 Construction of the Plan. The Administrative Committee shall take
such steps as are considered necessary and appropriate to remedy any inequity
that results from incorrect information received or communicated in good faith
or as the consequence of an administrative error. The Administrative Committee
shall interpret the Plan and shall determine the questions arising in the
administration, interpretation and application of the Plan. The Administrative
Committee shall endeavor to act, whether by general rules or by particular
decisions, so as not to discriminate in favor of or against any person and so as
to treat all persons in similar circumstances uniformly. The Administrative
Committee shall correct any defect, reconcile any inconsistency or supply any
omission with respect to the Plan. Determinations made by the Administrative
Committee shall be final, conclusive and binding on all affected parties.
12.7 Assistants and Advisers.
(a) The Administrative Committee shall have the right to hire, at
the expense of the Controlling Company (to be divided equitably among
the Participating Companies), such professional assistants and
consultants as it, in its sole discretion, deems necessary or advisable.
To the extent that the costs for such assistants and advisers are not so
paid by the Controlling Company, they shall be paid at the direction of
the Administrative Committee from the Trust Fund as an expense of the
Trust Fund.
(b) The Administrative Committee and the Participating Companies
shall be entitled to rely upon all certificates and reports made by an
accountant, attorney or other professional adviser selected pursuant to
this Section 12.7; the Administrative Committee, the Participating
Companies, and the Trustee shall be fully protected in respect to any
action taken or suffered by them in good faith in reliance upon the
advice or opinion of any such accountant, attorney or other professional
adviser; and any action so taken or suffered shall be conclusive upon
each of them and upon all other persons interested in the Plan.
12.8 Investment Committee.
(a) The Investment Committee is the named fiduciary to act on
behalf of the Controlling Company to manage and control the Plan assets
and to establish and carry out a funding policy consistent with the Plan
objectives and with the requirements of any applicable law. Such policy
shall be in writing and shall have due regard for the liquidity
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needs of the Trust. Such funding policy shall also state the general
investment objectives of the Trust and the philosophy upon which
maintenance of the Plan is based.
(b) The Board shall determine the membership of the Investment
Committee, and the members shall serve at the pleasure of the Board or
until their resignation.
(c) The Investment Committee shall carry out the Controlling
Company's responsibility and authority:
(i) To appoint one or more persons to serve as investment
manager with respect to all or part of the Plan assets, including
assets maintained under separate accounts of an insurance
company;
(ii) To allocate the responsibility and authority being
carried out by the Investment Committee among the members of the
Committee;
(iii) To take any action appropriate to assure that the
Plan assets are invested for the exclusive purpose of providing
benefits to Participants and their Beneficiaries in accordance
with the Plan and defraying reasonable expenses of administering
the Plan, subject to the requirements of any applicable law; and
(iv) To employ one or more persons to render advice with
respect to any responsibility or authority being carried out by
the Investment Committee. To the extent that the costs for such
assistants and advisers are not paid by the Controlling Company,
they shall be paid at the direction of the Investment Committee
from the Trust Fund as an expense of the Trust Fund.
12.9 Direction of Trustee. The Investment Committee shall have the power
to provide the Trustee with general investment policy guidelines and directions
to assist the Trustee respecting investments made in compliance with, and
pursuant to, the terms of the Plan.
12.10 Bonding. The Administrative Committee shall arrange for fiduciary
bonding as is required by law, but no bonding in excess of the amount required
by law shall be required by the Plan.
12.11 Indemnification. Each of the Administrative Committee and the
Investment Committee and each member of those Committees shall be indemnified by
the Participating Companies against judgment amounts, settlement amounts (other
than amounts paid in settlement to which the Participating Companies do not
consent) and expenses, reasonably incurred by the Committee or him in connection
with any action to which the Committee or he may be a party (by reason of his
service as a member of a Committee) except in relation to matters as to which
the Committee or he shall be adjudged in such action to be personally guilty of
gross negligence or willful misconduct in the performance of its or his duties.
The foregoing right to indemnification shall be in addition to such other rights
as such Committee or each Committee member may enjoy as a matter of law or by
reason of insurance coverage of any kind. Rights granted hereunder shall be in
addition to and not in lieu of any rights to indemnification to which such
Committee or each Committee member may be entitled pursuant to the by-laws of
the Controlling Company. Service on the Administrative or Investment
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Committee shall be deemed in partial fulfillment of a Committee member's
function as an Employee, officer and/or director of the Controlling Company or
any Participating Company, if he serves in such other capacity as well.
ARTICLE XIII
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
13.1 Controlling Company and Board.
(a) General Responsibilities. The Controlling Company, as Plan
sponsor, and the Board each shall serve as a Named Fiduciary having the
following (and only the following) authority and responsibilities:
(1) To appoint the Administrative Committee and the
Investment Committee and to monitor each of their performances;
(2) To communicate such information to the Administrative
Committee and the Investment Committee as each needs for the
proper performance of its duties;
(3) To provide channels and mechanisms through which the
Administrative Committee can communicate with Participants and
Beneficiaries; and
(4) To appoint the Trustee, and any successor thereof and
to monitor its performance.
in addition, the Controlling Company shall perform such duties as are
imposed by law or by regulation and shall serve as Plan Administrator in
the absence of an appointed Administrative Committee.
(b) Allocation of Authority. In the event any of the areas of
authority and responsibilities of the Controlling Company and the Board
overlap with that of any other Plan fiduciary, the Controlling Company
and the Board shall coordinate with such other fiduciaries the execution
of such authority and responsibilities; provided, the decision of the
Controlling Company and the Board with respect to such authority and
responsibilities ultimately shall be controlling.
(c) Authority of Participating Companies. Notwithstanding
anything herein to the contrary, and in addition to the authority and
responsibilities specifically given to the Participating Companies in
the Plan, the Controlling Company, in its sole discretion, may grant the
Participating Companies such authority and charge them with such
responsibilities as the Controlling Company deems appropriate.
13.2 Administrative Committee. The Administrative Committee shall have
the authority and responsibilities imposed by Article XII hereof. With respect
to said authority and responsibilities, the Administrative Committee shall be a
Named Fiduciary, and as such, shall
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have no authority or responsibilities other than as granted in the Plan or as
imposed as a matter of law.
13.3 Investment Committee. The Investment Committee, if any is
appointed, shall be a Named Fiduciary with respect to its authority and
responsibilities, as imposed by Article XII. The Investment Committee shall have
no authority or responsibilities other than those granted in the Plan and the
Trust.
13.4 Trustee. The Trustee shall be a Named Fiduciary with respect to
custodianship and investment of Trust Fund assets and shall have the powers and
duties set forth in the Trust Agreement.
13.5 Limitations on Obligations of Fiduciaries. No fiduciary shall have
authority or responsibility to deal with matters other than as delegated to it
under the Plan, under the Trust Agreement or by operation of law. A fiduciary
shall not in any event be liable for breach of fiduciary responsibility or
obligation by another fiduciary (including Named Fiduciaries) if the
responsibility or authority for the act or omission deemed to be a breach was
not within the scope of such fiduciary's authority or delegated responsibility.
13.6 Delegation. Named Fiduciaries shall have the power to delegate
specific fiduciary responsibilities (other than Trustee responsibilities). Such
delegations may be to officers or Employees of a Participating Company or to
other persons, all of whom shall serve at the pleasure of the Named Fiduciary
making such delegation and, if full-time Employees of a Participating company,
without compensation. Any such person may resign by delivering a written
resignation to the delegating Named Fiduciary or will be deemed to have resigned
upon termination of employment with all Participating Companies or upon transfer
to a position which has no relation to the responsibilities and duties delegated
by the Named Fiduciary. Vacancies created by any reason may be filled by the
appropriate Named Fiduciary or the assigned responsibilities may be reabsorbed
or redelegated by the Named Fiduciary.
13.7 Multiple Fiduciary Roles. Any person may hold more than one
position of fiduciary responsibility and shall be liable for each such
responsibility separately.
ARTICLE XIV
AMENDMENT, TERMINATION AND ADOPTION
14.1 Amendment. The provisions of the Plan may be amended at any time
and from time to time by the Board; provided:
(a) No amendment shall increase the duties or liabilities of the
Trustee without the consent of such party;
(b) No amendment shall decrease the balance or vested percentage
of an Account or eliminate an optional form of benefit;
(c) No amendment shall be made which would divert any of the
assets of the Trust Fund to any purpose other than the exclusive benefit
of Participants and
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Beneficiaries, except that the Plan and Trust Agreement may be amended
retroactively and to affect the Accounts of Participants and
Beneficiaries if necessary to cause the Plan and Trust to be qualified
and exempt from taxation under the Code; and
(d) Each amendment shall be approved by the Board by resolution
unless such authority is otherwise delegated to the Administrative
Committee by the Board.
14.2 Termination.
(a) Right to Terminate. The Controlling Company expects the Plan
to be continued indefinitely, but it reserves the right to terminate the
Plan or to completely discontinue Contributions to the Plan at any time
by action of the Board. In either event, the Administrative Committee,
Investment Committee, each Participating Company and the Trustee shall
be promptly advised of such decision in writing. (For termination of the
Plan by a Participating Company as to itself (rather than the
termination of the entire Plan) refer to Section 14.3(e)).
(b) Vesting upon Complete Termination. If the Plan is terminated
by the Controlling Company or Contributions to the Plan are completely
discontinued, the Accounts of all Participants, Beneficiaries or other
successors in interest as of such date shall become 100 percent vested
and nonforfeitable. Upon termination of the Plan, the Administrative
Committee, in its sole discretion, shall instruct the Trustee either (i)
to continue to manage and administer the assets of the Trust for the
benefit of the Participants and their Beneficiaries pursuant to the
terms and provisions of the Trust Agreement, or (ii) if there is no
successor plan permitted under the terms of Section 9.1(c) or no
benefits subject to the restorations in said section, to pay over to
each Participant the value of his interest in a single sum and to
thereupon dissolve the Trust.
(c) Dissolution of Trust. In the event that the Administrative
Committee decides to dissolve the Trust, as soon as practicable
following the termination of the Plan or the Administrative Committee's
decision, whichever is later, the assets under the Plan shall be
converted to cash or other distributable assets, to the extent necessary
to effect a complete distribution of the Trust assets as described
hereinbelow. Following completion of the conversion, on a date selected
by the Administrative Committee, each individual with an Account under
the Plan on such date shall receive a distribution of the total amount
then credited to his Account; provided, if the balance of a
Participant's Account is greater than $5,000 ($3,500 for Plan Years
beginning before January 1, 1998) and such Participant does not consent
to a lump sum distribution, the Administrative Committee shall direct
that the Participant's Account be distributed by the purchase and
distribution of a nonparticipating annuity with distribution terms
comparable to those in Section 9.1 (and the applicable provisions in
Article IX). The amount of cash and other property distributable to each
such individual shall be determined as of the date of distribution
(treating, for this purpose, such distribution date as the Valuation
Date as of which the distributable amount is determined). In the case of
a termination distribution as provided herein, the Administrative
Committee may direct the Trustee to take any action provided in Section
9.6 (dealing with unclaimed benefits), except that it shall not be
necessary to hold funds for any period of time stated in such section.
Within the expense limitations set forth in the
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Plan, the Administrative Committee may direct the Trustee to use assets
of the Trust Fund to pay any due and accrued expenses and liabilities of
the Trust and any expenses involved in termination of the Plan (other
than expenses incurred for the benefit of the Participating Companies).
(d) Vesting upon Partial Termination. In the event of a partial
termination of the Plan [as provided in Code Section 411(d)(3)], the
Accounts of those Participants and Beneficiaries affected shall become
100 percent vested and nonforfeitable and, unless transferred to another
qualified plan in accordance with the terms of Section 14.4, shall be
distributed in a manner and at a time consistent with the terms of
Article IX.
14.3 Adoption of the Plan by a Participating Company.
(a) Procedures for Participation. As of the Effective Date, the
Controlling Company, Oak Grove Trucking Company, Paddison Truck Lines,
Inc. and Shippers Imperial, Inc. shall be Participating Companies in the
Plan and expatriate employees of the Controlling Company and any
Affiliate who are U.S. citizens on a U.S. payroll as designated by the
Administrative Committee from time to time. Any other company may become
a Participating Company and commence participation in the Plan subject
to the provisions of this subsection. In order for a company to become a
Participating Company, the Administrative Committee must designate such
company as a Participating Company and specify the effective date of
such designation. The name of any company which shall commence
participation in the Plan, along with the effective date of its
participation, shall be recorded on Schedule A hereto which shall be
appropriately modified each time a Participating Company is added or
deleted. To adopt the Plan as a Participating Company, unless the
Administrative Committee provides another method of approval, the board
of directors of the company must approve a resolution expressly adopting
the Plan for the benefit of its eligible employees and accepting
designation as a Participating Company, subject to all of the provisions
of this Plan and of the Trust. The resolution shall specify the date as
of which the designation as a Participating company shall be effective.
A copy of the resolution (certified if requested) of the board of
directors of the adopting Participating Company shall be provided to the
Administrative Committee. Upon adoption of the Plan by a Participating
Company as herein provided, the Employees of such company shall be
eligible to participate in the Plan subject to the terms hereof and of
the resolution of the Administrative Committee designating the adopting
company as such.
(b) Single Plan. The Plan, as adopted by all Participating
Companies, shall be considered a single plan for purposes of Treasury
Regulation Section 1.414(l)-l(b)(1). All assets contributed to the Plan
by the Participating Companies shall be held together in a single fund
and shall be available to pay benefits to all Participants and
Beneficiaries. Nothing contained herein shall be construed to prohibit
the separate accounting of assets contributed by the Participating
Companies for purposes of cost allocation, contributions, forfeitures
and other purposes, pursuant to the terms of the Plan and as directed by
the Administrative Committee.
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(c) Authority under Plan. As long as a Participating Company's
designation as such remains in effect, such Participating Company shall
be bound by, and subject to, all provisions of the Plan and the Trust.
The exclusive authority to amend the Plan and the Trust shall be vested
in the Board, and no other Participating Company shall have any right to
amend the Plan or the Trust. Any amendment to the Plan or the Trust
adopted by the Board shall be binding upon every Participating Company
without further action by such Participating Company.
(d) Contributions to Plan. A Participating Company shall be
required to make Contributions to the Plan at such times and in such
amounts as specified in Articles III and V. The Contributions made (or
to be made) to the Plan by the Participating Companies shall be
allocated between and among such companies in whatever equitable manner
or amounts as the Administrative Committee shall determine.
(e) Withdrawal from Plan. The Administrative Committee may
terminate the designation of a Participating Company, effective as of
any date. A company's status as a Participating Company automatically
shall cease as of the date it ceases to be an Affiliate with the
Controlling Company. A Participating Company may withdraw from
participation in the Plan, with the approval of the Administrative
Committee, by action of its board of directors, provided such action is
communicated in writing to the Administrative Committee. The withdrawal
of a Participating Company shall be effective as of the last day of the
Plan Year in which the notice of withdrawal is received by the
Administrative Committee (unless the Controlling Company or
Administrative Committee consents to a different effective date). Any
such Participating Company which ceases to be a Participating Company
shall be liable for all costs and liabilities (whether imposed under the
terms of the Plan, the Code or ERISA) accrued through the effective date
of its withdrawal or termination. The withdrawing or terminating
Participating Company shall have no right to direct that assets of the
Plan be transferred to a successor plan for its employees unless such
transfer is approved by the Controlling Company or Administrative
Committee in its sole discretion.
14.4 Merger, Consolidation and Transfer of Assets or Liabilities.
(a) In the event of any merger or consolidation of the Plan with,
or transfer of assets or liabilities of the Plan to, any other plan,
each Participant and Beneficiary shall have a plan benefit in the
surviving or transferee plan (determined as if such plan were then
terminated immediately after such merger, consolidation or transfer of
assets or liabilities) that is equal to or greater than the benefit he
would have been entitled to receive under the Plan immediately before
such merger, consolidation or transfer of assets or liabilities, if the
Plan had terminated at that time.
(b) The Administrative Committee, in its sole discretion, may
cause the Plan to transfer to another qualified retirement plan (as part
of a spin-off or similar transaction) assets and liabilities maintained
under the Plan. Any such transfer shall be made in accordance with the
terms of the Code and subject to such rules and requirements as the
Administrative Committee may deem appropriate. Upon the effectiveness of
any such
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transfer, the Plan and Trust shall have no further responsibility or
liability with respect to the transferred assets and liabilities.
14.5 Contingent Adoption. Notwithstanding anything to the contrary
elsewhere provided in the Plan and the Trust Agreement, the Plan and Trust are
created on the condition that the Plan and Trust initially shall be approved and
qualified by the Internal Revenue Service as meeting the requirements of the
Code and the regulations issued thereunder, so as to permit the Participating
Companies to claim a credit or deduction for income tax purposes with respect to
all funds contributed by them to the Trust and so as to make the Trust tax
exempt under the present Code Section 501(a); and, in the event qualification is
not obtained, the Plan and Trust shall thereupon become null and void and of no
effect, ab initio, and the Trustee shall forthwith deliver to each Participating
Company all of the property of such Trust upon request of such Participating
Company.
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Top-Heavy Plan Years. The provisions set forth in this Article XV
shall become effective for any Plan Years with respect to which the Plan is
determined to be a Top-Heavy Plan and shall supersede any other provisions of
the Plan which are inconsistent with these provisions; provided, if the Plan is
determined not to be a Top-Heavy Plan in any Plan Year subsequent to a Plan Year
in which the Plan was a Top-Heavy Plan, the provisions of this Article XV shall
not apply with respect to such subsequent Plan Year; and, provided, further, to
the extent that any of the requirements of this Article XV shall no longer be
required under Code Section 416 or any other section of the Code, such
requirements shall be of no force or effect.
15.2 Determination of Top-Heavy Status.
(a) Application. The Plan will be considered a Top-Heavy Plan for
a Plan Year if either:
(1) the Plan is not part of a Required Aggregation Group
or a Permissive Aggregation Group and, as of the Determination
Date of such Plan Year, the value of the Accounts of the
Participants who are Key Employees under the Plan exceeds 60
percent of the value of the Accounts of all Participants; or
(2) the Plan is part of a Required Aggregation Group
which, as of the Determination Date of such Plan Year, is a
Top-Heavy Group;
provided, the Plan shall not be considered a Top-Heavy Plan for a Plan
Year under subsection (a)(2) hereof if the Plan also is part of a
Permissive Aggregation Group which is not a Top-Heavy Group for such
Plan Year.
(b) Special Definitions.
(1) Determination Date. The term "Determination Date"
shall mean (i) in the case of the Plan Year that includes the
Effective Date of the Plan, the last
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day of such Plan Year, and (ii) with respect to any other Plan
Year of the Plan, the last day of the immediately preceding Plan
Year and (iii) for any plan year of each other qualified plan
maintained by a Participating Company or Affiliate which is part
of a Required or Permissive Aggregation Group, the date
determined under (i) or (ii) above as if the term "Plan Year"
means the plan year for each such other qualified plan.
(2) Key Employee. The term "Key Employee" shall mean an
Employee defined in Code Section 416(i) and the Treasury
regulations thereunder. Generally, Key Employee shall mean an
Employee, former Employee or deceased Employee (and the
beneficiaries of any such Employee) who, at any time during the
Plan Year or the 4 previous Plan Years, was either:
(A) an officer of an Affiliate having a combined
annual Key Employee Compensation (as defined in Section
15.2(b)(1) of the Plan) from all Affiliates greater than
50 percent of the amount in effect under Code Section
415(b)(1)(A) for any such Plan Year; provided, no less
than one nor more than fifty individuals shall be treated
as officers of an Affiliate;
(B) one of the ten individuals owning [or
considered as owning under Code Section 318, as modified
by Code Section 416(i)(1)(B)(iii)] the largest percentage
ownership interests in value in the Affiliates (as more
fully described in Treasury Regulation Section 1.416-1,
T-19 and T-20) and having a combined annual Key Employee
Compensation (as defined in Section 6.1(c) of the Plan)
from all Affiliates of more than the limitation in effect
under Code Section 415(c)(1)(A);
(C) a 5-percent owner [or constructive owner within
the meaning of Code Section 318, as modified by Code
Section 416(i)(1)(B)(iii)] of an Affiliate; or
(D) a 1-percent owner (or constructive owner within
the meaning of Code Section 318, as modified by Code
Section 416(i)(1)(B)(iii)] of an Affiliate having a
combined annual Key Employee Compensation (as defined in
Section 6.1(c) of the Plan) and the Treasury regulations
thereunder) from all Affiliates of more than $150,000.
For purposes of subsection (B) hereof, if two individuals have
the same percentage ownership interest in an Affiliate, the
individual having greater combined annual Key Employee
Compensation from all Affiliates shall be treated as having the
larger interest. in determining percentage ownership hereunder,
employers that otherwise would be aggregated under Code Sections
414(b), (c) and (m) shall be treated as separate employers.
(3) Non-Key Employee. The term "Non-Key Employee" shall
mean any Employee who is not a Key Employee. For purposes hereof,
former Key Employees shall be treated as Non-Key Employees.
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(4) Permissive Aggregation Group. The term "Permissive
Aggregation Group" shall mean a Required Aggregation Group and
any other qualified plan or plans maintained or contributed to by
an Affiliate which, when considered with the Required Aggregation
Group, would continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.
(5) Required Aggregation Group. The term "Required
Aggregation Group" shall mean a group of plans of the Affiliates
consisting of (i) each plan which, for such Plan Year or any of
the 4 preceding Plan Years, qualifies under Code Section 401(a)
and in which a Key Employee is a participant, and (ii) each other
plan which, during this 5-year period, qualifies under Code
Section 401(a) and which enables any plan described in clause (i)
hereof to satisfy the requirements of Code Sections 401(a)(4) or
410.
(6) Top-Heavy Group. The term "Top-Heavy Group" shall mean
a Required or Permissive Aggregation Group with respect to which
the sum (determined as of a Determination Date) of (i) the
present value of the cumulative accrued benefits for Key
Employees under all Defined Benefit Plans included in such group,
and (ii) the aggregate of the accounts of Key Employees under all
Defined Contribution Plans included in such group, exceeds 60
percent of a similar sum determined for all Employees.
(c) Special Rules. The following rules shall apply in determining
whether the Plan is a Top-Heavy Plan under subsection (a)(1) or (a)(2)
above:
(1) The value of any account balance under any Defined
Contribution Plan and the value of any accrued benefit under any
Defined Benefit Plan shall be determined as of the most recent
valuation date that falls within, or ends with, the 12-month
period ending on the Determination Date or, if plans are
aggregated, the Determination Dates that fall within the same
calendar year;
(2) The value of the Accounts under the Plan or the
accounts under any other Defined Contribution Plan included in a
Required or Permissive Aggregation Group for any Determination
Date, other than the Determination Date for the first plan year,
shall include the amounts actually contributed and paid to the
plan on or before the Determination Date, and shall exclude any
amounts to be contributed with respect to such preceding plan
year but not actually paid to the plan on or before the
Determination Date. The value of the accounts under any Defined
Contribution Plan for the Determination Date of the first plan
year shall include all amounts contributed to the plan as of the
Determination Date, regardless of whether such amounts shall have
been actually paid or merely accrued as of the Determination
Date;
(3) The value of any account balance under any Defined
Contribution Plan and the present value of any accrued benefit
under any Defined Benefit Plan as of any Determination Date shall
be increased by the aggregate distributions made under the plan
during the 5-year period ending on the Determination Date;
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<PAGE> 94
(4) Accrued benefits and accounts of the following
individuals shall not be taken into account for a Plan Year: (A)
any Non-Key Employee who, in a prior Plan Year, was a Key
Employee or (B) any Employee who had not performed any services
for a Participating Company at any time during the 5-year period
ending on the Determination Date for such Plan Year;
(5) The value of any account balance shall not include
deductible employee contributions, as described in Code Section
72 (o) (5) (A); and
(6) The extent to which rollovers and plan to plan
transfers are taken into account in determining the value of any
account balance or accrued benefit shall be determined in
accordance with Code Section 416 and the regulations thereunder.
15.3 RESERVED
15.4 Top-Heavy Minimum Contribution.
(a) For any Plan Year in which the Plan is a Top-Heavy Plan, the
aggregate Company Contributions (when added to similar contributions
made under other defined contribution plans) allocated to the Account of
any Active Participant who is a Non-Key Employee shall not be less than
the Defined Contribution Minimum.
For purposes hereof, a Non-Key Employee shall not fail to receive
a minimum contribution hereunder for a Plan Year because (i) such
Non-Key Employee fails to complete 1,000 Hours of Service for such Plan
Year or (ii) such Non-Key Employee is excluded from participation (or
receives no allocation) merely because his Compensation is less than a
stated amount or because he failed to make a Deferral Election for such
Plan Year.
(b) In the event that Non-Key Employees are covered under both
the Plan and one or more Defined Benefit Plans maintained by an
Affiliate, the minimum contribution level set forth in subsection (a)
hereof shall be satisfied if each such Non-Key Employee receives a
benefit level under such Defined Contribution and Defined Benefit Plans
which is not less than the Defined Benefit Minimum.
(c) "Defined Contribution Minimum" means, with respect to the
Plan, a minimum level of Company Contributions allocated with respect to
a Plan Year to the Account of each Active Participant who is a Non-Key
Employee; such level being the lesser of:
(1) 3 percent of such Active Participant's Section 415
Compensation for such Plan Year; or
(2) if no Defined Benefit Plan of an Affiliate uses the
Plan to satisfy the requirements of Code Sections 401(a)(4) or
410, the highest percentage of Section 415 Compensation at which
Company Contributions are made, or are required to be made, under
the Plan for such Plan Year for any Key Employee.
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For purposes of this subsection, (i) Qualified Contributions (or
similar contributions to other plans) may be treated as Company
Contributions and (ii) matching contributions made to other plans may be
treated as Company Contributions and may be taken into account. Elective
deferrals made under a Code Section 401(k) arrangement on behalf of Key
Employees shall be taken into account for purposes of subsection (c)(2)
hereof but not for purposes of satisfying the minimum contribution
requirement for Non-Key Employees.
(d) "Defined Benefit Minimum" means, with respect to a Defined
Benefit Plan, a minimum level of accrued benefit derived from employer
contributions with respect to a plan year for each participant who is a
Non-Key Employee; such level, when expressed as an annual retirement
benefit, being not less than the product of (1) and (2), where:
(1) equals the Non-Key Employee's average Section 415
compensation for the period of consecutive years (not exceeding
5) when such Non-Key Employee had the highest aggregate Section
415 Compensation from all Affiliates; and
(2) equals the lesser of (A) 2 percent times such Non-Key
Employee's number of years of service or (B) 20 percent.
For purposes of determining the Defined Benefit Minimum, "years
of service" shall not include any year of service if the plan was not a
Top-Heavy Plan for the plan year ending during such year of service and
shall not include any years of service completed in a plan year
beginning before January 1, 1984. Section 415 Compensation in years
before January 1, 1984, and Section 415 Compensation in years after the
close of the last plan year in which the plan is a Top-Heavy Plan shall
be disregarded.
15.5 Top-Heavy Minimum Vesting.
(a) For any Plan Year in which the Plan is determined to be a
Top-Heavy Plan, Participants shall vest upon completion of 3 years of
Vesting Service rather than the 5-year vesting Service requirement in
Section 8.1.
(b) In the event the Plan after being a Top-Heavy Plan ceases to
be such, the vesting requirements in Section 15.5(a) shall continue to
apply only to the portion of each Participant's Account as existed on
the last day of the Top-Heavy Plan Year; provided, any Participant who
had at least 3 years of Vesting Service shall be permitted to elect,
within a reasonable time determined by the Administrative Committee, to
have his vested percentage determined under the requirements set forth
in Section 15.5(a) hereof.
(c) For any Participant who has one Hour of Service after May 31,
1992, such Participant shall become 100% vested in his Matching Account
after 2 years of Vesting Service regardless of whether the Plan is a
Top-Heavy Plan.
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15.6 Adjustments in Code Section 415 Limitations for Top-Heavy Plans.
(a) In the event that, during a Plan Year in which the Plan is a
Top-Heavy Plan, an individual is a participant in both a Defined Benefit
Plan and a Defined Contribution Plan maintained by an Affiliate, the
computation of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction, as set forth in subsections 6.7(d)(3) and
(5) hereof, shall be modified by substituting "100 percent" for "125
percent" each time it appears in said subsections; provided, in the
event that the requirements set forth in subsection (b) hereof are
satisfied, the modifications otherwise required by this subsection (a)
shall not be required and shall be of no effect.
(b) In the event that:
(1) the Plan would not be a Top-Heavy Plan if "90 percent"
were substituted for "60 percent" each time it appears in Section
15.2(a)(1) hereof and in the definition of Top-Heavy Group in
Section 15.2(b)(7) hereof;
(2) the Plan would continue to satisfy the requirements of
Section 15.4 hereof if "3 percent" were substituted for "2
percent" each time it appears in Section 15.4(d), and if "20
percent", as used in Section 15.4(d), were increased by one
percentage point (but not by more than 10 percentage points) for
each year for which the plan was taken into account under this
Section 15.6; and
(3) if the Plan would continue to satisfy the requirements
of Section 15.4 hereof if "4 percent" were substituted for "3
percent" each time it is used in Section 15.4(c) hereof;
then, the substitution of "100 percent" for "125 percent" as otherwise
required in subsection (a) hereof, shall not be required or effected.
15.7 Special Effective Date. The provisions of this Article generally
are effective as of the Effective Date, but to the extent the Code requires an
earlier or later effective date with respect to any portion(s) of this Article,
such other effective date shall apply.
15.8 Construction of Limitations and Requirements. The descriptions of
the limitations and requirements set forth in this Article are intended to serve
as statements of the minimum legal requirements necessary for the Plan to remain
qualified under the applicable terms of the Code. The Participating Companies do
not desire or intend, and the terms of this Article shall not be construed, to
impose any more restrictions on the operation of the Plan than required by law.
Therefore, the terms of this Article and any related terms and definitions in
the Plan shall be interpreted and operated in a manner which imposes the least
restrictions on the Plan. For example, if use of a more liberal definition of
"Top-Heavy Compensation" is permissible at any time under the law, then the more
liberal provisions may be applied as if such provisions were included in the
Plan.
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ARTICLE XVI
MISCELLANEOUS
16.1 Nonalienation of Benefits and Spendthrift Clause.
(a) General Nonalienation Requirements. Except to the extent
permitted by law and as provided in subsection (b) hereof, none of the
Accounts, benefits, payments, proceeds or distributions under the Plan
shall be subject to the claim of any creditor of a Participant or
Beneficiary or to any legal process by any creditor of such Participant
or of such Beneficiary; and neither such Participant nor any such
Beneficiary shall have any right to alienate, commute, anticipate or
assign any of the Accounts, benefits, payments, proceeds or
distributions under the Plan except to the extent expressly provided
herein. If any Participant shall attempt to dispose of his Account or
the benefits provided for him hereunder or to dispose of the right to
receive such benefits, or, in the event there should be an effort to
seize such Account or benefits by attachment, execution or other legal
or equitable process, such right may pass and be transferred, at the
discretion of the Administrative Committee, to such person or persons as
may be selected by the Administrative Committee from among the
Beneficiaries, if any, theretofore designated by the Participant, or
from the Spouse, children or other dependents of the Participant, in
such shares as the Administrative Committee may appoint. Any
appointments so made by the Administrative Committee may be revoked by
it at any time, and further appointments made by it may include the
Participant.
(b) Exception for Qualified Domestic Relations Orders.
(1) The nonalienation requirements of subsection (a)
hereof shall apply to the creation, assignment or recognition of
a right to any benefit, payable with respect to a Participant
pursuant to a domestic relations order, unless such order is (i)
determined to be a qualified domestic relations order, as defined
in Code Section 414(p), entered on or after January 1, 1985, or
(ii) any domestic relations order, as defined in Code Section
414(p), entered before January 1, 1985, pursuant to which a
transferor plan was paying benefits on January 1, 1985. The
Administrative Committee shall establish reasonable written
procedures to determine the qualified status of a domestic
relations order. Further, to the extent provided under a
qualified domestic relations order, a former spouse of a
Participant shall be treated as the Spouse or Surviving Spouse
for all purposes under the Plan.
(2) The Administrative Committee shall establish
reasonable procedures to administer distributions under qualified
domestic relations orders which are submitted to it. The
Administrative Committee, to the extent provided in a qualified
domestic relations order, shall direct the Trustee to pay, in a
single sum payment, the full amount of the benefit payable to any
alternate payee under a qualified domestic relations order. Such
cash-out payment shall be made as soon as practicable after the
Administrative Committee determines that a domestic relations
order is a qualified domestic relations order, or if later, when
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the terms of the qualified domestic relations order permit such a
distribution. If the terms of a qualified domestic relations
order do not permit an immediate cash-out payment, the benefits
shall be paid to the alternate payee in accordance with the terms
of such order and the applicable terms of the Plan.
16.2 Headings. The headings and subheadings in the Plan have been
inserted for convenience of reference only and are to be ignored in any
construction of the provisions hereof.
16.3 Construction, Controlling Law. In the construction of the Plan, the
masculine shall include the feminine and the feminine the masculine, and the
singular shall include the plural and the plural the singular, in all cases
where such meanings would be appropriate. Unless otherwise specified, any
reference to a section shall be interpreted as a reference to a section of the
Plan. The Plan shall be construed in accordance with the laws of the State of
California and applicable federal laws.
16.4 No Contract of Employment. Neither the establishment of the Plan,
nor any modification thereof, nor the creation of any fund, trust or account,
nor the payment of any benefits shall be construed as giving any Participant,
Employee or any person whomsoever the right to be retained in the service of any
Affiliate, and all Participants and other Employees shall remain subject to
discharge to the same extent as if the Plan had never been adopted.
16.5 Incapacity of Participant or Beneficiary. If the Administrative
Committee deems any Participant or Beneficiary who is entitled to receive
payments hereunder incapable of receiving or disbursing the same by reason of
age, illness, infirmity, or incapacity of any kind, the Administrative Committee
may direct the trustee to apply such payments directly for the comfort, support,
and maintenance of such Participant or Beneficiary or to pay the same to any
responsible persons caring for the Participant or Beneficiary who is determined
by the Administrative Committee to be qualified, by court-appointed guardianship
or an equivalency, to receive and disburse such payments for the benefit of such
individual; and the receipt by such person shall be a complete acquittance for
the payment of the benefit. Payments pursuant to this section shall be a
complete discharge to the extent thereof of any and all liability of the
Company, the Participating Units, the Administrative Committee, the trustee, and
the trust.
16.6 Heirs, Assigns and Personal Representatives. The Plan shall be
binding upon the heirs, executors, administrators, successors and assigns of the
parties, including each Participant and Beneficiary, present and future.
16.7 Title to Assets, Benefits Supported Only by Trust Fund. No
Participant or Beneficiary shall have any right to, or interest in, any assets
of the Trust Fund upon termination of his employment or otherwise, except as
provided from time to time under the Plan, and then only to the extent of the
benefits payable under the Plan to such Participant out of the assets of the
Trust Fund. Any person having any claim under the Plan shall look solely to the
assets of the Trust Fund for satisfaction. The foregoing sentence
notwithstanding, each Participating Company shall indemnify and save any of its
officers, members of its board of directors or agents, and each of them,
harmless from any and all claims, loss, damages, expense and liability arising
from their responsibilities in connection with the Plan and from acts, omissions
and
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conduct in their official capacity, except to the extent that such effects and
consequences shall result from their own willful misconduct or gross negligence.
16.8 Legal Action. In any action or proceeding involving the assets held
with respect to the Plan or Trust Fund or the administration thereof, the
Participating Companies, the Administrative Committee and the Trustee shall be
the only necessary parties and no Participants, Employees, or former Employees
of the Company, their Beneficiaries or any other person having or claiming to
have an interest in the Plan shall be entitled to any notice of process;
provided, that such notice as is required by the Internal Revenue Service and
the Department of Labor to be given in connection with Plan amendments,
termination, curtailment or other activity shall be given in the manner and form
and at the time so required. Any final judgment which is not appealed or
appealable that may be entered in any such action or proceeding shall be binding
and conclusive on the parties hereto, the Administrative Committee and all
persons having or claiming to have an interest in the Plan.
16.9 No Discrimination. The Controlling Company, through the
Administrative Committee, shall administer the Plan in a uniform and consistent
manner with respect to all Participants and Beneficiaries and shall not permit
discrimination in favor of officers, stockholders, supervisory or highly
compensated Employees.
16.10 Severability. If any provisions of the 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 had not been included; provided, this section notwithstanding, if the
events described in Section 14.5 shall occur, then Section 14.5 shall control.
16.11 Exclusive Benefits Refund of Contributions. No part of the Trust
Fund shall be used for or diverted to purposes other than the exclusive benefit
of the Participants and their Beneficiaries, subject, however, to the payment of
all costs of maintaining and administering the Plan and Trust. Notwithstanding
the foregoing, Contributions to the Trust by a Participating Company may be
refunded to the Participating Company under the following circumstances and
subject to the following limitations:
(a) If and to the extent permitted by the Code and other
applicable laws and regulations thereunder, upon the Participating
Company's request, a Contribution which is (i) made by a mistake in
fact, or (ii) conditioned upon initial qualification of the Plan with
the Plan receiving an adverse determination even though the application
for determination is submitted to the Internal Revenue Service for
review within the remedial amendment period (as defined in Treasury
Regulation Section 1.401(b)-1) respecting the Plan, or (iii) conditioned
upon the deductibility of the Contribution under Code Section 404, shall
be returned to the Participating Company making the Contribution within
1 year after the payment of the Contribution, the denial of the
qualification, or the disallowance of the deduction (to the extent
disallowed), whichever is applicable.
(b) If any refund is paid to a Participating Company hereunder,
such refund shall be made without interest or other investment gains,
shall be reduced by any investment losses attributable to the refundable
amount and shall be apportioned among the Accounts of the Participants
as an investment loss, except to the extent that the
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amount of the refund can be attributed to one or more specific
Participants (for example, as in the case of certain mistakes of fact),
in which case the amount of the refund attributable to each such
Participant's Account shall be debited directly against such Account.
(c) No refund shall be made to a Participating Company if such
refund would cause the balance in a Participant's Account to be less
than the balance would have been had the refunded contribution not been
made.
16.12 Predecessor Service. In the event a Participating Company
maintains the Plan as successor to a predecessor employer who maintained the
Plan, service for the predecessor employer shall be treated as service for the
Participating Company.
16.13 Plan Expenses. As permitted under the Code and ERISA, expenses
incurred with respect to administering the Plan and Trust shall be paid by the
Trustee from the Trust Fund to the extent such costs are not paid by the
Participating Companies or to the extent the Controlling Company requests that
the Trustee reimburse it for its payment of such expenses; provided, that the
Trustee shall not authorize payment of any such expense from the Trust Fund to
any party-in-interest, as defined by ERISA Section 3(14) or any disqualified
person, as defined by Code Section 4975(e)(2), unless such transaction is exempt
under ERISA Section 408 and Code Section 4975.
Writing Equivalents. As approved by the Committee, any requirement of a
writing under this Plan may be satisfied by an electronic substitute or
facsimile which provides substantially the same assurances of authenticity and
reliability as the written document it replaces. Further, the Administrative
Committee may authorize an interactive telephone system or a computer-based
system (whether or not accessible over the Internet) under which a Participant
or Beneficiary shall be deemed to have provided written election under the Plan
when making directions to the Plan with respect to his Account (provided such
election does not require spousal consent) in accordance with the terms and
conditions of such system and any reference herein to a written election may
include such alternative election (provided such election does not require
spousal consent).
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IN WITNESS WHEREOF, the Controlling Company has caused the Plan to be
executed by its duly authorized officer as of the date first above written.
DEL MONTE CORPORATION
By: /s/ Mark J. Buxton
____________________________
Title: Vice President,
Corporate Human Resources
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SCHEDULE A
[see Plan Section 1.36 and Section 14.3]
<TABLE>
<CAPTION>
Effective Date of Effective Date Company
Participating Company Participation Ceases to Participate
--------------------- ----------------- ----------------------
<S> <C> <C>
Del Monte Corporation 1/1/90
Oak Grove Trucking Company 1/1/90
Paddison Truck Lines, Inc. 1/1/90 June 23, 1993
Shippers Imperial, Inc. 1/1/90 May 31, 1996
Employees who are U.S. Citizens on U.S.
payroll with job locations outside the U.S.,
as designated by the Committee 1/1/90
</TABLE>
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APPENDIX I
SALE OF HAWAIIAN PUNCH
This Appendix I is made a part of the Del Monte Savings Plan ("Plan")
and sets forth certain terms and conditions applicable to certain Participants
in connection with the sale of Hawaiian Punch fruit punch operations by Del
Monte Corporation.
1.1 DEFINITIONS.
Unless otherwise provided in this Appendix I, the terms of the Plan
apply. All defined terms are those of the Plan unless otherwise defined in this
Appendix I.
(a) "Buyer" means Proctor & Gamble Company as the purchaser under
the Sale Agreement.
(b) "Closing Date" means the Closing Date under the Sale
Agreement which was February 28, 1990.
(c) "HP Participant" means any Transferred Employee as defined in
the Sale Agreement who has an Account in the Plan.
(d) "Sale Agreement" means the Stock and Asset Purchase Agreement
dated as of January 25, 1990 between Del Monte Corporation and The
Proctor & Gamble Company which provided for the sale of the Hawaiian
Punch fruit punch operations.
1.2 CONTRIBUTIONS CEASE.
Pursuant to the terms of the Sale Agreement, and effective as of the
Closing Date, all Contributions and Matching Contributions in respect of all HP
Participants shall cease under this Plan. As of the Valuation Date coincident
with the Closing Date, Accounts of HP Participants will be frozen other than for
earnings on such Accounts. Account balances of the HP Participants shall be
vested as of the Closing Date. The Sale Agreement and its underlying
transactions shall not be considered as effecting a termination of employment or
separation from service with respect to any HP Participant for purposes of this
Plan.
1.3 TRANSFER OF ACCOUNTS.
Pursuant to the Sale Agreement, Buyer shall establish or designate a
successor plan and, as soon as practicable after the Closing Date, the total
balance of the Accounts of HP Participants shall be transferred to such
successor plan under the rules and regulations for spin-offs. Following such
transfer and spin-off, this Plan shall have no further obligation or liability
with respect to such Accounts or HP Participants.
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<PAGE> 104
APPENDIX II
ASSET PURCHASE
(CONTADINA SERVICES, INC.)
This Appendix II is made a part of the Del Monte Savings Plan (the
"Plan"), and sets forth certain terms and conditions applicable to certain
Participants in connection with the purchase of assets of Contadina Services,
Inc. by Del Monte Corporation.
2.1 DEFINITIONS.
In addition to those terms defined in Article 1 of the Plan, the
following shall apply:
(a) "Closing Date" shall mean "Closing Date" as defined in
Section 1.1 of the Asset Purchase Agreement.
(b) "Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated November 12, 1997 between Del Monte Corporation,
Contadina Services, Inc., Nestle USA, Inc. and Del Monte Foods Company.
(c) "Contadina Employee" shall mean any person who was an
employee of Contadina Services, Inc. on the Closing Date.
(d) "Nestle Participant" shall mean any Contadina Employee whose
account balance under the Nestle Plan has been transferred to the Plan
in accordance with Section II.5 hereof.
(e) "Nestle Plan" shall mean the Nestle USA Savings Plan as in
effect on the Closing Date.
(f) "Primary Insurance Benefit" shall mean a Participant's
"primary insurance amount" as defined in the Social Security Act as in
effect on such Participant's Severance Date, or if earlier, on his
Normal Retirement Date.
2.2 ELIGIBILITY.
Effective as of the Closing Date, each Contadina Employee shall become a
Covered Employee at the earlier of: (i) the Closing Date if such person were
making before-tax or after-tax employee contributions to the Nestle Plan
immediately prior to the Closing Date, or (ii) the date specified under the
terms of Section 1.27, taking into account as Years of Qualification Service
under the Plan, all such Contadina Employee's years of Continuous Service as
defined in and calculated under the Nestle Plan as of the Closing Date.
In addition, all of a Contadina Employee's Years of Continuous Service
as defined in and calculated under the Nestle Plan as of the Closing Date shall
be recognized as Years of Service under the Plan for purposes of determining a
subsequent Break-in-Service.
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<PAGE> 105
2.3 VESTING IN ACCOUNTS.
Pursuant to the terms of the Asset Purchase Agreement, each Nestle
Participant shall be fully vested in Matching Contributions or Incentive
Matching Contributions (as each term is defined in the Nestle Plan), as
applicable, made on his or her behalf to the Nestle Plan up to the Closing Date
and subsequently transferred to the Nestle Participant's Company Contribution
Account under the Plan in accordance with Section II.5.
All Years of Continuous Service as defined in and calculated under the
Nestle Plan as of the Closing Date with respect to each Contadina Employee shall
be recognized as Years of Service under the Plan for purposes of determining
such Participant's vested interest in his or her Company Contribution Account in
accordance with Sections 8.1(b) and 8.l(e), respectively, for amounts
attributable to Matching Contributions and Retirement Savings Contributions made
to the Plan on such Participant's behalf after the Closing Date.
2.4 PAYMENT OF BENEFITS.
In addition to the terms of Section 9.3 of the Plan with regard to form
of distribution (as in effect on the Closing Date or as amended thereafter) the
following clause (8) is added to subsection (a) of Section 9.3 and shall apply
to each Nestle Participant as indicated therein, with respect to payment of such
Participant's entire vested interest under the Plan:
(a) Annuity Option. A Nestle Participant who was a participant in
the Nestle Plan prior to January 1, 1992 may elect to receive, subject
to subsection (b), the entire vested amount credited to his Account
determined as of the Valuation Date next following the date such
Participant signs and submits an election to the Administrative
Committee for the purchase by the Trustee of an annuity contract from an
insurance company. Unless the Nestle Participant elects another form of
annuity as provided under (iii) below, such annuity shall normally
provide by its terms for benefits to be paid:
(i) to a married Nestle Participant, on a joint and
survivor annuity basis on the joint lives of such Nestle
Participant and his spouse, with the provision that after the
Nestle Participant's death, 50% of his monthly retirement benefit
shall continue during the life of and be paid to his spouse; or
(ii) to an unmarried Nestle Participant or Beneficiary as
designated under Section 9.4 of the Plan, on a full cash refund
annuity basis on the life of such Nestle Participant or
Beneficiary.
(iii) Subject to the restrictions set forth herein and to
the spousal consent requirement set forth in (iv) below, a Nestle
Participant who was a participant in the Nestle Plan prior to
January 1, 1992 and who has elected to receive an annuity form of
payment under this Section 9.3(a)(8), may further elect to have
such annuity paid in any of the following forms:
(A) On a life, a period certain and life, or a full
cash refund basis on the life of such Nestle Participant;
or
II-2
<PAGE> 106
(B) On a joint and survivor annuity basis on the
joint lives of such Nestle Participant and such other
person as he shall designate; or
(C) On a level income life annuity basis on the
life of such Nestle Participant, so that the monthly
benefit payable under the annuity prior to the date upon
which it is anticipated that his Primary Insurance Benefit
will commence, shall exceed the amount payable thereafter
by an amount as equal as practicable to the estimated
amount of his Primary Insurance Benefit. The date that the
monthly benefit of such Nestle Participant shall decrease
and the amount of such decrease shall not be changed after
the date the first monthly amount is payable, under the
annuity, notwithstanding if the Nestle Participant's
Primary Insurance Benefit does not commence on the date
expected or is not equal to the amount estimated to
compute the amount of level income life annuity.
(iv) To elect an annuity form of payment as set forth in
(i) through (iii) above, including an optional annuity form, a
Nestle Participant described in this Section 9.3(a)(8) shall
notify the Administrative Committee in writing, on such forms as
the Administrative Committee may prescribe, of such election
within the 90-day period ending on the date his benefit becomes
distributable in accordance with Section 9.1.
The Administrative Committee shall provide each Nestle
Participant who elects an annuity form of benefit under this
Section 9.3(a)(8), a written explanation of the terms and
conditions of the joint and survivor annuity; such Participant's
right to make and the effect of an election to waive the joint
and survivor annuity form of benefit; the rights of such
Participant's Spouse; and the right to make, and the effect of, a
revocation of a previous election to waive the joint and survivor
annuity. This explanation shall be provided to each such
Participant at least 30, but no more than 90 days prior to the
date such Participant's benefit becomes distributable under the
Plan. Such Participant may subsequently revoke his initial
election, if revocation is made within such 90-day period.
If a Nestle Participant who is married elects to receive
an annuity form other than the joint and survivor annuity form
described in (i) above, his election shall be valid only if such
Participant's Spouse consents to his election, in the manner
described in Section 1.94 of the Plan (Qualified Spousal Waiver).
If the Spouse of such Participant does not consent to his
election, then such Participant's benefit shall be paid in the
form described in (i) above.
(v) With respect to a Nestle Participant who elects an
annuity form of benefit under this Section 9.3(a)(8), unless an
optional form of benefit and/or a Beneficiary other than such
Participant's Spouse has been elected within the Election Period,
if such Participant dies before benefits have commenced then such
Participant's vested interest in his Accounts shall be applied
toward the purchase of an annuity for the life of his surviving
Spouse. Notwithstanding the
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<PAGE> 107
preceding sentence, the Surviving Spouse of a Participant who
dies before benefits have commenced may elect a form of benefit
under Section 9.3(a)(8) other than an annuity for his or her life
as prescribed in the preceding sentence; provided that the Plan
has not yet purchased a contract providing for the payment of
such an annuity.
For this purpose, "Election Period" shall mean the period
which begins on the first day of the Plan Year in which such
Participant attains age 35 and ends on the date of such
Participant's death. If such Participant has a Break in Service
prior to the first day of the Plan Year in which age 35 is
attained, with respect to the Account as of the Break in Service,
the Election Period shall begin on the date the Break in Service
occurs. The Administrative Committee shall provide each such
Participant within the period beginning on the first day of the
Plan Year in which the Participant attains age 32 and ending with
the close of the Plan Year in which the Participant attains age
35, a written explanation of the survivor annuity in such terms
and in such manner as would be comparable to the explanation
provided for a joint and survivor annuity in (iv) above. If a
Nestle Participant who elects an annuity form of benefit under
this Section 9.3(a)(8) enters the Plan after the first day of the
Plan Year in which such Participant attained age 32, the
Administrative Committee shall provide notice no later than the
close of the second Plan Year succeeding the entry of such
Participant in the Plan.
(vi) In the event that the Trustee, pursuant to direction
by the Administrative Committee, obtains an annuity contract or
contracts from an insurance company for the benefit of a Nestle
Participant or Beneficiary who elects an annuity form of benefit
under this Section 9.3(a)(8), the Trustee, after having selected
such settlement options and placed such restrictive endorsements
on such annuity contract or contracts as directed by the
Administrative Committee, shall transfer ownership of such
contract or contracts to such Nestle Participant or Beneficiary,
and deliver said contract or contracts to him. The delivery of
such contracts shall be in full settlement of such Participant's
or Beneficiary's rights under this Plan. The Controlling Company,
other Participating Companies, Affiliates, the Administrative
Committee, Investment Committee or Trustee shall not be
responsible for:
(A) any failure on the part of the insurance
company to make any payments or provide any benefit under
any annuity contract;
(B) for the action or inaction of any person which
may render any annuity contract invalid or unenforceable;
(C) any inability to perform or delay in performing
any act occasioned by any provisions of any annuity
contract or restriction imposed by any insurance company
or by any other person.
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<PAGE> 108
2.5 TRANSFER OF FUNDS.
Any amounts representing the total account balance of a Nestle
Participant under the Nestle Plan as of the Closing Date that are transferred to
the Plan Pursuant to the terms of the Asset Purchase Agreement, including any
existing obligation for an outstanding participant loan from the Nestle Plan,
shall be held under the respective corresponding Account under the Plan and
administered in accordance with the terms of the Plan.
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<PAGE> 109
APPENDIX III
ASSET PURCHASE
(AGRILINK FOODS, INC.)
This Appendix III is made a part of the Del Monte Savings Plan (the
"Plan"), and sets forth certain terms and conditions applicable to certain
Participants in connection with the purchase of assets of Agrilink Foods, Inc.
by Del Monte Corporation.
In addition to those terms defined in Article 1 of the Plan, the
following shall apply:
(a) "Agrilink Transferred Employee" shall mean any person who was
a non-union employee of Agrilink Foods, Inc. on the Closing Date and who
commenced employment with Del Monte Corporation on or immediately
following the Closing Date.
(b) "Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated December 18, 1999 between Agrilink Foods, Inc. and Del
Monte Corporation.
(c) "Closing Date" shall mean "Closing Date" as such term is
defined in the Asset Purchase Agreement.
Effective December 18, 1999, an Agrilink Transferred Employee's service
that is recognized under the Agrilink employee benefit plans and disclosed to
Del Monte Corporation in connection with the Asset Purchase Agreement shall be
taken into account under this Plan for purposes of determining such individual's
Qualification Service and Vesting Service.
III-1
<PAGE> 1
EXHIBIT 99.2
DEL MONTE CERTAIN HOURLY SAVINGS PLAN, AS AMENDED.
<PAGE> 2
Restatement
DEL MONTE CORPORATION
1997 RESTATEMENT
DEL MONTE CERTAIN HOURLY SAVINGS PLAN
As Amended and Restated as of
January 1, 1997
<PAGE> 3
1997 RESTATEMENT DEL MONTE CERTAIN HOURLY SAVINGS PLAN
On this 3rd day of April, 2000, Del Monte Corporation, a corporation
duly organized and existing under the laws of the State of New York (the
"Controlling Company"), hereby amends and restates the Del Monte Certain Hourly
Savings Plan (the "Plan"). Except as provided otherwise herein, this amendment
and restatement of the Plan is effective as of January 1, 1997.
STATEMENT OF PURPOSE
A. The Plan was first adopted effective as of January 1, 1990. The Plan
is intended to comply with the requirements of the Internal Revenue Code of
1986, as amended (the "Code"), the Tax Reform Act of 1986 and all other current
laws and regulations enacted or issued prior to the effective date of the Plan.
B. The primary purpose of the Plan is to recognize the contributions
made to the Controlling Company and its participating affiliates by employees
and to reward those contributions by providing eligible employees with an
opportunity to accumulate savings for their future financial well-being.
C. The Controlling Company intends that the Plan be a profit sharing
plan qualified under Code Sections 401(a) and 401(k).
D. The Plan accepted a spin-off of assets and liabilities from the Del
Monte Savings-Investment Plan for Certain Hourly Employees in which most of the
eligible employees had been participating as of January 1, 1990. The Plan
contains special provisions relating to such spin-off of assets.
HISTORY OF THE PLAN
The Del Monte Savings-Investment Plan for Certain Hourly Employees
(DMSIPCH) was established effective January 1, 1984, as a successor plan to a
portion of the Del Monte Savings-
<PAGE> 4
Investment Plan as in effect December 31, 1983 for certain employees who were no
longer eligible to participate in that plan as of January 1, 1984. The DMSIPCH
generally covered employees whose participation in the plan was governed by the
terms of a collective bargaining agreement. The accounts in the prior plan were
transferred to the DMSIPCH.
The DMSIPCH was amended on April 29, 1987, January 1, 1988, November 1,
1988, December 30, 1988, January 1, 1989, March 1, 1989, April 28, 1989, May 1,
1989, July 17, 1989 and November 1, 1989. Plan sponsorship of the DMSIPCH was
assumed by RJR Nabisco, Inc. as of July 1, 1989.
Effective as of January 1, 1990, the stock and certain assets of Del
Monte Corporation were sold by RJR Nabisco, Inc. and all contributions to the
DMSIPCH ceased. Effective as of January 1, 1990, the accounts of all
participants in the DMSIPCH were transferred to the Plan as a successor plan to
the DMSIPCH. For certain participants who had participated in the Del Monte
Savings-Investment Plan for Regular, Full-Time Employees, a plan sponsored by
RJR Nabisco, Inc., their accounts in such plan were transferred to this Plan
effective as of January 1, 1990.
The Plan was amended effective as of November 1, 1995 to cover eligible
seasonal employees of the Controlling Company and to permit such employees to
save for their future financial well-being through before and/or after tax
contributions to the Plan.
Effective as of January 1, 1996, the Plan is amended and restated.
Additional employer contributions were added for certain eligible employees to
enhance savings for retirement.
STATEMENT OF AGREEMENT
To establish the Plan with the purposes and goals as hereinabove
described, the Controlling Company hereby sets forth the terms and provisions as
follows:
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................1
1.1 Account......................................................................1
1.2 ACP or Average Contribution Percentage.......................................1
1.3 ACP Tests....................................................................1
1.4 Active Participant...........................................................1
1.5 Active Participation.........................................................2
1.6 Administrative Committee.....................................................2
1.7 ADP or Actual Deferral Percentage............................................2
1.8 ADP Tests....................................................................2
1.9 Affiliate....................................................................2
1.10 After Tax Account............................................................3
1.11 After Tax Contributions......................................................3
1.12 After Tax Deferral Election..................................................3
1.13 Annual Addition..............................................................3
1.14 Before Tax Account...........................................................3
1.15 Before Tax Contributions.....................................................3
1.16 Before Tax Deferral Election.................................................3
1.17 Beneficiary..................................................................3
1.18 Board........................................................................3
1.19 Break in Service.............................................................3
1.20 Business Day.................................................................4
1.21 Code.........................................................................4
1.22 Company Contribution Account.................................................4
1.23 Company Contributions........................................................4
1.24 Compensation.................................................................4
1.25 Contributions................................................................6
1.26 Controlling Company..........................................................6
1.27 Covered Employee.............................................................6
1.28 Deferral Election............................................................7
1.29 Defined Benefit Plan.........................................................7
1.30 Defined Benefit Plan Fraction................................................7
1.31 Defined Contribution Plan....................................................7
1.32 Defined Contribution Plan Fraction...........................................7
1.33 Del Monte Common Stock.......................................................7
1.34 Disability or Disabled.......................................................7
1.35 Distribution Valuation Date..................................................7
1.36 Effective Date...............................................................8
1.37 Elective Deferrals...........................................................8
1.38 Employee.....................................................................8
1.39 Employment Date..............................................................9
1.40 Entry Date...................................................................9
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1.41 ERISA........................................................................9
1.42 Forfeiture...................................................................9
1.43 Highly Compensated Employee..................................................9
1.44 Hour of Service..............................................................9
1.45 Investment Committee........................................................11
1.46 Investment Fund or Funds....................................................11
1.47 Leave of Absence............................................................11
1.48 Limitation Year.............................................................11
1.49 Matching Account............................................................11
1.50 Matching Contributions......................................................11
1.51 Maternity or Paternity Leave................................................11
1.52 Maximum Deferral Amount.....................................................11
1.53 Named Fiduciary.............................................................11
1.54 Normal Retirement Age.......................................................12
1.55 Participant.................................................................12
1.56 Participating Company.......................................................12
1.57 Participating Unit..........................................................12
1.58 Plan........................................................................12
1.59 Plan Year...................................................................12
1.60 Qualification Service.......................................................12
1.61 Qualified Account...........................................................12
1.62 Qualified Contributions.....................................................12
1.63 Qualified Spousal Waiver....................................................12
1.64 Restoration Contributions...................................................13
1.65 Retired or Retirement.......................................................13
1.66 Retirement Savings Account..................................................13
1.67 Retirement Savings Compensation.............................................13
1.68 Retirement Savings Contributions............................................14
1.69 RJR Hourly Plan.............................................................14
1.70 Rollover Account............................................................14
1.71 Rollover Contributions......................................................14
1.72 Seasonal Employee...........................................................14
1.73 Section 415 Compensation....................................................14
1.74 Spouse or Surviving Spouse..................................................14
1.75 Termination of Employment...................................................15
1.76 Testing Compensation........................................................15
1.77 Total Compensation..........................................................15
1.78 Trust or Trust Agreement....................................................15
1.79 Trustee.....................................................................15
1.80 Trust Fund..................................................................15
1.81 Valuation Date..............................................................15
1.82 Vesting Service.............................................................15
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1.83 Withdrawal Valuation Date...................................................15
1.84 Year of Service.............................................................16
ARTICLE II ELIGIBILITY...............................................................18
2.1 Initial Eligibility Requirements............................................18
(a) General Rule.........................................................18
(b) RJR Hourly Plan Participants.........................................18
(c) New Participating Units..............................................18
(d) Enrollment...........................................................18
2.2 Participation Upon Reemployment.............................................18
2.3 Change in Status............................................................19
(a) Change to Covered Employee Status....................................19
(b) Loss of Covered Employee Status......................................19
(c) Pudding Products Sale................................................19
(d) Veteran's Reemployment...............................................19
ARTICLE III CONTRIBUTIONS.............................................................19
3.1 Before Tax and After Tax Contributions......................................19
(a) Before Tax Contributions.............................................19
(b) After Tax Contributions..............................................20
(c) Contributions Which Exceed Maximum Deferral Amount...................20
(d) Deferral Elections...................................................20
3.2 Matching Contributions......................................................21
3.3 Qualified Contributions.....................................................22
3.4 Retirement Savings Contributions............................................22
(a) Eligibility for Retirement Savings Contributions.....................22
(b) Retirement Savings Contributions.....................................22
(c) Limitation on Contributions..........................................23
(d) Last Day of Plan Year Requirement....................................23
3.5 Form of Contributions.......................................................23
3.6 Timing of Contributions.....................................................23
(a) Before Tax and/or After Tax Contributions............................23
(b) Matching and Qualified Contributions.................................24
(c) Retirement Savings Contributions.....................................24
3.7 Contingent Nature of Company Contributions..................................24
3.8 Restoration Contributions...................................................24
(a) Restoration Upon Buy Back............................................24
(b) Restoration of Other Forfeitures.....................................24
(c) Restoration Contribution.............................................25
(d) Notice of Buy-Back Rights............................................25
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ARTICLE IV ROLLOVERS.................................................................25
4.1 Rollover Contributions......................................................25
(a) Request by Participant...............................................25
(b) Acceptance of Rollover...............................................25
(c) Mistaken Rollover....................................................26
ARTICLE V PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS.........................26
5.1 Establishment of Participants' Accounts.....................................26
5.2 Allocation and Crediting of Before Tax, After Tax, Matching and
Rollover Contributions......................................................26
5.3 Allocation and Crediting of Qualified Contributions.........................27
(a) Participants Receiving Allocations...................................27
(b) Formula for Allocation...............................................27
5.4 Allocation and Crediting of Retirement Savings Contributions................27
5.5 Allocation and Crediting of Investment Experience...........................27
(a) Determination of Earnings or Losses..................................27
(b) Formula For Allocation...............................................28
(c) Del Monte Common Stock Fund..........................................28
5.6 Notice to Participants of Account Balances..................................28
5.7 Good Faith Valuation Binding................................................28
5.8 Errors and Omissions in Accounts............................................28
ARTICLE VI CONTRIBUTION AND SECTION 415 LIMITATIONS AND
NONDISCRIMINATION REQUIREMENTS............................................28
6.1 Definition of "Compensation" for Compliance Purposes........................28
(a) Section 415 Compensation.............................................28
(b) Testing Compensation.................................................29
(c) Total Compensation...................................................29
6.2 Deductibility Limitations...................................................29
6.3 Maximum Limitation on Elective Deferrals....................................30
(a) Maximum Elective Deferrals Under Affiliate Plans....................30
(b) Return of Excess Before Tax Contribution.............................30
(c) Return of Excess Elective Deferrals Provided by Other Affiliate
Arrangements.........................................................30
(d) Discretionary Return of Elective Deferrals...........................30
(e) Return of Excess Annual Additions....................................31
6.4 Nondiscrimination Requirements for Before Tax Contributions.................31
(a) ADP Test.............................................................31
(b) Multiple Plans.......................................................31
(c) Adjustments to Actual Deferral Percentages...........................32
6.5 Nondiscrimination Requirements for After Tax and Matching Contributions.....32
(a) ACP Test.............................................................32
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(b) Multiple Plans.......................................................33
(c) Adjustments to Average Contribution Percentages......................33
6.6 Multiple Use of Tests.......................................................34
(a) Aggregate Limitation.................................................34
(b) Multiple Plans.......................................................35
(c) Correction...........................................................35
(d) Application..........................................................35
6.7 Order of Application........................................................35
6.8 Code Section 415 Limitations on Maximum Contributions.......................36
(a) General Limit on Annual Additions....................................36
(b) Combined Plan Limitation.............................................36
(c) Correction of Excess Annual Additions................................36
(d) Special Definitions Applicable to Code Section 415 Limitations.......37
(e) Compliance with Code Section 415.....................................39
6.9 Construction of Limitations and Requirements................................39
ARTICLE VII INVESTMENT OF ACCOUNTS....................................................40
7.1 Establishment of Trust Fund.................................................40
7.2 Investment Funds............................................................40
(b) Other Investment Funds...............................................40
(c) Transition for Investment Funds......................................41
(d) Reinvestment of Cash Earnings........................................41
7.3 Participant Direction of Investments........................................41
(a) Investment of Contributions..........................................41
(b) Investment of Existing Account Balances..............................42
(c) Conditions Applicable to Elections...................................42
(d) Investments with Distribution Made in Installments...................42
(e) Limitations on Participant Directions................................42
7.4 Valuations..................................................................43
(a) Timing of Valuations.................................................43
(b) Valuation of Del Monte Common Stock..................................43
7.5 Voting of Del Monte Common Stock............................................44
ARTICLE VIII VESTING IN ACCOUNTS.......................................................46
8.1 General Vesting Rule........................................................46
(a) Vested Accounts......................................................46
(b) Matching Accounts of Participants....................................46
(c) Retirement Savings Accounts..........................................46
(d) RJR Participants.....................................................46
(e) Sale of Pudding Products Business....................................46
8.2 Vesting Upon Attainment of Normal Retirement Age, Disability or Death.......46
8.3 Timing of Forfeitures and Vesting After Restoration Contributions...........47
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(a) Reemployment and Vesting After Distribution..........................47
(b) Reemployment and Vesting Before Distribution or After Late
Distribution.........................................................47
ARTICLE IX PAYMENT OF BENEFITS.......................................................47
9.1 Benefit Payments Upon Separation From Service For Reasons Other Than
Death or Disability.........................................................47
(a) General Rule Concerning Benefits Payable.............................48
(b) Timing of Distribution...............................................48
(c) Restrictions on Distributions from Before Tax and Qualified
Accounts.............................................................50
9.2 Death and Disability Benefits...............................................51
(a) Death Prior to Benefit Commencement Date.............................51
(b) Death After Benefit Commencement Date................................51
(c) Disability...........................................................51
9.3 Form of Distribution........................................................52
(a) Method of Payment....................................................52
(b) Del Monte Common Stock...............................................53
(c) Mandatory Cash-Out...................................................54
(d) Assets Distributed...................................................54
9.4 Beneficiary Designation.....................................................54
(a) General..............................................................54
(b) No Designation or Designee Dead or Missing...........................54
9.5 Qualified Domestic Relations Orders.........................................55
9.6 Unclaimed Benefits..........................................................55
9.7 Explanation of Certain Rollover Distributions...............................56
9.8 Direct Transfer of Eligible Rollover Distributions..........................56
9.9 In-Kind Rollovers...........................................................57
ARTICLE X WITHDRAWALS WHILE EMPLOYED BY AN AFFILIATE................................57
10.1 General Rules for All Withdrawals...........................................57
(a) Ability to Withdraw..................................................57
(b) Election to Withdraw.................................................58
(c) Minimum Amount of Withdrawals........................................58
(d) Frequency of Withdrawals.............................................58
(e) Payment of Withdrawal................................................58
(f) Source of Withdrawals................................................58
(g) Withdrawal by Seasonal Employees.....................................58
10.2 Withdrawals After Age 59 1/2 or Disability..................................59
10.3 Matching Contribution Suspension............................................60
10.4 Hardship Withdrawals........................................................60
(a) General Requirements for Hardship....................................60
</TABLE>
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(b) Definition of "Hardship".............................................61
(c) Immediate and Heavy Financial Need...................................61
(d) Necessary to Satisfy a Financial Need................................61
(e) Ordering of Hardship Withdrawal......................................61
ARTICLE XI CLAIMS....................................................................62
11.1 Claims Procedure............................................................62
11.2 Review Procedure............................................................63
11.3 Satisfaction of Claims......................................................63
ARTICLE XII ADMINISTRATION............................................................63
12.1 Administrative Committee; Appointment and Term of Office....................63
12.2 Organization of Administrative Committee....................................64
12.3 Powers and Responsibility...................................................64
12.4 Records of Administrative Committee.........................................65
12.5 Reporting and Disclosure....................................................65
12.6 Construction of the Plan....................................................66
12.7 Assistants and Advisers.....................................................66
12.8 Investment Committee........................................................66
12.9 Direction of Trustee........................................................67
12.10 Bonding.....................................................................67
12.11 Indemnification.............................................................67
ARTICLE XIII ALLOCATION OF AUTHORITY AND RESPONSIBILITIES..............................69
13.1 Controlling Company and Board...............................................69
(a) General Responsibilities.............................................69
(b) Allocation of Authority..............................................69
(c) Authority of Participating Companies.................................69
13.2 Administrative Committee....................................................69
13.3 Investment Committee........................................................70
13.4 Trustee.....................................................................70
13.5 Limitations on Obligations of Fiduciaries...................................70
13.6 Delegation..................................................................70
13.7 Multiple Fiduciary Roles....................................................70
ARTICLE XIV AMENDMENT, TERMINATION AND ADOPTION.......................................71
14.1 Amendment...................................................................71
14.2 Termination.................................................................71
(a) Right to Terminate...................................................71
(b) Vesting upon Complete Termination....................................71
(c) Dissolution of Trust.................................................71
(d) Vesting Upon Partial Termination.....................................72
</TABLE>
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14.3 Adoption of the Plan by a Participating Company.............................72
(a) Procedures for Participation.........................................72
(b) Single Plan..........................................................73
(c) Authority under Plan.................................................73
(d) Contributions to Plan................................................73
(e) Withdrawal from Plan.................................................73
14.4 Merger, Consolidation and Transfer of Assets or Liabilities.................74
14.5 Contingent Adoption.........................................................74
ARTICLE XV MISCELLANEOUS.............................................................75
15.1 Nonalienation of Benefits and Spendthrift Clause............................75
(a) General Nonalienation Requirements...................................75
(b) Exception for Qualified Domestic Relations Orders....................75
15.2 Headings....................................................................76
15.3 Construction, Controlling Law...............................................76
15.4 No Contract of Employment...................................................76
15.5 Incapacity of Participant or Beneficiary....................................76
15.6 Heirs, Assigns and Personal Representatives.................................76
15.7 Title to Assets, Benefits Supported Only By Trust Fund......................77
15.8 Legal Action................................................................77
15.9 No Discrimination...........................................................77
15.10 Severability................................................................77
15.11 Exclusive Benefit: Refund of Contributions..................................77
15.12 Predecessor Service.........................................................78
15.13 Plan Expenses...............................................................78
15.14 Writing Equivalents.........................................................78
SCHEDULE A 80
SCHEDULE B 81
SCHEDULE C 83
SCHEDULE D 84
SCHEDULE E 85
SCHEDULE F 86
SCHEDULE G 87
ASSET PURCHASE (AGRILINK FOODS, INC.)......................................................88
</TABLE>
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<PAGE> 13
ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with an initial
capital letter, shall have the meanings set forth below unless a different
meaning plainly is required by the context.
1.1 Account shall mean, with respect to a Participant or Beneficiary,
the amount of money or other property in the Trust Fund, as is evidenced by the
last balance posted in accordance with the terms of the Plan to the account
record established for such Participant or Beneficiary. The Administrative
Committee, as required by the terms of the Plan and otherwise as it deems
necessary or desirable in its sole discretion, may establish and maintain
separate subaccounts for each Participant and Beneficiary, provided allocations
are made to such subaccounts in the manner described in Article V of the Plan.
"Account" shall refer to the aggregate of all separate subaccounts or to
individual, separate subaccounts, as may be appropriate in context.
1.2 ACP or Average Contribution Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group and rounded to the
nearest 1/100th of a percent) of (a) the total of the amount of After Tax
Contributions, Matching Contributions and, to the extent designated by the
Administrative Committee, the Before Tax and/or Qualified Contributions
(excluding Before Tax and Qualified Contributions counted for purposes of
Section 6.4 and any Contributions returned to a Participant or otherwise removed
from his Account to correct excess Annual Additions) actually paid to the
Trustee on behalf of each such Participant for such Plan Year, to (b) such
Participant's Testing Compensation for such Plan Year. If a Highly Compensated
Employee participates in the Plan and one or more other plans of any Affiliates
to which matching or after tax contributions are made (other than a plan for
which aggregation with the Plan is not permitted), the matching and after tax
contributions made with respect to such Highly Compensated Employee shall be
aggregated for purposes of determining his ACP. The ACP shall be rounded to the
nearest 1/100th of a percent and shall be calculated in a manner consistent with
the terms of Code Section 401(m) and the regulations promulgated thereunder. If
a Participant is eligible to participate in the Plan for all or a portion of a
Plan Year by reason of satisfying the eligibility requirements of Article II but
makes no After Tax Contributions and no Before Tax Contributions which are taken
into account (as described above) for purposes of calculating his ACP, and if he
receives no allocations of Matching Contributions or Qualified Contributions
which are taken into account (as described above) for purposes of calculating
his ACP, such Participant's ACP for such Plan Year shall be zero.
1.3 ACP Tests shall mean the nondiscrimination tests described in
Section 6.5.
1.4 Active Participant shall mean, for any Plan Year (or any portion
thereof), any Covered Employee who, pursuant to the terms of Article II, has
been admitted to, and not removed from, Active Participation in the Plan since
his Employment Date or Reemployment Date.
<PAGE> 14
1.5 Active Participation shall mean, with respect to any Participant for
any Plan Year (or any portion thereof), the making of any Contributions to the
Plan or having the Trustee receive on his behalf any Contributions or transfers
under the terms of the Plan or maintaining an Account as a Covered Employee
prior to a Termination of Employment.
1.6 Administrative Committee shall mean the Del Monte Employee Benefits
Administrative Committee, the committee which shall act on behalf of the
Controlling Company to administer the Plan as provided in Article XII. The
Administrative Committee shall be the plan administrator, as that term is
defined in Code Section 414 (g) ; provided, the Controlling Company may act in
lieu of the Administrative Committee as it deems appropriate or desirable.
1.7 ADP or Actual Deferral Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group and rounded to the
nearest 1/100th of a percent) of (a) the total of the amount of Before Tax
Contributions (excluding Before Tax Contributions, if any, designated by the
Administrative Committee to be taken into account under Section 6.5(c) to help
satisfy the ACP Test or returned to a Participant to correct excess Annual
Additions) and, to the extent designated by the Administrative Committee, the
Qualified Contributions [excluding Qualified Contributions counted for purposes
of Section 6.4(c)] actually paid to the Trustee on behalf of each such
Participant for such Plan Year, to (b) such Participant's Testing Compensation
for such Year. If a Highly Compensated Employee participates in the Plan and one
or more other plans of any Affiliates to which before tax contributions are made
(other than a plan for which aggregation with the Plan is not permitted), the
before tax contributions made with respect to such Highly Compensated Employee
shall be aggregated for purposes of determining his ADP. The ADP shall be
rounded to the nearest 1/100th of a percent and shall be calculated in a manner
consistent with the terms of Code Section 401(k) and the regulations promulgated
thereunder. If a Participant is eligible to participate in the Plan for all or a
portion of a Plan Year by reason of satisfying the eligibility requirements of
Article II but makes no Before Tax Contributions and receives no allocation of
Qualified Contributions, which the Administrative Committee takes into account
for purposes of the ADP Tests, such Participant's ADP for such Plan Year shall
be zero percent.
1.8 ADP Tests shall mean the nondiscrimination tests described in
Section 6.4.
1.9 Affiliate shall mean, as of any date, (a) a Participating Company,
and (b) any company, person or organization which, on such date, (i) is a member
of the same controlled group of corporations [within the meaning of Code Section
414(b)] as is a Participating Company; (ii) is a trade or business (whether or
not incorporated) which controls, is controlled by or is under common control
with (within the meaning of Code Section 414(c)] a Participating Company; (iii)
is a member of an affiliated service group [as defined in Code Section 414(m)]
which includes a Participating Company; or (iv) is required to be aggregated
with a Participating Company pursuant to regulations promulgated under Code
Section 414(o); provided, solely for purposes of Section 6.8, the term
"Affiliate" as defined in this section shall be deemed to include corporations
that would be Affiliates if the phrase "more than 50 percent" were substituted
for the phrase "at least 80 percent" in each place the latter phrase appears in
Code Section 1563(a)(1).
2
<PAGE> 15
1.10 After Tax Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to After Tax Contributions.
1.11 After Tax Contributions shall mean the amounts paid by a
Participating Company to the Trust Fund at the election of Participants, all as
pursuant to the terms of Section 3.1(b).
1.12 After Tax Deferral Election shall mean a written election by an
Active Participant directing the Participating Company of which he is an
Employee to withhold a percentage of his current Compensation from his paychecks
and to contribute such withheld amount to the Plan as an After Tax Contribution,
all as provided in Section 3.1(b) and Section 3.1(d).
1.13 Annual Addition shall mean the sum of the amounts described in
Section 6.8(d)(1).
1.14 Before Tax Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to his Before Tax Contributions.
1.15 Before Tax Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund at the election of Participants, all
pursuant to the terms of Section 3.1(a).
1.16 Before Tax Deferral Election shall mean a written election by an
Active Participant directing the Participating Company of which he is an
Employee to withhold a percentage of his current Compensation from his paychecks
and to contribute such withheld amount to the Plan as a Before Tax Contribution,
all as provided in Section 3.1(a) and Section 3.1(d).
1.17 Beneficiary shall mean the person(s) designated in accordance with
Section 9.4 to receive any death benefits that may be payable under the Plan
upon the death of a Participant.
1.18 Board shall mean the board of directors of the Controlling Company.
A reference to the board of directors of any other Participating Company shall
specify it as such.
1.19 Break in Service shall mean, with respect to an Employee, any year
during which such Employee fails to complete more than 500 Hours of Service;
provided, a Break in Service shall not be deemed to have occurred during any
period for which he is granted a Leave of Absence if he returns to the service
of an Affiliate within the time permitted as set forth in the Plan. A Break in
Service shall be deemed to have commenced on the first day of the year in which
it occurs.
For purposes of determining whether or not an Employee has incurred a
Break in Service, an Employee absent from work due to a Maternity or Paternity
Leave shall be credited with (a) the number of Hours of Service with which he
normally would have been credited but for the Maternity or Paternity Leave, or
(b) if the Administrative Committee is unable to determine the hours described
in (a), 8 Hours of Service for each day of absence included in the Maternity or
Paternity Leave; provided, the maximum number of Hours of Service credited for
purposes of this Section shall not exceed 501 hours. Hours of Service so
credited shall be applied only to the year in which the Maternity or Paternity
Leave begins, unless such Hours of Service are not required to prevent the
Employee from incurring a Break in Service, in which event such Hours
3
<PAGE> 16
of Service shall be credited to the Employee in the immediately following year
if needed to prevent a Break in Service. No Hour of Service shall be credited
due to Maternity or Paternity Leave as described in this Section unless the
Employee furnishes proof satisfactory to the Administrative Committee (i) that
his absence from work was due to a Maternity or Paternity Leave and (ii) of the
number of days he was absent due to the Maternity or Paternity Leave. The
Administrative Committee shall prescribe uniform and nondiscriminatory
procedures by which to make the above determinations.
1.20 Business Day shall mean each day on which the Trustee operates, and
is open to the public for, its business.
1.21 Code shall mean the Internal Revenue Code of 1986, as amended, and
any succeeding federal tax provisions.
1.22 Company Contribution Account shall mean, collectively, the separate
subaccounts established and maintained on behalf of a Participant or his
Beneficiary to reflect his interest in the Trust Fund attributable to Company
Contributions.
1.23 Company Contributions shall mean Before Tax, Matching and Qualified
Contributions and, if applicable, Retirement Savings made by the Participating
Companies pursuant to the terms of the Plan.
1.24 Compensation shall mean and include, for any determination period,
basic hourly pay plus the items listed in subsection (a) below, but specifically
excluding the items listed in subsection (b) below, plus such other additional
forms of compensation as the Committee may determine from time to time;
provided, in no event shall the annual Compensation taken into account under
this Section exceed $150,000 (as adjusted by the Internal Revenue Service under
Code Section 401(a)(17) for cost of living increases):
(a) Inclusions: Payments to a Participant from or pursuant to the
following plans and policies:
(i) Overtime pay - Non-Exempt Employees;
(ii) Shift Premium Pay;
(iii) Vacation with Pay Plan (except those payments
described in subsection hereof
(iv) Paid Holiday Plan;
(v) Funeral Leave Pay Plan;
(vi) Paid Absence Policy or other leave of absence policy;
(vii) Disability Wage Plan (or similar short-term
disability plan); and
4
<PAGE> 17
(viii) Compensation deferred pursuant to salary reduction
agreements under Code Sections 401(k) or 125 plans.
(b) Exclusions: Payments to a Participant from or pursuant to the
following plans and policies:
(i) Educational Assistance Plan;
(ii) Del Monte Corporation Retirement Plan for Hourly
Employees or the retirement plan for hourly employees (or any
successor plans thereto);
(iii) Suggestion Plan;
(iv) Vacation with Pay Plan payments received in lieu of
vacation taken;
(v) Moving and relocation expenses;
(vi) severance payments, whether in the form of a lump
sum, salary continuation or any other form;
(vii) Commissions and bonuses;
(viii) Payments of prizes won in employee benefit
contests;
(ix) Compensation or awards not monetary in nature;
(x) Payments or economic benefits under programs involving
stock options or stock appreciation rights; and
(xi) any long-term disability plan.
In determining the Compensation of a Participant for purposes of the
preceding limitations, the following shall apply: (1) Compensation shall not
include any amounts received by a Participant prior to the first day of the
payroll period for which he first becomes an Active Participant following his
latest Date of Employment.
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 Omnibus Budget
Reconciliation Act of 1993 ("OBRA `93") annual compensation limit. The OBRA `93
annual compensation limit is $150,000, as adjusted by the Commissioner 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 12 months, over which the Compensation is determined
("determination period") beginning in such calendar year. If a determination
period consists of fewer than 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 12.
5
<PAGE> 18
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
Plan Year beginning on or after January 1, 1994, the OBRA `93 annual
compensation limit is $150,000.
1.25 Contributions shall mean, individually or collectively, the Before
Tax, Matching, Qualified, After Tax, Retirement Savings and Rollover
Contributions permitted under the Plan.
1.26 Controlling Company shall mean Del Monte Corporation, a New York
corporation with its principal office in San Francisco, California, and its
successors which adopt the Plan.
1.27 Covered Employee shall mean any Employee described in (a) and not
excluded under (b).
(a) A Covered Employee is an Employee who
(i) has attained age 21;
(ii) has completed one Year of Qualification Service; and
(iii) is either (A) a member (including Seasonal
Employees) of a Participating Unit designated in Schedule B whose
participation in the Plan is the subject of the terms of a
collectively bargained agreement providing for such participation
or (B) is a Seasonal Employee whose employment is not subject to
the terms of any collective bargaining agreement;
(b) A Covered Employee does not include:
(i) an Employee who is eligible (or who would be eligible
but for attainment of any minimum age or service) to participate
in the Del Monte Savings Plan;
(ii) an Employee who is a nonresident alien with respect
to the United States and who derives no earned income from a
United States source (unless he has been designated an Eligible
Employee by the Company);
(iii) an Employee whose terms and conditions of employment
are determined by a collective bargaining agreement with the
Company which does not make this Plan applicable to him; or
6
<PAGE> 19
(iv) an Employee who is a "leased employee" as defined in
Section 414(n) of the Code and who is required by such Section to
be considered an employee of the Company or an Affiliated
Company. Notwithstanding the foregoing, if a "leased employee" is
reclassified as an employee, years of service as a "leased
employee" of the Company or an Affiliated Company shall be
considered in computing Vesting Service.
1.28 Deferral Election shall mean a written election by an Active
Participant directing the Participating Company of which he is an Employee to
withhold a percentage of his current Compensation from his paychecks and to
contribute such withheld amount to the Plan as a Before Tax or an After Tax
Contribution, all as provided in Section 3.1.
1.29 Defined Benefit Plan shall mean a plan described in Section
6.8(d)(2).
1.30 Defined Benefit Plan Fraction shall mean the fraction described in
Section 6.8(d)(3).
1.31 Defined Contribution Plan shall mean a plan described in Section
6.8(d)(4).
1.32 Defined Contribution Plan Fraction shall mean the fraction
described in Section 6.8(d)(5).
1.33 Del Monte Common Stock shall mean the common stock of Del Monte
Foods Company.
1.34 Disability or Disabled shall mean generally the condition of a
Participant that has resulted in him being approved for payment of benefits,
directly or indirectly, under any long--term disability plan of a Participating
Company; such approval shall be made by such person and pursuant to such rules
and criteria as are prescribed in the procedures of any such plan. In the event
a Participant is not covered by a long-term disability plan of a Participating
Company, the Administrative Committee shall determine whether a Participant has
suffered a Disability or is Disabled. In making such determination, the
Administrative Committee shall use the definitions and criteria established and
set forth in the long-term disability plan of the Controlling Company and, if
consistent with such criteria, may require such medical proof as it deems
necessary, including the certificate of one or more licensed physicians selected
by the Administrative Committee; the decision of the Administrative Committee as
to Disability shall be final and binding.
1.35 Distribution Valuation Date shall mean, effective January 1, 1997,
with respect to any withdrawal pursuant to Article IX, the Valuation Date that
is generally the last Valuation Date of the month. From time to time, due to
administrative processing, the Withdrawal Valuation Date may be a Valuation Date
that occurs within a reasonable period before or after the last Valuation Date
of the month. Effective March 1, 2000, the Distribution Valuation Date is
generally the Valuation Date or the Valuation Date next following the day on
which the Participant elects a Distribution pursuant to Article IX. From time to
time, due to administrative processing, the Distribution Valuation Date may be a
Valuation Date that occurs more than one Valuation Date after, but no more than
a reasonable time after, the day on which the Participant elects to receive a
distribution.
7
<PAGE> 20
1.36 Effective Date shall mean January 1, 1996, the date that the Plan
was restated; provided, any effective date specified herein, for any provision,
if different from the "Effective Date", shall control. The effective date of
participation in the Plan for each Participating Company and Participating Unit
shall be the date set forth with respect to the Participating Company in
Schedules A and B, respectively, hereto.
1.37 Elective Deferrals shall mean, with respect to a Participant for
any calendar year, the total amount of his Before Tax Contributions plus such
other amounts as shall be determined pursuant to the terms of Code Section
402(g)(3). For tax purposes, including Section 414(h) of the Code, Elective
Deferrals shall be considered employer contributions to the Plan.
1.38 Employee shall mean any individual who is employed by a
Participating Company (including officers, but excluding directors who are not
officers or otherwise employees) and shall include those individuals included
under subsection (a), but shall in all events exclude those individuals included
under subsection (b)::
(a) (i) leased employees of a Participating Company within the
meaning of Code Section 414(n) ; notwithstanding the foregoing, if
leased employees constitute 20 percent or less of a Participating
Company's nonhighly compensated work force within the meaning of Code
Section 414(n)(5)(C)(ii), the term "Employee" shall not include those
leased employees covered by a plan described in Code Section
414(n)(5)(B); and
(ii) any individual who is employed by an Affiliate
outside the United States, who is a citizen of the United States
and on whose behalf no contributions are made under a funded plan
of deferred compensation (other than this Plan, the Retirement
Plan for Salaried Employees, the Retirement Plan for Hourly
Employees and any governmental retirement plan) with respect to
the remuneration paid to the individual.
(b) an individual performing work in one of the following job
classifications:
(i) "Temporary Employees", defined as individuals who are
paid by a non-Affiliate who the Participating Company contracts
with on a temporary basis to provide temporary employment
services for the Participating Company;
(ii) "Project Employees", defined as individuals who are
paid by a non-Affiliate who the Participating Company contracts
with to provide services related to a specific project for the
Participating Company;
(iii) "Independent Contractors", defined as individuals
who contract with a Participating Company to perform services
according to their own methods only subject to the Participating
Company's control as to the final result of their services;
(iv) "Consultants", defined as individuals who contract
with the Participating Company on a case by case basis to provide
opinion and expertise to specific matters in the Participating
Company;
8
<PAGE> 21
(v) Employees who have waived participation in the Plan;
and
(vi) Any other individuals otherwise excluded under the
terms of the Plan.
An individual's status as an Employee shall be determined by the Controlling
Company and, subject to the claims procedure described in Article XI, such
determination shall be conclusive and binding upon all persons.
1.39 Employment Date shall mean, with respect to any Employee, the date
on which he first completes an Hour of Service. In the case of an Employee who
incurs a Break in Service and is reemployed, "Employment Date" means: (i) with
respect to Service before the Break in Service and with respect to the Break in
Service, the date determined pursuant to the preceding sentence; and (ii) with
respect to Service after the Break in Service, the date on which he or she first
completes an Hour of Service after reemployment.
1.40 Entry Date shall mean the first day of any payroll period
applicable to a Covered Employee during the period in which the Plan remains in
effect.
1.41 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.42 Forfeiture shall mean, for any Plan Year, the dollar amount of an
Account of a former Participant which is removed from the Account during such
Plan Year and used to reduce Matching, Qualified, Retirement Savings or
Restoration Contributions for such Plan Year.
1.43 Highly Compensated Employee shall mean an employee [other than a
nonresident alien who receives no United States source earned income from an
Affiliate, as described in Code Section 414(q)(ii)] of an Affiliate who (i)
received Key Employee Compensation in excess of $80,000 (as adjusted pursuant to
sections 414(q)(1) and 415(d) of the Code) during the Look-Back Year; or (ii) is
or was a 5-percent owner (within the meaning of section 414(q)(2) of the Code)
at any time during the Determination Year or the Look-Back Year.
(a) "Determination Year" shall mean the Plan Year for which the
determination is being made, and "Look-Back Year" shall mean the Plan
Year immediately preceding the Determination Year.
1.44 Hour of Service shall mean the increments of time described in
subsection (a) hereof, as modified by subsections (b) and (c) hereof:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Affiliate during the
applicable computation period;
(i) Each hour for which an Employee is paid, or entitled
to payment, by an Affiliate on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship has terminated)
9
<PAGE> 22
due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or Leave of
Absence; provided:
(1) No more than 501 Hours of Service shall be
credited under this subsection (a)(ii) to an Employee for
any single continuous period during which he performs no
duties as an employee of an Affiliate (whether or not such
period occurs in a single computation period);
(2) An hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a
period during which he performs no duties as an employee
of an Affiliate shall not be credited as an Hour of
Service if such payment is made or due under a plan
maintained solely to comply with applicable workers'
compensation, unemployment compensation or disability
insurance laws; and
(3) Hours of Service shall not be credited to an
Employee for a payment which solely reimburses such
Employee for medical or medically related expenses
incurred by him.
For purposes of this subsection (a)(i), a payment shall be deemed to be
made by or due from an Affiliate regardless of whether such payment is
made by or due from an Affiliate directly, or indirectly through, among
others, a trust fund or insurer, to which the Affiliate contributes or
pays premiums and regardless of whether contributions made or due to the
trust fund, insurer or other entity are for the benefit of particular
employees or are on behalf of a group of employees in the aggregate; and
(ii) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Affiliate; provided, the same Hours of Service shall not be
credited both under subsection (a)(i) or subsection (a)(ii), as
the case may be, and under this subsection (a)(iii); and,
provided further, crediting of Hours of Service for back pay
awarded or agreed to with respect to periods described in
subsection (a)(ii) shall be subject to the limitations set forth
in that subsection.
(b) Each Employee for whom an Affiliate does not keep records or
actual Hours of Service shall be credited, in accordance with this
Section and applicable regulations promulgated by the Department of
Labor, with 45 Hours of Service for each week for which such Employee
would be required to be credited with at least 1 Hour of Service.
(c) Crediting of Hours of Service on account of any period during
which an Employee performs no duties or is awarded back pay shall be
allocated ratably over such period. The rate or manner used for
crediting Hours of Service may be changed at the direction of the
Administrative Committee from time to time so as to facilitate
administration and to equitably reflect the purpose of the Plan;
provided, no change shall be effective as to any Plan Year for which
allocations have been made pursuant to Article V at the time such change
is made; and, provided further, Hours of Service shall be
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credited and determined in compliance with Department of Labor
Regulations Section 2530.200b-2(b) and (c), 29 CFR Part 2530, as may be
amended from time to time, or such other federal regulations as may from
time to time be applicable.
1.45 Investment Committee shall mean the committee which shall act on
behalf of the Controlling Company with respect to making and effecting
investment decisions, all as provided in Article XII. Unless the Controlling
Company specifies otherwise, the Administrative Committee shall serve as the
Investment Committee. The Controlling Company may act in lieu of the Investment
Committee as it deems appropriate or desirable.
1.46 Investment Fund or Funds shall mean one or more investment funds
designated by the Investment Committee from time to time for the investment of
assets held in the Trust Fund for the Plan pursuant to the terms of Section 7.2.
1.47 Leave of Absence shall mean an excused leave of absence of up to 12
months (including but not limited to a Maternity or Paternity Leave) granted to
an employee by an Affiliate; provided: an employee who leaves the service of an
Affiliate, voluntarily or involuntarily, to enter the Armed Forces of the United
States shall be granted a leave of absence for the period of such service;
provided, (i) the Employee is legally entitled to the veteran's reemployment
rights provisions as codified at 38 USC Section 2021, et seq., its predecessors
and successors; and (ii) the employee applies for and reenters service with an
Affiliate within the time, in the manner and under the conditions prescribed by
law.
1.48 Limitation Year shall mean the 12-month period ending on each
December 31, which shall be the "limitation year" for purposes of Code Section
415 and the regulations promulgated thereunder.
1.49 Matching Account shall mean the separate subaccount established and
maintained on behalf of a Participant or his Beneficiary to reflect his interest
in the Trust Fund attributable to Matching Contributions.
1.50 Matching Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund as a match to Participants' Before Tax
and After Tax Contributions, all as pursuant to the terms of Section 3.2.
1.51 Maternity or Paternity Leave shall mean any period approved by a
Participating Company, beginning on or after January 1, 1985, during which an
Employee is absent from work as an employee of an Affiliate (a) because of the
pregnancy of such Employee; (b) because of the birth of a child of such
Employee; (c) because of the placement of a child with such Employee in
connection with the adoption of such child by such Employee; or (d) for purposes
of such Employee caring for a child immediately after the birth or placement of
such child.
1.52 Maximum Deferral Amount shall mean $7,000, as adjusted from time to
time in accordance with Code Section 402(g)(5) (e.g., for 1996, the amount is
adjusted to $9,500).
1.53 Named Fiduciary shall mean the Controlling Company, the Board, the
Trustee, the Administrative Committee and the Investment Committee.
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1.54 Normal Retirement Age shall mean age 65.
1.55 Participant shall mean any person who is eligible for participation
in the Plan pursuant to the provisions of Article II.
1.56 Participating Company shall mean each company which has adopted or
hereafter may adopt the Plan for the benefit of its employees or a specified
unit of its employees and which continues to participate in the Plan, all as
provided in Section 14.3. The term shall not include any foreign corporations or
units thereof.
1.57 Participating Unit shall mean any United States unit of employees
of the Controlling Company or any Participating Company which is approved by the
board or its specifically authorized representative to participate in the Plan,
as set forth on Schedule B hereto. "Participating Unit" shall not include any
foreign corporations, or units thereof, or a corporation, or unit thereof, which
is a Domestic International Sales corporation within the meaning of Section 992
of the Code.
1.58 Plan shall mean the Del Monte Certain Hourly Savings Plan as
contained herein and all amendments thereto. The Plan is intended to be a profit
sharing plan qualified under Code Section 401(a) and 401(k).
1.59 Plan Year shall mean the 12-month period ending on each December
31.
1.60 Qualification Service shall mean a 12-consecutive-month period
during which an Employee completes no less than 1,000 Hours of Service,
beginning with his Employment Date and ending on the first anniversary thereof.
If the Employee fails to complete 1,000 Hours of Service, but does not incur a
Break in Service during such period, a second computation of Qualification
Service shall be made on the basis of the Plan Year in which the first
anniversary of the Employee's Employment Date falls. Thereafter, and unless the
Employee incurs a one-year Break in Service, years of Qualification Service
shall be determined on a Plan Year basis. If the Employee incurs a one-year
Break in Service before completing a year of Qualification Service, a year of
Qualification Service shall be computed beginning on his re-Employment Date and
ending on the first anniversary thereof. If the Employee fails to complete 1,000
Hours of Service during such period, but does not incur a Break in Service, a
second computation of Qualification Service shall be made for the Plan Year in
which the first anniversary of his Employment Date falls, and thereafter, unless
the Employee incurs another Break in Service, a year of Qualification Service
shall be determined on a Plan Year basis.
1.61 Qualified Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to Qualified Contributions.
1.62 Qualified Contributions shall mean the amounts paid to the Trust
Fund by each Participating Company pursuant to the terms of Section 3.3.
1.63 Qualified Spousal Waiver shall mean a written election executed by
a Spouse, delivered to the Administrative Committee and witnessed by a notary
public, which consents to the payment of all or a specified portion of a
Participant's death benefit to a Beneficiary other
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<PAGE> 25
than such Spouse and which acknowledges that such Spouse has waived his right to
be the Participant's Beneficiary under the Plan. A Qualified Spousal Waiver
shall be valid only with respect to the Spouse who signs it and shall apply only
to the alternative Beneficiary designated therein, unless the written election
expressly permits other designations without further consent of the Spouse. A
Qualified Spousal Waiver shall be irrevocable by the Spouse but may be revoked
by the Participant by way of (i) a written statement executed by the Participant
and delivered to the Administrative Committee or (ii) a written revocation of
the nonspouse Beneficiary designation to which such Spouse has consented;
provided, any such revocation must be received by the Administrative Committee
prior to the Participant's date of death.
1.64 Restoration Contributions shall mean the amounts paid to the Trust
Fund by or on behalf of a rehired individual pursuant to the terms of Section
8.3.
1.65 Retired or Retirement shall mean, for purposes of Section 3.4, an
Employee's Termination of Employment (a) after attaining at least age 55 and 10
Years of Service or (b) upon or after attaining Normal Retirement Age.
1.66 Retirement Savings Account shall mean the separate subaccount
established and maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to Retirement Savings
Contributions.
1.67 Retirement Savings Compensation shall mean the compensation of a
Covered Employee for each pay period during a Plan Year for which the Employee
satisfies both Section 3.4(a)(ii) and (iii), as reported on IRS Form W-2
(determined in accordance with section 1.415-2(d)(11)(i), increased by all
elective contributions for such periods made by the Company on behalf of the
Covered Employee under Code sections 125, 402(e)(3), 402(h) or 403(b), subject
to the following:
(a) In no event shall Retirement Savings Compensation for a Plan
Year exceed $150,000, as adjusted for increases in the cost of living in
accordance with section 401(a)(17)(B) of the Code. If an Eligible
Covered Employee's Retirement Savings Compensation is based on less than
a full Plan Year, the foregoing limitation will be multiplied by a
fraction, the numerator of which is the number of months during which
the Covered Employee was an Eligible Covered Employee and the
denominator of which is 12.
(b) In the case of an Eligible Covered Employee who becomes
Disabled during a Plan Year, his Retirement Savings Compensation shall
be the sum of (i) his Retirement Savings Compensation determined above
for the period prior to his Disability and (ii) his base hourly rate of
pay immediately prior to Disability for the number of weeks in the Plan
Year during which he was Disabled based on 40 hours per week. For each
Plan Year that an Eligible Covered Employee continues to be Disabled
prior to any distribution of his Retirement Savings Account, his
Retirement Savings Compensation shall be his base hourly rate of pay
immediately prior to Disability multiplied by 2,080 hours. For the Plan
Year during which he attains Normal Retirement Age (or ceases to receive
benefits under the Del Monte Long Term Disability Plan ("LTD"), if
later), his Retirement Savings Compensation shall be prorated for the
number of weeks in the Plan
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<PAGE> 26
Year prior to his attainment of Normal Retirement Age (or cessation of
LTD benefits, if later) based on 40 hours per week. After distribution
of his Retirement Savings Account, a Participant shall no longer be
considered Disabled for purposes of this Plan.
(c) In the case of a Covered Employee who transferred employment
during a Plan Year, his Retirement Savings Compensation for that portion
of the Plan Year during which he was an active participant in the Del
Monte Corporation Retirement Plan for Salaried Employees, the Del Monte
Corporation Southeast Distribution Center Retirement Plan, or the
Retirement Savings portion of the Del Monte Savings Plan shall be
excluded from Retirement Savings Compensation under this Plan."
(d) In the case of a Covered Employee who first satisfies the
requirements of Section 1.27(b)(i) and (ii) during a Plan Year,
Retirement Savings Compensation shall include compensation during that
period of the Plan Year coincident with the period for satisfying
Section 1.27(b)(i) or (ii).
1.68 Retirement Savings Contributions shall mean the amounts paid to the
Trust Fund by each Participating Company pursuant to the terms of Section 3.4.
1.69 RJR Hourly Plan shall mean the Del Monte Savings Investment Plan
for Certain Hourly Employees as sponsored by RJR Nabisco, Inc., and as in effect
on December 31, 1989 and for employees of Participating Units which had been
participants in the Del Monte Savings Investment Plan for Regular, Full-Time
Employees, that plan as sponsored by RJR Nabisco, Inc. and as in effect on
December 31, 1989.
1.70 Rollover Account shall mean the separate subaccount established and
maintained on behalf of a Participant or his Beneficiary to reflect his interest
in the Trust Fund attributable to Rollover Contributions.
1.71 Rollover Contributions shall mean the amounts contributed to the
Trust Fund as "rollover" contributions as defined in Code Section 402: provided,
that no such amount that is distributed from an individual retirement account as
defined in Code Section 408(a) may be contributed as a rollover amount. An
amount shall be treated as a Rollover Contribution only to the extent that its
acceptance by the Trustee is permitted under the Code (including the regulations
and rulings promulgated thereunder).
1.72 Seasonal Employee shall mean an Employee who is classified as
"seasonal" by the Company for a job in which the Employee is not expected to be
actively employed continuously but to be employed for limited periods of time
and laid off, with recall rights, based on recurring events such as a processing
season. All other Employees are classified as non-Seasonal.
1.73 Section 415 Compensation shall mean compensation as defined in
Section 6.1(a).
1.74 Spouse or Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such Participant under the
laws of the state in which the Participant resides. The determination of a
Participant's Spouse or Surviving Spouse shall be made as of the earlier of the
date as of which benefit payments from the Plan to such Participant are made or
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<PAGE> 27
commence (as applicable) or the date of such Participant's death. In addition, a
Participant's former spouse shall be treated as his Spouse or Surviving Spouse
to the extent provided under a qualified domestic relations order, as defined in
Code Section 414(p).
1.75 Termination of Employment shall mean separation from service with
the Company or an Affiliated Company for any reason, including, but not limited
to, retirement, death, disability, resignation or dismissal by the Company;
provided, however, that transfer in employment between the Company and an
Affiliated Company shall not be deemed to be Termination of Employment. In the
case of the sale by the Controlling Company or an Affiliate of all or
substantially all of the assets used in a trade or business that employs an
Employee or in the case of the sale by the Controlling Company or an Affiliate
of stock or other ownership interests in such Employee's employer, such Employee
shall be considered to have separated from the Service of all Affiliates if the
Committee determines that as of the date following such sale (a) the Employee is
no longer employed by the Controlling Company or an Affiliate and the new
employer is not an Affiliate, (b) neither the new employer nor any member of its
controlled group (within the meaning of Code Sections 414(b),(c),(m) or (o))
maintains the Plan or any successor to the Plan with respect to the Employee,
(c) the Plan does not transfer any assets or liabilities with respect to the
Employee to a qualified retirement plan of the new employer, and (d) in the case
of a sale of stock or other ownership interest, the Controlling Company
continues to maintain the Plan following the sale.
1.76 Testing Compensation shall mean compensation as defined in Section
6.1(b).
1.77 Total Compensation shall mean compensation as defined in Section
6.1(c).
1.78 Trust or Trust Agreement shall mean the separate agreement between
the Controlling Company and the Trustee governing the creation of the Trust
Fund, and all amendments thereto.
1.79 Trustee shall mean the party or parties so designated from time to
time pursuant to the Trust Agreement.
1.80 Trust Fund shall mean the total amount of cash and other property
held by the Trustee (or any nominee thereof) in regard to the Plan at any time
under the Trust Agreement.
1.81 Valuation Date shall mean each Business Day: provided, the value of
an Account or the Trust Fund on a day other than a Business Day shall be the
value determined for the immediately preceding Business Day. From time to time,
the Committee may designate specific Valuation Dates (such as the last Valuation
Date of a calendar month) for specific purposes (such as for distributions).
1.82 Vesting Service shall mean all Years of Service as an employee of
any Affiliate.
1.83 Withdrawal Valuation Date shall mean, effective January 1, 1997,
with respect to any withdrawal pursuant to Article X, the Valuation Date that is
generally the last Valuation Date of the week for which a Participant's form on
which he has elected to make a withdrawal pursuant to Article X is processed.
From time to time, due to administrative processing, the
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Withdrawal Valuation Date may be a Valuation Date that occurs within a
reasonable period before or after the last Valuation Date of the week.
Effective March 1, 2000, Withdrawal Valuation Date shall mean, with
respect to any withdrawal pursuant to Article X, the Valuation Date this is
generally the Valuation Date or the Valuation Date next following the day on
which the Participant elects a Withdrawal pursuant to Article X. From time to
time, due to administrative processing, the Withdrawal Valuation Date may be
more than one Valuation Date after, but not more than a reasonable time after,
the day on which the Participant elects the withdrawal.
1.84 Year of Service shall mean a Plan Year during which the Employee
completes not less than one thousand (1,000) Hours of Service, subject to the
following provisions:
(a) Service prior to the Effective Date for any Participant who
was a participant in the RJR Hourly Plan shall be included in Vesting
Service and shall mean all years of service recognized by the RJR Hourly
Plan as of the Effective Date. For Vesting Service, service recognized
by the RJR Hourly Plan with respect to a Participant shall also be
included if (i) assets and liabilities would have been transferred with
respect to such Participant if he would have accrued a benefit under
such other plan but for the fact that he had not met the minimum
participation requirements of such other plan at the time of such
transfer, or (ii) the liabilities transferred with respect to such
Participant are contingent because (A) such Participant terminated
employment with the employer that sponsored such other plan prior to
acquiring a vested interest in his accrued benefit thereunder, and (B)
the transfer occurs prior to forfeiture of his accrued benefit under
such other plan's break in service rules.
(b) Service shall not include any period of employment with an
Affiliate prior to the time such company became an Affiliate, unless
specifically provided otherwise by the Administrative Committee.
(c) Service shall include any period of time prior to a Break in
Service unless the Employee was not vested in his Matching Account or
Retirement Savings prior to the Break in Service or the number of
consecutive 1-year Breaks in Service equals or exceeds the greater of
(i) 5, or (ii) the aggregate number of Years of Service prior to such
Break in Service.
(d) If a former employee is rehired after a 1-year Break in
Service and his Termination of Employment was on or before December 31,
1984, and he completes 1 Year of Service after his latest Employment
Date, none of the Years of Service he earns after his latest Employment
Date shall apply to his Matching Account or Retirement Savings Account
accrued before such Break in Service (and, thus, any portion of his
Matching Account or Retirement Savings Account which was forfeited due
to such Break in Service shall remain forfeited). This subsection (d)
shall apply even if his Years of Service prior to his Break in Service
are recognized under subsection (c) above.
(e) If a former employee is rehired after one or more consecutive
1-year Breaks in Service and his Termination of Employment was on or
after January 1, 1985,
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and he completes 1 Year of Service after his latest Employment Date,
Years of Service after his latest Employment Date shall count in vesting
his Matching Account or Retirement Savings Account which was not vested
at the time of such Termination of Employment as long as the employee
has not incurred 5 or more consecutive 1-year Breaks in Service prior to
such latest Employment Date.
(f) If an employee, who was not a Covered Employee but who was
covered by a plan of an Affiliate which used the elapsed time method of
measuring service, transfers to the status of Covered Employee, his
Years of Service shall include:
(i) a number of Years of Service equal to the number of
full and partial one-year periods of service with which he was
credited under such retirement plan as of the end of the last
full one-year period of service he had completed prior to the
date of the transfer; and
(ii) credit, in the Plan Year which includes the date of
the transfer, for the appropriate number of Hours of Service
(determined under the appropriate equivalency set forth in
Section (2) below) for that portion of such Plan Year between the
last day of the last full one-year period of service the Employee
completed prior to the date of the transfer and the date the
transfer occurs.
(iii) For Employees who are not subject to the overtime
pay provisions of the Federal Fair Labor Standards Act, Hours of
Service on and after June 1, 1976 shall be determined by the
Corporation on a daily, weekly, semi-monthly or monthly basis as
follows:
(1) If a daily basis is used, the Employee shall be
credited with ten (10) Hours of Service for each day which
includes any period of Service;
(2) If a weekly basis is used, the Employee shall
be credited with forty-five (45) Hours of Service for each
week which includes any period of Service;
(3) If a semi-monthly basis is used, the Employee
shall be credited with ninety-five (95) Hours of Service
for each semi-monthly period which includes any period of
Service; or
(4) If a monthly basis is used, the Employee shall
be credited with one hundred ninety (190) Hours of Service
for each calendar month which includes any period of
Service.
(iv) With respect to employment after the date of the
transfer, the Employee's "Hours of Service" and "Years of
Service" shall be determined under the appropriate definitions
set forth herein.
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(g) Service shall include any period or time during which an
employee was absent from service with an Affiliate due to a Leave of
Absence.
ARTICLE II
ELIGIBILITY
2.1 Initial Eligibility Requirements.
(a) General Rule. Effective November 1, 1995, every Covered
Employee with at least 1 Hour of Service on or after November 1, 1995 as
defined in Section 1.27 shall be eligible to become an Active
Participant in the Plan on the Entry Date coincident with or next
following the date on which he first becomes a Covered Employee, subject
to subsection (c) hereof. Except as provided in subsection (b) hereof,
every Covered Employee who had satisfied the eligibility rules of
Section 1.27 and Schedule C prior to November 1, 1995 is eligible to
become an Active Participant in the Plan on the Entry Date coincident
with or next following the date on which he first became a Covered
Employee.
(b) RJR Hourly Plan Participants. Each Covered Employee who was
an active participant in the RJR Hourly Plan on the day immediately
preceding January 1, 1990 shall be an Active Participant in the Plan in
accordance with the terms of the Plan as of January 1, 1990. In
addition, each Covered Employee who was eligible to participate in the
RJR Hourly Plan on the day immediately preceding January 1, 1990 was
eligible to participate in the Plan as of January 1, 1990.
(c) New Participating Units. For employees of bargaining units
that become Participating Units after January 1, 1990, each designated
Covered Employee or designated unit of Covered Employees on the date
such Participating Unit first becomes a Participating Unit shall be
eligible to become an Active Participant as of such Participating Unit's
effective date under the Plan unless additional eligibility requirements
have been bargained for such Covered Employees.
(d) Enrollment. An eligible Covered Employee may become an Active
Participant in the Plan as of any Entry Date following his completion of
the eligibility requirements set forth in Section 2.01(a) above by
completing and submitting to the Administrative Committee a Deferral
Election on which he elects the percentage of Compensation he wishes to
contribute to the Plan and the manner in which he wishes his
Contributions (including Retirement Savings Contributions) to be
invested. Simultaneously, the Participant shall complete and submit a
beneficiary designation form.
2.2 Participation Upon Reemployment - If a Participant ceases to be
subject to the collective bargaining agreement of all Participating Units or if
a Participant who is a Seasonal Employee becomes a non-Seasonal Employee and is
not otherwise a Covered Employee, his Active Participation in the Plan shall
cease immediately, and he again shall be eligible to become an Active
Participant as of the day he again becomes a Covered Employee. However,
regardless
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<PAGE> 31
of whether he again becomes an Active Participant, he shall continue to be a
Participant until he no longer has an Account under the Plan.
2.3 Change in Status.
(a) Change to Covered Employee Status. If an Employee who is not
a Covered Employee subsequently changes his employment status so that he
becomes a Covered Employee, he shall be eligible to become an Active
Participant on the Entry Date coinciding with or next following the date
he becomes a Covered Employee.
(b) Loss of Covered Employee Status. If an Active Participant
changes his status of employment (but remains employed) so that he is no
longer a Covered Employee, his Active Participation in the Plan shall
cease immediately, and he shall again become eligible to become an
Active Participant in the Plan as of the day he again becomes a Covered
Employee; provided that any Participant in the Special Participating
Unit set forth in Schedule B who has continuously been an Active
Participant under certain "grandfathered" terms of the applicable
collective bargaining agreement, may continue as an Active Participant,
with the same rights, features and options as the #250 Crystal City,
Texas Participating Unit so long as he continues to make contributions
to this Plan and remains an Active Participant. However, regardless of
whether he again becomes an Active Participant, he shall continue to be
a Participant until he no longer has an Account under the Plan.
(c) Pudding Products Sale. An Employee who is a Transferred
Employee, as defined in the Asset Purchase Agreement by and between the
Company and Kraft Foods, Inc. (the "Sale Agreement") shall cease to be
an Eligible Employee as of the Closing Date under the Sale Agreement,
but shall be deemed to have completed two (2) years of Vesting Service
as of such Closing Date, entitling such Employee to a benefit no less
than a vested benefit under Article VIII.
(d) Veteran's Reemployment. Effective for reemployment of
individuals on or after December 12, 1994 and 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.
ARTICLE III
CONTRIBUTIONS
3.1 Before Tax and After Tax Contributions
(a) Before Tax Contributions. Each Participating Company shall
contribute to the Plan, on behalf of each Active Participant employed by
such Participating Company and for each payroll period for which such
Active Participant has a Before Tax Deferral Election in effect with
such Participating Company, a Before Tax Contribution in an amount equal
to the amount by which such Active Participant's Compensation has been
reduced for such period pursuant to his Before Tax Deferral Election.
The amount of the Before Tax Contribution shall be determined in
increments of 1 percent of such Active
19
<PAGE> 32
Participant's Compensation for each payroll period. The Active
Participant may elect to reduce his Compensation, if at all, for any
payroll period by a maximum of 10 percent, the maximum limitations in
Article VI shall apply.
(b) After Tax Contributions. Each Participating Company shall
contribute to the Plan, on behalf of each Active Participant employed by
such Participating Company and for each payroll period for which such
Active Participant has an After Tax Deferral Election in effect with
such Participating Company, an After Tax Contribution in an amount equal
to the amount by which such Active Participant's Compensation has been
reduced for such payroll period pursuant to such After Tax Deferral
Election. The amount of such After Tax Contribution shall be determined
in increments of 1 percent of such Active Participant's Compensation for
each payroll period. The Active Participant may elect to reduce his
Compensation for any payroll period by the maximum of the difference
between 16 percent, and the percentage of his Compensation which is paid
as a Before Tax Contribution for such payroll period; provided, the
maximum limitations in Sections 6.5 and 6.8 shall apply.
(c) Contributions Which Exceed Maximum Deferral Amount. To the
extent that the amount of an Active Participant's Before Tax
Contributions made for a calendar year pursuant to such Active
Participant's Before Tax Deferral Election would exceed the Maximum
Deferral Amount if such Before Tax Contributions are continued, those
Before Tax Contributions in all respects will be deemed to be After Tax
Contributions and will be treated as if such Active Participant elected
to make such After Tax Contributions in accordance with the terms of
subsection (b) hereof; provided, the maximum aggregate percentage of
Compensation which may be contributed for any payroll period as After
Tax Contributions pursuant to the terms of this subsection and
subsection (b) hereof is the lesser of (i) the total of the percentage
elected under the Before Tax Deferral Election and any concurrently
effective After Tax Deferral Election and (ii) 16 percent.
(d) Deferral Elections. Each Active Participant, who desires that
his Participating Company make a Before Tax and/or After Tax
Contribution on his behalf, shall complete and deliver to the
Participating Company (or its designee) a Before Tax Deferral Election
and/or an After Tax Deferral Election, respectively. Such Deferral
Election shall provide for the reduction of his Compensation for each
payroll period ending or occurring while he is an Active Participant.
The Administrative Committee, in its sole discretion, shall prescribe
the form of all Deferral Elections and may prescribe such
nondiscriminatory terms and conditions governing the use of the Deferral
Elections as it deems appropriate. Subject to any modifications,
additions or exceptions which the Administrative Committee, in its sole
discretion, deems necessary, appropriate or helpful, the following terms
shall apply to Deferral Elections:
(i) Effective Date. For Active Participants who were
participating in the Plan immediately prior to the Effective
Date, existing deferral elections continued in effect as initial
elections under the Plan. Otherwise, an Active Participant's
initial Deferral Election with a Participating Company shall be
effective for the first available payroll period which ends
following receipt and processing of the Deferral Election by the
Administrative Committee. If an
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Active Participant fails to submit an initial Deferral Election
in a timely manner, he shall be deemed to have elected a deferral
of zero percent until an effective Deferral Election has been
made.
(ii) Term. Each Active Participant's Deferral Election
with a Participating Company shall remain in effect in accordance
with its original terms until the earlier of (A) the date the
Active Participant ceases to be a Covered Employee, (B) the date
the Active Participant revokes such Deferral Election pursuant to
the terms of subsection (d) (iii) hereof, or (C) the date the
Active Participant or the Administrative Committee modifies such
Deferral Election pursuant to the terms of subsection (d) (iv) or
(d) (v) hereof. If a Participant is transferred from the
employment of a Participating Company to the employment of
another Participating Company, his Deferral Election with the
first Participating Company will remain in effect and will apply
to his Compensation from the second Participating Company until
the earlier of (A), (B) or (C) of the preceding sentence.
(iii) Revocation. An Active Participant's Deferral
Election shall terminate upon his ceasing to be a Covered
Employee. In addition, at any time, an Active Participant may
revoke his Before Tax or After Tax Deferral election by written
notice of revocation to the Administrative Committee and such
revocation shall be effective as soon as administratively
feasible after receipt of such revocation. An Active Participant
who revokes a Before Tax or After Tax Deferral Election may make
a new Deferral Election, effective for the next available payroll
period ending after the new Deferral Election is made.
(iv) Modification by Participant. An Active Participant
may modify any of his existing Deferral Elections at any time to
increase or decrease the percentage of his Before Tax or After
Tax Contributions by making a new Deferral Election, effective
for the next available payroll period ending after the new
Deferral Election is made.
(v) Modification by Administrative Committee.
Notwithstanding anything herein to the contrary, the
Administrative Committee may modify any Deferral Election of any
Active Participant at any time by decreasing the percentage of
any Before Tax or After Tax Contributions to any extent the
Administrative Committee believes necessary to comply with the
limitations described in Article VI.
3.2 Matching Contributions.
For each Active Participant on whose behalf a Participating Company has
made, with respect to a payroll period, any Before Tax and/or After Tax
Contributions, such Participating Company shall make, with respect to such
payroll period, a Matching Contribution equal to 50 percent of the aggregate
amount of such Before Tax and After Tax Contributions; provided, the total
amount of the Matching Contributions which a Participating Company shall make
for any Active Participant for any payroll period shall not exceed 3 percent of
such Active Participant's
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<PAGE> 34
Compensation paid by such Participating Company for such payroll period, nor
shall such amount exceed (or cause the Contributions to exceed) any of the
maximum limitations described in Section 6.5 or Section 6.8. Notwithstanding
anything contained herein to the contrary, no Matching Contributions shall be
made on behalf of a Participant during any period of suspension following a
withdrawal, pursuant to Article X. Notwithstanding anything contained herein to
the contrary, no Matching Contributions shall be made on behalf of any
Participant who is a Seasonal Employee except for Seasonal Employees in the
Participating Unit identified on Schedule B as the Special Seasonal Group for
whom Matching Contributions shall continue only so long a such Seasonal Employee
continues to make Before and/or After Tax Contributions to the Plan.
3.3 Qualified Contributions.
To the extent and in such amounts (but only to the extent and in such
amounts) as the Administrative Committee, in its sole discretion, deems
desirable or helpful as a method to help satisfy the ADP and/or ACP Tests for
any Plan Year and subject to the requirements and limitations set forth in
Sections 6.4 and 6.5, each Participating Company shall make a Qualified
Contribution for a Plan Year.
3.4 Retirement Savings Contributions.
(a) Eligibility for Retirement Savings Contributions. For each
Plan Year, each Covered Employee who satisfies the following shall be
eligible for allocation of Retirement Savings Contributions to his
Retirement Savings Account. An Eligible Covered Employee:
(i) is a non-Seasonal Covered Employee on the last day of
the Plan Year or otherwise satisfies this provision under the
terms of Section 3.4(d);
(ii) is a non-Seasonal Covered Employee employed for any
portion of the Plan Year in a Participating Unit under the terms
of a collective bargaining agreement providing for eligibility
for such Retirement Savings benefits;
(iii) first had an Employment Date (including an
Employment Date following rehire) or first transferred from a
non-Covered Employee status to a position as a Covered Employee
otherwise eligible under this subsection (a) after December 31,
1995;
(iv) has completed a Year of Service during the Plan Year,
except that a Covered Employee who died, Retired or was Disabled
(prior to his Normal Retirement Age or cessation of LTD benefits,
if later) during a Plan Year shall be deemed to have completed a
Year of Service for that Plan Year.
(b) Retirement Savings Contributions. For each Plan Year, a
Participating Company shall make a Retirement Savings Contribution to
the Plan on behalf of its Eligible Covered Employees under Section
3.4(a). The Retirement Savings Contribution for an Eligible Covered
Employee is determined by multiplying the percentage set forth below
based on attained age at the end of the Plan Year by the Covered
Employee's Retirement Savings Compensation for the Plan Year:
22
<PAGE> 35
<TABLE>
<CAPTION>
ATTAINED AGE PERCENT OF COMPENSATION
------------ -----------------------
<S> <C>
prior to age 35 2%
age 35 through 44 3%
age 45 through 54 4%
age 55 and over 5%
</TABLE>
(c) Limitation on Contributions. In no event shall the
contributions by the Controlling Company and its Affiliates under this
Section 3.4 be greater than the amount permissible under Article VI or
deductible by the Controlling Company or its Affiliates for federal
income tax purposes for the taxable year with respect to which the
contributions are made, plus such additional amount as may be deductible
by reason of a deduction carry forward from any prior year or years when
less than the maximum deductible amount was actually contributed.
(d) Last Day of Plan Year Requirement. An Employee who was a
non-Seasonal Covered Employee during the Plan Year but not an active
non-Seasonal Covered Employee on the last day of the Plan Year may
otherwise satisfy Section 3.4(a)(i) if he:
(i) died or Retired during the Plan Year;
(ii) is Disabled and by the last day of the Plan Year
has not attained his Normal Retirement Age or
ceased eligibility for the Del Monte Long Term
Disability Plan ("LTD"); or
(iii) is an Employee who is actively employed on the last
day of the Plan Year.
3.5 Form of Contributions.
All Contributions shall be paid to the Trustee in the form of cash or
cash equivalents acceptable to the Trustee or Del Monte Common Stock. The amount
needed for Matching, Qualified, Retirement Savings and Restoration Contributions
for a Plan Year shall be reduced by the amount of any Forfeitures available for
reallocation during that Plan Year.
3.6 Timing of Contributions.
(a) Before Tax and/or After Tax Contributions. Each Participating
Company which withholds Before Tax and/or After Tax Contributions from
an Active Participant's paychecks pursuant to a Deferral Election shall
pay such Before Tax and/or After Tax Contributions to the Trustee as of
the earliest date (not to exceed 90 days from the date on which such
amounts otherwise would have been payable to such Active Participants in
cash) on which such Contributions can reasonably be segregated from the
Participating Company's general assets. Provided, however, that
effective February 3, 1997, the parenthetical in this paragraph is
deleted and replaced with the following: "(no later than the 15th
business day of the month following the month such amounts otherwise
would have been paid to such Active Participants)."
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<PAGE> 36
(b) Matching and Qualified Contributions. Each Participating
Company shall pay its Matching and Qualified Contributions to the
Trustee pursuant to the terms of Sections 3.2 and 3.3, but no later than
(i) on or before the date for filing its federal income tax return
(including extensions thereof) for the tax year to which such Matching
and Qualified Contributions relate, or (ii) on or before such other date
as shall be within the time allowed to permit the Participating Company
to properly deduct, for federal income tax purposes and for the tax year
of the Participating Company in which the obligation to make such
Contributions was incurred, the full amount of such Matching and
Qualified Contributions; provided, in the event the amount of Qualified
Contributions cannot be calculated by the latest date described
hereinabove, such Qualified Contributions may be made at a later date
which is on or before the last day of the Plan Year following the Plan
Year to which such Qualified Contributions relate.
(c) Retirement Savings Contributions. Each Participating Company
shall pay its Retirement Savings Contributions to the Trustee pursuant
to the terms of Section 3.4 but no later than (i) on or before the date
for filing its federal income tax return (including extensions thereof)
for the tax year to which such Retirement Savings Contributions relate,
or (ii) on or before such other date as shall be within the time allowed
to permit the Participating Company to properly deduct, for federal
income tax purposes and for the tax year of the Participating Company in
which the obligation to make such Contributions was incurred, the full
amount of such Retirement Savings Contributions.
3.7 Contingent Nature of Company Contributions.
Notwithstanding Section 3.1 and subject to the terms of Section 15.11,
each Company Contribution made to the Plan by a Participating Company is made
expressly contingent upon the deductibility thereof for federal income tax
purposes for the taxable year of the Participating Company with respect to which
such Company Contribution is made.
3.8 Restoration Contributions.
(a) Restoration Upon Buy Back. If a Participant who is not vested
in his Matching Account and/or Retirement Savings Account has received a
distribution of his entire vested Account in a manner described in
Section 8.3(a) [such that he forfeited his nonvested Matching Account
and/or Retirement Savings Account in accordance with the terms of
Section 8.3(a)], and such Participant subsequently is rehired as a
Covered Employee prior to the occurrence of 5 consecutive 1-year Breaks
in Service, that individual may, prior to the earlier of (i) 5 years
after the first date on which he is rehired or (ii) the close of the
first period of 5 consecutive 1-year Breaks in Service commencing after
the distribution, repay the full amount of the distribution to the
Trustee (unadjusted for gains or losses). Upon such repayment, his
Account will be credited with (i) all of the benefits (unadjusted for
gains or losses) which were forfeited, and (ii) the amount of the
repayment.
(b) Restoration of Other Forfeitures. If a Participant has
forfeited his nonvested Matching Account and/or Retirement Savings
Account in accordance with Section 8.3(b), and such Participant
subsequently is rehired as a Covered Employee prior to the
24
<PAGE> 37
occurrence of 5 consecutive 1-year Breaks in Service, his Matching
Account and/or Retirement Savings Account shall be credited with all of
the benefits (unadjusted for gains or losses) which were forfeited, as
determined pursuant to the terms of Section 8.3(b).
(c) Restoration Contribution. The assets necessary to fund the
Account of the rehired individual (in excess of the amount of the
repayment, if any) shall be provided no later than as of the end of the
Plan Year following the Plan Year in which repayment occurs (if section
(a) hereof applies) or in which the individual is rehired (if section
(b) hereof applies), and shall be provided in the discretion of the
Administrative Committee from (i) income or gain to the Trust Fund, (ii)
Forfeitures arising from the Accounts of Participants employed or
formerly employed by the Participating Companies, or (iii) Contributions
by the Participating Companies. If Restoration Contributions are made by
the Participating Companies, each Participating Company's portion of
that Contribution shall be equal to the product of (i) the amount of the
Restoration Contribution, and (ii) a fraction, the numerator of which
is, for Matching Contributions, the amount of Matching Contributions or,
for Retirement Savings Contributions, the amount of Retirement Savings
Contributions made by such Participating Company for the Plan Year in
which the Restoration Contribution is made, and the denominator of which
is, for Matching Contributions, the total amount of all Matching
Contributions or, for Retirement Savings Contributions, the total amount
of all Retirement Savings Contributions made by all Participating
Companies for such Plan Year.
(d) Notice of Buy-Back Rights. It shall be the duty of the
Administrative Committee to give timely notification to any rehired
individual who is eligible to make a repayment of his right to make such
repayment in accordance with this section and of the consequences of not
making such repayment; namely that the nonvested portion of the benefits
accrued under the Plan during his previous employment will not be
restored by the Plan, will remain forfeited, and will not become vested
even though he may perform additional years of Vesting Service.
ARTICLE IV
ROLLOVERS
4.1 Rollover Contributions.
(a) Request by Participant. An Active Participant may make a
written request to the Administrative Committee that he be permitted to
contribute, or cause to be contributed, to the Trust Fund a Rollover
Contribution which is received by such Participant or to which such
Participant is entitled. Such written request shall contain information
concerning the type of property constituting the Rollover Contribution
and a statement, satisfactory to the Administrative Committee, that the
property constitutes a Rollover Contribution.
(b) Acceptance of Rollover. Subject to the terms of the Plan and
the Code (including regulations and rulings promulgated thereunder), the
Administrative Committee, in its sole discretion, may permit such a
Rollover Contribution to be accepted
25
<PAGE> 38
at any time by the Trustee and allocated as of the Valuation Date
coincident with or next following the date such Rollover Contribution is
accepted to a Rollover Account of such Active Participant. Unless the
Administrative Committee permits otherwise, all Rollover Contributions
shall be made in cash. Decisions by the Administrative Committee
concerning the acceptability and form of a Rollover Contribution shall
be based on objective criteria which shall be uniformly applied to all
Participants. Effective as of October 19, 1995, the Administrative
Committee shall require reasonable assurance from the Active Participant
and/or the plan making the distribution prior to acceptance of a
Rollover Contribution that the Rollover Contribution is an "eligible
rollover distribution" under section 402(c)(4) of the Code, and
applicable regulations, and is a direct rollover that satisfied Section
401(a)(31) of the Code.
(c) Mistaken Rollover. If the Administrative Committee becomes
aware that a Rollover Contribution did not qualify under the Code as a
tax-free rollover, then as soon as reasonably possible the
Administrative Committee shall direct that the Participant's Rollover
Account shall be (i) segregated from all other Plan assets, (ii) treated
as a non-qualified trust established by and for the benefit of the
Participant, and (iii) distributed to the Participant. Such mistaken
Rollover Contribution shall be deemed never to have been a part of the
Plan. The Administrative Committee may take any action so that such
mistaken Rollover Contribution shall not adversely affect the tax
qualification of the Plan under the Code.
ARTICLE V
PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS
5.1 Establishment of Participants' Accounts.
To the extent appropriate, the Administrative Committee shall establish
and maintain, on behalf of each Participant and Beneficiary, an Account which
shall be divided into segregated subaccounts. The subaccounts shall include
Before Tax, After Tax, Matching, Qualified, Retirement Savings and Rollover
Accounts and such other subaccounts as the Administrative Committee shall deem
appropriate or helpful. Each Account shall be credited with Contributions
allocated to such Account and generally shall be credited with income on
investments derived from the assets of such Accounts. Each Account of a
Participant or Beneficiary shall be maintained until the value thereof has been
distributed to or on behalf of such Participant or Beneficiary. An Account (and
appropriate subaccounts) shall be established on behalf of an alternate payee
under a qualified domestic relations order [determined to be such pursuant to
the provisions of Section 15.1(b)] if the alternate payee does not receive an
immediate distribution as described in Section 9.5.
5.2 Allocation and Crediting of Before Tax, After Tax, Matching and
Rollover Contributions.
No later than the last Valuation Date of the calendar month coinciding
with or immediately following (a) the end of the accounting period for which
Before Tax, After Tax and Matching Contributions are made or (b) the date on
which Rollover Contributions are accepted
26
<PAGE> 39
and received on behalf of an Active Participant, such Contributions shall be
allocated and credited for the calendar month directly to the appropriate Before
Tax, After Tax, Matching and Rollover Accounts, respectively, of such Active
Participant.
5.3 Allocation and Crediting of Qualified Contributions.
(a) Participants Receiving Allocations. Qualified Contributions
shall be allocated and credited as of the last day of each Plan Year
among the Qualified Accounts of those Active Participants who are not
Highly Compensated Employees for such Plan Year and for whom matching
Contributions were made during such Plan Year.
(b) Formula for Allocation. As of the last day of each Plan Year
for which the Participating Companies make (or are deemed to have made)
Qualified Contributions, each Active Participant who is eligible to
receive an allocation of Qualified Contributions for such Plan Year
(pursuant to the terms of subsection (a) hereof) shall have allocated
and credited to his Qualified Account a portion of the Qualified
Contributions made for such Plan Year by the Participating Companies.
The Administrative Committee shall cause a portion of such Testing
Contribution to be allocated to the Account of each such Active
Participant in the same proportion that the Testing Compensation of such
Active Participant for such Plan Year bears to the total Testing
Compensation of all such Active Participants for such Plan Year;
provided that each Active Participant's Testing Compensation shall be
limited to $1.00 in determining such Active Participant's allocable
share of such Contribution.
5.4 Allocation and Crediting of Retirement Savings Contributions.
Retirement Savings Contributions shall be allocated as of an Annual
Valuation Date that is the last day of a Plan Year among the Retirement Savings
Accounts of those Participants who are Eligible Covered Employees satisfying the
requirements of Section 3.4, notwithstanding the subsequent contribution under
Section 3.6(c). As soon as practicable following the end of the Plan Year,
Retirement Savings Contributions shall be credited to the Retirement Savings
Accounts.
5.5 Allocation and Crediting of Investment Experience.
As of each Valuation Date, the Trustee shall determine the fair market
value of the Trust Fund which shall be the sum of the fair market values of each
Investment Fund. The Administrative Committee shall determine the balance of the
Accounts as follows:
(a) Determination of Earnings or Losses. Subject to Section
9.1(a), as of each Valuation Date, the investment earnings (or losses)
of each Investment Fund shall be the amount by which the sum determined
in (1) exceeds (or is less than) the sum determined in (2), where (1)
and (2) are as follows:
(i) The sum of (A) the fair market value of such
Investment Fund as of such Valuation Date, plus (B) the amount of
distributions, withdrawals and other disbursements made since the
immediately preceding Valuation Date from amounts invested in the
Investment Fund; and
27
<PAGE> 40
(ii) The sum of (A) the fair market value of the
Investment Fund as of the immediately preceding Valuation Date,
plus (B) Contributions deposited and other receipts in such
Investment Fund since the immediately preceding Valuation Date.
(b) Formula For Allocation. As of each Valuation Date and prior
to the allocations described in Sections 5.2, 5.3 and 5.4, each
Participant's Account shall be allocated and shall be credited with a
portion of such earnings or debited with a portion of such losses of
each Investment Fund, as determined in accordance with subsection (a)
hereof, in the proportion that (i) the amount credited to such Account
that was invested in such Investment Fund as of the immediately
preceding Valuation Date, bears to (ii) the total amount invested in
such Investment Fund by all Participants as of the immediately preceding
Valuation Date.
(c) Del Monte Common Stock Fund. The value of the interest of any
Participant's Account in the Del Monte Common Stock Fund shall be
measured in units (rather than shares of Del Monte Common Stock) in such
manner as the Administrative Committee (in its discretion) shall
determine.
5.6 Notice to Participants of Account Balances.
At least once for each Plan Year, the Administrative Committee shall
cause a written statement of a Participant's Account balance to be distributed
to the Participant.
5.7 Good Faith Valuation Binding.
In determining the value of the Trust Fund and the Accounts, the Trustee
and the Administrative Committee shall exercise their best judgment, and all
such determinations of value (in the absence of bad faith) shall be binding upon
all Participants and Beneficiaries.
5.8 Errors and Omissions in Accounts.
If an error or omission is discovered in the Account of a Participant or
Beneficiary, the Administrative Committee shall cause appropriate, equitable
adjustments to be made as of the Valuation Date that occurs as soon as
administratively feasible after the discovery of such error or omission.
ARTICLE VI
CONTRIBUTION AND SECTION 415 LIMITATIONS
AND NONDISCRIMINATION REQUIREMENTS
6.1 Definition of "Compensation" for Compliance Purposes.
(a) Section 415 Compensation. For any applicable determination
period, "Section 415 Compensation" shall mean wages as defined in Code
Section 3401(a) for purposes of income tax withholding at the source,
but determined without regard to any rules that
28
<PAGE> 41
limit the remuneration included in wages based on the nature or location
of the employment or the services performed [such as the exemption for
agricultural labor in Code Section 3401(a)(2)]; provided, in no event
shall the annual Section 415 Compensation taken into account under this
Section exceed $150,000 (as adjusted by the Internal Revenue Service
under Code Section 401(a)(17) for cost-of-living increases; provided
further that for Plan Years beginning after December 31, 1997, Section
415 Compensation shall also include compensation which is not currently
includable in the Participant's gross income by reason of the
application of Code Sections 125 or 402(e)(3), as provided in Code
Section 402(g)(3).
(b) Testing Compensation. For any applicable determination
period, "Testing Compensation" shall have the same meaning as
"Compensation," provided the definition of "Compensation" can be shown
to be nondiscriminatory under Code Section 414(s) for such determination
period. If such a showing cannot be made for any applicable
determination period, "Testing Compensation" for such period shall be
equal to the aggregate of (i) Section 415 Compensation for such period;
plus (ii) if the Administrative Committee approves the addition of such
amounts for the applicable determination period, all amounts that would
have been treated as Section 415 Compensation for such period except
that they were deferred as elective contributions under Code Section
125, Section 402(a)(8) (effective January 1, 1993, Section 402(e)(3)) or
Section 402(h); and minus (iii) if the Administrative Committee approves
the subtraction of such amounts for the applicable determination period,
all of the following amounts for such period (even if includable in
gross income): reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred compensation and
welfare benefits. Notwithstanding anything herein to the contrary, (i)
in no event shall the annual Testing Compensation taken into account
under this Section exceed $150,000 (as adjusted by the Internal Revenue
Service under Code Section 401(a)(17) for cost-of-living increases); and
(ii) any definition of Testing Compensation selected under this Section
shall be used consistently to define the Testing Compensation of all
employees taken into account in satisfying the requirements of an
applicable provision for the relevant determination period.
(c) Total Compensation. For any applicable determination period,
"Total Compensation" shall mean the total of Section 415 Compensation
for such period, plus all amounts that would have been treated as
Section 415 Compensation for such period except that they were deferred
as elective contributions under Code Section 125, Section 402(a)(8)
(effective January 1, 1993, Section 402(e)(3)) or Section 402(h)(1)(B);
provided, in no event shall the annual Total Compensation taken into
account under this Section exceed $150,000 (as adjusted by the Internal
Revenue Service under Code Section 401(a)(17) for cost-of-living
increases).
6.2 Deductibility Limitations.
In no event shall the total Company Contribution amounts for any taxable
year of a Participating Company exceed that amount which is properly deductible
for federal income tax purposes under the then appropriate provisions of the
Code. Generally, the maximum, tax-deductible Company Contribution amounts for
any taxable year of a Participating Company shall be equal to 15 percent of the
total Section 415 Compensation paid or accrued during such taxable
29
<PAGE> 42
year to all Active Participants employed by such Participating Company;
provided, no Company Contribution amounts shall be deductible if they cause the
Plan to exceed the applicable maximum allocation limitations under Code Section
415, as described in Section 6.8. For purposes of this section, a Company
Contribution may be deemed made by a Participating Company for a taxable year if
it is paid to the Trustee on or before the date of filing the Participating
Company's federal income tax return (including extensions thereof) for that year
or on or before such other date as shall be within the time allowed to permit
proper deduction by the Participating Company of the amount so contributed for
federal income tax purposes for the year in which the obligation to make such
Company Contribution was incurred.
6.3 Maximum Limitation on Elective Deferrals.
(a) Maximum Elective Deferrals Under Affiliate Plans. The
aggregate amount of a Participant's Elective Deferrals made for any
calendar year under the Plan and any other plans, contracts or
arrangements with the Affiliates shall not exceed the Maximum Deferral
Amount.
(b) Return of Excess Before Tax Contribution. If the aggregate
amount of a Participant's Before Tax Contributions made for any calendar
year by itself exceeds the Maximum Deferral Amount, and to the extent
such Before Tax Contributions cannot be treated as After Tax
Contributions pursuant to Section 3.1(c), the Participant shall be
deemed to have notified the Administrative Committee of such excess, and
the Administrative Committee shall cause the Trustee to distribute to
such Participant, on or before April 15 of the next succeeding calendar
year, the total of (i) the amount by which such Before Tax Contributions
exceed the Maximum Deferral Amount, plus (ii) any earnings allocable
thereto. in addition, Matching Contributions made on behalf of the
Participant which are attributable to the distributed Before Tax
Contributions shall be treated as a Forfeiture.
(c) Return of Excess Elective Deferrals Provided by Other
Affiliate Arrangements. If, after the reduction described in subsection
(b) hereof, a Participant's aggregate Elective Deferrals under plans,
contracts and arrangements with the Affiliates still exceed the Maximum
Deferral Amount, then, the Participant shall be deemed to have notified
the Administrative Committee of such excess, and, unless the
Administrative Committee directs otherwise, such excess shall be reduced
by distributing to the Participant Elective Deferrals that were made for
the calendar year under such plans, contracts and/or arrangements with
the Affiliates other than the Plan. However, if the Administrative
Committee decides to make any such distributions from Before Tax
Contributions made to the Plan, such distributions (including
Forfeitures of Matching Contributions) shall be made in a manner similar
to that described in subsection (b) hereof.
(d) Discretionary Return of Elective Deferrals. If after
distributing any amounts required to be distributed pursuant to
subsections (b) and (c) hereof, (i) a Participant's aggregate Elective
Deferrals made for any calendar year under the Plan and any other plans,
contracts or arrangements with the Affiliates and any other employers
still exceed the Maximum Deferral Amount, and (ii) such Participant
submits to the
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<PAGE> 43
Administrative Committee, on or before the March 1 following the end of
such calendar year, a written request that the Administrative Committee
distribute to such Participant all or a portion of his remaining Before
Tax Contributions made for such calendar year, and any earnings
attributable thereto, then the Administrative Committee may, but shall
not be required to, cause the Trustee to distribute such amount to such
Participant on or before the following April 15. However, if the
Administrative Committee decides to make any such distributions from
Before Tax Contributions made to the Plan, such distributions (including
Forfeitures of Matching Contributions) shall be made in a manner similar
to that described in subsection (b) hereof.
(e) Return of Excess Annual Additions. Any Before Tax
Contributions returned to a Participant to correct excess Annual
Additions shall be disregarded for purposes of determining whether the
Maximum Deferral Amount has been exceeded.
6.4 Nondiscrimination Requirements for Before Tax Contributions.
(a) ADP Test. The annual allocation of the aggregate of all
Before Tax Contributions and, to the extent designated by the
Administrative Committee, Qualified Contributions shall satisfy at least
one of the following ADP Tests for each Plan Year:
(i) The ADP for the Highly Compensated Employees who are
Participants shall not exceed the product of (A) the ADP in the
prior Plan Year for the Participants who are not Highly
Compensated Employees, multiplied by (B) 1.25; or
(ii) The ADP for the Highly Compensated Employees who are
Participants shall not exceed the ADP in the prior Plan Year for
the Participants who are not Highly Compensated Employees by more
than 2 percentage points, nor shall it exceed the product of (A)
the ADP in the Prior Plan Year of the Participants who are not
Highly Compensated Employees, multiplied by (B) 2.
(b) Multiple Plans. If before tax and/or qualified contributions
are made to one or more other plans [other than employee stock ownership
plans as described in Code Section 4975(e)(7)] which, along with the
Plan, are considered as a single plan for purposes of Code Section
401(a)(4) or Section 410(b), such plans shall be treated as one plan for
purposes of this section, and the before tax and applicable qualified
contributions made to those other plans shall be combined with the
Before Tax and applicable Qualified Contributions for purposes of
performing the tests described in subsection (a) hereof. In addition,
the Administrative Committee may elect to treat the Plan as a single
plan along with the one or more other plans (other than employee stock
ownership plans as described in Code Section 4975(e)(7)] to which before
tax contributions are made for purposes of this section; provided, the
Plan and all of such other plans also must be treated as a single plan
for purposes of satisfying the requirements of Code Section 401(a)(4)
and Section 410(b) [other than the requirements of Code Section
410(b)(2)(A)(ii)]. However, for Plan Years beginning after December 31,
1989, plans may be aggregated for purposes of this subsection (b) only
if they have the same plan year.
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<PAGE> 44
(c) Adjustments to Actual Deferral Percentages. In the event that
the allocation of the Before Tax and Qualified Contributions for a Plan
Year, after the application of Section 6.3, does not satisfy one of the
ADP Tests, the Administrative Committee shall cause the Before Tax and
Qualified Contributions for such Plan Year to be adjusted in accordance
with one or a combination of the following options:
(i) The Administrative Committee may cause the
Participating Companies to make, with respect to such Plan Year,
Qualified Contributions on behalf of, and specifically allocable
to, the Active Participants described in Section 5.3(a) with
respect to such Plan Year, in the minimum amount necessary to
satisfy one of the ADP Tests. Such Qualified Contributions shall
be allocated among such Active Participants in a manner
consistent with Section 5.3.
(ii) By the last day of the Plan Year following the Plan
Year in which the annual allocation failed both of the ADP Tests,
the Administrative Committee may cause the Before Tax
Contributions taken into account with respect to Highly
Compensated Employees under such failed ADP Tests to be reduced
by an amount necessary to satisfy one of the ADP Tests. Any
amount by which Before Tax Contributions are so reduced, plus any
earnings attributable thereto, shall be distributed to the Highly
Compensated Employees from whose Before Tax Accounts such
reductions shall have been made. Such reductions in Contributions
shall be made solely to the Accounts of those Highly Compensated
Employees who are affected by the following procedure:
(1) The Administrative Committee first shall direct
the Trustee to reduce the Before Tax Contributions of the
Highly Compensated Employee(s) with the highest ADP for
such Plan Year by use of a leveling process, whereby the
aggregate Before Tax Contributions of the Highly
Compensated Employee with the highest dollar amount of
aggregate Before Tax Contributions are reduced to the
extent required to (1) cause the ADP Test to be satisfied
or (2) cause such Highly Compensated Employee's aggregate
Before Tax Contributions to equal the aggregate Before Tax
Contributions of the Highly Compensated Employee with the
next-highest aggregate Before Tax Contributions.
(2) The Administrative Committee shall repeat such
leveling process until the ADP Test for such Plan Year is
satisfied.
(3) The adjustments made pursuant to the terms of
this subsection (c) shall be made separately with respect
to each Affiliate.
6.5 Nondiscrimination Requirements for After Tax and Matching
Contributions.
(a) ACP Test. The amount of the aggregate of all After Tax and
Matching Contributions, and to the extent designated by the
Administrative Committee, Before Tax and/or Qualified Contributions made
for each Plan Year, shall satisfy at least one of the following ACP
Tests:
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<PAGE> 45
(i) The ACP for the Highly Compensated Employees who are
Participants during the Plan Year shall not exceed the product of
(A) the ACP in the prior Plan Year for the Participants who are
not Highly Compensated Employees during the Plan Year, multiplied
by (B) 1.25; or
(ii) The ACP for the Highly Compensated Employees who are
Participants during the Plan Year shall not exceed the ACP in the
prior Plan Year for the Participants who are not Highly
Compensated Employees during the Plan Year by more than 2
percentage points, nor shall it exceed the product of (A) the ACP
in the prior Plan Year of the Participants who are not Highly
Compensated Employees during the Plan Year, multiplied by (B) 2.
(b) Multiple Plans. If matching, after tax, before tax and/or
qualified contributions are made to one or more other plans (other than
employee stock ownership plans as described in Code Section 4975(e)(7)]
which, along with the Plan, are considered as a single plan for purposes
of Code Section 401(a)(4) or Section 410(b), such plans shall be treated
as one plan for purposes of this section, and the matching, after tax,
before tax and applicable qualified contributions made to those other
plans shall be combined with the Matching, After Tax, Before Tax and
Qualified Contributions for purposes of performing the tests described
in subsection (a) hereof. In addition, the Administrative Committee may
elect to treat the Plan as a single plan along with one or more other
plans [other than employee stock ownership plans as described in Code
Section 4975(e)(7)] to which matching, after tax, before tax and/or
qualified contributions are made for purposes of this section; provided,
the Plan and all of such other plans also must be treated as a single
plan for purposes of satisfying the requirements of Code Section
401(a)(4) and Section 410(b) [other than the requirements of Code
Section 410 (b)(2)(A)(ii)] . However, plans may be aggregated for
purposes of this subsection only if they have the same plan year.
(c) Adjustments to Average Contribution Percentages. In the event
that the allocation of the After Tax, Before Tax, Matching and Qualified
Contributions for a Plan Year, after the application of subsections (a)
and (b) hereof, does not satisfy one of the ACP Tests, the
Administrative Committee shall cause such After Tax, Before Tax,
Matching and/or Qualified Contributions for the Plan Year to be adjusted
in accordance with one or a combination of the following options:
(i) The Administrative Committee may cause the Company to
make, with respect to such Plan Year, Qualified Contributions on
behalf of, and specifically allocable to, the Active Participants
described in Section 5.3(a) with respect to such Plan Year, in
the minimum amount necessary to satisfy one of the ACP Tests,
such Qualified Contributions shall be allocated among the
affected Active Participants in a manner consistent with Section
5.3. Alternatively or in addition, the Administrative Committee
may add a portion of the Before Tax Contributions, that are made
for the Plan Year by the Participants who are not Highly
Compensated Employees and that are not needed for the Plan to
satisfy the ADP Tests for the Plan Year, to the After Tax and
Matching Contributions for such Participant increase the ACP for
such Participants.
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(ii) By the last day of the Plan Year following Plan Year
in which the action failed both of the ACP Tests, the
Administrative Committee may direct the Trustee to reduce the
After Tax and/or Matching Contributions taken into account with
respect to Highly Compensated Employees under such failed ACP
Tests by an amount necessary to satisfy one of the ACP Tests. Any
amount by which After Tax Contributions are so reduced, plus any
earnings attribute thereto shall be distributed to the Highly
Compensated Employees from whose Accounts such reductions have
been made. Any Matching Contributions made on behalf of Highly
Compensated Employees which are attributable to the distributed
After Tax Contributions shall be forfeited. If these
distributions (and forfeitures) do not cause the Plan to satisfy
one of the ACP Tests, the amount by which Matching Contributions
are to be reduced, plus any earnings attributable thereto, shall
be forfeited and reallocated as Qualified Contributions to the
Qualified Accounts of the Active Participants described in
Section 5.3(a) with respect to such Plan Year: provided, if the
Matching Contributions to be reduced are vested and therefore may
not be forfeited, those Matching Contributions (plus any earnings
attributable thereto) shall be distributed to the Highly
Compensated Employees from whose Matching Accounts such
reductions have been made. Such reductions in contributions shall
be made in accordance with, and solely to the Accounts of those
Highly Compensated Employees who are affected by, the following
procedure:
(1) First, the After Tax and Matching Contributions
of the Highly Compensated Employee(s) with the ACP of the
highest dollar amount for such Plan Year shall be reduced
by the lesser of (i) the entire amount necessary to
satisfy one of the ACP Tests, or (ii) that part of the
amount necessary to satisfy one of the ACP Tests as shall
cause the ACP of each such Highly Compensated Employee to
equal the ACP of each of the Highly Compensated Employees
with the ACP(s) for such Plan Year of the next highest
dollar amounts. If the total amount of the required
reduction in a Highly Compensated Employee's After Tax and
Matching Contributions is less than the total amount of
such Contributions, the required reductions first shall be
charged against such Highly Compensated Employee's After
Tax Contributions (together with any Matching
Contributions attributable to those After Tax
Contributions) until they are exhausted, and then against
his remaining Matching Contributions,
(2) The Administrative Committee shall follow
substantially identical steps for making further
reductions in the Contributions of each of the Highly
Compensated Employees with the next highest ACP for such
Plan Year until one of the ACP Tests has been satisfied.
6.6 Multiple Use of Tests.
(a) Aggregate Limitation. The sum of the ADP and the ACP for a
Plan Year for the entire group of eligible Highly Compensated Employees
who are Active
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Participants, following the application of Sections 6.4(c) and 6.5(c)
for such Plan Year, may not exceed the sum of either (1) or (2) below
(or such other applicable limits as may be established under the Code,
regulations or otherwise):
(i) (A) 125 percent of the greater of (i) the ADP of the
group of non-Highly Compensated Employees eligible under the Plan
for the Plan Year, or (ii) the ACP of the group of non-Highly
Compensated Employees who are eligible under the Plan for the
Plan Year; plus
(ii) (B) the lesser of 2 plus or 2 times the lesser of the
amount determined in subsection (a)(1)(A)(i) or (a)(1)(A)(ii)
hereof; or,
(iii) (A) 125 percent of the lesser of (i) the ADP of the
group of non-Highly Compensated Employees, eligible under the
Plan for the Plan Year, or (ii) the ACP of the group of
non-Highly Compensated Employees who are eligible under the Plan
for the Plan Year; plus
(iv) (B) the lesser of 2 plus or 2 times the greater of
the amount determined in subsection (a)(2)(A)(i) or (a)(2)(A)(ii)
hereof.
(b) Multiple Plans. If at least one Highly Compensated Employee
participates in another qualified retirement plan maintained by the
Controlling Company which (i) permits before tax contributions and/or
after tax contributions or matching contributions, and (ii) is not
aggregated with the Plan for purposes of nondiscrimination testing, then
the multiple use aggregate limitations described in subsection (a) shall
apply in testing the Plan separately against each such other plan.
(c) Correction. If the maximum limitation of the combination of
the ADP and ACP, as described in subsection (a) hereof, is exceeded,
this excess shall be reduced or otherwise corrected by any method
permissible under Section 6.4 for satisfying the ADP Test or through any
method permitted under Section 6.5(c) to satisfy the ACP Test, or any
combination thereof. Any adjustment necessary to satisfy said maximum
limitation shall be made by adjusting the ADP's or the ACP's of Highly
Compensated Employees.
(d) Application. This section shall be operated and interpreted
in a manner consistent with regulations promulgated under Code Section
401(m).
6.7 Order of Application.
For any Plan Year in which adjustments shall be necessary or otherwise
made pursuant to the terms of Sections 6.3, 6.4 and/or 6.5, such adjustments
shall be applied in the following order:
(a) first, Section 6.3;
(b) second, Section 6.4(c); and
(c) third, Section 6.5(c).
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6.8 Code Section 415 Limitations on Maximum Contributions.
(a) General Limit on Annual Additions. In no event shall the
Annual Addition to a Participant's Account for any Limitation Year,
under the Plan and any other Defined Contribution Plan maintained by an
Affiliate, exceed the lesser of:
(i) $30,000 [or, if greater, 25 percent of the dollar
limitation in effect under Code Section 415(b)(1)(A); or
(ii) 25 percent of such Participant's Section 415
Compensation.
(b) Combined Plan Limitation. For Plan Years beginning before
January 1, 2000, if an Employee is a Participant in the Plan and any one
or more Defined Benefit Plans maintained by an Affiliate, the sum of his
Defined Benefit Plan Fraction and his Defined Contribution Plan Fraction
shall not exceed 1.0 for any Limitation Year. (For purposes of this
subsection, any adjustments in the definition of "Testing Compensation"
permitted by the Internal Revenue Service for purposes of determining
this combined limit are included herein by reference.) If any corrective
adjustment in any Participant's benefits is required to comply with this
subsection, such adjustment shall be made exclusively under the Defined
Benefit Plans maintained by the Affiliates. If an Employee is a
Participant in the Plan and any one or more other Defined Contribution
Plans maintained by an Affiliate and a corrective adjustment in such
Participant's benefits is required to comply with this subsection, such
adjustment shall be made under such other Defined Contribution Plan or
Plans. This Section 6.8(b) shall have no force or effect with respect to
Plan Years beginning on or after January 1, 2000.
(c) Correction of Excess Annual Additions. If, as a result of
either the allocation of Forfeitures to an Account, a reasonable error
in estimating a Participant's Section 415 Compensation or such other
occurrences as the Internal Revenue Service permits to trigger this
subsection, the Annual Addition made on behalf of a Participant exceeds
the limitations set forth in this section, the Administrative Committee
shall direct the Trustee to take such of the following actions as it
shall deem appropriate, specifying in each case the amount of
contributions involved:
(i) A Participant's Annual Addition first shall be reduced
by reducing his After Tax Contributions to the extent of any such
excess, up to the total amount of After Tax Contributions made on
behalf of such Participant, and the amount of the reduction (plus
any investment earnings thereon) shall be returned to such
Participant.
(ii) If further reduction is necessary, the Matching and
Qualified Contributions allocated to the Participant's Account
shall be reduced in the amount of the remaining excess. The
amount of the reduction shall be reallocated to the Matching and
Qualified Accounts of Active Participants who otherwise are
eligible for allocations of Contributions, who are employed by
the Participating Company or Companies employing the Participant
and who are not affected by the Annual Addition limitations, in
the same proportion as Matching and
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Qualified Contributions otherwise are allocated to such Accounts,
disregarding the Section 415 Compensation of those Active
Participants whose Annual Addition equals or exceeds the
limitations hereunder.
(iii) If further reduction is necessary, the Retirement
Savings Contributions, if any, allocated to the Participant's
Account shall be reduced in the amount of the remaining excess.
The amount of the reductions shall be reallocated to the
Retirement Savings Accounts of Active Participants who otherwise
are eligible for allocations of Contributions, who are employed
by the Participating Company or Companies employing the
Participant and who are not affected by the Annual Addition
limitations, in the same proportion as Retirement Savings
Contributions otherwise are allocated to such Accounts,
disregarding the Section 415 Compensation of those Active
Participants whose Annual Addition equals or exceeds the
limitations hereunder.
(iv) If further reduction is necessary, the Before Tax
Contributions allocated to the Participant's Before Tax Account
shall be reduced in the amount of the remaining excess. The
amount of the reduction (plus any earnings thereon) shall be
returned to the Participant if permissible, or, if not, held in
suspense pursuant to the terms of subsection (c)(4) hereof.
(v) If the reallocation to the Accounts of other
Participants in the then current Limitation Year (as described in
subsection (c)(2) and (c)(3) hereof) is impossible without
causing them or any of them to exceed the Annual Addition
limitations described in this section, the amount that cannot be
reallocated without exceeding such limitations shall continue to
be held in a suspense account and shall be applied to reduce
permissible Contributions in each successive year until such
amount is fully allocated; provided, so long as any suspense
account is maintained pursuant to this section: (A) no
Contributions shall be made to the Plan which would be precluded
by this section; (B) investment gains and losses of the Trust
Fund shall not be allocated to such suspense account; and (C)
amounts in the suspense account shall be allocated in the same
manner as Contributions as of the earliest Valuation Date
possible, until such suspense account is exhausted.
(d) Special Definitions Applicable to Code Section 415
Limitations.
(i) Annual Addition. For purposes of this section, the
term "Annual Addition" for any Participant means the sum for any
Limitation Year of:
(1) contributions made by an Affiliate on behalf of
the Participant under all Defined Contribution Plans;
(2) contributions made by the Participant under all
Defined Contribution Plans of an Affiliate [excluding
rollover contributions as defined in Code Section
402(a)(5) (effective January 1, 1993, Code Section
402(c)), Section 403(a)(4), Section 403(b)(8) and Section
408(d)(3) and contributions of previously
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distributed benefits which result in such a Plan's
restoration of previously forfeited benefits pursuant to
Treasury Regulations Section 1.411(a)-7(d)];
(3) forfeitures allocated to the Participant under
all Defined Contribution Plans of a Participating Company;
(4) amounts allocated for the benefit of the
Participant after March 31, 1984, to an individual medical
account established under a pension or annuity plan
maintained by a Participating Company, as described in
Code Section 415(l); and
(5) for purposes of Section 6.8(a)(1) only, if the
Participant was a Key Employee at any time during the Plan
Year during which or coincident with which the Limitation
Year ends or during any preceding Plan Year, any amount
paid or accrued after December 31, 1985 by a Participating
Company to a special account to provide post-retirement
medical or life insurance benefits to the Participant, as
described in Code Section 419A(d)(2).
Contributions do not fail to be Annual Additions merely because they are (i)
Before Tax Contributions that exceed the Maximum Deferral Amount, (ii) Before
Tax Contributions that cause the Plan to fail the ADP Tests, or (iii) After Tax
or Matching Contributions that cause the Plan to fail the ACP Tests, or merely
because the Contributions in clauses (ii) and (iii) immediately above are
protected through distribution or recharacterization; Contributions described in
clause (i) immediately above that are distributed in accordance with the terms
of Section 6.3 shall not be Annual Additions,
(ii) Defined Benefit Plan. The term "Defined Benefit Plan"
shall mean any qualified retirement plan maintained by an
Affiliate which is not a Defined Contribution Plan.
(iii) Defined Benefit Plan Fraction. The term "Defined
Benefit Plan Fraction" shall mean, with respect to a Participant
for any Limitation Year, a fraction, the numerator of which is
his projected annual benefit under all Defined Benefit Plans
maintained by an Affiliate, as determined as of the close of the
Limitation Year, and the denominator of which is the lesser of:
(1) 125 percent of the dollar limitation in effect
for such year under Code Section 415(b)(1)(A); or
(2) 140 percent of his average Section 415
Compensation for his highest three consecutive plan years
of participation in such Defined Benefit Plans.
In appropriate cases, the Defined Benefit Plan Fraction will be adjusted to
reflect applicable transition rules provided by the Code and the regulations
thereunder.
(iv) Defined Contribution Plan. The term "Defined
Contribution Plan" shall mean any qualified retirement plan
maintained by an Affiliate which
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<PAGE> 51
provides for an individual account for each Participant and for
benefits based solely on the amount contributed to the
Participant's account and any income, expenses, gains, losses and
forfeitures of accounts of other Participants, which may be
allocated to such Participant's account.
(v) Defined Contribution Plan Fraction. The term Defined
Contribution Plan Fraction" shall mean, with respect to a
Participant for any Limitation Year, a fraction, the numerator of
which is the sum of the Annual Additions to his Accounts in this
Plan and to his accounts in any other Defined Contribution Plans
required to be aggregated with this Plan under Code Section
415(h), as of the close of the Limitation Year, and the
denominator of which is the sum of the lesser of the following
amounts determined separately for the current Limitation Year and
for each prior Limitation Year in which the Participant was
employed by an Affiliate:
(1) 125 percent of the dollar limitation in effect
under Code Section 415(c)(1)(A) as of the last day of such
Limitation Year; or
(2) 35 percent of the Participant's Section 415
Compensation from Affiliates for the Limitation Year.
In appropriate cases, the Defined Contribution Plan Fraction will be adjusted to
reflect applicable transition rules provided by the Code and regulations
thereunder.
(e) Compliance with Code Section 415. The limitations in this
section are intended to comply with the provisions of Code Section 415
so that the maximum benefits permitted under plans of the Affiliates
shall be exactly equal to the maximum amounts allowed under Code Section
415 and the regulations promulgated thereunder. The provisions of this
section generally are effective as of the Effective Date, but to the
extent the Code requires an earlier or later effective date with respect
to any portion(s) of this section, such other effective date shall
apply. If there is any discrepancy between the provisions of this
section and the provisions of Code Section 415 and the regulations
promulgated thereunder, such discrepancy shall be resolved in such a way
as to give full effect to the provisions of the Code.
6.9 Construction of Limitations and Requirements.
The descriptions of the limitations and requirements set forth in this
Article are intended to serve as statements of the minimum legal requirements
necessary for the Plan to remain qualified under the applicable terms of the
Code. The Participating Companies do not desire or intend, and the terms of this
Article shall not be construed, to impose any more restrictions on the operation
of the Plan than required by law. Therefore, the terms of this Article and any
related terms and definitions in the Plan shall be interpreted and operated in a
manner which imposes the least restrictions on the Plan. For example, if use of
a more liberal definition of "Section 415 Compensation" or a more liberal
multiple use test is permissible at any time under the law, then the more
liberal provisions may be applied as if such provisions were included in the
Plan.
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ARTICLE VII
INVESTMENT OF ACCOUNTS
7.1 Establishment of Trust Fund.
All Contributions are to be paid over to the Trustee to be held in the
Trust Fund and invested in accordance with the terms of the Plan and the Trust
Agreement.
7.2 Investment Funds.
(a) Named Investment Funds. In accordance with instructions from
the Investment Committee and the terms of the Plan, as of January 1,
1996, the Trustee has established as named Investment Funds, for
investment of assets of the Trust Fund, an Interest Income Fund, a
Capital Fund, an International Fund and a Retirement Growth Fund.
Effective as of January 1, 1997, the named Investment Funds are the
Interest Income Fund, Capital Fund, International Fund, Growth Fund, and
Equity Index Trust Fund. Effective as of March 1, 2000, the Trustee
shall establish as named Investment Funds, for investment of assets of
the Trust fund, the following funds, which shall replace the funds in
effect prior to March 1, 2000:
(i) Fidelity Managed Income Portfolio Fund;
(ii) PIMCo Total Return Fund;
(iii) Fidelity Balanced Fund;
(iv) Fidelity US Equity Index Fund;
(v) Fidelity Aggressive Growth Fund;
(vi) MAS Mid Cap Value Fund;
(vii) Berger Small Cap Value Fund;
(viii) Robertson Stevenson Emerging Growth Fund;
(ix) Fidelity Diversified International Fund; and
(x) Del Monte Common Stock Fund.
(b) Other Investment Funds. At the direction of the Investment
Committee, the Trustee shall establish other Investment Funds in
addition to or in lieu of the Investment Funds described in Section
7.2(a). Such other Investment Funds shall be established without
necessity of amendment to the Plan or the Trust and shall have the
investment objectives established by the Investment Committee for such
Investment Fund. An Investment Fund may be established for any limited
purpose or limited duration as the
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<PAGE> 53
Investment Committee may direct. The Investment Committee may terminate,
freeze or otherwise impose any limitation on any Investment Fund, from
time to time.
(c) Transition for Investment Funds. From time to time, the
Investment Committee shall establish the procedures, policies
limitations and options necessary or desirable to provide an orderly
transition when one or more Investment Funds change. Without limiting
the foregoing, the Investment Committee may suspend, delay or otherwise
alter the customary administrative deadlines, procedures and processing
for a reasonable period of time to permit any such transition to occur.
(d) Reinvestment of Cash Earnings. Any investment earnings
received in the form of cash with respect to any Investment Fund (in
excess of the amounts necessary to pay Plan or Trust expenses) shall be
reinvested in such Investment Fund unless the Investment Committee
directs otherwise.
7.3 Participant Direction of Investments.
Each Participant or Beneficiary generally may direct the manner in which
his Accounts shall be invested in and among the Investment Funds; provided, such
investment directions shall be made in accordance with the following terms:
(a) Investment of Contributions. Except as otherwise provided in
this section (relating to special Investment Funds described in Section
7.2(b)), each Participant may, by written election, direct the
percentage of his future Contributions that will be invested in any
Investment Fund. Notwithstanding the foregoing, the only Contributions a
Participant may elect to have contributed to the Del Monte Common Stock
Fund, are such Participant's future Before Tax Contributions, After Tax
Contributions, Matching Contributions and Retirement Savings
Contributions. An initial election of a Participant shall be made as of
the date the Participant commences or recommences participation in the
Plan and shall apply to all Contributions attributable to payroll
periods ending after that date. Such Participant may subsequently change
his election as to future Contributions. A change of election shall
apply to all Contributions paid to the Trustee beginning with the first
available payroll period which ends after such change of election was
made.
A Participant shall make an election for each Rollover Contribution as
of the date of such Rollover Contribution. Any election made pursuant to
this subsection with respect to future Contributions shall remain
effective until changed by such Participant; provided, that an Employee
recommencing participation following layoff but prior to a Termination
of Employment shall continue to have his most recent election that was
made pursuant to this subsection apply to all Contributions following
such recommencement of participation. In the event that a Participant
fails to make a proper investment election, the Participant's future
Contributions, or Rollover Contributions, will be invested in accordance
with the most recent prior election of the Participant or, only in the
absence of any prior valid election of the Participant, in the Interest
Income Fund.
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(b) Investment of Existing Account Balances. Except as otherwise
provided in this section, each Participant or Beneficiary may, by
written election, direct the percentage, or a specific whole dollar
amount, of his existing Accounts (consisting of Contributions, Rollover
Contributions and earnings thereon) that will be transferred among and
invested in any Investment Fund. Notwithstanding the foregoing, a
Participant may elect only to have his existing Accounts invested in the
Del Monte Common Stock Fund transferred to other Investment Funds in the
Plan, but may not elect to have any existing Accounts transferred into
the Del Monte Common Stock Fund (even if such existing Accounts were
earlier invested in the Del Monte Common Stock Fund). A Participant or
Beneficiary may subsequently change his election effective as of a
Valuation Date following the date on which the change of election is
made that is not more than one Business Day after such date. Each such
election shall apply to such Participant's or Beneficiary's Account as
of the specified Valuation Date, and shall remain in effect until
changed by such Participant or Beneficiary.
In the event a Participant fails to make an election for his
existing Account pursuant to the terms of this subsection (b) which is
separate from his election made for his Contributions pursuant to the
terms of subsection (a) hereof or if a Participant's investment election
is incomplete or insufficient in some manner, the Participant's existing
Account will continue to be invested in the same manner provided under
the terms of the most recent election affecting that portion of his
Account.
(c) Conditions Applicable to Elections. Investments in the
various Investment Funds, as described in subsections (a) and (b)
hereof, shall be made in even multiples of one percent or whole dollar
amounts as directed by the Participant or Beneficiary. The
Administrative and Investment Committees shall have complete discretion
to adopt and revise procedures to be followed in making such investment
elections. Such procedures may include, but are not limited to, the
process of the election, the permitted frequency of making elections,
the deadline for making elections and the effective date of such
elections; provided, elections must be permitted at least once every 3
months. In addition, to the extent necessary or helpful in the
administration of the various Investment Funds, the Administrative
Committee may restrict or limit investments in, and transfers of
investments from, certain Investment Funds. Any procedures adopted by
the Administrative and Investment Committees that are inconsistent with
the deadlines specified in this section shall supersede such provisions
of this section without the necessity of a Plan amendment.
(d) Investments with Distribution Made in Installments. Pursuant
to the terms of Section 9.3, if a Participant or Beneficiary elects for
his Account balance to be distributed in installments, his Account shall
continue to be invested in the same manner provided under the terms of
the most recent election affecting his Account; provided, such
Participant or Beneficiary may elect to transfer his Account among the
available Investment Funds pursuant to Section 7.3(b).
(e) Limitations on Participant Directions. The Administrative
Committee shall direct the Trustee to follow the instructions given by a
Participant with respect to his
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Account; provided, that the Administrative Committee need not direct the
Trustee to follow any instruction by a Participant which, if
implemented:
(i) would not be in accordance with the Plan and any other
documents and instruments governing the Plan insofar as such
documents and instruments are consistent with Title I of ERISA:
or
(ii) would cause a fiduciary of the Plan to maintain the
indicia of ownership of any assets of the Plan outside the
jurisdiction of the district courts of the United States, except
as permitted under ERISA; or
(iii) would jeopardize the Plan's tax-qualified status
under the Code; or
(iv) would result in a direct or indirect;
(1) sale, exchange, or lease of property between
any Affiliate and the Plan: or
(2) loan to an Affiliate: or
(3) acquisition or sale of any employer real
property (as defined by ERISA Section 407(d)(2), or
(4) acquisition of sale of any employer security
(as defined by ERISA Section 407(d)(5)).
7.4 Valuations.
(a) Timing of Valuations. The Trust Fund shall be valued by the
Trustee at fair market value as of the close of business on each
Valuation Date. A similar valuation of the Trust Fund may occur at any
other time upon direction of the Administrative Committee.
(b) Valuation of Del Monte Common Stock. For all purposes of the
Plan, the Trustee shall determine the fair market value of a share of
Del Monte Common Stock, which, as of any date, shall be determined (a)
by the closing price of Del Monte Common Stock as reported on the New
York Stock Exchange Composite Index for the day or days preceding the
date of the valuation as may be designated by the Administrative
Committee in a uniform or nondiscriminatory manner, or (b) pursuant to
such other method as shall be selected by the Administrative Committee.
The value of a Participant's Account invested in Del Monte Common
Stock will be maintained in units of the Del Monte Common Stock Fund.
The value of the Del Monte Common Stock Fund on a Valuation Date is the
then current fair market value of the investments and cash held in that
Fund on such date, less liabilities and expenses accrued or paid as of
such date. The value of a unit in the Del Monte Common Stock Fund is
determined by dividing the value of the Del Monte Common Stock Fund by
the total number of units in all Participants' Accounts allocated to
that Fund.
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7.5 Voting of Del Monte Common Stock. Del Monte Common Stock held in the
Del Monte Common Stock Fund shall be voted as follows:
(a) When Del Monte Foods Company prepares for any annual or
special meeting, the Controlling Company shall notify the Trustee at
least thirty (30) days in advance of the intended record date and shall
cause a copy of all proxy solicitations materials to be sent to the
Trustee. If requested by the Trustee, the Controlling Company shall
certify to the Trustee that the aforementioned materials represents the
same information that is distributed to shareholders of Del Monte Foods
Company. Based on these materials the Trustee shall prepare a voting
instruction form and shall provide a copy of all proxy solicitation
materials to be sent to each Plan Participant with an interest in Del
Monte Common Stock held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its designee. [The
form shall show the proportional interest in the number of full and
fractional shares of Del Monte Common Stock credited to the
Participant's accounts held in the Del Monte Common Stock Fund.]
(b) Each Participant with an interest in the Del Monte Common
Stock Fund shall have the right to direct the Trustee as to the manner
in which the Trustee is to vote (including not to vote) that number of
shares of Del Monte Common Stock reflecting such Participant's
proportional interest in the Del Monte Common Stock Fund (both vested
and unvested). Directions from a Participant to the Trustee concerning
the voting of Del Monte Common Stock shall be communicated in writing or
by such other means as is agreed upon by the Trustee and the Controlling
Company. These directions shall be held in confidence by the Trustee and
shall not be divulged to Del Monte Foods Company or the Controlling
Company, or any officer or employee thereof, or any other person except
to the extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's service hereunder. Upon its
receipt of the directions, the Trustee shall vote the shares of Del
Monte Common Stock reflecting the Participant's proportional interest in
the Del Monte Common Stock Fund as directed by the Participant. Except
as otherwise required by law, the Trustee shall not vote shares of Del
Monte Common Stock reflecting a Participant's proportional interest in
the Del Monte Common Stock Fund for which it has received no direction
from the Participant.
7.6 Tender of Del Monte Common Stock. Tender or exchange offers for Del
Monte Common Stock held in the Del Monte Common Stock Fund shall be administered
as follows:
(a) Upon commencement of a tender offer for any securities held
in the Trust that are Del Monte Common Stock, the Controlling Company
shall timely notify the Trustee in advance of the intended tender date
and shall cause a copy of all materials to be sent o the Trustee. The
Controlling Company shall certify to the Trustee that the aforementioned
materials represent the same information distributed to shareholders of
Del Monte Foods Company. Based on these materials and after consultation
with the Controlling Company the Trustee shall prepare a tender
instruction form and shall provide a copy of all tender materials to be
sent to each plan Participant with an interest in the Del Monte Common
Stock Fund, together with the foregoing tender instruction
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form, to be returned to the Trustee or its designee. The tender
instruction form shall show the number of full and fractional shares of
Del Monte Common Stock that reflect the Participant's proportional
interest in the Del Monte Common Stock Fund (both vested and unvested).
(b) Each Participant with an interest in the Del Monte Common
Stock Fund shall have the right to direct the Trustee to tender or not
to tender some or all of the shares of Del Monte Common Stock reflecting
such Participant's proportional interest in the Del Monte Common Stock
Fund (both vested and unvested). Directions from a Participant to the
Trustee concerning the tender of Del Monte Common Stock shall be
communicated in writing, or by mailgram or such other means as is agreed
upon by the Trustee and the Controlling Company. These directions shall
be held in confidence by the Trustee and shall not be divulged to Del
Monte Foods Company or the Controlling Company, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Del Monte Common Stock as directed by the
Participant. Except as otherwise required by law, the Trustee shall not
tender shares of Del Monte Common Stock reflecting a Participant's
proportional interest in the Del Monte Common Stock Fund for which it
has received no direction from the Participant.
(c) A Participant who has directed the Trustee to tender some or
all of the shares of Del Monte Common Stock reflecting the Participant's
proportional interest in the Del Monte Common Stock Fund may, at any
time prior to the tender offer withdrawal date, direct the Trustee to
withdraw some or all of the tendered shares reflecting the Participant's
proportional interest, and the Trustee shall withdraw the directed
number of shares from the tender offer prior to the tender offer
withdrawal deadline. Prior to the withdrawal deadline, if any shares of
Del Monte Common Stock not credited to Participant's accounts have been
tendered, the Trustee shall predetermine the number of shares of Del
Monte Common Stock that would be tendered under subsection (b) above if
the date of the foregoing withdrawal were the date of determination, and
withdraw from the tender offer the number of shares of Del Monte Common
Stock not credited to Participant's accounts necessary to reduce the
amount of tendered Del Monte Common Stock not credited to Participants'
accounts to the amount so predetermined. A Participant shall not be
limited as to the number of directions to tender or withdraw that the
Participant may give to the Trustee.
(d) A direction by a Participant to the Trustee to tender shares
of Del Monte Common Stock reflecting the Participant's proportional
interest in the Del Monte Common Stock Fund shall not be considered a
written election under the Plan by the Participant to withdraw, or have
distributed, any or all of his Account balance. The Trustee shall credit
to each proportional interest of the Participant from which the tendered
shares were taken the proceeds received by the Trustee in exchange for
the shares of Del Monte Common Stock tendered from that interest.
Pending receipt of directions (through the Administrative Committee)
from the Participant, as to which of
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the remaining investment options the proceeds should be invested in, the
Trustee shall invest the proceeds in the investment option described in
the Trust Agreement.
7.7 Directions With Regard to Other Items. With respect to all rights
other than the right to vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Del Monte Common Stock credited to a
Participant's proportional interest in the Del Monte Common Stock Fund, the
Trustee shall follow the directions of the Participant and if no such directions
are received, the directions of the Named Fiduciary. The Trustee shall have no
duty to solicit directions from Participants.
ARTICLE VIII
VESTING IN ACCOUNTS
8.1 General Vesting Rule.
(a) Vested Accounts. All Participants shall at all times be fully
vested in their Before Tax, After Tax, Qualified, and Rollover Accounts.
(b) Matching Accounts of Participants. Except as provided in
Section 8.2, the Matching Account of all Participants shall vest upon
the Participant's completion of two (2) years of Vesting Service. Prior
vesting schedules are set forth on Schedule G.
(c) Retirement Savings Accounts. Except as provided in Section
8.2, the Retirement Savings Account of any Participant will fully vest
upon the Participant's completion of five (5) years of Vesting Service.
(d) RJR Participants. Notwithstanding subsections (a) and (b)
hereof, all Participants who participated in the RJR Hourly Plan (other
than those who were terminated nonvested participants as of January 1,
1990) and for whom amounts were transferred to the Plan from the RJR
Hourly Plan and all Active Participants who were eligible to participate
in the RJR Hourly Plan immediately prior to January 1, 1990 shall at all
times be fully vested in their Accounts.
(e) Sale of Pudding Products Business. As provided for and
defined in Section 2.3(c), at the Closing Date of the Sale Agreement, as
defined in Section 2.3(c), each Transferred Employee shall be deemed to
have completed two (2) years of Vesting Service.
8.2 Vesting Upon Attainment of Normal Retirement Age, Disability or
Death.
Notwithstanding Section 8.1, a Participant's Matching Account and/or
Retirement Savings Account shall become 100 percent vested and nonforfeitable
upon the occurrence of any of the following events:
(a) The Participant's attainment of Normal Retirement Age while
still employed as an employee of any Affiliate;
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(b) The Participant's death while still employed as an employee
of any Affiliate; or
(c) The Participant's becoming Disabled while still employed as
an employee of any Affiliate.
8.3 Timing of Forfeitures and Vesting After Restoration Contributions.
If a Participant who is not yet vested in his Matching Account and/or
Retirement Savings Account separates from service as an employee of all
Affiliates, the amount in his Matching Account and/or his Retirement Savings
Account shall be immediately forfeited and shall become available for allocation
as a Forfeiture as of the Valuation Date coincident with or immediately
following the end of the accounting period during which such separation from
service occurs. If such a Participant resumes employment with an Affiliate after
he has incurred 5 or more consecutive one-year Breaks in Service, such forfeited
amount shall not be restored. If such a Participant resumes employment with an
Affiliate before he has incurred 5 consecutive one-year Breaks in Service, such
forfeited amount shall be restored as follows:
(a) Reemployment and Vesting After Distribution. If by the Date
of Reemployment such a Participant has received a distribution of the
entire vested interest in his Account not later than the close of the
second Plan Year following the Plan Year in which his separation from
service with all Affiliates occurred, the provisions of Section 3.8(a)
shall be applicable (requiring repayment by such a Participant as a
condition for restoration of the forfeited amount). Upon such repayment,
the rehired individual immediately shall be credited with all previously
earned years of Vesting Service. No additional years of Vesting Service
shall be credited, however, until he shall have completed 1 Year of
Service after his latest Employment Date.
(b) Reemployment and Vesting Before Distribution or After Late
Distribution. If by the Date of Reemployment such a Participant (i) has
not received a full distribution of his vested interest in his Account,
(ii) has received a distribution of the entire vested interest in his
Account no later than the close of the second Plan Year following the
Plan Year in which separation from service with all Affiliates occurred,
or (iii) had no vested interest in his Account as of his separation from
service and whose nonvested interest in his Account was forfeited upon
his separation from service, the forfeited amount shall be restored
pursuant to the terms of Section 3.8(b) and shall be credited to his
Matching Account and/or Retirement Savings Account. The Participant's
Matching Account and/or Retirement Savings Account then shall be subject
to all of the vesting rules in this Article VIII as if no Forfeitures or
restrictions had occurred.
ARTICLE IX
PAYMENT OF BENEFITS
9.1 Benefit Payments Upon Separation From Service For Reasons Other Than
Death or Disability.
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(a) General Rule Concerning Benefits Payable. Except as otherwise
provided in Section 9.2 and in accordance with the terms of subsection
(b) hereof and subject to the restrictions set forth in subsections (c)
and (d) hereof, if a Participant separates from service (but not earlier
than his Termination of Employment) with all Affiliates for any reason
other than death, or Disability, he (or his Beneficiary, if he dies
after such separation from service) shall be entitled to receive or
begin receiving a distribution of the entire vested amount credited to
his Account. The amount distributable shall be as follows:
(i) For an Account with a fair market value of $5,000
($3,500 for Plan Years beginning before January 1, 1998) or less,
determined as of the Distribution Valuation Date coincident with
or next following the date the Participant separates from service
or his Disability begins, the value of the Account as of that
Valuation Date; or
(ii) For an Account with a fair market value in excess of
$5,000 ($3,500 for Plan Years beginning before January 1, 1998),
determined as of the Distribution Valuation Date coincident with
or next following the date on which the Participant separates
from service or his Disability begins, the value of the account
as of the Distribution Valuation Date coincident with or next
following the date as of which the Participant consents to
distribution.
In no event shall a Participant be entitled to interest, earnings or any
other investment proceeds for the period between the Valuation Date as
of which the amount of distribution is determined and the date payment
of such distribution is to be made or commenced.
(b) Timing of Distribution.
(i) Except as provided in sections (b)(ii), (b)(iii) and
(d) hereof, benefits payable to a Participant under this section
shall be distributed, or shall commence to be distributed, as
soon as administratively feasible after such Participant
separates from service with all Affiliates.
(ii) Notwithstanding the foregoing, in the event that (A)
the value of the vested amount of the Participant's Account
exceeds $5,000 ($3,500 for Plan Years beginning before January 1,
1998) and (B) the benefit distribution (or commencement) date
described in subsection (b)(i) hereof occurs or is to occur prior
to the Participant's Normal Retirement Age, benefits shall not be
distributed (or commence to be distributed) to such Participant
at the time set forth in subsection (b)(i) hereof without the
Participant's written consent on a form provided by the
Administrative Committee. If the Participant does not consent, in
writing, to the distribution (or commencement of distribution) of
his benefit at such time, his vested benefit shall be distributed
(or commence to be distributed) as soon as practicable after he
files a written election with the Administrative Committee
requesting such payment. If a Participant fails to file a written
election specifying the time of payment, his vested benefit shall
be distributed (or commence to be distributed) as soon as
administratively feasible after the end of
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the Plan Year in which he attains Normal Retirement Age, but in
no event later than the 60th day after the end of such Plan Year;
provided, if the amount of payment required to be made on such
date cannot be ascertained by such date, payment shall be made
(or commence) no later than 60 days after the earliest date on
which such payment can be ascertained under the Plan.
(iii) Notwithstanding anything in the Plan to the
contrary, in no event shall payment of a Participant's benefit be
made (or commence) later than 60 days after the end of the Plan
Year which includes the latest of (1) the date on which the
Participant attained Normal Retirement Age, (2) the date which is
the 10th anniversary of the date he commenced participation in
the Plan, or (3) the date he actually separates from service with
all Affiliates; provided, if the amount of the payment cannot be
ascertained by the date as of which payments are scheduled to be
made (or commence) hereunder, payment shall be made (or commence)
no later than 60 days after the earliest date on which such
payment can be ascertained under the Plan; and provided, further,
the Participant's benefit payments shall be made (or commence) no
later than the April 1 following the later of the calendar year
(i) in which the Participant attains age 70 1/2, or (ii) in which
the Participant separates from service with all Affiliates.
Notwithstanding the foregoing sentence, with respect to any
Participant who is a "5-percent owner" (as defined in Section 416
of the Code), distribution of such Participant's Account shall
commence no later than the April 1 of the Year following the Year
in which the Participant attains age 70-1/2. Furthermore, a
Participant who is not a 5-percent owner shall have the right to
elect to have benefit payments commence (or be made) on the April
1 following the calendar year in which the Participant attains
age 70 1/2, without regard to whether he has actually separated
from service with all Affiliates prior to such date. All
distributions will be made in accordance with Code Section
401(a)(9), the regulations promulgated under Code Section
401(a)(9), including Treasury Regulation Section 1.401(a)(9)-2
(relating to incidental benefit limitations) and any other
provisions reflecting the requirements of Code Section 401(a)(9)
and prescribed by the Internal Revenue Service; and the terms of
the Plan reflecting the requirements of Code Section 401(a)(9)
override the distribution options (if any) in the Plan which are
inconsistent with those requirements.
(iv) Written consent by a participant for purposes of
subsection (ii) shall be made only after a Participant has been
informed of his right to defer receipt of his distribution,
subject to subsection (iii), and has been provided with a general
description of the material features and relative values of the
optional forms of benefit, if any, available. Such information
and description shall be provided no less than 30 days and no
more than 90 days before the Valuation Date for the distribution
to the Participant. If a distribution is one to which sections
401(a)(11) and 417 of the Internal Revenue Code do not apply,
such distribution may commence less than 30 days after the notice
required under section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(1) the Administrative Committee clearly informs
the Participant that the Participant has a right to a
period of at least 30 days
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after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(2) the Participant, after receiving the notice,
affirmatively elects a distribution.
(c) Restrictions on Distributions from Before Tax and Qualified
Accounts. Notwithstanding anything in the Plan to the contrary, amounts
in a Participant's Before Tax and Qualified Accounts shall not be
distributable to such Participant or, if applicable, his Beneficiary,
earlier than the earliest of the following to occur:
(i) The Participant's death, Disability or separation from
service with all Affiliates;
(ii) The termination of the Plan without the establishment
or maintenance of a successor defined contribution plan [other
than an employee stock ownership plan as defined in Code Section
4975(e)] at the time the Plan is terminated or within the period
ending 12 months after the final distribution of all assets in
all Before Tax and Qualified Accounts described above in this
subsection (c); provided, that if fewer than 2 percent of the
Employees who are or were eligible under the Plan at the time of
its termination are or were eligible under another defined
contribution plan at any time during the 24 month period
beginning 12 months before the time of termination, such other
plan shall not be a successor plan;
(iii) The date of disposition by the Controlling Company
of substantially all of its assets [within the meaning of Code
Section 409(d)(2)] that were used by the Controlling Company in a
trade or business; provided, such Participant continues
employment with the corporation acquiring such assets. For a sale
of "substantially all" of the assets used in a trade or business
to have occurred, at least 85 percent of such assets must have
been sold. The sale of 85 percent of the assets used in a trade
or business will be deemed a sale of "substantially all" of the
assets used in such trade or business;
(iv) The date of disposition by the Controlling Company of
its interest in a subsidiary (within the meaning of Code Section
409(d)(3)]; provided, such Participant continues employment with
such subsidiary;
(v) The attainment by such Participant of age 59 1/2; or
(vi) The Participant's incurrence of a financial hardship,
as described in Section 10.5;
provided, for an event described in subsections (c)(ii), (c)(iii) or (c)(iv)
hereof to constitute events permitting a distribution from the Before Tax and
Qualified Accounts, such distribution must be made on account of such event in
the form of a lump sum distribution, as defined in Code Section 402(e)(4)
(without regard to clauses (i), (ii), (iii) and (iv) of subparagraphs (A), (B)
and (H) thereof); and provided, further, for the events described in subsections
(c)(iii) or (c)(iv)
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hereof to constitute events permitting such a distribution, the Controlling
Company must maintain the Plan after the disposition.
(d) Discontinuance or Delay Upon Reemployment or Termination of
Disability. If a Participant becomes eligible to receive or begins
receiving benefit payments in accordance with the terms of this Article
IX and subsequently is reemployed by an Affiliate (or ceases to be
Disabled, as applicable) prior to the time his Account has been
distributed in full, all distributions to such Participant shall be
delayed or cease until such Participant again becomes eligible to
receive distributions from the Plan pursuant to the terms of this or any
other section of the Plan.
9.2 Death and Disability Benefits.
(a) Death Prior to Benefit Commencement Date. If a Participant
dies before payment of his benefits from the Plan is made or commenced,
the Beneficiary or Beneficiaries designated by such Participant in his
latest beneficiary designation form filed with the Administrative
Committee in accordance with the terms of Section 9.4 shall be entitled
to receive a distribution of the total of (i) the entire vested amount
credited to such Participant's Account, determined as of the Valuation
Date coincident with or immediately preceding the date payment of such
distribution is to be made or commenced, plus (ii) any Contributions
made on such Participant's behalf since such Valuation Date. For
purposes of this subsection, the "date payment of such distribution is
to be made or commenced" refers to the date established for such purpose
by administrative practice, even if actual payment is made or commenced
at a later date due to delays in the valuation, administrative or any
other procedure. Benefits shall be distributed, or shall commence to be
distributed, to such Beneficiary or Beneficiaries within 90 days after
the date of the Participant's death if it is administratively feasible
to make or commence such distribution within such 90-day period; if not,
as soon as administratively feasible thereafter within any reasonable
period. Notwithstanding the foregoing, if the amount of payment required
to be made on such date cannot be ascertained by such date, payment
shall be made no later than 60 days after the earliest date on which
such payment can be ascertained under the Plan. The Administrative
Committee may direct the Trustee to distribute a Participant's Account
to a Beneficiary without the written consent of such Beneficiary.
(b) Death After Benefit Commencement Date. If a Participant dies
after payment of his vested benefits from the Plan has begun but before
his entire vested benefit is distributed, the remainder of his benefits
shall be paid to his Beneficiary pursuant to a method selected by the
Beneficiary in accordance with the terms of Section 9.3.
(c) Disability. A Participant who becomes Disabled shall be
entitled to receive or begin receiving a distribution of the entire
amount credited to his Account, subject to the provisions of Section 9.1
and except as follows:
(i) A Disabled Participant may elect to receive a
distribution of his Account other than his Retirement Savings
Account, if any, at any time prior to his attainment of Normal
Retirement Age and after his becoming Disabled. If a
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Disabled Participant elects to receive a distribution of his
Retirement Savings Account, he must elect distribution of his
entire Account.
(ii) A Disabled Participant's election to receive a
distribution of his entire Account, (including his Retirement
Savings Account) or his Retirement Savings Account prior to
Normal Retirement Age shall be deemed to be a separation from
service on account of Disability and he shall no longer be
considered to be Disabled for purposes of this Plan.
(iii) Upon attaining his Normal Retirement Age or ceasing
to receive benefits under the Del Monte Long-Term Disability
Plan, if later, a Disabled Participant shall Retire and receive a
distribution of his Account.
9.3 Form of Distribution.
(a) Method of Payment. Except as provided otherwise in subsection
(b) below, the method pursuant to which a Participant's or Beneficiary's
benefits under the Plan are distributed shall generally be a single sum
payment in cash; provided, in the event (i) the terms of subsection (c)
hereof do not apply; (ii) the payment is on account of (A) the
Participant's termination of employment upon or after attainment of the
earliest retirement age under a defined benefit plan sponsored by an
Affiliate in which the Participant participates or (B) his Disability;
and (iii) the Participant had an account in the RJR Hourly Plan on
September 30, 1988, all or any part of which was transferred to, and is
held in the Plan, the method of distribution shall be determined as
follows:
(i) The payment of any distribution to a Participant or
his Beneficiary from the Plan shall be in the form selected by
the Participant or his Beneficiary, by written notice delivered
to the Administrative Committee, all in accordance with the terms
of this subsection (a)(i) and subsections (a)(ii) - (a)(vii)
hereof. The Participant or Beneficiary may choose between (A) a
single sum payment and (B) equal cash installments (adjusted for
investment earnings and losses between payments), paid monthly,
over a term certain; once made, an election may not be changed
except under Section 9.3(a)(iii)(2).
(ii) If a Participant designates more than one Beneficiary
to receive payment of his benefit upon his death, the Participant
(and his Beneficiaries) shall be deemed to have selected a single
sum payment as of the benefit distribution.
(iii) (1) If a Participant selects payment in the form of
installments over a period certain, the maximum length thereof
shall be the shorter of 15 years or the joint life expectancy of
such Participant and his designated Beneficiary. The initial
value of the obligation for the installment payments shall be
equal to the vested amount of the Participant's Account balance
on the day payments are scheduled to commence. Notwithstanding
anything in the Plan to the contrary, the amount of each monthly
installment payment must equal or exceed the minimum amount of
$200. If the monthly installment amounts do not meet the minimum
amount, the Participant may elect to receive monthly installments
over a shorter
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period (to the extent the minimum is met) or to receive his
Account balance in a lump sum payment.
Notwithstanding anything herein to the contrary,
distributions from the Plan must satisfy the requirements of Code
Section 401(a)(9)(G). This means that the incidental benefit
rules as described in Treasury Regulation Section 1.401(a)(9)-2
shall be satisfied.
(2) The Administrative Committee may accelerate the
payment of any installment or installments if it
determines that the Participant incurs an immediate and
heavy financial need. The Administrative Committee shall
make such a determination based on the criteria and
circumstances set forth in Section 10.5.
(iv) If a Participant dies before payment of his benefits
from the Plan is made or commenced, he has elected payment in the
form of installments over a term certain and his Beneficiary is
an individual, the maximum length of the term certain shall be
the shorter of 15 years or the life expectancy of such
Beneficiary, and if the Beneficiary is not an individual (for
example, an estate or trust), the maximum length of the term
certain shall be 15 years.
(v) If a Participant dies after payment of his benefits
from the Plan has begun but before his entire benefit has been
distributed, his Beneficiary may elect to receive the remainder
of the deceased Participant's Account in the form of a single sum
payment or to continue to receive the same installment payments
which would have been paid to the deceased Participant if he had
survived.
(vi) If a Beneficiary who has begun receiving installment
payments pursuant to the terms of this subsection dies prior to
the full payment thereof, the remaining vested amount of the
Account balance shall be distributed to the estate of such
Beneficiary in a single, lump-sum payment.
(vii) If a distribution is to be made to a Participant
and/or his Spouse Beneficiary in the form of installments payable
over the life expectancy or joint life expectancy of such
persons, the life expectancy or joint life expectancy, as
applicable, of such persons shall be calculated at the time
distributions commence and shall not thereafter be recalculated.
(viii) If a distribution of a Disabled Participant's
Account excluding his Retirement Savings Account is to be made in
the form of installments under this section, any later
distribution of his Retirement Savings Account shall be an
independent, separate distribution that shall not affect the
form, amount or duration of the installments elected.
(b) Del Monte Common Stock. Any distribution from such portion of
a Participant's Account as is invested in the Del Monte Common Stock
Fund as of the Valuation Date shall be made in the form of a single lump
sum payment, as elected by the distributee, in-
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(1) Such whole number of shares of Del Monte Common Stock
as is equivalent to the full value of the units of the Del Monte
Common Stock Fund then credited to such portion of the Account;
or
(2) Cash (or its equivalent) equal to the full value of
the units of the Del Monte Common Stock then credited to such
portion of the Account.
If shares of Del Monte Common Stock are to be distributed, only full
shares shall be distributed and cash (or its equivalent) shall be distributed in
lieu of any fractional share.
(c) Mandatory Cash-Out. If the total vested amount of a
Participant's Account balance is less than or equal to $5,000 ($3,500
for Plan Years beginning before January 1, 1998) at the time the
distribution of such Account commences, payment of the vested amount of
such Account shall be made in the form of a single sum cash payment,
without the consent of the Participant or Beneficiary.
(d) Assets Distributed. Any distribution to a Participant or his
Beneficiary or Beneficiaries generally shall be made in the form of
cash, except as otherwise provided under Section 9.9.
9.4 Beneficiary Designation.
(a) General. Participants shall designate and from time to time
may redesignate their Beneficiary or Beneficiaries in such form and
manner as the Administrative Committee may determine. A Participant
shall be deemed to have named his Spouse, if any, as his sole
Beneficiary unless his Spouse consents to the payment of all or a
specified portion of the Participant's death benefit to a Beneficiary
other than or in addition to the Spouse in a manner satisfying the
requirements of a Qualified Spousal Waiver and such other procedures as
the Administrative Committee may establish. Notwithstanding the
foregoing, a married Participant may designate a nonspouse Beneficiary
without a Qualified Spousal Waiver if the Participant establishes to the
satisfaction of the Administrative Committee that a Qualified Spousal
Waiver may not be obtained because his Spouse cannot be located or such
other permissible circumstances exist as the Secretary of the Treasury
may prescribe by regulation. If any Participant dies prior to receiving
his benefits under the Plan, his Account shall be changed to the name of
such deceased Participant's named or deemed Beneficiary or
Beneficiaries.
(b) No Designation or Designee Dead or Missing. In the event
that:
(i) a Participant dies without designating a Beneficiary;
(ii) the Beneficiary designated by a Participant is not
surviving when a payment is to be made to such person under the
Plan, and no contingent Beneficiary has been designated; or
(iii) the Beneficiary designated by a Participant cannot
be located by the Administrative Committee within 1 year from the
date benefits are to commence to such person;
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then, in any of such events, the Beneficiary of such Participant with respect to
any benefits that remain payable under the Plan shall be the Participant's
Surviving Spouse, if any, and if not, then the estate of the Participant.
9.5 Qualified Domestic Relations Orders.
In the event the Administrative Committee receives a domestic relations
order which it determines to be a qualified domestic relations order [see
Section 15.1], the Plan shall pay such benefit to the prescribed alternate
payee(s) at such time and in such form, as shall be described in the qualified
domestic relations order and permitted under Section 15.1. If the qualified
domestic relations order requires immediate payment, the specified benefit shall
be paid to the alternate payee as soon as administratively feasible following
the determination by the Administrative Committee that the order is qualified.
The amount of the payment to an alternate payee shall not include earnings,
interest or any other form of investment proceeds for the period between the
Valuation Date as of which the amount of distribution is determined and the date
payment of that distribution is made. If a Participant's Account is partially
paid or payable to an alternate payee, the Participant's remaining portion of
his Account shall be reduced accordingly and shall be subject to the
distribution provisions in this Article IX.
9.6 Unclaimed Benefits.
In the event a Participant becomes entitled to benefits under the Plan
other than death benefits and the Administrative Committee is unable to locate
such Participant (after sending a letter, return receipt requested, to the
Participant's last known address, and after such further diligent efforts as the
Administrative Committee in its sole discretion deems appropriate) within 1 year
from the date upon which he becomes so entitled, the Administrative Committee
shall direct that such benefits be paid to the Beneficiary of such Participant;
provided, if the distribution is payable upon the termination of the Plan, the
Administrative Committee shall not be required to wait until the end of such
1-year period. If the Participant and the Beneficiary cannot be located and fail
to claim such benefits by the end of the 5th Plan Year following the Plan Year
in which such Participant becomes entitled to such benefits, then the full
Account of the Participant shall be deemed abandoned and treated as a
Forfeiture; provided, in the event such Participant or Beneficiary is located or
makes a claim subsequent to the allocation of the abandoned Account but prior to
the expiration of the time within which any such person's claim to the Account
would expire under appropriate state law, then the amount of the Forfeiture for
such abandoned Account (unadjusted for any investment gains or losses from the
time of abandonment) shall be restored (from Forfeitures, Trust earnings or
Contributions made by the Participating Company or Companies with whom the
Participant formerly was employed) and paid to such Participant or Beneficiary,
as appropriate; and, provided, further, the Administrative Committee, in its
sole discretion, may delay the date of Forfeiture of any such abandoned Account
for a period longer than the prescribed 5 Plan Years if it believes that it is
in the best interests of the Plan to do so.
Notwithstanding the foregoing, if neither the former Participant nor his
designated Beneficiary whose sole interest in the Plan is in the Special
Settlement Fund established under Section 7.2(e) can be located within 18 months
after the creation of the Special Settlement Fund, the full
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Account of the Participant or his Beneficiary shall be deemed abandoned and
treated as a Forfeiture, subject to the foregoing rules for restoration of the
Account.
9.7 Explanation of Certain Rollover Distributions.
The Administrative Committee shall furnish recipients of qualifying
rollover distributions a written explanation of the provisions under which such
distributions will not be subject to tax if transferred to an eligible
retirement plan within 60 days after the date on which the recipient received
the distribution and, if applicable, of the provisions concerning taxation of
lump sum distributions pursuant to Code Sections 402(a)(2) and (e). For purposes
of the preceding sentence, "qualifying rollover distribution" and "eligible
retirement plan" shall have the respective meanings given those terms by Code
Section 402(a)(5)(E) (effective January 1, 1993, Code Section 402(c)).
9.8 Direct Transfer of Eligible Rollover Distributions.
(a) For the purposes of this Section 9.8, the following
definitions shall apply:
(i) "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the credit
of the Distributee, except that an Eligible Rollover Distribution
shall 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 Code Section
401(a)(9); and the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(ii) "Eligible Retirement Plan" shall mean an individual
retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b),
an annuity plan described in Code Section 403(a), or a qualified
trust described in Code Section 401(a), that accepts the
Distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the surviving
spouse, an Eligible Retirement Plan shall mean only an individual
retirement account or individual retirement annuity.
(iii) "Distributee" shall mean an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p), are
Distributees with regard to the interest of the spouse or former
spouse.
(iv) "Direct Rollover" shall mean a payment to the
Eligible Retirement Plan specified by the Distributee either by
direct transfer from the Plan, or by delivery of the distribution
check by the Distributee, provided such check is made out in a
manner to ensure that it is negotiable only by the trustee of the
Eligible Retirement Plan.
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(b) Notwithstanding any provision of the Plan to the contrary,
with respect to any distribution made on or after January 1, 1993, a
Distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover in accordance with procedures
established by the Committee.
9.9 In-Kind Rollovers. As an additional form of direct rollover
permitted under Section 9.8, a Distributee, as defined in Section 9.8(a)(iii)
who is entitled to an eligible rollover distribution, as defined in Section
9.8(a)(i), that is not a distribution made under Article X of the Plan, may
elect to direct payment by the Plan to an eligible retirement plan subject to
all of the following:
(a) The eligible retirement plan is an individual retirement
account ("IRA").
(b) The Distributee must elect to direct all of the Distributee's
Account that meets the requirements of an eligible rollover distribution
under Section 9.8 to the designated IRA.
(c) To the extent that the Distributee's Account is invested in
any Investment Fund of the Plan which invests solely in shares or units
of a publicly traded mutual fund subject to the Securities Act of 1933
which shares or units are permitted by such mutual fund to be issued or
transferred directly to an IRA, the Distributee may direct that all full
shares or units of such mutual fund attributable to an eligible rollover
distribution be transferred in-kind directly by the Plan to the
designated IRA, if the custodian of such designated IRA accepts such
in-kind contributions to the IRA. The remaining balance of the Account
attributable to an eligible rollover distribution shall be transferred
in cash to the same designated IRA.
(d) The Committee shall establish administrative procedures to
carry out in-kind direct rollovers under this Section 9.9.
This Section 9.9 is not intended to limit the right of the Investment
Committee under Section 7.2 to remove, add, or change any Investment Fund or its
investments, including, without limitation, the replacement of publicly traded
mutual funds with any other fund or investment manager. Further, the Plan is
under no obligation to take any action to require or direct that any mutual fund
permit the issuance of shares or units other than in cash or that any IRA
custodian accept directly shares or units of any mutual fund offered in an
Investment Fund.
ARTICLE X
WITHDRAWALS WHILE EMPLOYED BY AN AFFILIATE
10.1 General Rules for All Withdrawals
(a) Ability to Withdraw. Subject to the rules, requirements and
restrictions set forth in this Article X, a Participant may withdraw all
or a part of his Account balance other than his Retirement Savings
Account, if any, while he is an employee of an
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Affiliate. This right to receive a withdrawal from the Plan ceases as of
the date the Participant separates from service (but not earlier than
his Termination of Employment) with all Affiliates.
(b) Election to Withdraw. To request a withdrawal from the Plan,
a Participant must submit to the Administrative Committee a written
election indicating that the Participant desires to make a withdrawal
from his Account. The Administrative Committee may impose such
provisions and request such information as the Administrative Committee
deems necessary or helpful in regard to the operation of the Plan.
(c) Minimum Amount of Withdrawals. The minimum amount which a
Participant may withdraw shall be the lesser of $500 or such
Participant's Account balance (determined as of the applicable
Withdrawal Valuation Date but excluding any Retirement Savings Account,
if any) which is available to be withdrawn.
(d) Frequency of Withdrawals. A Participant may receive only one
withdrawal in any 6-month period; provided, a Participant who has
received a withdrawal within a 6-month period may receive one or more
additional withdrawals during that 6-month period if such additional
withdrawals are on account of hardship as described in Section 10.5. The
6-month withdrawal prohibition period relating to a withdrawal shall
begin as of the applicable Withdrawal Valuation Date.
(e) Payment of Withdrawal. The amount of a withdrawal shall be
paid to a Participant in a single sum in cash as soon as practicable
after the Valuation Date for the withdrawal.
(f) Source of Withdrawals. The withdrawal amount shall be
withdrawn from the Investment Funds in which such amount currently is
invested on a pro rata basis. Any such withdrawal shall be charged
against a Participant's Account (excluding any Retirement Savings
Account, if any) as of the applicable Withdrawal Valuation Date.
(g) Withdrawal by Seasonal Employees. A Participant who is a
Seasonal Employee may make a withdrawal while on layoff status but prior
to his Termination of Employment.
10.2 Withdrawals Before Age 59 1/2 or Disability.
When a Participant who is an employee of an Affiliate makes a written
election for a withdrawal, if such Participant will not have attained age 59 1/2
or become Disabled by the applicable Withdrawal Valuation Date, and such
Participant is not making a hardship withdrawal pursuant to the terms of Section
10.4, the withdrawal amounts shall be withdrawn from such Participant's Account
(determined as of the applicable Withdrawal Valuation Date and exclusive of his
Before Tax Account and/or Retirement Savings Account, if any) in such order and
subject to such rules, requirements and restrictions, as are set forth below in
this section. The entire amount described in each subsection hereof must be
exhausted before any withdrawal amount shall be charged against an amount
described in a succeeding subsection hereof.
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(a) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Hourly Plan as of December 31, 1986
reduced by any prior withdrawals of After Tax Contributions from the RJR
Hourly Plan or this Plan.
(b) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's After Tax Account which is comprised of
After Tax Contributions (and all investment earnings on any After-Tax
Contributions).
(c) The withdrawal amount next shall be withdrawn from such
Participant's Rollover Account.
(d) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Matching Account which is comprised of
Matching Contributions which have been allocated to such Matching
Account for at least 24 calendar months, plus all investment earnings in
such Matching Account (whether or not attributable to the Matching
Contributions withdrawn).
(e) If a Participant has completed, on a cumulative basis, 60
months of participation in the Plan (taking into account months of
participation under the RJR Hourly Plan as if they occurred in the
Plan), while employed by an Affiliate, such Participant's withdrawal
amount next shall be withdrawn from the remainder of such Participant's
Matching Account (which shall consist of Matching Contributions
allocated to the Matching Account for less than 24 calendar months). If
any amount of a withdrawal is charged against this portion of such
Participant's Account pursuant to the terms of this subsection, the
Matching Contribution suspension described in Section 10.4 shall apply.
10.2 Withdrawals After Age 59 1/2 or Disability.
When a Participant who is an employee of an Affiliate makes a written
election for a withdrawal, if such Participant will have attained age 59 1/2 or
become Disabled by the applicable Withdrawal Valuation Date, and such
Participant is not making a hardship withdrawal pursuant to the terms of Section
10.5, the withdrawal amounts shall be withdrawn from such Participant's Account
(determined as of the applicable Withdrawal Valuation Date and exclusive of his
Retirement Savings Account, if any) in such order and subject to such rules,
requirements and restrictions, as are set forth below in this section. The
entire amount described in each subsection hereof must be exhausted before any
withdrawal amount shall be charged against an amount described in a succeeding
subsection hereof.
(a) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Hourly Plan as of December 31, 1986
reduced by any prior withdrawals of After Tax Contributions from the RJR
Hourly Plan or this Plan.
(b) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's After Tax Account which is comprised of
After Tax Contributions which have been allocated to such After Tax
Account (and all investment earnings on any After Tax Contributions).
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(c) The withdrawal amount next shall be withdrawn from such
Participant's Rollover Account.
(d) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Matching Account which is comprised of
Matching Contributions which have been allocated to such Matching
Account for at least 24 calendar months, plus all investment earnings in
such Matching Account (whether or not attributable to the Matching
Contributions withdrawn).
(e) If a Participant has completed, on a cumulative basis, 60
months of participation in the Plan (taking into account months of
participation under the RJR Hourly Plan as if they occurred in the
Plan), while employed by an Affiliate, such Participant's withdrawal
amount next shall be withdrawn from the remainder of such Participant's
Matching Account (which shall consist of Matching Contributions
allocated to the Matching Account for less than 24 calendar months). If
any amount of a withdrawal is charged against this portion of such
Participant's Account pursuant to the terms of this section, the
Matching Contribution suspension described in Section 10.4 shall apply.
(f) The withdrawal amount next shall be withdrawn from the
portion of such Participant's Before Tax Account, if any, which is
comprised of the sum of (i) the Before Tax Account balance (in the RJR
Hourly Plan) as of December 31, 1988, and (ii) Before Tax Contributions
made after said date reduced by any prior withdrawals from the Before
Tax Account. If any amount of a withdrawal is charged against this
portion of such Participant's Account pursuant to the terms of this
subsection, the Matching Contribution suspension described in Section
10.4 shall apply.
(g) The withdrawal amount next shall be withdrawn from the
remainder of such Participant's Before Tax Account, if any, (which shall
consist of earnings on Before Tax Contributions after December 31,
1988). If any amount of a withdrawal is charged against this portion of
such Participant's Account pursuant to the terms of this subsection, the
Matching Contribution suspension described in Section 10.4 shall apply.
10.3 Matching Contribution Suspension.
If any withdrawal is made by a Participant from the amounts described
in, and pursuant to the terms of Section 10.2(f), Section 10.3(e), Section
10.3(f), or Section 10.3(g), such Participant's eligibility to receive Matching
Contributions shall be suspended for the 6-month period beginning on the first
day of the month following the applicable withdrawal Valuation Date.
10.4 Hardship Withdrawals.
(a) General Requirements for Hardship. Subject to the terms and
conditions set forth in Section 10.1 and this section, a Participant who
is an employee of an Affiliate may make a withdrawal from his Account
(exclusive of any Retirement Savings Account) on account of hardship if
such Participant is eligible to contribute to the Plan under Section
3.1(a).
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(b) Definition of "Hardship". A withdrawal will be on account of
"hardship" if it is necessary in light of an immediate and heavy
financial need of the Participant. A withdrawal based on financial
hardship cannot exceed the amount necessary to meet the immediate
financial need created by the hardship and not reasonably available from
other resources of the Participant. The Administrative Committee shall
make its determination as to whether a Participant has suffered an
immediate and heavy financial need and whether it is necessary to use a
hardship withdrawal from the Plan to satisfy that need on the basis of
all relevant facts and circumstances.
(c) Immediate and Heavy Financial Need. For purposes of the Plan,
an immediate and heavy financial need exists if the withdrawal is on
account of (i) medical expenses described in Code Section 213(d)
incurred by the Participant, his Spouse or dependents or necessary for
these persons to obtain such medical care, (ii) the purchase (excluding
mortgage payments) of a principal residence for the Participant, (iii)
the payment of tuition and related educational fees for the next twelve
months of post-secondary education for the Participant, his Spouse,
children or dependents, (iv) the need to prevent eviction of the
Participant from his principal residence or foreclosure on the mortgage
of the Participant's principal residence, or (v) any other need or
occurrence which the Administrative Committee determines to be an
immediate and heavy financial need. The amount of an immediate and heavy
financial need may include any amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably anticipated to
result from the distribution.
(d) Necessary to Satisfy a Financial Need. In determining whether
the withdrawal is necessary to relieve the Participant's immediate and
heavy financial need, the Administrative Committee shall rely upon the
Participant's reasonable representation that the need cannot be
relieved: (i) through reimbursement or compensation by insurance or
otherwise; (ii) by reasonable liquidation of the Participant's assets to
the extent that liquidation would not itself cause an immediate and
heavy financial need; (iii) by cessation of Before or After Tax
Contributions to the Plan; or (iv) by other distributions or nontaxable
(at the time of the loans) loans from plans maintained by all Affiliates
or by borrowing from commercial sources on reasonable commercial terms.
In determining the amount of a Participant's assets, the resources of
his Spouse and minor dependents are considered to be reasonably
available to the Participant unless they are held for his child or
children under an irrevocable trust or under the Uniform Gifts to Minors
Act.
(e) Ordering of Hardship Withdrawal. A Participant's hardship
withdrawal amounts shall be withdrawn from his Account (determined as of
the applicable Withdrawal Valuation Date and exclusive of his Retirement
Savings Account, if any) in such order and subject to such rules,
requirements and restrictions, as are set forth below in this
subsection. The entire amount described in each numbered clause hereof
must be exhausted before any withdrawal amount shall be charged against
an amount described in a succeeding clause hereof.
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(i) The withdrawal amount first shall equal After Tax
Contributions made to the RJR Hourly Plan as of December 31, 1986
reduced by any prior withdrawals or After Tax Contributions from
the RJR Hourly Plan or this Plan.
(ii) The withdrawal amount next shall be withdrawn from
the remainder of such Participant's After Tax Account which is
comprised of After Tax Contributions (and all investment earnings
on After Tax Contributions).
(iii) The withdrawal amount next shall be withdrawn from
such Participant's Rollover Account.
(iv) The withdrawal amount next shall be withdrawn from
the portion of such Participant's Matching Account which is
comprised of Matching Contributions which have been allocated to
such Matching Account for at least 24 calendar months, plus all
investment earnings in such Matching Account (whether or not
attributable to the Matching Contributions withdrawn).
(v) If a Participant has completed, on a cumulative basis,
60 months of participation in the Plan (taking into account
months of participation under the RJR Hourly Plan as if they
occurred in the Plan) while employed by an Affiliate, such
Participant's withdrawal amount next shall be withdrawn from the
remainder of such Participant's Matching Account (which shall
consist of Matching Contributions allocated to the Matching
Account for less than 24 calendar months).
(vi) The withdrawal amount next shall be withdrawn from
the portion of such Participant's Before Tax Account, if any,
which is comprised of the sum of (A) the Before Tax Account
balance (in the RJR Hourly Plan) as of December 31, 1988 and (B)
Before Tax Contributions made after said date, reduced by any
prior withdrawals from the Before Tax Account.
ARTICLE XI
CLAIMS
11.1 Claims Procedure.
Claims for benefits under the Plan may be filed with the Administrative
Committee on forms supplied by the Administrative Committee. The Administrative
Committee shall furnish to the claimant written notice of the disposition of a
claim within 90 days after the application therefor is filed; provided, if
special circumstances require an extension of time for processing the claim, the
Administrative Committee shall furnish written notice of the extension to the
claimant prior to the termination of the initial 90-day period, and such
extension shall not exceed one additional, consecutive 90-day period. In the
event the claim is denied, the notice of the disposition of the claim shall
provide the specific reasons for the denial, cites of the pertinent provisions
of the Plan, and, where appropriate, an explanation as to how the claimant can
perfect the claim and/or submit the claim for review.
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11.2 Review Procedure.
Any Participant or Beneficiary who has been denied a benefit, or his
duly authorized representative, shall be entitled, upon request to the
Administrative Committee, to appeal the denial of his claim. To do so, the
claimant must submit a written request to the Administrative Committee for
further consideration of his position. The claimant, or his duly authorized
representative, may review pertinent documents related to the Plan and in the
Administrative Committee's possession in order to prepare the appeal. The form
containing the request for review, together with a written statement of the
claimant's position, must be filed with the Administrative Committee no later
than 60 days after receipt of the written notification of denial of a claim
provided for in subsection Section 11.1. The Administrative Committee's decision
shall be made within 120 days following the filing of the request for review and
shall be communicated in writing to the claimant. If unfavorable, the notice of
decision shall explain the reason or reasons for denial and indicate the
provisions of the Plan or other documents used to arrive at the decision.
11.3 Satisfaction of Claims.
Any payment to a Participant or Beneficiary or to their legal
representative or heirs at law, all in accordance with the provisions of the
Plan, shall to the extent thereof be in full satisfaction of all claims
hereunder against the Trustee, the Administrative Committee and the Controlling
Company, any of whom may require such Participant, Beneficiary, legal
representative or heirs at law, as a condition to such payment, to execute a
receipt and release therefor in such form as shall be determined by the Trustee,
the Administrative Committee or the Controlling Company, as the case may be. If
a receipt and release shall be required but execution by such Participant,
Beneficiary, legal representative or heirs at law shall not be accomplished so
that the terms of Section 9.1(b), Section 9.2 and Section 9.3 (dealing with the
timing of distributions) may be fulfilled, such benefits may be distributed or
paid into any appropriate court or to such other place as such court shall
direct, for disposition in accordance with the order of such court, and such
distribution shall be deemed to comply with the requirements of Section 9.1(b),
Section 9.2 and Section 9.3.
ARTICLE XII
ADMINISTRATION
12.1 Administrative Committee; Appointment and Term of Office.
(a) The Administrative Committee shall consist of not less than
three members who shall be appointed by and serve at the pleasure of the
Board.
(b) The Board shall have the right to remove any member of the
Administrative Committee at any time. A member may resign at any time by
written resignation to the Board. If a vacancy in the Administrative
Committee should occur, a successor may be appointed by the Board.
(c) A written certification shall be given to the Trustee by the
Board of all members of the Administrative Committee together with a
specimen signature of each
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member. For all purposes hereunder, the Trustee shall be conclusively
entitled to rely upon such certification until the Trustee is otherwise
notified in writing.
12.2 Organization of Administrative Committee.
The Administrative Committee may elect a Chairman and a Secretary from
among its members. In addition to those powers set forth elsewhere in the Plan,
the Administrative Committee may appoint such agents, who need not be members of
such Administrative Committee, as it may deem necessary for the effective
performance of its duties and may delegate to such agents such powers and
duties, whether ministerial or interpretive, as the Administrative Committee may
deem expedient or appropriate. The compensation of such agents who are not
full-time Employees of a Participating Company shall be fixed by the
Administrative Committee and shall be paid by the Controlling Company (to be
divided equitably among the Participating Companies) or from the Trust Fund as
determined by the Administrative Committee. The Administrative Committee shall
act by majority vote either by meeting or in writing in lieu of a meeting. Its
members shall serve as such without compensation.
12.3 Powers and Responsibility.
The Administrative Committee shall fulfill the duties of "administrator"
as set forth in Section 3(16) of ERISA and shall have complete control of the
administration of the Plan hereunder, with all powers necessary to enable it
properly to carry out its duties as set forth in the Plan and the Trust
Agreement. The Administrative Committee shall have the following duties and
responsibilities, without limiting such duties and responsibilities under
Section 3(16) of ERISA:
(a) to construe the Plan and to determine all questions that
shall arise thereunder;
(b) to have all powers elsewhere herein conferred upon it;
(c) to decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan;
(d) to determine the benefits of the Plan to which any
Participant or Beneficiary may be entitled;
(e) to maintain and retain records relating to Participants and
Beneficiaries;
(f) to prepare and furnish to Participants all information
required under federal law or provisions of the Plan to be furnished to
them;
(g) to prepare and furnish to the Trustee and/or recordkeeper
sufficient employee data and the amount of Contributions received from
all sources so that the Trustee and/or recordkeeper may maintain
separate accounts for Participants and Beneficiaries and make required
payments of benefits;
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(h) to prepare and file or publish with the Secretary of Labor,
the Secretary of the Treasury, their delegates and all other appropriate
government officials all reports and other information required under
law to be so filed or published;
(i) to provide directions to the Trustee with respect to methods
of benefit payment, valuations at dates other than the monthly Valuation
Date and all other matters where called for in the Plan or requested by
the Trustee;
(j) to engage assistants and professional advisers;
(k) to arrange for fiduciary bonding;
(l) to provide procedures for determination of claims for
benefits; and
(m) to delegate any specific duty or responsibility to officers
or Employees of a Participating Company or to any other person who shall
serve at the direction and pleasure of the Administrative Committee;
all as further set forth herein.
12.4 Records of Administrative Committee.
(a) Any notice, direction, order, request, certification or
instruction of the Administrative Committee to the Trustee shall be in
writing and shall be signed by a member of the Administrative Committee.
The Trustee and every other person shall be entitled to rely
conclusively upon any and all such notices, directions, orders,
requests, certifications and instructions received from the
Administrative Committee and reasonably believed to be properly
executed, and shall act and be fully protected in acting in accordance
therewith.
(b) All acts and determinations of the Administrative Committee
shall be duly recorded by its Secretary or under his supervision, and
all such records (including records necessary to demonstrate compliance
with the nondiscrimination requirements of the Code), together with such
other documents as may be necessary for the administration of the Plan,
shall be preserved in the custody of such Secretary.
12.5 Reporting and Disclosure.
The Administrative Committee shall keep all individual and group records
relating to Participants and Beneficiaries and all other records necessary for
the proper operation of the Plan. Such records shall be made available to the
Participating Companies and to each Participant and Beneficiary for examination
during normal business hours except that a Participant or Beneficiary shall
examine only such records as pertain exclusively to the examining Participant or
Beneficiary and the Plan and Trust Agreement. The Administrative Committee shall
prepare and shall file as required by law or regulation all reports, forms,
documents and other items required by ERISA, the Code and every other relevant
statute, each as amended, and all regulations thereunder. This provision shall
not be construed as imposing upon the Administrative Committee the
responsibility or authority for the preparation,
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preservation, publication or filing of any document required to be prepared,
preserved or filed by the Trustee or by any other Named Fiduciary to whom such
responsibilities are delegated by law or by the Plan.
12.6 Construction of the Plan.
The Administrative Committee shall take such steps as are considered
necessary and appropriate to remedy any inequity that results from incorrect
information received or communicated in good faith or as the consequence of an
administrative error. The Administrative Committee shall interpret the Plan and
shall determine the questions arising in the administration, interpretation and
application of the Plan. The Administrative Committee shall endeavor to act,
whether by general rules or by particular decisions, so as not to discriminate
in favor of or against any person and so as to treat all persons in similar
circumstances uniformly. The Administrative Committee shall correct any defect,
reconcile any inconsistency or supply any omission with respect to the Plan.
Determinations made by the Administrative Committee shall be final, conclusive
and binding on all affected parties.
12.7 Assistants and Advisers.
(a) The Administrative Committee shall have the right to hire, at
the expense of the Controlling Company (to be divided equitably among
the Participating Companies), such professional assistants and
consultants as it, in its sole discretion, deems necessary or advisable.
To the extent that the costs for such assistants and advisers are not so
paid by the Controlling Company, they shall be paid at the direction of
the Administrative Committee from the Trust Fund as an expense of the
Trust Fund.
(b) The Administrative Committee and the Participating Companies
shall be entitled to rely upon all certificates and reports made by an
accountant, attorney or other professional adviser selected pursuant to
this Section 12.7; the Administrative Committee, the Participating
Companies, and the Trustee shall be fully protected in respect to any
action taken or suffered by them in good faith in reliance upon the
advice or opinion of any such accountant, attorney or other professional
adviser; and any action so taken or suffered shall be conclusive upon
each of them and upon all other persons interested in the Plan.
12.8 Investment Committee.
(a) The Investment Committee is the named fiduciary to act on
behalf of the Controlling Company to manage and control the Plan assets
and to establish and carry out a funding policy consistent with the Plan
objectives and with the requirements of any applicable law and to
otherwise carry out the duties of the Investment Committee under Article
VII. Such policy shall be in writing and shall have due regard for the
liquidity needs of the Trust. Such funding policy shall also state the
general investment objectives of the Trust and the philosophy upon which
maintenance of the Plan is based.
(b) The Board shall determine the membership of the Investment
Committee, and the members shall serve at the pleasure of the Board or
until their resignation. The Investment shall act by majority vote
either at a meeting or by a writing in lieu of a meeting.
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(c) The Investment Committee shall carry out the Controlling
Company's responsibility and authority:
(i) To appoint one or more persons to serve as investment
manager with respect to all or part of the Plan assets, including
assets maintained under separate accounts of an insurance
company;
(ii) To allocate the responsibility and authority being
carried out by the Investment Committee among the members of the
Committee or other designees;
(iii) To take any action appropriate to assure that the
Plan assets are invested for the exclusive purpose of providing
benefits to Participants and their Beneficiaries in accordance
with the Plan and defraying reasonable expenses of administering
the Plan, subject to the requirements of any applicable law; and
(iv) To employ one or more persons to render advice with
respect to any responsibility or authority being carried out by
the Investment Committee. To the extent that the costs for such
assistants and advisers are not paid by the Controlling Company,
they shall be paid at the direction of the Investment Committee
from the Trust Fund as an expense of the Trust Fund.
12.9 Direction of Trustee.
The Investment Committee shall have the power to provide the Trustee
with general investment policy guidelines and directions to assist the Trustee
respecting investments made in compliance with, and pursuant to, the terms of
the Plan.
12.10 Bonding.
The Administrative Committee shall arrange for fiduciary bonding as is
required by law, but no bonding in excess of the amount required by law shall be
required by the Plan.
12.11 Indemnification.
Each of the Administrative Committee and the Investment Committee and
each member of those Committees shall be indemnified by the Participating
Companies against judgment amounts, Settlement amounts (other than amounts paid
in settlement to which the Participating Companies do not consent) and expenses,
reasonably incurred by the Committee or him in connection with any action to
which the Committee or he may be a party (by reason of his service as a member
of a Committee) except in relation to matters as to which the Committee or he
shall be adjudged in such action to be personally guilty of gross negligence or
willful misconduct in the performance of its or his duties. The foregoing right
to indemnification shall be in addition to such other rights as such Committee
or each Committee member may enjoy as a matter of law or by reason of insurance
coverage of any kind. Rights granted hereunder shall be in addition to and not
in lieu of any rights to indemnification to which such Committee or each
Committee member may be entitled pursuant to the by-laws of the Controlling
Company. Service on the Administrative or Investment Committee shall be deemed
in partial fulfillment of
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<PAGE> 80
a Committee member's function as an Employee, officer and/or director of the
Controlling Company or any Participating Company, if he serves in such other
capacity as well.
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<PAGE> 81
ARTICLE XIII
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
13.1 Controlling Company and Board.
(a) General Responsibilities. The Controlling Company, as Plan
sponsor, and the Board each shall serve as a Named Fiduciary having the
following (and only the following) authority and responsibilities:
(i) To appoint the Administrative Committee and the
Investment Committee and to monitor each of their performances;
(ii) To communicate such information to the Administrative
Committee and the Investment Committee as each needs for the
proper performance of its duties;
(iii) To provide channels and mechanisms through which the
Administrative Committee can communicate with Participants and
Beneficiaries; and
(iv) To appoint the Trustee, and any successor thereof and
to monitor its performance.
In addition, the Controlling Company shall perform such duties as are
imposed by law or by regulation and shall serve as Plan Administrator in
the absence of an appointed Administrative Committee.
(b) Allocation of Authority. In the event any of the areas of
authority and responsibilities of the Controlling Company and the Board
overlap with that of any other Plan fiduciary, the Controlling Company
and the Board shall coordinate with such other fiduciaries the execution
of such authority and responsibilities; provided, the decision of the
Controlling Company and the Board with respect to such authority and
responsibilities ultimately shall be controlling.
(c) Authority of Participating Companies. Notwithstanding
anything herein to the contrary, and in addition to the authority and
responsibilities specifically given to the Participating Companies in
the Plan, the Controlling Company, in its sole discretion, may grant the
Participating Companies such authority and charge them with such
responsibilities as the Controlling Company deems appropriate.
13.2 Administrative Committee.
The Administrative Committee shall have the authority and
responsibilities imposed by Article XII hereof. With respect to said authority
and responsibilities, the Administrative Committee shall be a Named Fiduciary,
and as such, shall have no authority or responsibilities other than as granted
in the Plan or as imposed as a matter of law.
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<PAGE> 82
13.3 Investment Committee.
The Investment Committee, if any is appointed, shall be a Named
Fiduciary with respect to its authority and responsibilities, as imposed by
Article XII. The Investment Committee shall have no authority or
responsibilities other than those granted in the Plan and the Trust.
13.4 Trustee.
The Trustee shall be a Named Fiduciary with respect to custodianship and
investment of Trust Fund assets and shall have the powers and duties set forth
in the Trust Agreement.
13.5 Limitations on Obligations of Fiduciaries.
No fiduciary shall have authority or responsibility to deal with matters
other than as delegated to it under the Plan, under the Trust Agreement or by
operation of law. A fiduciary shall not in any event be liable for breach of
fiduciary responsibility or obligation by another fiduciary (including Named
Fiduciaries) if the responsibility or authority for the act or omission deemed
to be a breach was not within the scope of such fiduciary's authority or
delegated responsibility.
13.6 Delegation.
Named Fiduciaries shall have the power to delegate specific fiduciary
responsibilities (other than Trustee responsibilities). Such delegations may be
to officers or Employees of a Participating Company or to other persons, all of
whom shall serve at the pleasure of the Named Fiduciary making such delegation
and, if full-time Employees of a Participating Company, without compensation.
Any such person may resign by delivering a written resignation to the delegating
Named Fiduciary or will be deemed to have resigned upon termination of
employment with all Participating Companies or upon transfer to a position which
has no relation to the responsibilities and duties delegated by the Named
Fiduciary. Vacancies created by any reason may be filled by the appropriate
Named Fiduciary or the assigned responsibilities may be reabsorbed or
redelegated by the Named Fiduciary.
13.7 Multiple Fiduciary Roles.
Any person may hold more than one position of fiduciary responsibility
and shall be liable for each such responsibility separately.
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ARTICLE XIV
AMENDMENT, TERMINATION AND ADOPTION
14.1 Amendment.
The provisions of the Plan may be amended at any time and from time to
time by the Board; provided:
(a) No amendment shall increase the duties or liabilities of the
Trustee without the consent of such party;
(b) No amendment shall decrease the balance or vested percentage
of an Account or eliminate an optional form of benefit;
(c) No amendment shall be made which would divert any of the
assets of the Trust Fund to any purpose other than the exclusive benefit
of Participants and Beneficiaries, except that the Plan and Trust
Agreement may be amended retroactively and to affect the Accounts of
Participants and Beneficiaries if necessary to cause the Plan and Trust
to be qualified and exempt from taxation under the Code; and
(d) Each amendment shall be approved by the Board by resolution
unless such authority is otherwise delegated to the Administrative
Committee by the Board.
14.2 Termination.
(a) Right to Terminate. The Controlling Company expects the Plan
to be continued indefinitely, but it reserves the right to terminate the
Plan or to completely discontinue Contributions to the Plan at any time
by action of the Board, unless such authority has been delegated to the
Administrative Committee. In either event, the Administrative Committee,
Investment Committee, each Participating Company and the Trustee shall
be promptly advised of such decision in writing. [For termination of the
Plan by a Participating Company as to itself (rather than the
termination of the entire Plan) refer to Section 14.3(e).]
(b) Vesting upon Complete Termination. If the Plan is terminated
by the Controlling Company or Contributions to the Plan are completely
discontinued, the Accounts of all Participants, Beneficiaries or other
successors in interest as of such date shall become 100 percent vested
and nonforfeitable. Upon termination of the Plan, the Administrative
Committee, in its sole discretion, shall instruct the Trustee either (i)
to continue to manage and administer the assets of the Trust for the
benefit of the Participants and their Beneficiaries pursuant to the
terms and provisions of the Trust Agreement, or (ii) if there is no
successor plan permitted under the terms of Section 9.1(c) or no
benefits subject to the restorations in said section, to pay over to
each Participant the value of his interest in a single sum and to
thereupon dissolve the Trust.
(c) Dissolution of Trust. In the event that the Administrative
Committee decides to dissolve the Trust, as soon as practicable
following the termination of the Plan
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<PAGE> 84
or the Administrative Committee's decision, whichever is later, the
assets under the Plan shall be converted to cash or other distributable
assets, to the extent necessary to effect a complete distribution of the
Trust assets as described hereinbelow. Following completion of the
conversion, on a date selected by the Administrative Committee, each
individual with an Account under the Plan on such date shall receive a
distribution of the total amount then credited to his Account; provided,
if the balance of a Participant's Account is greater than $5,000 ($3,500
for Plan Years beginning before January 1, 1998) and such Participant
does not consent to a lump sum distribution, the Administrative
Committee shall direct that the Participant's Account be distributed by
the purchase and distribution of a nonparticipating annuity with
distribution terms comparable to those in Section 9.1 (and the
applicable provisions in Article IX). The amount of cash and other
property distributable to each such individual shall be determined as of
the date of distribution (treating, for this purpose, such distribution
date as the Valuation Date as of which the distributable amount is
determined). In the case of a termination distribution as provided
herein, the Administrative Committee may direct the Trustee to take any
action provided in Section 9.6 (dealing with unclaimed benefits), except
that it shall not be necessary to hold funds for any period of time
stated in such section. Within the expense limitations set forth in the
Plan, the Administrative Committee may direct the Trustee to use assets
of the Trust Fund to pay any due and accrued expenses and liabilities of
the Trust and any expenses involved in termination of the Plan (other
than expenses incurred for the benefit of the Participating Companies).
(d) Vesting Upon Partial Termination. In the event of a partial
termination of the Plan [as provided in Code Section 411(d)(3)], the
Accounts of those Participants and Beneficiaries affected shall become
100 percent vested and nonforfeitable and, unless transferred to another
qualified plan in accordance with the terms of Section 14.4, shall be
distributed in a manner and at a time consistent with the terms of
Article IX.
14.3 Adoption of the Plan by a Participating Company.
(a) Procedures for Participation. As of the Effective Date, the
Controlling Company shall be the Participating Company in the Plan. Any
other company may become a Participating Company and commence
participation in the Plan subject to the provisions of this subsection.
In order for a company to become a Participating Company, the
Administrative Committee must designate such company as a Participating
Company and specify the effective date of such designation. The name of
any company which shall commence participation in the Plan, along with
the effective date of its participation, shall be recorded on Schedule A
hereto which shall be appropriately modified each time a Participating
Company is added or deleted. To adopt the Plan as a Participating
Company, unless the Administrative Committee provides another method of
approval, the board of directors of the company must approve a
resolution expressly adopting the Plan for the benefit of its eligible
employees and accepting designation as a Participating Company, subject
to all of the provisions of this Plan and of the Trust. The resolution
shall specify the date as of which the designation as a Participating
Company shall be effective. A copy of the resolution (certified if
requested) of the board of directors of the adopting Participating
Company shall be provided to the Administrative Committee. Upon adoption
of the Plan by a Participating Company as herein provided,
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<PAGE> 85
the Employees of such company shall be eligible to participate in the
Plan subject to the terms hereof and of the resolution of the
Administrative Committee designating the adopting company as such.
(b) Single Plan. The Plan, as adopted by all Participating
Companies, shall be considered a single plan for purposes of Treasury
Regulation Section 1.414(l)-1(b)(1). All assets contributed to the Plan
by the Participating Companies shall be held together in a single fund
and shall be available to pay benefits to all Participants and
Beneficiaries. Nothing contained herein shall be construed to prohibit
the separate accounting of assets contributed by the Participating
Companies for purposes of cost allocation, contributions, forfeitures
and other purposes, pursuant to the terms of the Plan and as directed by
the Administrative Committee.
(c) Authority under Plan. As long as a Participating Company's
designation as such remains in effect, such Participating Company shall
be bound by, and subject to, all provisions of the Plan and the Trust.
The exclusive authority to amend the Plan and the Trust shall be vested
in the Board, and no other Participating Company shall have any right to
amend the Plan or the Trust. Any amendment to the Plan or the Trust
adopted by the Board shall be binding upon every Participating Company
without further action by such Participating Company.
(d) Contributions to Plan. A Participating Company shall be
required to make Contributions to the Plan at such times and in such
amounts as specified in Articles III and V. The Contributions made (or
to be made) to the Plan by the Participating Companies shall be
allocated between and among such companies in whatever equitable manner
or amounts as the Administrative Committee shall determine.
(e) Withdrawal from Plan. The Administrative Committee may
terminate the designation of a Participating Company, effective as of
any date. A company's status as a Participating Company automatically
shall cease as of the date it ceases to be an Affiliate with the
Controlling Company. A Participating Company may withdraw from
participation in the Plan, with the approval of the Administrative
Committee, by action of its board of directors, provided such action is
communicated in writing to the Administrative Committee. The withdrawal
of a Participating Company shall be effective as of the last day of the
Plan Year in which the notice of withdrawal is received by the
Administrative Committee (unless the Controlling Company or
Administrative Committee consents to a different effective date). Any
such Participating Company which ceases to be a Participating Company
shall be liable for all costs and liabilities (whether imposed under the
terms of the Plan, the Code or ERISA) accrued through the effective date
of its withdrawal or termination. The withdrawing or terminating
Participating Company shall have no right to direct that assets of the
Plan be transferred to a successor plan for its employees unless such
transfer is approved by the Controlling Company or Administrative
Committee in its sole discretion.
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<PAGE> 86
14.4 Merger, Consolidation and Transfer of Assets or Liabilities.
(a) In the event of any merger or consolidation of the Plan with,
or transfer of assets or liabilities of the Plan to, any other plan,
each Participant and Beneficiary shall have a plan benefit in the
surviving or transferee plan (determined as if such plan were then
terminated immediately after such merger, consolidation or transfer of
assets or liabilities) that is equal to or greater than the benefit he
would have been entitled to receive under the Plan immediately before
such merger, consolidation or transfer of assets or liabilities, if the
Plan had terminated at that time.
(b) The Administrative Committee, in its sole discretion, may
cause the Plan to transfer to another qualified retirement plan (as part
of a spin-off or similar transaction) assets and liabilities maintained
under the Plan. Any such transfer shall be made in accordance with the
terms of the Code and subject to such rules and requirements as the
Administrative Committee may deem appropriate. Upon the effectiveness of
any such transfer, the Plan and Trust shall have no further
responsibility or liability with respect to the transferred assets and
liabilities.
14.5 Contingent Adoption.
Notwithstanding anything to the contrary elsewhere provided in the Plan
and the Trust Agreement, the Plan and Trust are created on the condition that
the Plan and Trust initially shall be approved and qualified by the Internal
Revenue Service as meeting the requirements of the Code and the regulations
issued thereunder and that this restatement of the Plan also be approved and
qualified by the Internal Revenue Service, so as to permit the Participating
Companies to claim a credit or deduction for income tax purposes with respect to
all funds contributed by them to the Trust and so as to make the Trust tax
exempt under the present Code Section 501(a); and, in the event qualification is
not obtained, the restated Plan and Trust shall thereupon become null and void
and of no effect, ab initio, and the Trustee shall forthwith deliver to each
Participating Company all of the property of such Trust upon request of such
Participating Company.
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<PAGE> 87
ARTICLE XV
MISCELLANEOUS
15.1 Nonalienation of Benefits and Spendthrift Clause.
(a) General Nonalienation Requirements. Except to the extent
permitted by law and as provided in subsection (b) hereof, none of the
Accounts, benefits, payments, proceeds or distributions under the Plan
shall be subject to the claim of any creditor of a Participant or
Beneficiary or to any legal process by any creditor of such Participant
or of such Beneficiary; and neither such Participant nor any such
Beneficiary shall have any right to alienate, commute, anticipate or
assign any of the Accounts, benefits, payments, proceeds or
distributions under the Plan except to the extent expressly provided
herein. If any Participant shall attempt to dispose of his Account or
the benefits provided for him hereunder or to dispose of the right to
receive such benefits, or, in the event there should be an effort to
seize such Account or benefits by attachment, execution or other legal
or equitable process, such right may pass and be transferred, at the
discretion of the Administrative Committee, to such person or persons as
may be selected by the Administrative Committee from among the
Beneficiaries, if any, theretofore designated by the Participant, or
from the Spouse, children or other dependents of the Participant, in
such shares as the Administrative Committee may appoint. Any
appointments so made by the Administrative Committee may be revoked by
it at any time, and further appointments made by it may include the
Participant.
(b) Exception for Qualified Domestic Relations Orders.
(i) The nonalienation requirements of subsection (a)
hereof shall apply to the creation, assignment or recognition of
a right to any benefit, payable with respect to a Participant
pursuant to a domestic relations order, unless such order is (i)
determined to be a qualified domestic relations order, as defined
in Code Section 414(p), entered on or after January 1, 1985, or
(ii) any domestic relations order, as defined in Code Section
414(p), entered before January 1, 1985, pursuant to which a
transferor plan was paying benefits on January 1, 1985. The
Administrative Committee shall establish reasonable written
procedures to determine the qualified status of a domestic
relations order. Further, to the extent provided under a
qualified domestic relations order, a former spouse of a
Participant shall be treated as the Spouse or Surviving Spouse
for all purposes under the Plan.
(ii) The Administrative Committee shall establish
reasonable procedures to administer distributions under qualified
domestic relations orders which are submitted to it. The
Administrative Committee, to the extent provided in a qualified
domestic relations order, shall direct the Trustee to pay, in a
single sum payment, the full amount of the benefit payable to any
alternate payee under a qualified domestic relations order. Such
cash-out payment shall be made as soon as practicable after the
Administrative Committee determines that a domestic relations
order is a qualified domestic relations order, or if later, when
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<PAGE> 88
the terms of the qualified domestic relations order permit such a
distribution. If the terms of a qualified domestic relations
order do not permit an immediate cash-out payment, the benefits
shall be paid to the alternate payee in accordance with the terms
of such order and the applicable terms of the Plan.
15.2 Headings.
The headings and subheadings in the Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
15.3 Construction, Controlling Law.
In the construction of the Plan, the masculine shall include the
feminine and the feminine the masculine, and the singular shall include the
plural and the plural the singular, in all cases where such meanings would be
appropriate. Unless otherwise specified, any reference to a section shall be
interpreted as a reference to a section of the Plan. The Plan shall be construed
in accordance with the laws of the State of California and applicable federal
laws.
15.4 No Contract of Employment.
Neither the establishment of the Plan, nor any modification thereof, nor
the creation of any fund, trust or account, nor the payment of any benefits
shall be construed as giving any Participant, Employee or any person whomsoever
the right to be retained in the service of any Affiliate, and all Participants
and other Employees shall remain subject to discharge to the same extent as if
the Plan had never been adopted.
15.5 Incapacity of Participant or Beneficiary.
If the Administrative Committee deems any Participant or Beneficiary who
is entitled to receive payments hereunder incapable of receiving or disbursing
the same by reason of age, illness, infirmity, or incapacity of any kind, the
Administrative Committee may direct the trustee to apply such payments directly
for the comfort, support, and maintenance of such Participant or Beneficiary or
to pay the same to any responsible persons caring for the Participant or
Beneficiary who is determined by the Administrative Committee to be qualified,
by court-appointed guardianship or an equivalency, to receive and disburse such
payments for the benefit of such individual; and the receipt by such person
shall be a complete acquittance for the payment of the benefit. Payments made
pursuant to this section shall be a complete discharge to the extent thereof of
any and all liability of the Company, the Participating Units, the
Administrative Committee, the trustee, and the trust.
15.6 Heirs, Assigns and Personal Representatives.
The Plan shall be binding upon the heirs, executors, administrators,
successors and assigns of the parties, including each Participant and
Beneficiary, present and future.
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<PAGE> 89
15.7 Title to Assets, Benefits Supported Only By Trust Fund.
No Participant or Beneficiary shall have any right to, or interest in,
any assets of the Trust Fund upon termination of his employment or otherwise,
except as provided from time to time under the Plan, and then only to the extent
of the benefits payable under the Plan to such Participant out of the assets of
the Trust Fund. Any person having any claim under the Plan shall look solely to
the assets of the Trust Fund for satisfaction. The foregoing sentence
notwithstanding, each Participating Company shall indemnify and save any of its
officers, members of its board of directors or agents, and each of them,
harmless from any and all claims, loss, damages, expense and liability arising
from their responsibilities in connection with the Plan and from acts, omissions
and conduct in their official capacity, except to the extent that such effects
and consequences shall result from their own willful misconduct or gross
negligence.
15.8 Legal Action.
In any action or proceeding involving the assets held with respect to
the Plan or Trust Fund or the administration thereof, the Participating
Companies, the Administrative Committee and the Trustee shall be the only
necessary parties and no Participants, Employees, or former Employees of the
Company, their Beneficiaries or any other person having or claiming to have an
interest in the Plan shall be entitled to any notice of process; provided, that
such notice as is required by the Internal Revenue Service and the Department of
Labor to be given in connection with Plan amendments, termination, curtailment
or other activity shall be given in the manner and form and at the time so
required. Any final judgment which is not appealed or appealable that may be
entered in any such action or proceeding shall be binding and conclusive on the
parties hereto, the Administrative Committee and all persons having or claiming
to have an interest in the Plan.
15.9 No Discrimination.
The Controlling Company, through the Administrative Committee, shall
administer the Plan in a uniform and consistent manner with respect to all
Participants and Beneficiaries and shall not permit discrimination in favor of
officers, stockholders, supervisory or highly compensated Employees.
15.10 Severability.
If any provisions of the 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 had
not been included; provided, this section notwithstanding, if the events
described in Section 14.5 shall occur, then Section 14.5 shall control.
15.11 Exclusive Benefit: Refund of Contributions.
No part of the Trust Fund shall be used for or diverted to purposes
other than the exclusive benefit of the Participants and their Beneficiaries,
subject, however, to the payment of all costs of maintaining and administering
the Plan and Trust. Notwithstanding the foregoing,
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<PAGE> 90
Contributions to the Trust by a Participating Company may be refunded to the
Participating Company under the following circumstances and subject to the
following limitations:
(a) If and to the extent permitted by the Code and other
applicable laws and regulations thereunder, upon the Participating
Company's request, a Contribution which is (i) made by a mistake in
fact, or (ii) conditioned upon initial qualification of the Plan with
the Plan receiving an adverse determination even though the application
for determination is submitted to the Internal Revenue Service for
review within the remedial amendment period (as defined in Treasury
Regulation Section 1.401(b)-l) respecting the Plan, or (iii) conditioned
upon the deductibility of the Contribution under Code Section 404, shall
be returned to the Participating Company making the Contribution within
1 year after the payment of the Contribution, the denial of the
qualification, or the disallowance of the deduction (to the extent
disallowed), whichever is applicable.
(b) If any refund is paid to a Participating Company hereunder,
such refund shall be made without interest or other investment gains,
shall be reduced by any investment losses attributable to the refundable
amount and shall be apportioned among the Accounts of the Participants
as an investment loss, except to the extent that the amount of the
refund can be attributed to one or more specific Participants (for
example, as in the case of certain mistakes of fact), in which case the
amount of the refund attributable to each such Participant's Account
shall be debited directly against such Account.
(c) No refund shall be made to a Participating Company if such
refund would cause the balance in a Participant's Account to be less
than the balance would have been had the refunded contribution not been
made.
15.12 Predecessor Service.
In the event a Participating Company maintains the Plan as successor to
a predecessor employer who maintained the Plan, service for the predecessor
employer shall be treated as service for the Participating Company.
15.13 Plan Expenses.
As permitted under the Code and ERISA, expenses incurred with respect to
administering the Plan and Trust shall be paid by the Trustee from the Trust
Fund to the extent such costs are not paid by the Participating Companies or to
the extent the Controlling Company requests that the Trustee reimburse it for
its payment of such expenses; provided, that the Trustee shall not authorize
payment of any such expense from the Trust Fund to any party-in-interest, as
defined by ERISA Section 3(14), or any disqualified person, as defined by Code
Section 4975 (e)(2), unless such transaction is exempt under ERISA Section 408
and Code Section 4975.
15.14 Writing Equivalents.
As approved by the Committee, any requirement of a writing under this
Plan may be satisfied by an electronic substitute or facsimile which provides
substantially the same assurances of authenticity and reliability as the written
document it replaces. Further, the
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<PAGE> 91
Administrative Committee may authorize an interactive telephone system or a
computer-based system (whether or not accessible over the Internet) under which
a Participant or Beneficiary shall be deemed to have provided written election
under the Plan when making directions to the Plan with respect to his Account
(provided such election does not require spousal consent) in accordance with the
terms and conditions of such system and any reference herein to a written
election may include such alternative election (provided such election does not
require spousal consent).
IN WITNESS WHEREOF, the Controlling Company has caused the Plan
to be executed by its duly authorized officer as of the date first above
written.
DEL MONTE CORPORATION
By: /s/ Mark J. Buxton
___________________________
Title: Vice President,
Corporate Human Resources
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<PAGE> 92
SCHEDULE A
[see Plan Section 1.36 and Section 14.3]
<TABLE>
<CAPTION>
Effective Date
Participating Company of Participation
- --------------------- ----------------
<S> <C> <C>
Del Monte Corporation 1/1/90
</TABLE>
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<PAGE> 93
SCHEDULE B
[see Plan Section 1.57]
<TABLE>
<CAPTION>
Prior to November 1, 1995
Participating Unit - if a full-time regular employee Effective Date Participation
---------------------------------------------------- -----------------------------------
Commences Ceases
--------------- -----------------
<S> <C> <C>
# 48, Alameda, California January 1, 1990 December 31, 1992
#109, Rochelle, Illinois January 1, 1990 October 31, 1995
#111, DeKalb, Illinois January 1, 1990 December 9, 1994
#112, Mendota, Illinois January 1, 1990 October 31, 1995
#250, Crystal City, Texas January 1, 1990 October 31, 1995
#255, Crystal City, Texas January 1, 1990 December 20, 1993
Participating Unit - if an employee Effective Date Participation
---------------------------------------------------- -----------------------------------
#115, Rochelle Can Plant, Illinois January 1, 1990 December 20, 1993
#144, Clearfield Warehouse, Utah January 1, 1990 October 31, 1995
#199, Rochelle Distribution Center, Illinois January 1, 1990 October 31, 1995
#233, Stockton Can Plant, California January 1, 1990 December 20, 1993
#237, Fruitvale Can Plant, California January 1, 1990 December 20, 1993
#263, Memphis Distribution Center, Tennessee January 1, 1990 September 1, 1993
#506, Swedesboro Distribution Center, New Jersey January 1, 1990 October 31, 1995
Special Participating Unit: Consisting of Active
Participants at Crystal City, Texas Who are not Covered
Employees but Who Have Made and are Making
Contributions [see Plan Section 2.3]
January 1, 1990 October 31, 1995
</TABLE>
<TABLE>
<CAPTION>
November 1, 1995 and thereafter
Participating Unit - Union (Non-Seasonal and Seasonal) Effective Date Participation
------------------------------------------------------ -----------------------------------
Commences Ceases
--------------- -----------------
<S> <C> <C>
#109, Rochelle, Illinois 11/1/95
#112, Mendota, Illinois 11/1/95
#199, Rochelle Distribution Center, Illinois 11/1/95
#250, Crystal City, Texas 11/1/95
#144, Clearfield Warehouse, Utah 11/1/95
#506, Swedesboro Distribution Center, New Jersey 11/1/95
Special Participating Unit: Active Employees at
Crystal City, Texas Who Continue As Active Participants
[see Plan Section 2.3] [list of individuals] 11/1/95
All nonunion Seasonal Employees at any Company location 11/1/95
#108 Cambria, Wisconsin 12/18/99
</TABLE>
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<PAGE> 94
SCHEDULE C
[see Plan Section 2.1(a)]
Prior To November 1, 1995
<TABLE>
<CAPTION>
Participating Unit Additional Eligibility Requirements
------------------ ---------------------------------------------
<S> <C>
#144, Clearfield Warehouse Utah Completion of 1 Year
#233, Stockton Can Plant, California of Qualification Service
#237, Fruitvale Can Plant, California
#250, Crystal City, Texas
#255, Crystal City, Texas
#263, Memphis Distribution Center, Tennessee
#506, Swedesboro Distribution Center, New Jersey
November 1, 1995 and Thereafter
All Participating Units Completion of 1 Year of Qualification Service
</TABLE>
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<PAGE> 95
SCHEDULE D
(see Plan Section 3.1(a)]
This schedule reflects prior plan provisions and is maintained to
preserve the history of plan changes.
<TABLE>
<CAPTION>
Maximum Percentage of Compensation
Which May Be Contributed as a Before
Participating Unit Tax Contribution
- ------------------------------------------------- ------------------------------------
<S> <C>
Prior To July 1, 1995
# 48, Alameda, California 10%
# 51, San Jose, California 10%
#109, Rochelle, Illinois 10%
#111, DeKalb, Illinois 10%
#112, Mendota, Illinois 10%
#115, Rochelle Can Plant, Illinois 10%
#199, Rochelle Distribution Center, Illinois 10%
July 1, 1995 - Add the following
#144, Clearfield Warehouse, Utah 10%
#250, Crystal City, Texas 10%
#506, Swedesboro Distribution Center, New Jersey 10%
Special Participating Unit, Crystal City, Texas 10%
November 1, 1995 - Add the following
Nonunion Seasonal Employees 10%
December 18, 1999 - Add the following
#108, Cambria, Wisconsin 10%
</TABLE>
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<PAGE> 96
SCHEDULE E
(see Plan Section 3.1(b)]
This schedule reflects prior plan provisions and is maintained to
preserve the history of plan changes.
<TABLE>
<CAPTION>
Maximum Percentage of Compensation
Which May Be Contributed as a
Combination of Before Tax and After
Participating Unit Tax Contributions
- -------------------------------------------------- -----------------------------------
<S> <C>
Prior to July 1, 1995
# 48, Alameda, California 16%
# 51, San Jose, California 16%
#109, Rochelle, Illinois 16%
#111, DeKalb, Illinois 16%
#112, Mendota, Illinois 16%
#115, Rochelle Can Plant, Illinois 16%
#199, Rochelle Distribution Center, Illinois 16%
#144, Clearfield Warehouse, Utah 15%
#233, Stockton Can Plant, California 15%
#237, Fruitvale Can Plant, California 15%
#250, Crystal City, Texas 15%
#255, Crystal City, Texas 15%
#263, Memphis Distribution Center, Tennessee 15%
#506, Swedesboro Distribution Center, New Jersey 15%
Special Participating Unit, Crystal City, Texas 15%
July 1, 1995 (Reflecting Closures)
#109, Rochelle, Illinois 16%
#112, Mendota, Illinois 16%
#199, Rochelle Distribution Center, Illinois 16%
#144, Clearfield Warehouse, Utah 16%
#250, Crystal City, Texas 16%
#506, Swedesboro Distribution Center, New Jersey 16%
Special Participating Unit, Crystal City, Texas 16%
November 1, 1995 - add the following
Nonunion Seasonal Employees 16%
December 18, 1999 - Add the following
#108, Cambria, Wisconsin 16%
</TABLE>
84
<PAGE> 97
SCHEDULE F
[see Plan Section 3.2]
This schedule reflects prior plan provisions and is maintained to
preserve the history of plan changes.
<TABLE>
<CAPTION>
Maximum Percentage of Compensation to
which Matching Contributions Shall Be
Participating Unit Applied
- ------------------------------------------------ -------------------------------------
<S> <C>
Prior to July 1, 1995
# 48, Alameda, California 6%
# 51, San Jose, California 6%
#109, Rochelle, Illinois 6%
#111, DeKalb, Illinois 6%
#112, Mendota, Illinois 6%
#115, Rochelle Can Plant, Illinois 6%
#199, Rochelle Distribution Center, Illinois 6%
#144, Clearfield Warehouse, Utah 5%
#233, Stockton Can Plant, California 5%
#237, Fruitvale Can Plant, California 5%
#250, Crystal City, Texas 5%
#255, Crystal City, Texas 5%
#263, Memphis Distribution Center, Tennessee 5%
#506, Swedesboro Distribution Center, New Jersey 5%
Special Participating Unit, Crystal City, Texas 5%
July 1, 1995 (Reflecting Closures)
#109, Rochelle, Illinois 6%
#112, Mendota, Illinois 6%
#199, Rochelle Distribution Center, Illinois 6%
#144, Clearfield Warehouse, Utah 6%
#506, Swedesboro Distribution Center, New Jersey 6%
#250, Crystal City, Texas 6%
Special Participating Unit, Crystal City, Texas 6%
December 18, 1999 - Add the following
#108, Cambria, Wisconsin 6%
</TABLE>
85
<PAGE> 98
SCHEDULE G
[see Plan Section 8.1(b)]
This schedule reflects prior plan provisions and is maintained to
preserve the history of plan changes.
<TABLE>
<CAPTION>
Date Upon Which a Participant Becomes Vested
Participating Unit in His Matching Account
- ------------------------------------------- --------------------------------------------
<S> <C>
# 48, Alameda, California Upon completion of 2 years of Vesting
# 51, San Jose, California Service for any Participant who has at least
#109, Rochelle, Illinois 1 Hour of Service after May 31, 1992. For
#111, DeKalb, Illinois any Participant who does not have 1 Hour of
#112, Mendota, Illinois Service after May 31, 1992, upon the earlier
#115, Rochelle Can Plant, Illinois of (i) completion of 24 consecutive months
#199, Rochelle Distribution Center, Illinois of Active Participation (taking into account
months of active participation in the RJR
Plan as if they occurred in the Plan), or
(ii) completion of 5 years of Vesting
Service.
#144, Clearfield Warehouse, Utah Upon completion of 2 years of Vesting
#233, Stockton Can Plant, California Service for any Participant who has at least
#237, Fruitvale Can Plant, California 1 Hour of Service after June 30, 1995. For
#250, Crystal City, Texas any Participant who does not have 1 Hour of
#255, Crystal City, Texas Service after June 30, 1995, upon completion
#263, Memphis Distribution Center, Tennessee of 3 Years of Service.
#506, Swedesboro Distribution Center, New
Jersey
Special Participating Unit, Crystal City, Texas All members are 100% vested.
</TABLE>
86
<PAGE> 99
SCHEDULE H
ASSET PURCHASE
(AGRILINK FOODS, INC.)
This Schedule H is made a part of the Del Monte Savings Plan (the
"Plan"), and sets forth certain terms and conditions applicable to certain
Participants in connection with the purchase of assets of Agrilink Foods, Inc.
by Del Monte Corporation.
In addition to those terms defined in Article 1 of the Plan, the
following shall apply:
(a) "Agrilink Transferred Employee" shall mean any person who was
a covered union employee of Agrilink Foods, Inc. on the Closing Date and
who commenced employment with Del Monte Corporation on or immediately
following the Closing Date.
(b) "Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated December 18, 1999 between Agrilink Foods, Inc. and Del
Monte Corporation.
(c) "Closing Date" shall mean "Closing Date" as such term is
defined in the Asset Purchase Agreement.
Effective December 18, 1999, an Agrilink Transferred Employee's service
that is recognized under the Agrilink employee benefit plans and disclosed to
Del Monte Corporation in connection with the Asset Purchase Agreement shall be
taken into account under this Plan for purposes of determining such individual's
Qualification Service and Vesting Service.
87
