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EXHIBIT 4.1
DEL MONTE CORPORATION
AIAP DEFERRED COMPENSATION PLAN
EFFECTIVE JULY 1, 2000
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ARTICLE 1 Definitions.......................................................................1
ARTICLE 2 Selection/Enrollment/Eligibility..................................................5
2.1 Selection by the Chief Executive Officer.....................................5
2.2 Enrollment Requirements......................................................5
2.3 Eligibility; Commencement of Participation...................................5
2.4 Change of Participating Employer.............................................5
ARTICLE 3 Deferral Commitments/Vesting/Earnings Crediting...................................6
3.1 Minimum and Maximum Deferral.................................................6
3.2 Election to Defer; Effect of Election Form...................................6
3.3 Withholding of Deferral Amounts..............................................6
3.4 Participating Employer Matching Contributions................................6
3.5 Vesting......................................................................6
3.6 Value of Account Balances....................................................7
3.7 Special Rule.................................................................7
3.8 Source ......................................................................7
ARTICLE 4 Withdrawal Payouts................................................................8
4.1 Withdrawal Payout; Suspensions for Unforeseeable Financial Emergencies.......8
4.2 In-Service Payout Where No Unforeseeable Financial Emergencies...............8
ARTICLE 5 Retirement Benefit................................................................9
5.1 Retirement Benefit...........................................................9
5.2 Payment of Retirement Benefits...............................................9
5.3 Death Prior to the Completion of Retirement Benefits.........................9
ARTICLE 6 Pre-Retirement Survivor Benefit..................................................10
6.1 Pre-Retirement Survivor Benefit.............................................10
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DEL MONTE CORPORATION
AIAP DEFERRED COMPENSATION PLAN
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6.2 Payment of Pre-Retirement Survivor Benefits.................................10
ARTICLE 7 Disability Benefit...............................................................11
7.1 Disability Benefits.........................................................11
7.2 Payment of Disability Benefit...............................................11
7.3 Death Prior to Completion of Disability Benefits............................11
ARTICLE 8 Termination Benefit..............................................................12
8.1 Termination Benefit.........................................................12
8.2 Payment of Termination Benefit..............................................12
ARTICLE 9 Beneficiary Designation..........................................................13
9.1 Beneficiary.................................................................13
9.2 Beneficiary Designation; Change; Spousal Consent............................13
9.3 Acknowledgment..............................................................13
9.4 No Beneficiary Designation..................................................13
9.5 Doubt as to Beneficiary.....................................................13
9.6 Discharge of Obligations....................................................13
ARTICLE 10 Leave of Absence................................................................14
10.1 Paid Leave of Absence.......................................................14
10.2 Unpaid Leave of Absence.....................................................14
ARTICLE 11 Termination, Amendment or Modification..........................................15
11.1 Termination.................................................................15
11.2 Amendment...................................................................15
11.3 Effect of Payment...........................................................15
ARTICLE 12 Administration..................................................................16
12.1 Committee Duties............................................................16
12.2 Agents .....................................................................16
12.3 Binding Effect of Decisions.................................................16
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DEL MONTE CORPORATION
AIAP DEFERRED COMPENSATION PLAN
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12.4 Indemnity of Committee......................................................16
12.5 Participating Employer Information..........................................16
ARTICLE 13 Claims Procedures...............................................................17
13.1 Presentation of Claim.......................................................17
13.2 Notification of Decision....................................................17
13.3 Review of a Denied Claim....................................................17
13.4 Decision on Review..........................................................17
13.5 Legal Action................................................................18
ARTICLE 14 Miscellaneous...................................................................19
14.1 Unsecured General Creditor..................................................19
14.2 Participating Employer's Liability..........................................19
14.3 FICA and Other Taxes........................................................19
14.4 Nonassignability............................................................19
14.5 Coordination with Other Benefits............................................19
14.6 Not a Contract of Employment................................................19
14.7 Furnishing Information......................................................19
14.8 Terms.......................................................................19
14.9 Captions....................................................................20
14.10 Governing Law...............................................................20
14.11 Notice......................................................................20
14.12 Successors..................................................................20
14.13 Spouse's Interest...........................................................20
14.14 Validity....................................................................20
14.15 Incompetent.................................................................20
14.16 Counterparts................................................................20
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DEL MONTE CORPORATION
AIAP DEFERRED COMPENSATION PLAN
EFFECTIVE JULY 1, 2000
PURPOSE
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated employees who contribute materially to
the continued growth, development and future business success of Del Monte
Corporation, a New York corporation and its affiliates. The Plan is intended to
constitute an unfunded plan of deferred compensation for a select group of
management or highly compensated employees as described in ERISA Section 201(2).
ARTICLE 1
DEFINITIONS
For purposes hereof, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, the number
of Deferred Stock Units purchased by contributions to a Participant's
Elective Deferral Account and Participating Employer Matching
Contribution Account. This account shall be a bookkeeping entry only and
shall be utilized solely as a device for the measurement and
determination of the number of shares of Company Stock to be paid to or
in respect of a Participant pursuant to the Plan.
1.2 "Annual Bonus" shall mean any compensation paid in respect of a Plan
Year to a Participant under the Company's Annual Incentive Award Plan
("AIAP").
1.3 "Annual Deferral Amount" shall mean that portion of a Participant's
Annual Bonus that a Participant elects to have and is deferred, in
accordance with Article 3, for any one Plan Year.
1.4 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under the Plan upon the death of a Participant.
1.5 "Beneficiary Designation Form" shall mean the form established from time
to time by the Committee that a Participant completes, signs and returns
to the Committee to designate one or more Beneficiaries.
1.6 "Board" shall mean the board of directors of the Company.
1.7 "Change in Control" shall mean the occurrence of one or more of the
following events:
(a) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Parent to any individual,
partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof (a "Person")
or group of related Persons for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended (a "Group"), together
with any Affiliates (as defined below) thereof other than to TPG
Partners, L.P. ("TPG") or its Affiliates;
(b) the approval by the holders of any and all shares, interests,
participations or other equivalents (however designated and
whether or not voting) of corporate stock, including each class
of common stock and preferred stock of the Parent ("Capital
Stock"), of any plan or proposal for the liquidation or
dissolution of the Parent;
(c) (i) any Person or Group (other than TPG or its Affiliates)
shall become the owner, directly or indirectly, beneficially or
of record, of shares representing more than 40% of the aggregate
ordinary voting power represented by the issued and outstanding
Capital Stock (the "Voting Stock") of the Parent and (ii) TPG and
its Affiliates shall beneficially own, directly or indirectly,
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in the aggregate a lesser percentage of the Voting Stock of the
Parent than such other Person or Group; or
(d) the replacement of a majority of the board of directors of
the Parent over a two-year period from the directors who
constituted the board of directors of the Parent at the beginning
of such period, and such replacement shall not have been approved
by a vote of at least a majority of the board of directors of the
Parent then still in office who either were members of such board
of directors was previously so approved or who were nominated by,
or designees of TPG or its Affiliates.
For purposes of this definition of "Change in Control",
"Affiliate" shall mean, with respect to any specified Person, any
other Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term "control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" or "controlled" have
meanings correlative of the foregoing.
1.8 "Claimant" shall have the meaning set forth in Section 13.1.
1.9 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder.
1.10 "Committee" shall mean the Del Monte Corporation Employee Benefits
Committee appointed by the Board.
1.11 "Company" shall mean the Del Monte Corporation, a New York corporation.
1.12 "Company Stock" shall mean the shares of common stock of the Parent, par
value $0.01 per share.
1.13 "Deferral Amount" shall mean the sum of all of a Participant's Annual
Deferral Amounts.
1.14 "Deferred Stock Units" shall mean (a) with respect to a Participant's
Deferral Amount, the number of stock units (including fractions thereof)
obtained by dividing a Participant's Deferral Amount by the Fair Market
Value of a share of Company Stock on the effective date of the
Participant's deferral as set forth in Article 3 of the Plan, and (b)
with respect to a Participating Employer Matching Contribution, the
number of stock units (including fractions thereof) obtained by dividing
the Participating Employer Matching Contribution by the Fair Market
Value of a share of Company Stock on the effective date of the
Participant's deferral as set forth in Article 3 of the Plan. Each
Deferred Stock Unit will be credited with dividends and special
distributions which will be converted into additional Deferred Stock
Units as provided herein. With respect to the crediting of dividends and
special distributions, Deferred Stock Units will not be entitled to
voting rights. Each Deferred Stock Unit (or fractions thereof) will be
converted into one (1) whole share of Company Stock upon the payment of
any benefit under this Plan. No fractional shares of Company Stock will
be issued under the Plan. If the calculation of the number of shares of
Company Stock to be issued under the Plan results in fractional shares,
then the number of shares of Company Stock will be rounded up to the
nearest whole share of Company Stock.
1.15 "Disability" shall mean physical or mental disability as a result of
which the Participant is unable to perform his duties with the
Participating Employer on substantially a full-time basis for any period
of six (6) consecutive months. Any dispute as to whether or not the
Participant is so disabled shall be resolved by a physician reasonably
acceptable to the Participant and the Participating Employer whose
determination shall be final and binding upon both the Participant and
the Participating Employer. Notwithstanding the foregoing provisions,
"Disability" when used in connection with the termination of employment
with the Participating Employer of a Participant who at the time of such
termination is a party to a written employment or retention agreement
with the Participating Employer, shall have the meaning assigned to such
term in such agreement.
1.16 "Disability Benefit" shall mean a benefit set forth in Article 7.
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1.17 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.18 "Elective Deferral Account" shall mean a Participant's Deferral Amount
adjusted in accordance with Section 3.6 of the Plan, net of all
distributions from such account. This account shall be a bookkeeping
entry only maintained by the applicable Participating Employer and shall
be utilized solely as a device for the measurement and determination of
the number of shares of Company Stock to be paid to the Participant
pursuant to the Plan. A Participant shall have a fully vested and
nonforfeitable interest in this account at all times.
1.19 "Eligible Employee(s)" shall mean any employee of a Participating
Employer who is at salary grade eighteen (18) and above.
1.20 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated
thereunder.
1.21 the "Fair Market Value" of a share of Company Stock with respect to any
day shall be (a) the average of the high and low sales prices on such
day of a share of Company Stock as reported on the principal securities
exchange on which shares of Company Stock are then listed or admitted to
trading, or (b) if not so reported, the average of the closing bid and
ask prices on such day as reported on the National Association of
Securities Dealers Automated Quotation System, or (c) if not so
reported, as furnished by any member of the National Association of
Securities Dealers, Inc. selected by the Committee. In the event that
the price of a share of Company Stock shall not be so reported, the Fair
Market Value of a share of Company Stock shall be determined by the
Committee in its absolute discretion.
1.22 "Parent" shall mean the Del Monte Foods Company, a Delaware corporation.
1.23 "Participant" shall mean any employee with respect to each Participating
Employer (a) who is selected to participate in the Plan, (b) who elects
to participate in the Plan, (c) who signs a Plan Agreement, Election
Form and Beneficiary Designation Form; (d) whose signed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, (e) who commences participation in the Plan, and (f) whose
Plan Agreement has not terminated.
1.24 "Participating Employer" shall mean any affiliated company designated by
the Company as a Participating Employer in Appendix A attached hereto.
1.25 "Participating Employer Matching Contribution" shall mean the annual
Participating Employer contribution which matches a percentage of a
Participant's Annual Deferral Amount as set forth in Section 3.4 of the
Plan.
1.26 "Participating Employer Matching Contribution Account" shall mean a
Participant's share of Participating Employer Matching Contributions
adjusted in accordance with Section 3.6 of the Plan, net of all
distributions from such account. This account shall be a bookkeeping
entry only maintained by the applicable Participating Employer and shall
be utilized solely as a device for the measurement and determination of
the number of shares of Company Stock to be paid to the Participant
pursuant to the Plan. A Participant's vested and nonforfeitable interest
in each Participating Employer Matching Contribution credited to his or
her account shall be determined in accordance with Section 3.5 of the
Plan.
1.27 "Plan" shall mean the "Del Monte Corporation AIAP Deferred Compensation
Plan", which shall be evidenced by this instrument and, with respect to
each Participant, by his or her Plan Agreement, as each may be amended
from time to time.
1.28 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between a Participating
Employer and the Participant. Each Plan Agreement executed by a
Participant shall provide for the entire benefit to which such
Participant is entitled to under the Plan with respect to such
Participating Employer. The Plan Agreement bearing the latest date of
acceptance by the Committee shall govern such entitlement and the
Participating Employer's liability. Upon the complete
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payment of the vested portion of a Participant's Account Balance, each
individual's Plan Agreement and his or her status as a Participant shall
terminate. The Plan Agreement may be amended by the written consent of
both parties from time to time.
1.29 "Plan Year" shall mean the period beginning on July 1, 2000 and ending
on June 30, 2001, and subsequent twelve (12) month periods.
1.30 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.31 "Retirement," "Retire," "Retires, or "Retired" shall mean severance from
employment with all Participating Employers upon retirement under the
Del Monte Corporation Retirement Plan for Salaried Employees.
1.32 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.33 "Termination Benefit" shall mean the benefit set forth in Article 8.
1.34 "Termination of Employment" shall mean the ceasing of employment with
all Participating Employers, voluntarily or involuntarily, for any
reason other than Retirement, Disability, death or an authorized leave
of absence.
1.35 "Unforeseeable Financial Emergency" shall mean an unanticipated
emergency that is caused by an event beyond the control of the
Participant that would result in severe financial hardship to the
Participant resulting from (a) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant, (b) a
loss of the Participant's property due to casualty, or (c) such other
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, all as determined in the
sole and absolute discretion of the Committee.
1.36 "Years of Service" shall mean a Plan Year throughout which a Participant
is employed by any Participating Employer. A Participant shall not
receive duplicative credit for any period in which he is employed by
more than one Participating Employer.
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ARTICLE 2
SELECTION/ENROLLMENT/ELIGIBILITY
2.1 SELECTION BY THE CHIEF EXECUTIVE OFFICER. Participation in the Plan
shall be limited to Eligible Employees. From the foregoing, the Chief
Executive Officer of the Company shall select, in his sole and absolute
discretion, those who may participate in the Plan.
2.2 ENROLLMENT REQUIREMENTS. As a condition to participation, each selected
employee shall complete, execute and return to the Committee within
thirty (30) days of selection a Plan Agreement, an Election Form, and a
Beneficiary Designation Form. In addition, the Committee shall establish
from time to time such other enrollment requirements as it determines in
its sole and absolute discretion are necessary.
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION. Provided an employee
selected to participate herein has met all enrollment requirements set
forth herein and required by the Committee, including returning all
required documents to the Committee within thirty (30) days of
selection, that employee shall commence participation in the Plan upon
the timely completion of those requirements and the Committee's
acceptance of all submitted documents. If an employee fails to meet all
such requirements within the required thirty (30) day period, that
employee shall not be eligible to participate in the Plan until the
first day of the Plan Year following the delivery to and acceptance by
the Committee of the required documents.
2.4 CHANGE OF PARTICIPATING EMPLOYER. If a Participant moves from one
Participating Employer to another during a Plan Year, he shall enter
into a new Plan Agreement with the new Participating Employer and
complete and submit other new enrollment materials; provided that he
shall continue participation for the balance of the Plan Year at the
same deferral level he elected effective the beginning of such year.
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ARTICLE 3
DEFERRAL COMMITMENTS/VESTING/EARNINGS CREDITING
3.1 MINIMUM AND MAXIMUM DEFERRAL. On any day of the month in each June
immediately prior to the beginning of each Plan Year, a Participant may
elect to defer up to one hundred percent (100%) but not less than five
percent (5%) of his or her Annual Bonus. No new Participants shall be
allowed to make a deferral election after the beginning of a Plan Year.
3.2 ELECTION TO DEFER; EFFECT OF ELECTION FORM. In connection with a
Participant's commencement of participation in the Plan, the Participant
shall make a deferral election by delivering to the Committee a
completed and signed Election Form, which election and form must be
accepted by the Committee for a valid election to exist. For each
succeeding Plan Year, a new Election Form must be delivered to the
Committee, in accordance with its rules and procedures, before the end
of the Plan Year preceding the Plan Year for which the election is made.
If no Election Form is timely delivered for a Plan Year, no Annual
Deferral Amount shall be withheld for that Plan Year.
3.3 WITHHOLDING OF DEFERRAL AMOUNTS. For each Plan Year, the Annual Bonus
shall be withheld at the time the Annual Bonus is or otherwise would be
paid to the Participant, even if that occurs after the end of the Plan
Year. The Annual Deferral Amount shall be credited to a Participant's
Elective Deferral Account at such time.
3.4 PARTICIPATING EMPLOYER MATCHING CONTRIBUTIONS. Each Participating
Employer shall make matching contributions on behalf of its Participants
in an amount not to exceed twenty-five percent (25%) of a Participant's
Annual Deferral Amount. These matching contributions shall be credited
to each a Participant's Participating Employer Matching Contribution
Account on the same date and in the same manner as the Participant's
Annual Deferral Amount as set forth in Section 3.3 above.
3.5 VESTING.
(a) ELECTIVE DEFERRAL ACCOUNT. A Participant shall at all times be
one hundred percent (100%) vested in his or her Elective
Deferral Account.
(b) PARTICIPATING EMPLOYER MATCHING CONTRIBUTIONS; CLASS YEAR
VESTING. A Participant shall vest in the Participating Employer
Matching Contribution for a Plan Year credited to his or her
Participating Employer Matching Contribution Account as follows,
based on full Years of Service completed measured from the
beginning of such Plan Year:
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YEARS OF SERVICE NONFORFEITABLE PERCENTAGE
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less than 1 0%
1 but less than 2 33.3%
2 but less than 3 66.6%
3 or more 100%
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A Participant shall automatically become fully vested in all
amounts credited to his or her Participating Employer Matching
Contribution Account if he or she dies while employed by a
Participating Employer.
(c) Notwithstanding anything to the contrary contained in this
Section 3.5, in the event of a Change in Control, a Participant
shall become one hundred percent (100%) vested (if not already
vested in accordance with this Section 3.5) in all of the
Participating Employer Matching Contributions credited to his or
her Participating Employer Matching Contribution Account.
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3.6 VALUE OF ACCOUNT BALANCES. In accordance with, and subject to, the rules
and procedures that are established from time to time by the Committee,
in its sole discretion, the value of a Participant's Account Balance at
any time and from time to time shall be based upon the increase or
decrease in the Fair Market Value of Company Stock.
3.7 SPECIAL RULE. The Committee may, in its discretion, defer any amount
payable hereunder, notwithstanding any other provision of this Plan or
the terms of any Participant's election, to the earliest moment at which
the tax deduction for the payment of such amount would not be disallowed
under Code Section 162(m).
3.8 SOURCE. Any Company Stock payable hereunder shall be deemed the payment
of stock bonuses pursuant to Section 9 of the Del Monte Foods Company
1998 Stock Incentive Plan.
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ARTICLE 4
WITHDRAWAL PAYOUTS
4.1 WITHDRAWAL PAYOUT; SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES.
If the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (a) suspend any deferrals
required to be made by a Participant and/or (b) receive a partial or
full payout from the Plan. The payout shall not exceed the lesser of the
vested portion of the Participant's Account Balance, calculated as if
such Participant were receiving a Termination Benefit, or the amount
reasonably needed to satisfy the Unforeseeable Financial Emergency. If,
subject to the sole discretion of the Committee, the petition for a
suspension and/or payout is approved, suspension shall take effect upon
the date of approval and any payout shall be made within thirty (30)
days of the date of approval.
4.2 IN-SERVICE PAYOUT WHERE NO UNFORESEEABLE FINANCIAL EMERGENCIES. A
Participant may elect, at any time prior to Retirement, to withdraw all
of the vested portion of his or her Account Balance, calculated as if
there had occurred a Termination of Employment as of the day of the
election, less a withdrawal penalty equal to ten percent (10%) of such
amount (the net amount shall be referred to as the "Withdrawal Amount").
No partial withdrawals of the Withdrawal Amount shall be allowed. The
Participant shall make this election by giving the Committee advance
written notice of the election in a form determined from time to time by
the Committee. The Participant shall be paid the Withdrawal Amount
within thirty (30) days of his or her election. Once the Withdrawal
Amount is paid, the Participant's participation in the Plan shall
terminate and the Participant shall not be eligible to participate in
the Plan until the beginning of the third Plan Year following the Plan
Year in which the withdrawal under this Section 4.2 was made.
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ARTICLE 5
RETIREMENT BENEFIT
5.1 RETIREMENT BENEFIT. A Participant who retires shall receive a Retirement
Benefit equal to the vested portion of his or her Account Balance.
5.2 PAYMENT OF RETIREMENT BENEFITS. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an
Election Form to receive the vested portion of his or her Account
Balance as a Retirement Benefit payable in Company Stock either in a
lump sum or in equal annual installments over a period of years. The
installment payments shall commence no later than thirty (30) days from
the date the Participant Retires and shall continue for a period not
greater than fifteen (15) years after the Participant's Retirement. The
Participant may change the length and/or the frequency of the payout by
submitting a new Election Form to the Committee, provided that any such
Election Form is submitted at least one (1) year prior to the
Participant's Retirement. The Election Form most recently accepted by
the Committee shall govern the payout of the Retirement Benefit.
5.3 DEATH PRIOR TO COMPLETION OF RETIREMENT BENEFITS. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full,
unless upon the request of the Beneficiary, the Committee, in its sole
discretion, provides for a lump sum payment, the Participant's unpaid
Retirement Benefit shall continue and shall be paid to the Participant's
Beneficiary for the remaining number of years in the installment period
selected by the Participant; provided, however, if no Beneficiary is
designated or in the event any such person is not then living, to his or
her estate over the remaining number of years in the installment period
and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived.
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ARTICLE 6
PRE-RETIREMENT SURVIVOR BENEFIT
6.1 PRE-RETIREMENT SURVIVOR BENEFIT. If a Participant dies while employed by
a Participating Employer but before he or she Retires, the Participant's
Beneficiary shall receive a Pre-Retirement Survivor Benefit equal to the
Participant's Account Balance.
6.2 PAYMENT OF PRE-RETIREMENT SURVIVOR BENEFITS. The Pre-Retirement Survivor
Benefit shall be payable in Company Stock in a lump sum. The
Pre-Retirement Survivor Benefit shall be made within thirty (30) days of
the Committee's receipt of proof of the Participant's death.
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ARTICLE 7
DISABILITY BENEFIT
7.1 DISABILITY BENEFITS. If a Participant's employment with a Participating
Employer terminates, prior to Retirement, by reason of Disability, then
the Participant shall receive a Disability Benefit equal to the vested
portion of his or her Account Balance.
7.2 PAYMENT OF DISABILITY BENEFIT. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an
Election Form to receive the vested portion of his or her Account
Balance as a Disability Benefit payable in Company Stock either in a
lump sum or in equal annual installments over a period of years. The
installment payments shall commence no later than thirty (30) days from
the date the Participant becomes Disabled and shall continue for a
period not greater than fifteen (15) years after the Participant's
Disability. The Participant may change the length and/or the frequency
of the payout by submitting a new Election Form to the Committee,
provided that any such Election Form is submitted at least one (1) year
prior to the Participant's Disability. The Election Form most recently
accepted by the Committee shall govern the payout of the Disability
Benefit.
7.3 DEATH PRIOR TO COMPLETION OF DISABILITY BENEFITS. If a Participant dies
after Disability onset but before the Disability Benefit is paid in
full, unless upon the request of the Beneficiary, the Committee, in its
sole discretion, provides for a lump sum payment, the Participant's
unpaid Disability Benefit payments shall continue and shall be paid to
the Participant's Beneficiary for the remaining number of years in the
installment period selected by the Participant; provided, however, if no
Beneficiary is designated or, in the event any such person is not then
living, to his or her estate over the remaining number of years and in
the same amounts as that benefit would have been paid to the Participant
had the Participant survived.
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ARTICLE 8
TERMINATION BENEFIT
8.1 TERMINATION BENEFIT. If a Participant experiences a Termination of
Employment prior to his or her Retirement, Participant shall receive a
benefit equal to the vested portion of the Participant's Account
Balance.
8.2 PAYMENT OF TERMINATION BENEFIT. The Termination Benefit shall be payable
in Company Stock in a lump sum. The Termination Benefit shall be made
within thirty (30) days of a Participant's Termination of Employment.
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ARTICLE 9
BENEFICIARY DESIGNATION
9.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his or her Beneficiary (both primary as well as contingent) to
receive any benefits payable under the Plan to a Beneficiary upon the
death of a Participant and which shall apply to all Participating
Employers. The Beneficiary designated under this Plan may be the same as
or different from the beneficiary designation under any other plan of a
Participating Employer in which the Participant participates.
9.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT. A Participant shall
designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules and
procedures, as in effect from time to time. Where required by law or by
the Committee, in its sole and absolute discretion, if the Participant
names someone other than his or her spouse as a Beneficiary, a spousal
consent, in the form designated by the Committee, must be signed by that
Participant's spouse and returned to the Committee. Upon the acceptance
by the Committee of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be cancelled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Committee prior to his or her death.
9.3 ACKNOWLEDGMENT. No designation or change in designation of a Beneficiary
shall be effective until received, accepted and acknowledged in writing
by the Committee or its designated agent.
9.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above, or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be his or her surviving
spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan shall be paid to the Participant's estate.
9.5 DOUBT AS TO BENEFICIARY. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee
shall have the right, exercisable in its sole and absolute discretion,
to cause the Participating Employer to withhold such payments until this
matter is resolved to the Committee's satisfaction.
9.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Participating
Employers and the Committee from all further obligations under this Plan
with respect to the Participant, and that Participant's Plan Agreement
shall terminate upon such full payment of benefits.
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ARTICLE 10
LEAVE OF ABSENCE
10.1 PAID LEAVE OF ABSENCE. If a Participant is authorized by a Participating
Employer for any reason to take a paid leave of absence from the
employment of the Participating Employer, the Participant shall continue
to be considered actively employed by the Participating Employer and the
Annual Deferral Amount shall be withheld during such paid leave of
absence in accordance with Section 3.3 of the Plan.
10.2 UNPAID LEAVE OF ABSENCE. If a Participant is authorized by a
Participating Employer for any reason to take an unpaid leave of absence
from the employment of the Participating Employer, the Participant shall
continue to be considered actively employed by the Participating
Employer, but the Participant shall be excused from making deferrals
until the date the Participant returns to paid employment status. If no
election was made for the Plan Year in which the Participant returns to
paid status, then no Annual Deferral Amount shall be withheld.
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ARTICLE 11
TERMINATION, AMENDMENT OR MODIFICATION
11.1 TERMINATION. The Board reserves the right to terminate the Plan at any
time. Upon the termination of the Plan, the vested portion of a
Participant's Account Balance shall be paid out as though the
Participant had experienced a Termination of Employment on the date of
Plan termination, or, if Plan termination occurs after the date upon
which the Participant was eligible to Retire, the Participant had
Retired on the date of Plan termination, or, if Plan termination occurs
after the Participant Retired or incurred a Disability and commenced
(but not completed) distribution hereunder, benefits shall continue to
the Participant pursuant to the terms hereof without regard to the
termination.
11.2 AMENDMENT. The Board may, at any time, amend or modify the Plan in whole
or in part; provided, however, that no amendment or modification shall
be effective to decrease the vested portion of a Participant's Account
Balance, calculated as though the Participant had experienced a
Termination of Employment as of the effective date of the amendment or
modification, or, if the amendment or modification occurs after the date
upon which the Participant was eligible to Retire, the Participant had
Retired as of the effective date of the amendment or modification. In
addition, no amendment or modification of the Plan shall affect the
right of any Participant or Beneficiary who was eligible to or did
Retire or incurred a Disability on or before the effective date of such
amendment or modification to receive benefits in the manner he or she
elected.
11.3 EFFECT OF PAYMENT. The full payment of the applicable benefit under
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
Participating Employers and the Committee for all obligations to a
Participant under this Plan, and the Participant's Plan Agreement shall
terminate.
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ARTICLE 12
ADMINISTRATION
12.1 COMMITTEE DUTIES. This Plan shall be administered by the Committee. The
Committee shall also have the discretion and authority to make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan and decide or resolve any and all questions
including interpretations of this Plan, as may arise in connection with
the Plan. Any Committee member must recuse himself or herself on any
matter of personal interest to such member that comes before the
Committee.
12.2 AGENTS. In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties
as it sees fit and may from time to time consult with counsel who may be
counsel to a Participating Employer.
12.3 BINDING EFFECT OF DECISIONS. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.4 INDEMNITY OF COMMITTEE. The Participating Employers shall jointly and
severally indemnify and hold harmless the members of the Committee
against any and all claims, losses, damages, expenses or liabilities
arising from any action or failure to act with respect to this Plan,
except in the case of willful misconduct by the Committee or any of its
members.
12.5 PARTICIPATING EMPLOYER INFORMATION. To enable the Committee to perform
its functions, the Participating Employers shall supply full and timely
information to the Committee on all matters relating to the compensation
of Participants, the date and circumstances of the Retirement,
Disability, death or Termination of Employment of Participants, and such
other pertinent information as the Committee may reasonably require.
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ARTICLE 13
CLAIMS PROCEDURES
13.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within sixty (60) days
after such notice was received by the Claimant. All other claims must be
made within one hundred eight (180) days of the date on which the event
that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
13.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimant's
claim within sixty (60) days of the making of the claim, and shall
notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and such
notice must set forth in a manner calculated to be understood by
the Claimant:
(i) the specific reason(s) for the denial of the claim, or
any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is
necessary; and
(iv) an explanation of the claim review procedure set forth
in Section 13.3 below.
13.3 REVIEW OF A DENIED CLAIM. Within sixty (60) days after receiving a
notice from the Committee that a claim has been denied, in whole or in
part, a Claimant (or the Claimant's duly authorized representative) may
file with the Committee a written request for a review of the denial of
the claim. Thereafter, but not later than thirty (30) days after the
review procedure begins, the Claimant (or the Claimant's duly authorized
representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
13.4 DECISION ON REVIEW. The Committee shall render its decision on review
promptly, and not later than sixty (60) days after the filing of a
written request for review of the denial, unless a hearing is held or
other special circumstances require additional time, in which case the
Committee's decision must be rendered within one hundred twenty (120)
days after such date. Such decision must be written in a manner
calculated to be understood by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon
which the decision was based; and
(c) such other matters as the Committee deems relevant.
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13.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of
this Article 13 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
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ARTICLE 14
MISCELLANEOUS
14.1 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable right, interest
or claim in any property or assets of any Participating Employer. Any
and all of each Participating Employer's assets shall be, and remain,
the general, unpledged and unrestricted assets of each Participating
Employer. The applicable Participating Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured promise to pay
money in the future with respect to its Participants.
14.2 PARTICIPATING EMPLOYER'S LIABILITY. The Participating Employer's
liability for the payment of benefits shall be defined only by the Plan.
The Participating Employer shall have no obligation to a Participant
under the Plan except as expressly provided in the Plan.
14.3 FICA AND OTHER TAXES. The Participating Employer shall withhold an
amount equal to the federal, state and local income taxes and other
amounts required by law to be withheld by the Participating Employer
with respect to any amounts deferred or benefits received under this
Plan.
14.4 NONASSIGNABILITY. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage, or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly
declared to be unassignable and non-transferable. No part of the amounts
payable shall, prior to actual payment, be subject to seizure or
sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any
other person's bankruptcy or insolvency.
14.5 COORDINATION WITH OTHER BENEFITS. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in addition
to any other benefits available to such Participant under any other plan
or program for employees of each Participating Employer. The Plan shall
supplement and shall not supersede, modify or amend any other such plan
or program except as may otherwise be expressly provided.
14.6 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between a
Participating Employer and the Participant. Such employment is hereby
acknowledged to be an "at will" employment relationship that can be
terminated at any time for any reason, with or without cause, unless
expressly provided in a written employment agreement. Nothing in this
Plan shall be deemed to give a Participant the right to be retained in
the service of a Participating Employer either as an employee or a
director, or to interfere with the right of the a Participating Employer
to discipline or discharge the Participant at any time.
14.7 FURNISHING INFORMATION. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and the
payments of benefits hereunder, including but not limited to taking such
physical examinations as the Committee may deem necessary.
14.8 TERMS. Whenever any words are used herein in the singular or in the
plural, they shall be construed as though they were used in the plural
or the singular, as the case may be, in all cases where they would so
apply. The masculine pronoun shall be deemed to include the feminine and
vice versa, unless the context clearly indicates otherwise.
14.9 CAPTIONS. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
14.10 GOVERNING LAW. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the laws of the State of
California.
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14.11 NOTICE. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to:
Chair, Del Monte Corporation Employee Benefits Committee
c/o Del Monte Corporation
One Market
P.O. Box 193575
San Francisco, CA 94119-3575
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
14.12 SUCCESSORS. The provisions of this Plan shall bind and inure to the
benefit of the Participating Employers and their successors and assigns
and the Participant, the Participant's Beneficiaries, and their
permitted successors and assigns.
14.13 SPOUSE'S INTEREST. The interest in the benefits hereunder of a spouse of
a Participant who has predeceased the Participant shall automatically
pass to the Participant and shall not be transferable by such spouse in
any manner, including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession.
14.14 VALIDITY. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as
if such illegal or invalid provision had never been inserted herein.
14.15 INCOMPETENT. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of that
person's property, the Committee may direct payment of such benefit to
the guardian, legal representative or person having the care and custody
of such minor, incompetent or incapable person. The Committee may
require proof of minority, incompetency, incapacity or guardianship, as
it may deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the
Participant and the Participant's Beneficiary, as the case may be, and
shall be a complete discharge of any liability under the Plan for such
payment amount.
14.16 COUNTERPARTS. This instrument may be executed in one or more
counterparts each of which shall be legally binding and enforceable.
IN WITNESS WHEREOF, the Company has executed this Plan document as of
______, 2000.
DEL MONTE CORPORATION, a New York corporation
By:
---------------------------------------------
Its:
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APPENDIX A
PARTICIPATING EMPLOYERS
Del Monte Corporation
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