0000950123-01-507072.txt : 20011010
0000950123-01-507072.hdr.sgml : 20011010
ACCESSION NUMBER: 0000950123-01-507072
CONFORMED SUBMISSION TYPE: S-8
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 20011009
EFFECTIVENESS DATE: 20011009
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PHILIP MORRIS COMPANIES INC
CENTRAL INDEX KEY: 0000764180
STANDARD INDUSTRIAL CLASSIFICATION: CIGARETTES [2111]
IRS NUMBER: 133260245
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-8
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-71268
FILM NUMBER: 1755283
BUSINESS ADDRESS:
STREET 1: 120 PARK AVE
CITY: NEW YORK
STATE: NY
ZIP: 10017
BUSINESS PHONE: 9176635000
MAIL ADDRESS:
STREET 1: 120 PARK AVE
CITY: NEW YORK
STATE: NY
ZIP: 10017
S-8
1
y53602s-8.txt
PHILIP MORRIS COMPANIES INC.
1
As filed with the Securities and Exchange Commission on October 9, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Philip Morris Companies Inc.
(Exact name of registrant as specified in its charter)
Virginia 13-3260245
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
120 Park Avenue
New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Nabisco, Inc. Capital Investment Plan
Nabisco, Inc. Employee Savings Plan
(Full titles of the plans)
G. Penn Holsenbeck
Vice President, Associate General Counsel and Corporate Secretary
Philip Morris Companies Inc.
120 Park Avenue
New York, New York 10017
(Name and address of agent for service)
(917) 663-5000
(Telephone number, including area code, of agent for service)
___________________________________________________________________________________________________________________________________
CALCULATION OF REGISTRATION FEE
___________________________________________________________________________________________________________________________________
Proposed
maximum Proposed
Amount to offering maximum
Title of securities be price aggregate Amount of
to be registered Title of Plan registered per share(1) offering price(1) registration fee
------------------------------------------------------------------------------------------------------------------------------------
Common stock, $0.33 1/3 Nabisco, Inc. Capital
Investment Plan 9,000,000 shs. (2) $48.75 $438,750,000 $109,687.50
------------------------------------------------------------------------------------------------------------------------------------
Common stock, $0.33 1/3 Nabisco, Inc. Employee
Savings Plan 2,000,000 shs. (2) $48.75 $ 97,500,000 $ 24,375.00
------------------------------------------------------------------------------------------------------------------------------------
Total: 11,000,000 shs. (2) $536,250,000 $134,062.50
------------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee and
calculated in accordance with Rule 457(c) under the Securities Act of 1933,
based upon the average of the high and low prices for the Common Stock reported
in the consolidated reporting system on October 1, 2001.
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 plans described herein.
(2) Plus such additional shares as may be issued by reason of stock splits,
stock dividends or similar transactions.
2
Explanatory Note
In December 2000, Kraft Foods Inc. ("Kraft") acquired all of the
outstanding shares of Nabisco Holdings Corp. Prior to June 13, 2001, Kraft was a
wholly-owned subsidiary of Philip Morris Companies Inc. (the "Company"). On June
13, 2001, Kraft completed an initial public offering of 280,000,000 shares of
its Class A common stock. Immediately after the initial public offering, the
Company owned common stock representing 97.7% of the combined voting power of
Kraft's common stock.
The Nabisco, Inc. Capital Investment Plan (the "CIP Plan") and the
Nabisco, Inc. Employee Savings Plan (the "ESP Plan" and together with the CIP
Plan, the "Nabisco Plans") have now been amended to offer the Company's common
stock and Kraft's Class A common stock to eligible participants of the Nabisco
Plans. This Registration Statement is being filed for the purpose of registering
11,000,000 shares of common stock of the Company, together with an indeterminate
amount of interests to be issued pursuant to the Nabisco Plans. Kraft has filed
a separate Registration Statement on Form S-8 today to register 62,000,000
shares of its Class A common stock, together with an indeterminate amount of
interests to be issued pursuant to the Nabisco Plans.
The CIP Plan and the ESP Plan are filed herewith as Exhibits 4.1 and 4.2,
respectively.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
2
3
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission
(File No. 1-8940) are incorporated herein by reference and made a part hereof:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
(ii) the annual reports on Form 11-K for each of the Nabisco Plans
for the annual period ended December 30, 2000 filed with the
Commission on October 5, 2001;
(iii) the Company's Current Reports on Form 8-K or 8-K/A, as the
case may be, filed with the Commission on January 31, 2001,
February 22, 2001, March 16, 2001, May 2, 2001, May 8, 2001,
May 11, 2001 and June 13, 2001;
(iv) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 2001 and June 30, 2001; and
(v) the description of the Company's common stock contained in the
Company's Registration Statement on Form 8-B, dated July 1,
1985, as amended by Amendment No. 1 on Form 8, dated April 27,
1989, including any subsequent amendment or any report
subsequently filed for the purpose of updating such
description.
All annual reports of the Nabisco Plans subsequently filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and all documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that 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. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document that is
incorporated by reference herein modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Virginia Stock Corporation Act (the "VSCA") permits the Company
to indemnify its officers and directors in connection with certain actions,
suits and proceedings brought against them if they acted in good faith and
believed their conduct to be in the best interests of the Company and, in the
case of criminal actions, had no reasonable cause to believe that the conduct
was unlawful. The VSCA requires such indemnification when a director entirely
prevails in the defense of any proceeding to which he was a party because he is
or was a director of the Company, and further provides that the Company may make
any other or further indemnity (including indemnity with respect to a proceeding
by or in the right of the Company), and may make additional provision for
advances and reimbursement of expenses, if authorized by its articles of
3
4
incorporation or stockholder-adopted by-laws, except an indemnity against
willful misconduct or a knowing violation of the criminal law. The VSCA
establishes a statutory limit on liability of officers and directors of the
Company for damages assessed against them in a suit brought by or in the right
of the Company or brought by or on behalf of stockholders of the Company and
authorizes the Company, with stockholder approval, to specify a lower monetary
limit on liability in the Company's articles of incorporation or by-laws;
however, the liability of an officer or director shall not be limited if such
officer or director engaged in willful misconduct or a knowing violation of the
criminal law or of any federal or state securities law. The Company's articles
of incorporation provide that an officer or director or former officer or
director of the Company shall be indemnified to the full extent permitted by the
VSCA as currently in effect or as hereafter amended in connection with any
action, suit or proceeding brought by or in the right of the Company or brought
by or on behalf of stockholders of the Company. The Company's articles of
incorporation further provide for the limitation or elimination of the liability
of an officer or director or former officer or director of the Company for
monetary damages to the Company or its stockholders in any action, suit or
proceeding, to the full extent permitted by the VSCA as currently in effect or
as hereafter amended. In addition, the Company carries insurance on behalf of
directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description
------- -----------
4.1 Nabisco, Inc. Capital Investment Plan (filed herewith).
4.2 Nabisco, Inc. Employee Savings Plan (filed herewith).
4.3 Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the period ended March 31, 1997).
4.4 By-Laws, as amended, of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year
ended December 31, 2000).
5.1 Opinion of Hunton & Williams as to the legality of the securities
being registered (filed herewith).
4
5
5.2 In lieu of the opinion of counsel or determination letter
contemplated by Item 601(b)(5) of the Regulation S-K, the Company
hereby confirms that it has submitted the Nabisco Plans and
undertakes that it will submit all amendments thereto to the
Internal Revenue Service (the "IRS") in a timely manner, and that it
has made or will make all changes required by the IRS in order to
qualify the Nabisco Plans under Section 401 of the Internal Revenue
Code.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
(filed herewith).
23.3 Consent of Deloitte & Touche LLP, Independent Auditors (filed
herewith).
24 Powers of Attorney executed by Elizabeth E. Bailey, Geoffrey C.
Bible, Harold Brown, Jane Evans, J. Dudley Fishburn, Robert E. R.
Huntley, Billie Jean King, John D. Nichols, Lucio A. Noto, John S.
Reed, Carlos Slim Helu and Stephen M. Wolf (incorporated by
reference to Exhibit 24 to the Company's Form S-8, filed with the
Commission on August 10, 2000 (Reg. No. 333-43484)).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) 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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5
6
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on the 9th day of
October, 2001.
PHILIP MORRIS COMPANIES INC.
By: /s/ LOUIS C. CAMILLERI
-----------------------------------------
Name: Louis C. Camilleri
Title: Senior Vice President and
Chief Financial Officer
7
8
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/S/ LOUIS C. CAMILLERI Senior Vice President and October 9, 2001
----------------------------------------- Chief Financial Officer
(Louis C. Camilleri)
/S/ JOSEPH A. TIESI Vice President and October 9, 2001
----------------------------------------- Controller
(Joseph A. Tiesi)
Elizabeth E. Bailey, Geoffrey C. Bible,
Harold Brown, Jane Evans, J. Dudley
Fishburn, Robert E.R. Huntley, Billie
Jean King, John D. Nichols, Lucio A. Noto,
John S. Reed, Carlos Slim Helu and Stephen
M. Wolf Directors
By: /s/ LOUIS C. CAMILLERI October 9, 2001
--------------------------------------
(Louis C. Camilleri, Attorney-in-fact)
8
9
Pursuant to the requirements of the Securities Act, the Nabisco Employee
Benefits Committee, having administrative responsibility of the Nabisco, Inc.
Capital Investment Plan, has duly caused this Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Northfield,
State of Illinois, on the 9th day of October, 2001.
NABISCO, INC. CAPITAL INVESTMENT PLAN
By: /s/ JILL K. YOUMAN
-----------------------------------------
Name: Jill K. Youman
Title: Vice President, Human Resources,
Benefits
Pursuant to the requirements of the Securities Act, the Nabisco Employee
Benefits Committee, having administrative responsibility of the Nabisco, Inc.
Employee Savings Plan, has duly caused this Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Northfield, State
of Illinois, on the 9th day of October, 2001.
NABISCO, INC. EMPLOYEE SAVINGS PLAN
By: /s/ JILL K. YOUMAN
-----------------------------------------
Name: Jill K. Youman
Title: Vice President, Human Resources,
Benefits
9
10
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
4.1 Nabisco, Inc. Capital Investment Plan (filed herewith).
4.2 Nabisco, Inc. Employee Savings Plan (filed herewith).
4.3 Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the period ended March 31, 1997).
4.4 By-Laws, as amended, of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year
ended December 31, 2000).
5.1 Opinion of Hunton & Williams as to the legality of the securities
being registered (filed herewith).
5.2 In lieu of the opinion of counsel or determination letter
contemplated by Item 601(b)(5) of the Regulation S-K, the Company
hereby confirms that it has submitted the Nabisco Plans and
undertakes that it will submit all amendments thereto to the
Internal Revenue Service (the "IRS") in a timely manner, and that it
has made or will make all changes required by the IRS in order to
qualify the Nabisco Plans under Section 401 of the Internal Revenue
Code.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
(filed herewith).
23.3 Consent of Deloitte & Touche LLP, Independent Auditors (filed
herewith).
24 Powers of Attorney executed by Elizabeth E. Bailey, Geoffrey C.
Bible, Harold Brown, Jane Evans, J. Dudley Fishburn, Robert E. R.
Huntley, Billie Jean King, John D. Nichols, Lucio A. Noto, John S.
Reed, Carlos Slim Helu and Stephen M. Wolf (incorporated by
reference to Exhibit 24 to the Company's Form S-8, filed with the
Commission on August 10, 2000 (Reg. No. 333-43484)).
10
EX-4.1
3
y53602ex4-1.txt
NABISCO, INC. CAPITAL INVESTMENT PLAN
1
NABISCO, INC. CAPITAL INVESTMENT PLAN
(Restated Effective as of December 31, 2000)
2
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
Article Page
------- ----
I. DEFINITIONS...................................................... 1
1.01 Account.................................................... 2
1.02 Administrative Committee................................... 2
1.03 Affiliated Company......................................... 2
1.04 Affiliated Plan............................................ 2
1.05 Automatic Enrollment Date.................................. 2
1.06 Basic Contributions........................................ 2
1.07 Basic Contribution Account................................. 2
1.08 Beneficiary................................................ 3
1.09 Board of Directors......................................... 3
1.10 Break in Service........................................... 3
1.11 Code....................................................... 3
1.12 Committee.................................................. 4
1.13 Company.................................................... 4
1.14 Company Contribution Account............................... 4
1.15 Compensation............................................... 4
1.16 Disability................................................. 4
1.17 Effective Date............................................. 4
1.18 Eligible Employee.......................................... 4
1.19 Employee................................................... 5
1.20 Entry Dates................................................ 5
1.21 ERISA...................................................... 5
1.22 Investment Fund............................................ 5
1.23 Job Elimination............................................ 5
1.24 Participant................................................ 6
-i-
3
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
Article Page
------- ----
1.25 Participant Company........................................ 6
1.26 Plan....................................................... 6
1.27 Plan Year.................................................. 6
1.28 Prior Plan................................................. 6
1.29 Retirement................................................. 6
1.30 RJR Plan................................................... 6
1.31 Rollover Contributions..................................... 6
1.32 Rollover Contribution Account.............................. 6
1.33 Service.................................................... 7
1.34 Severance Date............................................. 7
1.35 Supplemental After-Tax Contributions....................... 8
1.36 Supplemental After-Tax Contribution Account................ 8
1.37 Supplemental Pre-Tax Contribution ......................... 8
1.38 Supplemental After-Tax Contribution Account................ 8
1.39 Surviving Spouse........................................... 8
1.40 Termination of Employment.................................. 9
1.41 Trustee.................................................... 9
1.42 Trust Fund................................................. 9
1.43 Valuation Date............................................. 9
II. PARTICIPATION.................................................... 10
2.01 Eligibility................................................ 10
2.02 Participation.............................................. 10
2.03 Participant Status......................................... 11
III. CONTRIBUTIONS.................................................... 12
3.01 Participant Basic Contributions............................ 12
3.02 Supplemental Pre-Tax Contributions......................... 12
3.03 Supplemental After-Tax Contributions....................... 12
3.04 Company Contributions...................................... 12
3.05 Change in Participant Contributions........................ 14
- ii -
4
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
(cont'd)
Article Page
------- ----
3.06 Suspension of Participant Contributions.................... 14
3.07 Restrictions on Pre-Tax Contributions...................... 14
3.08 Restrictions on Pre-Tax Contributions...................... 16
3.09 Qualified Military Service................................. 16
IV. TRUST FUND AND INVESTMENT FUNDS.................................. 18
4.01 The Trust Agreement........................................ 18
4.02 The Trustee................................................ 18
4.03 Separate Funds............................................. 18
4.04 Investment Funds........................................... 18
4.05 Temporary Investment....................................... 18
4.06 Investment of Contributions................................ 18
4.07 Voting by Participants..................................... 19
4.08 Investment Managers........................................ 20
4.09 Participant Responsibility For Selection of Funds.......... 20
V. ACCOUNT STATEMENTS AND VALUATION................................. 21
5.01 Valuation of Accounts...................................... 21
5.02 Valuation Upon Withdrawal or Distribution.................. 21
5.03 Statement of Accounts...................................... 21
VI. VESTING AND FORFEITURES.......................................... 22
6.01 Vesting of Participant's Contributions..................... 22
6.02 Vesting of Company Contributions........................... 22
6.03 Forfeiture on Termination of Employment.................... 23
6.04 Disposition of Forfeitures................................. 23
6.05 Restoration of Forfeitures................................. 23
VII. DISTRIBUTIONS.................................................... 24
7.01 Distribution of Benefits................................... 24
7.02 Installment Option......................................... 26
7.03 Proof of Death and Right of Beneficiary.................... 26
7.04 Completion of Appropriate Forms and Procedures............. 26
7.05 Investment Pending Distribution............................ 26
7.06 Direct Rollovers........................................... 26
-iii-
5
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
(cont'd)
Article Page
------- ----
VIII. WITHDRAWAL PRIOR TO TERMINATION OF EMPLOYMENT
AND SPECIAL PRE-TAX CONTRIBUTION RULES........................... 28
8.01 Election to Withdraw from Accounts......................... 28
8.02 Withdrawal of After-Tax and Company Contributions.......... 28
8.03 Rules Applicable to Withdrawals Prior to Termination
of Employment.............................................. 29
8.04 Hardship Withdrawals....................................... 29
8.05 Restrictions on Pre-Tax Contribution Distributions......... 30
IX. LOANS ........................................................... 31
9.01 Loan Provisions............................................ 31
X. ADMINISTRATION OF THE PLAN....................................... 33
10.01 Nabisco Employee Benefits Committee........................ 33
10.02 Administrative Committee................................... 33
10.03 Authority and Duties of Various Fiduciaries................ 34
10.04 Named Fiduciaries.......................................... 36
10.05 Delegation................................................. 36
10.06 Multiple Capacities........................................ 36
XI. AMENDMENTS, TERMINATION, PERMANENT
DISCONTINUANCE OF CONTRIBUTIONS,
MERGER OR CONSOLIDATION.......................................... 37
11.01 Amendments................................................. 37
11.02 Termination or Permanent Discontinuance of Contributions... 37
11.03 Partial Termination........................................ 37
11.04 Benefits in Case of Merger or Consolidation................ 37
-iv-
6
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
(cont'd)
Article Page
------- ----
XII. MISCELLANEOUS..................................................... 39
12.01 Benefits Payable from Trust Fund........................... 39
12.02 Elections.................................................. 39
12.03 No Right to Continued Employment........................... 39
12.04 Inalienability of Benefits and Interests................... 39
12.05 Qualified Domestic Relations Orders........................ 39
12.06 Payments for Exclusive Benefit of Participants............. 39
12.07 New Jersey Law to Govern................................... 40
12.08 No Guarantee............................................... 40
12.09 Address of Record.......................................... 40
12.10 Unlocated Spouse........................................... 40
12.11 Agent for Process.......................................... 40
12.12 Payments in the Event of Incompetency...................... 40
12.13 Transfer of Accounts to This Plan.......................... 40
12.14 Transfer of Accounts From This Plan to an Affiliated Plan.. 43
12.15 Direct or Indirect Transfer................................ 43
12.16 Payment of Expenses........................................ 43
12.17 Transfer of Accounts to the R. J. Reynolds Tobacco
Company Capital Investment Plan............................ 44
12.18 Headings................................................... 44
XIII. CLAIM PROCEDURE.................................................. 45
13.01 Initial Determination...................................... 45
13.02 Review..................................................... 45
XIV. LIMITATION ON BENEFITS........................................... 47
14.01 Code Section 415 Limits.................................... 47
14.02 Code Section 416 Limits.................................... 50
-v-
7
NABISCO, INC.
CAPITAL INVESTMENT PLAN
INDEX
(cont'd)
Article Page
------- ----
XV. SPECIAL PROVISIONS PERTAINING TO TRANSFERS
FROM RJR NABISCO CAPITAL INVESTMENT PLAN......................... 55
SCHEDULE
Schedule A-- Compensation.............................................. 57
-v-
8
NABISCO, INC. CAPITAL INVESTMENT PLAN
INTRODUCTION
WHEREAS, prior to June 14, 1999, RJR Nabisco, Inc. ("RJR")
maintained the RJR Nabisco Capital Investment Plan (the "RJR Plan") for the
benefit of its eligible employees, including those employed by Nabisco, Inc.
(the "Company") and its affiliates ("Eligible Nabisco Employees"); and
WHEREAS, on June 14, 1999, RJR was spun-off from its parent
company, RJR Nabisco Holdings Corp. through a distribution to its shareholders
of all of the outstanding shares of the common stock of RJR, and, as a result of
such spin-off, RJR is no longer related to Nabisco, Inc. and its affiliates; and
WHEREAS, in connection with such spin-off, effective June 14,
1999, the RJR Plan is maintained by R. J. Reynolds Tobacco Company for the
benefit of its eligible employees and the eligible employees of its affiliates;
and
WHEREAS, in light of the foregoing, effective June 14, 1999,
the Eligible Nabisco Employees are no longer eligible to participate in the RJR
Plan; and
WHEREAS, effective as of June 14, 1999, the Company desires to
establish the Nabisco, Inc. Capital Investment Plan (the "Plan"), a profit
sharing plan containing Section 401(k) cash or deferred features for the benefit
of the Eligible Nabisco Employees and newly eligible employees of the Company
and its affiliates; and
WHEREAS, effective June 14, 1999, the account balances held
under the RJR Plan attributable to the Eligible Nabisco Employees and
forfeitures attributable to individuals who terminated employment prior to June
14, 1999 but would have been employees of the Company or its affiliates on June
14, 1999 but for such termination of employment are being transferred to the
Plan; and
WHEREAS, as a result of the acquisition of the common stock of
Nabisco Holdings Corp. by Philip Morris Companies Inc. and the subsequent merger
of Nabisco, Inc. into Kraft Foods North America, Inc., the Plan is hereby
restated and amended effective as of December 31, 2000.
1
9
ARTICLE I
DEFINITIONS
1.01 Accounts, unless otherwise indicated, means a Participant's Basic,
Supplemental Pre-Tax, Supplemental After-Tax, and Company Contribution
Accounts and any subaccounts thereunder. Some Participants may also
have Rollover Contribution Accounts and After-Tax Basic Contribution
Accounts.
1.02 Administrative Committee means the Administrative Committee(s) that is
appointed by the Committee to handle the day-to-day administration of
the Plan. (See Section 10.02).
1.03 Affiliated Company means the Company and any corporation which is a
member of a controlled group of corporations (as defined in Section
414(b) of the Code) which includes the Company; any trade or business
(whether or not incorporated) which is under control (as defined in
Section 414(c) of the Code) with the Company; any organization (whether
or not incorporated) which is a member of an affiliated service group
(as defined in Section 414(m) of the Code) which includes the Company;
and any other entity required to be aggregated with the Company
pursuant to regulations under Section 414(o) of the Code. For purposes
of Article XIV, the definition of Affiliated Company shall be modified
in accordance with Code Section 415(h).
1.04 Affiliated Plan means a defined contribution plan sponsored by an
Affiliated Company.
1.05 Automatic Enrollment Date means, for each Eligible Employee, a date
determined by the Committee, which date is no earlier than three weeks
following the date the Eligible Employee first becomes eligible to
participate in the Plan in accordance with Section 2.01(b).
1.06 Basic Contributions means the contributions of a Participant which are
credited to his Basic Contribution Account in accordance with Section
3.01.
1.07 Basic Contribution Account means that portion of the Trust Fund which,
with respect to any Participant, is attributable to his Basic
Contributions and any investment earnings or losses thereon, and
excluding amounts, if any, distributed to the Participant in accordance
with Section 3.07(c). An After-Tax Basic Contribution Account includes
that portion of the Trust Fund which, with respect to any Participant,
is attributable to any After-Tax Basic Contributions which were
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transferred to this Plan pursuant to ARTICLE XV, and any investment
earnings or losses thereon.
1.08 Beneficiary means the beneficiary designated by the Participant under
the Company's group term life insurance plan, unless the Participant
has designated any other person or persons (who may be designated
contingently or successively and which may be an entity other than a
natural person) on a form supplied by the Administrative Committee to
receive benefits payable in the event of the death of the Participant;
provided, however that if the Participant is married at the date of his
death, the Beneficiary shall be the Participant's Surviving Spouse, and
any Beneficiary designation that does not name the Participant's
Surviving Spouse as the Beneficiary shall be void unless it has been
consented thereto on a form supplied by the Administrative Committee in
writing by the Participant's Surviving Spouse and such consent (i)
designated the alternative Beneficiary and/or form of benefit which may
not be changed without spousal consent, (ii) acknowledges the effect of
such election, and (iii) is witnessed by a notary public. The
Participant may, however, revoke his alternate Beneficiary at any time,
thereby reinstating his Surviving Spouse as sole Beneficiary. In the
event of the Participant's death without an effective Beneficiary
designation, any Plan benefits payable shall be paid in equal parts to
the Participant's surviving children or, if the Participant has no
surviving children, to the Participant's surviving parents or, if the
Participant has no surviving parents, to the Participant's surviving
siblings or, if the Participant has no surviving siblings, to the
Participant's estate. Section 9.01 (a) should be referred to in the
event of the death of a Participant with an outstanding loan balance,
Section 12.05 should be referred to in the event of a Qualified
Domestic Relations Order and Section 12.12 should be referred to for
payment in the event of incompetency of a Beneficiary.
1.09 Board of Directors means, prior to August 2001, the Board of Directors
of Nabisco, Inc. and after July 2001, the Board of Directors of Kraft
Foods North America, Inc., and any committee authorized by such Board
to act in its behalf with reference to the Plan.
1.10 Break in Service means any twelve-consecutive-month period beginning on
a Severance Date during which an Employee does not complete an Hour of
Service.
1.11 Code means the Internal Revenue Code of 1986 as amended from time to
time. Reference to any Section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation
which amends, supplements or replaces such Section or subsection.
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1.12 Committee means the Nabisco Employee Benefits Committee which shall act
as the Plan Administrator for the Plan. The Committee shall have the
duties and powers described in Article X.
1.13 Company means, prior to August 2001, Nabisco, Inc. Subsequent to July
2001, Company means the Nabisco Biscuit & Snacks Group of Kraft Foods
North America, Inc. With respect to any corporate act after July 2001,
Company means Kraft Foods North America, Inc.
1.14 Company Contribution Account means that portion of the Trust Fund
which, with respect to any Participant, is attributable to any
contributions made on his behalf by the Company, and any investment
earnings and gains or losses thereon.
1.15 Compensation means, with respect to any Plan Year, the basic
compensation and such other forms of compensation paid for employment
as are listed in Schedule A hereto for the calendar year beginning in
such Plan Year. Compensation in excess of the limit described in
Section 401(a)(17) of the Code (subject to cost of living adjustments)
shall not count for purposes of this Plan.
1.16 Disability means being disabled as determined by the Federal Social
Security Administration and receiving the Social Security Award.
1.17 Effective Date of this Plan means June 14, 1999.
1.18 Eligible Employee means any person employed by a Participating Company
in an "eligible category", who is paid from a United States dollar
payroll maintained in the United States; provided, that except as the
Board of Directors or the Committee, pursuant to authority delegated to
it by the Board of Directors, may otherwise provide on a basis
uniformly applicable to all persons similarly situated, no person shall
be an "Eligible Employee" for purposes of the Plan:
(a) who is excepted by the Committee,
(b) whose terms and conditions of employment are determined by a
collective bargaining agreement with the Company or a
Participating Company which does not make this Plan applicable
to him, provided that employee retirement benefits were
negotiated thereunder, or
(c) 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
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"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 Service for vesting.
Notwithstanding any provision of the Plan to the contrary,
Eligible Employee shall not include any person who becomes an Employee pursuant
to the Asset Purchase Agreement entered into on November 19, 1999 among Favorite
Brands International Holding Corp., Favorite Brands International, Inc., Sather
Trucking Corporation, Trolli, Inc., Nabisco, Inc., Nabisco Brands Company, and
Nabisco Technology Company and who works at a facility in the following
locations.
Favorite Brands International, Inc., and Trolli, Inc. Locations
1. Bannockburn, Illinois 8. Pittston, Pennsylvania
2. Chicago, Illinois 9. Round Lake, Minnesota
3. DesPlaines, Nevada 10. New Orleans, Louisiana
4. Henderson, Nevada 11. Oklahoma City, Oklahoma
5. Kendallville, Indiana 12. San Bernadino, California
6. Ligonier, Indiana 13. Creston, Iowa
7. Chattanooga, Tennessee 14. Plantation, Florida
The exclusion from participation of those Employees covered by the Asset
Purchase Agreement shall not apply beginning as of the date the Nabisco
Retirement Savings Plan and the Nabisco Retirement Plan are merged with the
Plan.
1.19 Employee means any person employed by (or, after July 2001, working at)
the Company or an Affiliated Company.
1.20 Entry Dates are any business day.
1.21 ERISA means the Employee Retirement Income Security Act of 1974, and as
is amended from time to time.
1.22 Investment Fund or Funds means the separate funds in which Participant
and Company Contributions to the Plan are invested in accordance with
Article IV.
1.23 Job Elimination means the elimination of an existing position at the
sole discretion of the Company when, because of changing needs or
circumstances, (i) the job is no longer performed, or (ii) the job is
still performed, but fewer employees are needed to perform it.
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1.24 Participant means any person participating in the Plan as provided in
Article II. Except for purposes of Sections 2.01, 2.02 and 6.02 (ii)
and Article 3, an Eligible Employee who has made a rollover or transfer
to the Plan which meets the requirements of Section 12.13 or 12.15 and
for whom a Rollover Contribution Account is maintained shall be treated
as a Participant and such Eligible Employee shall become a Participant
for all purposes after meeting the requirements of Sections 2.01 and
2.02. In addition, in any Plan Year in which the Plan is top-heavy (as
defined in Section 14.02) and for purposes of Section 14.02(f),
"participant" shall include an Eligible Employee not otherwise
described in the preceding two sentences who shall, pursuant to
Treasury Regulation Section 1.416-1, Q&A M-10, receive the contribution
described in Section 14.02(f), and such Eligible Employee shall become
a Participant for all purposes after meeting the requirements of
Sections 2.01 and 2.02.
1.25 Participating Company means the Company and any United States
subsidiary of the Company which is approved by the Committee to
participate in the Plan. The term shall not include any foreign
corporations, or units thereof.
1.26 Plan means the Nabisco, Inc. Capital Investment Plan.
1.27 Plan Year means the period from each December 31 through the next
December 30. The Limitation Year shall be the calendar year.
1.28 Prior Plan means any U.S. qualified plan (or an individual retirement
account, annuity or bond in which a qualified plan distribution was
separately invested pursuant to Code Sections 408(d)(3)(A)(ii) and
(D)(i)).
1.29 Retirement means the normal retirement of a Participant who has
attained age 65, or the early retirement of a Participant who has
attained age 55 and who has completed 10 years of service.
1.30 RJR Plan means the RJR Nabisco Capital Investment Plan.
1.31 Rollover Contributions means the amount contributed to the Plan as a
rollover contribution from a Prior Plan, in accordance with Section
12.13(b).
1.32 Rollover Contribution Account means that portion of the Trust Fund
which, with respect to any Eligible Employee, is attributable to his
Rollover Contributions, and any investment earnings or losses thereon.
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1.33 Service means all periods during which an Employee is employed by (or,
after July 2001, working at) the Company, a Participating Company or
any Affiliated Company commencing with the first day of employment or
the first day of reemployment and ending with his Severance Date which
next follows the first day of employment or the first day of
reemployment, as the case may be. The first day of employment or the
first day of reemployment shall be deemed to be the first day in which
the Employee performs an "Hour of Service" (as defined in Department of
Labor Reg. Section 2530.200b-2) as an Employee. Periods of Service
commencing on the first day of employment and ending on the first
Severance Date and commencing on each reemployment date and ending on
the Severance Date which next follows shall be aggregated on a day by
day basis and 365 days of aggregate Service shall constitute one year
of Service. Service shall include any period of authorized part-time
employment, periods of authorized leave of absence up to a maximum of
one year, periods of absence due to service in the Armed Forces of the
United States as required pursuant to Section 414(u) of the Code,
periods of absence due to unpaid leave taken pursuant to the Family and
Medical Leave Act of 1993 or similar state laws (to the extent required
by such laws, but only to the extent such leave is not otherwise
credited under this Section 1.33), and periods of absence due to
illness or disability up to a maximum of 12-consecutive months. Service
shall also include all service credited to an Eligible Employee under
the RJR Plan prior to June 14, 1999. If an individual who is a
participant in the RJR Plan on or after June 14, 1999 becomes an
Eligible Employee on or before June 14, 2000, Service shall also
include the service credited to such Eligible Employee under the RJR
Plan in respect of the period commencing on June 14, 1999 and ending on
June 14, 2000.
Notwithstanding the preceding paragraph and unless otherwise determined
by the Committee, Service with an Affiliated Company that was not a
member of the Nabisco Controlled Group as of December 10, 2000 shall
only be taken into account subsequent to the time that such corporation
became an Affiliated Company. Nabisco Controlled Group means Nabisco,
Inc. and any other corporation that was a member of the controlled
group of corporations (as defined in Section 1563(a) of the Code) that
included Nabisco, Inc. as of December 10, 2000.
1.34 Severance Date means the following:
(a) the date on which an Employee quits, retires, is discharged,
dies or terminates employment following a period of salary and
benefit continuation; or
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(b) the first anniversary of the first date of a period in which
an Employee remains absent from Service (with or without pay)
with the Company or an Affiliated Company for any reason other
than quit, retirement, discharge, or death; provided, however,
the absence from Service of an Employee receiving benefits
under one or more long-term disability plans of the Company or
an Affiliated Company is not a severance until the earlier of
normal retirement age, the cessation of such disability
payments or two consecutive years on long-term disability;
provided further that if such an Employee in active employment
after his normal retirement age becomes disabled, his
Severance Date is the date such long-term disability plan
benefits commence or would commence.
In the case of an Employee who is absent from work by virtue
of (i) the Employee's pregnancy, (ii) birth of the Employee's
child, (iii) placement of a child with the Employee by
adoption, or (iv) caring for any such child for a period of up
to a year immediately following such birth or placement, the
Severance Date is the second anniversary of the first day of
absence from Service provided that the period between the
first and second anniversary of such first day of absence is
neither counted as Service nor a Break in Service.
1.35 Supplemental After-Tax Contributions means the contributions which a
Participant elects to make to the Plan in accordance with Section 3.03.
1.36 Supplemental After-Tax Contribution Account means that portion of the
Trust Fund which, with respect to any Participant, is attributable to
his own Supplemental After-Tax Contributions and any investment
earnings or losses thereon and any subaccounts as may be necessary to
reflect the provisions of Section 3.07.
1.37 Supplemental Pre-Tax Contributions means the contributions which a
Participant elects to have the Company make directly to the Plan on
behalf of the Participant in accordance with Section 3.02.
1.38 Supplemental Pre-Tax Contribution Account means that portion of the
Trust Fund which, with respect to any Participant, is attributable to
his own Supplemental Pre-Tax Contributions and any investment earnings
or losses thereon.
1.39 Surviving Spouse means the person to whom the Participant is married,
under applicable state law, at the time of the Participant's death and
to whom the benefits under the Plan shall be payable in the event of
the Participant's death unless a valid Beneficiary designation and
consent thereto by the Participant's spouse has been
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made and received by the Committee, or unless such benefits are subject
to a qualified domestic relations order as defined in Section 414(p) of
the Code.
1.40 Termination of Employment means separation from the employment of the
Company or an Affiliated Company for any reason, including, but not
limited to, Retirement, death, Disability, resignation or dismissal;
provided, however, that transfer in employment between the Company and
an Affiliated Company shall not be deemed to be a "Termination of
Employment" and provided further, that if an Employee is rehired by the
Company or an Affiliated Company within 30 days of his or her
separation from the employment of the Company or an Affiliated Company,
such separation shall not be considered to be a "Termination of
Employment."
1.41 Trustee means a trustee or trustees at any time acting as such under a
trust agreement or agreements established for purposes of this Plan.
1.42 Trust Fund means the cash and other properties arising from (i)
contributions made by Participants and by the Participating Companies
in accordance with the provisions of this Plan, (ii) funds transferred
from the RJR Plan or Affiliated Plans, and (iii) any investment
earnings and gains or losses thereon. The Trust Fund is held and
administered by the Trustee pursuant to Article IV.
1.43 Valuation Date means each business day and any other date the Committee
deems desirable or necessary to value the Trust Fund in accordance with
Article V.
When used herein, the masculine shall include the feminine, and the singular
shall include the plural, unless the context clearly indicates a different
meaning.
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ARTICLE II
PARTICIPATION
2.01 Eligibility.
(a) An Eligible Employee who was eligible to participate in the
RJR Plan immediately prior to the Effective Date shall be
eligible to participate in the Plan on the Effective Date.
(b) Any Employee shall be eligible to become a Participant in the
Plan as of the first Entry Date coincident with or next
following the date he becomes an Eligible Employee.
(c) All Eligible Employees of a Participating Company who
participate in this Plan shall participate under the terms and
conditions herein stated.
(d) An Employee who was a participant in the Nabisco Retirement
Savings Plan or the Nabisco Retirement Plan on the date that
such plan merged with the Plan shall become a Participant as
of the Entry Date coinciding with or next following the merger
date. All service under any such plan shall be taken into
account for determining participation under the Plan.
2.02 Participation.
(a) An Eligible Employee may become a Participant on any Entry
Date by making application in a manner prescribed by the
Committee in which he:
(i) designates the percentage of Compensation to be
contributed as Basic Contributions in accordance with
Section 3.01;
(ii) designates the percentage of Compensation, if any, to
be contributed as Supplemental Pre-Tax and/or
Supplemental After-Tax Contributions in accordance
with Sections 3.02 and 3.03;
(iii) authorizes applicable payroll deductions; and
(iv) chooses one or more Investment Fund(s).
(b) If the Eligible Employee does not make the application
contemplated in Section 2.02(a) prior to his Automatic
Enrollment Date, such Eligible
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Employee shall become a Participant effective as of his
Automatic Enrollment Date and shall be deemed to have (i)
authorized payroll deductions for Basic Contributions in
accordance with Section 3.01, equal to 3% of his Compensation
and (ii) elected to invest such contributions in the Fidelity
Asset Manager: Income. Notwithstanding the foregoing, the
Eligible Employee may at any time elect a different
contribution percentage (including 0%) in accordance with
Section 3.05 and/or different Investment Funds in accordance
with Section 4.06.
2.03 Participant Status. An Employee who has become a Participant shall
remain a Participant so long as he remains in the service of the
Company or an Affiliated Company, and shall cease to be a Participant
upon his Termination of Employment, except that he shall remain a
Participant so long as he has an Account balance. Active participation,
however, including contributions to the Plan by or for a Participant,
shall automatically be suspended effective as of the Participant's
Severance Date. Participation in the Plan shall cease as of the date
Accounts are transferred to an Affiliated Plan pursuant to Section
12.14.
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ARTICLE III
CONTRIBUTIONS
3.01 Participant Basic Contributions. Subject to the provisions of Section
3.07, each Participant may elect that the Participating Company
contribute from 1% to 6% of his Compensation to the Plan (in 1%
increments) as Pre-Tax Contributions in lieu of an equal amount being
paid to him as current cash Compensation. Basic Contributions are
matched with Company Contributions in accordance with Section 3.04.
Basic Contributions are made through payroll deductions and are
credited to Participants' Accounts as soon as reasonably possible
following the date of payment of the Compensation from which the
contribution is taken.
3.02 Supplemental Pre-Tax Contributions. Subject to the provisions of
Section 3.07, a Participant who has authorized the maximum Basic
Contribution rate of 6% may also make additional pre-tax contributions
to the Plan by authorizing Supplemental Pre-Tax Contributions of 1% to
10% of his Compensation (in 1% increments) in lieu of an equal amount
being paid to him as current cash Compensation. Supplemental Pre-Tax
Contributions are made through payroll deductions and are credited to
Participants' Accounts as soon as reasonably possible following the
date of payment of the Compensation from which the contribution is
taken.
3.03 Supplemental After-Tax Contributions. A Participant may make
contributions to the Plan on an after-tax basis, either in lieu of or
in combination with Pre-Tax Contributions by authorizing Supplemental
After-Tax Contributions of 1% to 16% of his Compensation (in 1%
increments); provided that the combined percentage of Compensation for
Basic and Supplemental Contributions is a minimum of 1% and a maximum
of 16%. (After-Tax Contributions are referred to as "supplemental" even
though a Participant may elect to make them prior to authorizing any or
the full amount of Pre-Tax Basic Contributions). Supplemental After-Tax
Contributions are made through payroll deductions and are credited to
Participants' Accounts as soon as reasonably possible following the
date of payment of the Compensation from which the contribution is
taken.
3.04 Company Contributions.
(a) All Company Contributions shall be made subject to the terms
and conditions of this Section 3.04. Prior to August 2001,
Company Contributions are made by Nabisco, Inc. After July
2001, Company Contributions are made with respect to the
Nabisco Biscuit & Snacks Group of Kraft Foods North America,
Inc.
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(b) For each Plan Year, the Participating Companies shall
contribute an amount which, together with any forfeitures
under Article VI, shall produce an allocation to each
Participant's Company Contribution Account equal to 50% of
such Participant's Basic Contributions for such Plan Year.
(c) Each Participating Company's share of Company Contributions
for any Plan Year shall be that proportion of the amount of
Company Contributions for that year which the Basic
Contributions withheld by that Participating Company bears to
the total Basic Contributions withheld by all Participating
Companies for the Plan Year.
(d) In any Plan Year in which the Plan is top-heavy (as defined in
Section 14.02) the Participating Companies shall make
additional Company Contributions to the extent necessary to
comply with the minimum top-heavy contribution requirement as
set forth in Section 14.02(f).
(e) Each Company Contribution to the Plan is conditioned on its
deductibility.
In the event that the Commissioner of Internal Revenue,
determines that the Plan does not qualify for tax-exempt
status under Section 401 of the Code and issues an adverse
determination with respect to its initial qualification, the
Company Contributions made on or after the date on which such
determination is applicable shall be returned to the Company
without interest within one year after such determination, but
only if the application for determination is made by the time
prescribed by law for filing the Company's return for the
taxable year in which the Plan was adopted, or such later date
as the Secretary of the Treasury may prescribe.
In the event that a Company Contribution to the Plan is made
by a mistake of fact or all or part of the Company's
deductions under Section 404 of the Code for contributions to
the Plan are disallowed by the Internal Revenue Service, the
portion of the contributions attributable to such mistake of
fact or to which such disallowance applies shall be returned
to the Company without interest. Any such return shall be made
within one year after the making of such contribution by
mistake of fact or disallowance of deductions, as the case may
be.
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3.05 Change in Participant Contributions. Subject to the provisions of this
Article, a Participant may elect to change the percentage of his
authorized payroll deduction by giving notice to the Committee in such
manner as the Committee may prescribe. Such changed percentage shall
become effective beginning with the first payroll period commencing
after processing such notice. If the Committee makes a mistake-of-fact
with regard to any contribution, it shall, depending on the
mistake-of-fact, either (i) cause said contribution to be returned to
the Participant without restriction or (ii) accept additional
contributions for the affected period.
3.06 Suspension of Participant Contributions.
(a) A Participant may elect to suspend his Basic, Supplemental
Pre-Tax or Supplemental After-Tax Contributions by notifying
the Committee in advance in the manner prescribed by the
Committee. The suspension shall become effective on the first
day of the first payroll period commencing on or after
processing such request. No Company Contributions shall be
made on behalf of a Participant during a period of suspension
of Basic Contributions.
(b) A Participant who has suspended his Basic, Supplemental
Pre-Tax or Supplemental After-Tax Contributions may elect to
apply to the Committee to resume his contributions in the
manner prescribed by the Committee. The resumption shall
become effective as of the first payroll period commencing on
or after processing his request.
(c) No contributions may be made by a Participant for any period
of unpaid absence from Service. A Participant who has ceased
to make contributions under the Plan in accordance with this
subsection (c) shall again be eligible to resume making
contributions on the date he returns to Service as an Eligible
Employee.
(d) A Participant who has ceased to make contributions under the
Plan because he has ceased to be an Eligible Employee but,
nevertheless, continues to be an Employee shall again be
eligible to resume making contributions on the date he again
becomes an Eligible Employee and gives notice to the Committee
in the prescribed manner.
3.07 Restrictions on Pre-Tax Contributions.
(a) In no event may the sum of the Basic and Supplemental Pre-Tax
Contributions made by the Company on behalf of any Participant
exceed
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$10,000 (as adjusted in accordance with Code Section
402(g)(5)). In the event the dollar limit for pre-tax
contributions is reached with respect to a Participant during
a calendar year, all additional contributions made on behalf
of the Participant for that calendar year will be made on an
after-tax basis, including, if necessary, a portion of the
contributions that the Participant had designated as Basic
Contributions.
(b) The Committee shall have the right to establish rules with
respect to the making of elections of Pre-Tax Contributions,
including, without limitation, the right to require that any
such election be made at such time prior to its becoming
effective as the Committee shall determine and the right to
restrict the Participant's right to change such election. Such
contributions are intended to be treated for federal income
tax purposes as contributions made by the Company under a
qualified cash or deferred arrangement (as defined in Section
401(k) of the Code) but shall be treated as if they were
contributions by a Participant for the purpose of the Plan
except where the Plan expressly indicates otherwise.
(c) Notwithstanding any other provision of the Plan, Allocable
Excess Pre-Tax Contributions and income allocable thereto
shall be distributed no later than April 15 to Participants
who claim Allocable Excess Pre-Tax Contributions for the
preceding calendar year. "Allocable Excess Pre-Tax
Contributions" shall mean the amount of Pre-Tax Contributions
for a calendar year that the Participant allocates to this
Plan that exceed the limits of Code Section 402(g).
(d) The Participant's claim shall be in writing, shall be
submitted to the Committee no later than March 1; shall
specify the Participant's Allocable Excess Pre-Tax
Contributions for the preceding calendar year; and shall be
accompanied by the Participant's written statement that if
such amounts are not distributed, such Allocable Excess
Pre-Tax Contributions, when added to amounts deferred under
other plans or arrangements described in Sections 401(k),
402(h), 408(k) or 403(b) of the Code, exceed the limit imposed
on the Participant by Section 402(g) of the Code for the year
in which the deferral occurred. A Participant is deemed to
notify the Committee of any Allocable Excess Pre-Tax
Contributions that arise by taking into account only those
amounts deferred pursuant to this Plan and any other Plans of
a Participating Company.
(e) The Allocable Excess Pre-Tax Contributions distributed to a
Participant with respect to a calendar year shall be adjusted
for income and, if there is
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a loss allocable to the Excess Pre-Tax Contributions, shall in
no event be less than the lesser of the Participant's Pre-Tax
Account under the Plan or the Participant's Pre-Tax
Contributions for the Plan Year.
3.08 Code Section 401(k) and 401(m) Nondiscrimination Tests. The Plan is
subject to the following nondiscrimination tests.
(a) Definitions. For purposes of this Section, the following
additional definitions shall be used for Plan Years beginning
after 1996:
(i) Highly Compensated Employee means an individual who
performs service during the determination year and is
an Employee who is a 5-percent owner (as defined in
Section 416(i)(1) of the Code) at any time during the
Plan Year or the preceding Plan Year, or an Employee
who received compensation in excess of $80,000
(adjusted for changes in the cost of living) and is a
member of the "Top-Paid Group" for the preceding Plan
Year.
(ii) "Top-Paid Group" means those Employees who are in the
top 20-percent of all Employees based on compensation
paid by the Company.
(b) Average Actual Deferral Percentage Test ("ADP"). For each Plan
Year, Participants' Pre-Tax Contributions shall satisfy the
requirements described under Section 401(k)(3)(A)(ii) of the
Code. The Committee shall have the right to limit Pre-Tax
Contributions of Highly Compensated Employees as it deems
necessary to satisfy such requirements.
(c) Average Actual Contribution Percentage Test ("ACP"). For each
Plan Year, matching Company Contributions and Participant
After-Tax Contributions shall satisfy the requirements under
Section 401(m)(2) of the Code. The Committee shall have the
right to limit matching Company Contributions and Participant
After-Tax Contributions of Highly Compensated Employees as it
deems necessary to satisfy such requirements.
3.09 Qualified Military Service. Any Participant who resumes participation
in the Plan following a period of qualified military service shall have
the right to make-up the contributions described in Section 3.01,
Section 3.02 and Section 3.03 that were not made on account of
qualified military service as provided under Section 414(u) of the
Code. The Company will make contributions as described in Section 3.04
in
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the same manner and in the same amount as if the Participant's
contributions were made during qualified military service.
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ARTICLE IV
TRUST FUND AND INVESTMENT FUNDS
4.01 The Trust Agreement. The Company shall enter into a trust agreement
which shall contain such provisions as shall render it impossible for
any part of the corpus of the Trust or income therefrom to be at any
time used for, or diverted to, purposes other than for the exclusive
benefit of Participants. Any or all rights or benefits accruing to any
person under the Plan with respect to any Company Contributions
deposited under the Trust Agreement shall be subject to all the terms
and provisions of the Trust which shall specifically incorporate and be
subject to the provisions of the Plan.
4.02 The Trustee. The Trustee shall be a corporate trustee appointed by the
Corporate Employee Plans Investment Committee of Philip Morris
Companies Inc. (the "Philip Morris Committee"), unless such authority
is transferred to the Compensation and Governance Committee of Kraft
Foods Inc. (the "Kraft Committee").
4.03 Separate Funds. Subject to Section 4.04, the Trustee shall maintain
separate Investment Funds within the Fund as are designated by the
Company.
4.04 Investment Funds. The Philip Morris Committee, unless such authority is
transferred to the Kraft Committee, shall select the Investment Funds
offered under the Plan and reserves the right to eliminate or add Funds
from time to time, including Funds that invest in the common stock of
an Affiliated Company.
4.05 Temporary Investment. Pending permanent investment of the assets of any
Investment Fund, the Trustee may temporarily hold cash or make
short-term investments in obligations of the United States Government,
commercial paper, an interim investment fund for tax qualified employee
benefit plans established by the Trustee unless otherwise provided by
applicable law, or other investments of a short-term nature.
4.06 Investment of Contributions.
(a) Election. All Basic Contributions, Supplemental Pre-Tax
Contributions, Supplemental After-Tax Contributions and
Company Contributions will be invested at the election of the
Participant in multiples of 1% in any one or
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combination of the Investment Funds under the Plan, subject to
any restrictions imposed on investing in any stock fund. A
Participant may make or change an election on any day by
giving notice to the Committee in the prescribed manner. Any
such election or change of election shall be effective as of
the first payroll period after it is processed.
(b) Reallocation of Investments. A Participant may elect on any
day to reallocate the investment of his Accounts to any one or
combination of the Investment Funds in multiples of 1% by
giving notice to the Committee in such manner as the Committee
may prescribe. The amounts reallocated will be based upon
values as of the Valuation Date applicable to the processing
of the request.
4.07 Voting by Participants.
(a) Voting of Stock Generally. Each Participant shall have the
right and shall be afforded the opportunity to instruct the
Trustee how to vote that proportionate number of the total
number of shares of stock held in any Fund that consists of
the common stock of the Company or an Affiliated Company that
is the same proportion that the value of his interest bears to
the total value of such Fund. Instructions by Participants to
the Trustee shall be in such form and pursuant to such
regulations as the Committee may prescribe. Any such
instructions shall remain in the strict confidence of the
Trustee.
(b) Tender or Exchange Offers. In the event of a tender or
exchange offer for any or all shares of Stock, the Committee
shall notify each Participant or Beneficiary and utilize its
best efforts to timely distribute or cause to be distributed
to him such information as will be distributed to other
shareholders of such Stock in connection with any such tender
or exchange offer. Each Participant or his Beneficiary shall
have the right to instruct the Trustee in writing not to
tender or exchange shares of Stock credited to his Account
under the Trust Fund. Unless the Trustee determines that ERISA
requires it to act otherwise, the Trustee shall not tender or
exchange any shares of Stock credited to a Participant's
Account under the Trust Fund unless specific instructions to
tender or exchange such shares have been received. For
purposes of this Section 4.07(b), "Stock" shall mean the stock
held in any Fund that consists of the common stock of the
Company or an Affiliated Company.
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4.08 Investment Managers. The Philip Morris Committee may enter into a
written agreement with or direct the Trustee to enter into an agreement
with one or more investment managers to manage the investments of one
or more of the Investment Funds. Such investment managers may include
legal reserve life insurance companies which enter into group annuity
contracts with the Trustee. The Philip Morris Committee may remove any
such investment manager or any successor investment manager, or direct
the Trustee to do so, and any such investment manager may resign. In
addition, the Philip Morris Committee may, upon removal or resignation
of an investment manager, provide for the appointment of a successor
investment manager. The Kraft Committee shall exercise the duties
described in this Section 4.08 if such authority is transferred to the
Kraft Committee from the Philip Morris Committee.
4.09 Participant Responsibility For Selection of Funds. Each Participant is
solely responsible for the selection of his Investment Funds. Neither
the Trustee, the Committee, any Administrative Committee, the Company
nor any of the directors, officers or employees of the Company or any
Affiliated Company is required to advise a Participant as to the manner
in which his Accounts should be invested. The fact that a security is
available to Participants for investment under the Plan shall not be
construed as a recommendation for the purchase of that security, nor
shall the designation of any Investment Fund impose any liability on
the Company, any Affiliated Company, their directors, officers or
employees, the Trustee, the Committee, or any Administrative Committee.
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ARTICLE V
ACCOUNT STATEMENTS AND VALUATION
5.01 Valuation Of Accounts. As of each Valuation Date, the Accounts of each
Participant shall be adjusted to reflect any appreciation or
depreciation in the fair market value and any income earned by each
Investment Fund in which the Participant's Accounts are invested since
the prior Valuation Date. Such fair market value shall be the aggregate
fair market value of all securities or other property held for each
Investment Fund, plus cash and accrued earnings, less accrued expenses
and proper charges against each Investment Fund.
When determining the value of Participant Accounts, any deposits due
which have not been deposited in the Trust Fund on behalf of the
Participant shall be added to his Accounts. Similarly, adjustments of
Accounts for appreciation or depreciation of an Investment Fund shall
be deemed to have been made as of the Valuation Date to which the
adjustment relates, even though they are actually made as of a later
date.
5.02 Valuation Upon Transfer Withdrawal or Distribution. The valuation of
Accounts for purposes of an in-service withdrawal, a transfer of
Accounts to another Investment Fund, or a cash distribution shall be as
described in Section 5.01.
5.03 Statement of Accounts. Each Participant shall be furnished at least
annually a statement setting forth the value of his Accounts.
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ARTICLE VI
VESTING AND FORFEITURES
6.01 Vesting Of Participant's Contributions. Each Participant's Basic
Contribution Account, Supplemental Pre-Tax Contribution Account and
Supplemental After Tax Contribution Account shall at all times be fully
vested.
6.02 Vesting of Company Contributions. A Participant shall become fully
vested in his Company Contribution Account upon the earlier of (i)
completion of 60 months of Service, (ii) 24 months of employment after
his initial Entry Date, or (iii) the occurrence of any one of the
following:
(a) attainment of age 65,
(b) Retirement,
(c) Disability,
(d) death,
(e) termination of employment as a result of Job Elimination,
(f) termination of the Plan, or
(g) complete discontinuance of Company Contributions.
With respect to an Employee who becomes a Participant following the
merger of the Nabisco Retirement Savings Plan (the "Savings Plan") or
the Nabisco Retirement Plan (the "Retirement Plan") with the Plan, the
following additional conditions shall apply regarding any amount
credited to his Company Contribution Account:
(a) The vested percentage shall not be less than the vested
percentage, determined as of the merger date, of the
Employee's (i) matching contributions account and supplemental
contribution account under the Savings Plan or (ii) the amount
attributable to employer contributions under the Retirement
Plan.
(b) A "Year of Service" under the Savings Plan shall be equivalent
to 12 months of Service under the Plan.
(c) The Employee's Entry Date shall be the later of November 19,
1999 or the date of hire by the Company.
(d) The Employee shall be credited with 12 months of Service for
the period beginning July 1, 2000 and ending June 30,
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2001 if he would have been credited with a "Year of
Service" shall have the meaning described in Section 8.2 of
the Savings Plan.
(e) All service under the Savings Plan and the Retirement Plan as
of the merger date will be taken into account under the Plan.
(f) With respect to a former participant in the Retirement Plan,
any such Employee will have a 100% vested interest upon
attaining age 55 while employed by the Company.
6.03 Forfeiture on Termination of Employment. If a Participant's employment
is terminated prior to attainment of age 65 for reasons other than
Retirement, Disability, death, or Job Elimination the portion, if any,
of his Company Contribution Account in which he is not vested shall be
forfeited upon the earlier of (i) the accrual of five (5) consecutive
Break in Service years, or (ii) the receipt of a cash-out and, under
circumstances where all Participant Contributions were distributed
prior to Termination of Employment or there are no Participant
Contributions, a cash-out will be deemed to have been made on the date
the Termination of Employment occurred. All forfeitures pursuant to
(ii) above are subject to the provisions of Section 6.05.
6.04 Disposition of Forfeitures. All forfeitures shall be used to reduce
Company Contributions otherwise payable to the Plan.
6.05 Restoration of Forfeitures. Any amount forfeited pursuant to the
provisions of clause (ii) of Section 6.03 shall be restored to the
Account of a Participant if the Participant is re-employed before he
accrues five consecutive Break in Service years. The restoration will
occur without the requirement that the Participant repay to the Plan
any amounts previously distributed to him.
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ARTICLE VII
DISTRIBUTIONS
7.01 Distribution Of Benefits.
(a) Termination of Employment. A Participant who has a Termination
of Employment for reasons other than Retirement, Disability or
death shall receive a lump sum distribution of the value of
his vested Accounts, subject to the provisions of Section
7.01(e). Distribution shall be made as soon as
administratively feasible following the valuation of the
Participant's Accounts. If the Committee has not received an
application for distribution by the time specified in
subsection (d) below, a distribution shall automatically be
made at such time.
(b) Retirement or Disability. A Participant who has a Termination
of Employment due to Retirement or Disability shall receive a
lump sum distribution of the value of his Accounts.
Distribution shall be made as soon as administratively
feasible following the valuation of the Participant's
Accounts. However, and notwithstanding anything in this Plan
to the contrary, a Participant may not postpone payment beyond
April 1 of the calendar year following the calendar year in
which he attains age 70 1/2. Participants who are not 5%
owners (as defined in Code Section 416(i)(1)(B)) and who
attained age 70 1/2 prior to January 1, 1988, are not required
to have their distribution commence prior to April 1 of the
calendar year following the calendar year in which they
retire, regardless of their age.
(c) Death. The Accounts of a Participant who has died shall be
distributed to his Beneficiary in a single lump sum payment.
Payment will be made after notification and verification of
the Participant's death; provided however, that if the
Beneficiary is the Participant's Surviving Spouse, a
distribution shall not be made until after a written
application for distribution from the Surviving Spouse has
been received by the Committee. The Accounts shall be valued
as soon as administratively feasible after receipt of the
written application for distribution, and distribution shall
be made as soon as administratively feasible following the
valuation of the Participants Accounts. If the Committee has
not received an application for distribution by the time the
Participant would have attained age 65, the distribution shall
automatically be made at such time.
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(d) Latest Date for Distribution. Distributions to a Participant
shall commence no later than the April 1 following the
calendar year in which the Participant attains age 70 1/2.
(e) Small Lump Sum Cash-Outs. The foregoing notwithstanding, if
the value of the Participant's vested Account does not exceed
$5,000, a distribution shall be made to the Participant as
soon as administratively feasible after a written application
for distribution has been received by the Committee, valued as
soon as administratively feasible after receipt of such
application; provided; however, that if the Committee does not
receive a written application for distribution within 90 days
after the Participant's Termination of Employment, the Account
shall be valued and distribution shall be made as soon as
administratively feasible after the expiration of such 90-day
period. In no event shall the Account of a Participant which
is in excess of the amount of $5,000 be distributed to him or
on his behalf prior to the time specified in (d) above without
the written consent to the Participant or, if applicable, his
Surviving Spouse.
(f) QDRO. Notwithstanding subsections (a)-(e) above and Section
8.05, if a qualified domestic relations order, as described in
Section 12.05, requires the distribution of all or part of a
Participant's benefits under the Plan, the establishment or
acknowledgment of the alternate payee's rights to benefits
under the Plan in accordance with the qualified domestic
relations order shall in all events be applied in a manner
consistent with the terms of the Plan. Notwithstanding the
foregoing, (i) the Committee is authorized, pursuant to such
uniform and nondiscriminatory rules as it shall establish
which shall be consistent with applicable law and the terms of
the applicable qualified domestic relations order, to cash out
benefits to which alternate payees may be entitled prior to
the date such benefits would otherwise become payable in
accordance with the applicable provisions of the Plan, and
(ii) in no event shall the recognition of an alternate payee's
rights in accordance with this Section 7.01 (f) be deemed to
include the right to make a withdrawal pursuant to the
provisions of Article VIII or to receive any benefits in the
form of a partial payment.
(g) Company/Affiliated Company Stock Fund Distributions. With
respect to any Investment Fund that consists of the common
stock of the Company or an Affiliated Company, a Participant
or his Beneficiary may elect that the distribution from any
such Investment Fund be made in the form of cash or shares of
stock, except that any fractional portion of a share shall be
paid in
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cash. If a Participant does not make an election in connection with the
distribution, all amounts shall be paid in cash.
7.02 Installment Option. A Participant or Beneficiary may elect to receive
the value of his Accounts in monthly or annual installment payments;
provided, however, such Participant may elect at any time to receive
the remaining amount credited to his Accounts in a lump-sum
distribution.
7.03 Proof of Death and Right of Beneficiary. The Committee may require and
rely upon such proof of death and such evidence of the right of any
Beneficiary to receive the undistributed value of the Account of a
deceased Participant as the Committee may deem proper, and its
determination of death and of the right of such Beneficiary or other
person to receive payments shall be conclusive.
7.04 Completion of Appropriate Forms and Procedures. The Committee has
prescribed forms/procedures providing notice to it in order for a
distribution to be made under the Plan. In the event a Participant or
Beneficiary does not comply with such procedures before the date a
distribution becomes payable under the terms of the Plan, distribution
from such Participant's or Beneficiary's Account may, at the option of
the Committee (taking into account Section 12.12), be mailed to the
Address of Record as provided in Section 12.09.
7.05 Investment Pending Distribution.
(a) The provisions of Section 4.06 shall continue to apply to the
Accounts of inactive Participants, including Participants who
have elected the installment option as provided in Section
7.02(a).
(b) A Participant is not entitled to any interest, dividends or
any other form of investment proceeds on his Account for the
period between the Valuation Date on which his Account is
valued for payment and the date payment is made.
7.06 Direct Rollovers.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Article, 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.
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(a) 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 or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; 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); and any hardship distribution described in
Section 401(k)(2)(B) of the Code made after 1998.
(b) Eligible Retirement Plan. An eligible retirement plan is an
individual retirement account described in Section 408(a) of
the Code, and individual retirement annuity described in
Section 408(b) of the Code, and annuity plan described in
Section 403(b) 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) 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) Direct Rollover. A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
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ARTICLE VIII
WITHDRAWAL PRIOR TO TERMINATION OF
EMPLOYMENT AND SPECIAL PRE-TAX CONTRIBUTION RULES
8.01 Election to Withdraw from Accounts. As of any Valuation Date and
subject to Sections 8.02, 8.03 and 8.04, a Participant may elect to
withdraw, in cash only and in a stated amount, all or a portion of the
value of vested amounts in his Accounts from which withdrawals are
allowed.
8.02 Withdrawal of After-Tax and Company Contributions. Withdrawals as
described in Section 8.01 and subject to the rules of Section 8.03
shall be applied by the Committee against a Participant's Accounts in
the order and classification as follows:
Tax-Free Withdrawal: If applicable, the amount in his Supplemental
After-Tax Account that may be withdrawn on a tax-free basis.
Regular Withdrawal: The remaining value in his Supplemental After-Tax
Account, the value in his Rollover Contribution Account, and the vested
value in his Company Contribution Account.
Participants with less than 60 months of Plan participation may not
withdraw (i) after-tax contributions that were matched and have been in
the Plan for less than 24 months, and (ii) Company Contributions that
have been in the Plan for less than 24 months.
Hardship Withdrawal: A Participant who qualifies for a financial
hardship as defined in Section 8.04 may withdraw up to 100% of the
amount available under a Regular Withdrawal plus the remaining value of
his After-Tax Supplemental Account, the remaining vested value of his
Company Contribution Account, and any dollar amount from his Basic and
Supplemental Pre-Tax Contribution Accounts, excluding earnings to Basic
Pre-Tax Contributions and Supplemental Pre-Tax Contributions made under
this Plan and earnings credited after December 31, 1988 to Pre-Tax
Contributions made under the RJR Plan.
Withdrawal Upon Attainment of Age 59 1/2 or Disability: A Participant
who has attained age 59 1/2 or is totally Disabled may withdraw the
maximum available under a Regular Withdrawal plus any dollar amount up
to the remaining vested value of his After-Tax Supplemental Account,
Company Contributions Account and his Basic and Supplemental Pre-Tax
Accounts.
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8.03 Rules Applicable to Withdrawals Prior to Termination of Employment. The
following rules shall, except as noted in Section 8.04, apply to
withdrawals under this Article VIII:
(a) Withdrawals may only be made by prior notice to the Committee
in the manner prescribed by the Committee.
(b) Excluding Hardship withdrawals, no more than one withdrawal
may be made in any six-month period.
(c) Excluding Hardship withdrawals, in no event may a Participant
make a withdrawal in an amount less than $1000, or the maximum
amount available for withdrawal as a Tax-Free Withdrawal or a
Regular Withdrawal, if less.
(d) In no event may a Participant elect an order of withdrawal
other than set forth in Section 8.02, nor may a Participant
select the classification or Investment Fund from which his
stated amount of withdrawal will be withdrawn.
(e) Payments of withdrawal amounts will be made as soon as
practicable after a Participant's election to withdraw.
(f) Amounts received from any plan in a trust-to-trust transfer
which were subject to Code Section 401 (k) under such plan
shall be subject to Code Section 401 (k) requirements under
this Plan.
8.04 Hardship Withdrawals. Financial hardship for purposes of Section 8.02
shall mean that a Participant requires a withdrawal of money for an
immediate and heavy financial need. Such withdrawal cannot exceed the
sum of (i) the amount required to meet such need and (ii) any amounts
necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated as a result of the distribution. No withdrawal
shall be permitted unless the hardship cannot reasonably be relieved
from other sources including distributions (other than hardship
withdrawals) and nontaxable loans available under this Plan or any
other plan, through reimbursement or compensation by insurance or
otherwise, by liquidation of assets to the extent such liquidation
would not itself cause an immediate and heavy financial need, by
cessation of all Basic and Supplemental Pre-Tax Contributions or
Supplemental After-Tax Contributions under the Plan, or by borrowing
from commercial sources on reasonable commercial terms. Purchase by a
Participant of a primary residence, the need to prevent eviction or
foreclosure on the primary
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residence of a Participant, post-secondary education tuition, related
fees, or room and board for a Participant or his dependents and any
non-reimbursed medical expense of a Participant or his dependents may
generally be considered situations of heavy financial need, unless
otherwise governed by law or regulation. The Committee may, under rules
established by it which are uniformly applicable to all similarly
situated Participants, determine other circumstances where a
Participant has a heavy financial need and the decision of the
Committee as to whether a Participant satisfies the financial hardship
rule shall be conclusive, unless otherwise governed by law or
regulation.
8.05 Restrictions on Pre-Tax Contribution Distributions. Notwithstanding any
other provision in this Plan to the contrary, a Participant's Pre-Tax
Contribution Account may not be distributed earlier than upon one of
the following events:
(a) The Participant's Retirement, death, Disability or Termination
of Employment;
(b) The termination of the Plan without the establishment of a
successor plan;
(c) A Participant's attainment of age 59 1/2;
(d) A Participant's hardship, restricted as set forth in Section
8.04;
(e) The sale or other disposition of the Company or any Affiliated
Company to an unrelated corporation, which does not maintain
the Plan, of substantially all of the assets used in a trade
or business, but only with respect to Employees who continue
with the acquiring corporation; or
(f) The sale or disposition by the Company or any Affiliated
Company of its interest in a subsidiary to an unrelated entity
which does not maintain the Plan, but only with respect to
Employees who continue employment with the subsidiary.
This Section is intended to comply with the earliest
distribution requirements of Treasury Reg. 1.401 (k)-1(d) and
is not intended to add any forms of distribution not otherwise
allowed under the Plan.
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ARTICLE IX
LOANS
9.01 Loan Provisions. An active Participant may make application to the
Committee to borrow from the Trust Fund and the Committee may permit
such a loan upon the conditions hereinafter specified and any other
rules promulgated by the Committee.
(a) Loans shall be made available to all eligible Participants on
a reasonably equivalent basis and (i) shall not be made
available to highly compensated employees (as defined in
Section 414(q) of the Code) in an amount greater than the
amount made available to other Participants, and (ii) shall
not be permitted for purchasing securities or in any way
financing a securities investment.
(b) The maximum amount of a loan to a Participant shall not exceed
the lesser of (i) 50% of the vested interest in his Account,
or (ii) $50,000, reduced by the highest outstanding loan
balance during the preceding twelve months. The minimum loan
amount is $1,000. Notwithstanding the foregoing, no amount of
a Participant's Account shall be considered available for a
loan if it is subject to a qualified domestic relations order
as such term is defined under Section 414(p)(1)(A) of the
Code.
(c) The Committee shall have complete discretion in determining
lien priorities among the various investments in the Account.
The Committee shall determine the interest rate for each loan,
consistent with the rate being charged by other lending
institutions for a similar loan to an unrelated borrower on
the same date. A loan shall be deemed to be an investment of a
Participant's individual Account and all interest payments and
repayments of principal shall be credited to the Account of
the Participant.
(d) The Participant shall be required to authorize payroll
deductions from his Compensation in an amount sufficient to
repay the loan over its term. Loan repayment amounts shall be
credited to a Participant's Account as of the date of payment
of the Compensation from which the repayment is taken. In the
event of default of the Participant before the loan is repaid
in full, the unpaid balance shall become due and payable and,
to the extent that the outstanding amount is not repaid within
60 days after demand for payment is
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sent, such amount shall be deemed to have been distributed and
the Trustee shall first satisfy the indebtedness from the
amount payable to the Participant before making any payment to
the Participant. In the event of a Participant's death before
the loan is repaid in full, the Participant's estate shall be
the Beneficiary with respect to the outstanding loan
notwithstanding any other deemed or actual Beneficiary
designation and the unpaid loan balance shall be deemed to
have been distributed to the Participant's estate.
Upon a Participant's Termination of Employment, the
Participant can repay any outstanding loan balance in full or
continue to repay the outstanding balance in the same amount
and at the same rate as prior to the Termination of
Employment. Repayments after a Participant's Termination of
Employment shall be effected as determined by the Committee.
(e) During the repayment period for the loan, the Participant
shall be permitted to fully participate in the Plan.
(f) The Participant shall execute such other documents as the
Committee shall request.
(g) Only one loan for each Participant may be outstanding at one
time.
(h) The Committee may make additional rules for loans under the
Plan, provided that such rules are administered in a
nondiscriminatory manner.
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ARTICLE X
ADMINISTRATION OF THE PLAN
10.01 Nabisco Employee Benefits Committee.
(a) The general administration of the Plan and the responsibility for
carrying out the provisions of the Plan shall be placed in the
Committee, consisting of not less than three persons.
(b) Any member of the Committee may resign by delivering his written
resignation to the Secretary of the Committee and such resignation
shall become effective upon the date specified therein. A member
shall be deemed to have resigned if he leaves the active employment
of the Company and all Affiliated Companies.
(c) The Committee shall elect from its members a Chairman, and shall
also elect a Secretary who may, but need not, be one of the members
of the Committee. The Committee may appoint from its members such
committees with such powers as it shall determine, and may authorize
one or more of its members, or any agent, to execute or deliver any
instrument or make any payment in its behalf.
(d) The Committee shall hold meetings upon such notice, at such place or
places, and at such time or times as it may from time to time
determine.
(e) A majority of the members of the Committee shall constitute a quorum
for the transaction of business. All resolutions or other action
taken by the Committee shall be by the vote of a majority of the
members of the Committee present at any meeting or without a meeting
by an instrument in writing signed by a majority of the members of
the Committee.
(f) No member of the Committee shall receive any compensation for his
service as such, and, except as may be required by applicable law,
no bond or other security is required of him in such capacity in any
jurisdiction.
10.02 Administrative Committee.
(a) The Committee, in its discretion, may delegate its administrative
duties and responsibilities to one or more Administrative
Committees each consisting of three or more persons, who shall be
appointed by and serve at the
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pleasure of the Committee and one or more of whom may also be
members of such Committee. Vacancies in the Administrative Committee
shall be filled by the Committee but the Administrative Committee
may act, notwithstanding any vacancies, so long as there are at
least two members of such Committee. The members of an
Administrative Committee shall serve without compensation for their
services as such, but shall be reimbursed by the Company for all
necessary expenses incurred in the discharge of their duties.
(b) Subject to restrictions imposed by the Committee, an Administrative
Committee's powers shall include the following powers:
(i) to interpret Plan provisions with respect to eligibility,
service, vesting and determination of benefits,
(ii) to calculate benefits and authorize the payment of benefits by
the Plan trustees through disbursement accounts as directed by
the Administrative Committee,
(iii) to authorize the payment of routine plan expenses exclusive of
trustee, investment manager, or actuary fees,
(iv) to prepare and/or approve the filing of required governmental
reports,
(v) to maintain Plan and Account records,
(vi) to prepare employee announcements, forms and procedures, and
(vii) to review denials of benefit claims made by Participants or
Beneficiaries.
The Administrative Committee, at its discretion, may delegate to
assistants, including employees in the Company's Employee Benefits
Department, ministerial and clerical duties.
10.03 Authority and Duties of Various Fiduciaries.
(a) The Committee (or the Administrative Committee acting on behalf
of the Committee) shall have the exclusive right to interpret the
Plan and to decide
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any and all matters arising under the Plan or in connection with its
administration, including determination of and eligibility for the
amount of distributions and withdrawals. The Company shall have no
power to direct or modify any interpretations, determinations, or
decisions of the Committee. The Committee may amend the Plan,
subject to the provisions of Section 11.01. The Committee may adopt
rules for the administration of the Plan and the conduct of its
business and such rules shall be consistent with the provisions of
the Plan.
(b) The Committee and any other named fiduciary may each employ counsel,
agents, and such clerical and accounting services as it may require
in carrying out its responsibilities under the Plan. All fiduciaries
shall be entitled to rely upon tables, valuations, certificates,
opinions, and reports furnished by any actuary, accountant, or legal
counsel appointed under the provisions of the Plan.
(c) The Committee shall keep in convenient form such personnel data as
may be necessary for the Plan. The Committee shall prepare,
distribute, and file such reports and notices as may be required by
applicable law or regulation.
(d) The members of the Committee shall use that degree of care,
skill, prudence and diligence that a prudent man acting in a like
capacity and familiar with such matters would use in his conduct
of a similar situation. A member of the Committee shall not be
liable for the breach of fiduciary responsibility of another
fiduciary unless (i) he participates knowingly in, or knowingly
undertakes to conceal, an act or omission of such other
fiduciary, knowing such act or omission is a breach; or (ii) by
his failure to discharge his duties solely in the interest of the
Participants, Surviving Spouses and Beneficiaries for the
exclusive purpose of providing their benefits and defraying
reasonable expenses of administering the Plan not met by the
Company, he has enabled such other fiduciary to commit a breach;
or (iii) he has knowledge of a breach by such other fiduciary and
does not make reasonable efforts to remedy the breach; or (iv)
the Committee improperly allocates duties among its members or
delegates duties to others and fails to properly review such
allocation or delegation of fiduciary responsibilities.
(e) The Company will indemnify and hold harmless the members of the
Committee and any person to whom fiduciary responsibilities are
delegated under this Plan against any cost or expense (including
attorney's fees) or liability (including any sum paid in settlement
of a claim with the approval
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of the Company) arising out of any act or omission to act, except
in the case of willful misconduct.
(f) Whenever, in the administration of the Plan, any discretionary
action is required, the authorized party shall exercise his
authority in a nondiscriminatory manner so that all persons
similarly situated will receive substantially the same treatment.
10.04 Named Fiduciaries.
(a) The Committee and any Administrative Committee shall each constitute
named fiduciaries as such term is defined in ERISA.
(b) Any fiduciary appointed as a named fiduciary by the Company by
resolution or appointed by an appropriate instrument executed by an
officer of the Company thereunto authorized shall also constitute a
named fiduciary in respect of the duties delegated to him or it in
such resolution or instrument.
10.05 Delegation. Any named fiduciary designated herein or appointed as provided
herein, unless precluded from doing so by the terms of such appointment,
may by appropriate instrument designate any person (including any firm or
corporation) to carry out part or all of such fiduciary's responsibilities
and upon such designation the named fiduciary shall have no liability,
except as imposed by applicable law, for any act or omission of such
person. The foregoing does not preclude any other fiduciary to the extent
allowed by ERISA and the terms of his appointment from delegating part or
all of such fiduciary's responsibilities with respect to the Plan.
10.06 Multiple Capacities. Any fiduciary may serve in more than one
fiduciary capacity with respect to the Plan.
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ARTICLE XI
AMENDMENTS, TERMINATION, PERMANENT DISCONTINUANCE
OF CONTRIBUTIONS, MERGER OR CONSOLIDATION
11.01 Amendments. Subject to the provisions hereinafter set forth, the Company
reserves the right at any time and from time to time by action of the
Committee in writing, both retroactively and prospectively, to modify or
amend, in whole or in part, any or all of the provisions of the Plan;
provided, however, that (a) no such modification or amendment shall make
it possible for any part of the funds of the Plan to be used for, or
diverted to, purposes other than for the exclusive benefit of
Participants, Surviving Spouses or Beneficiaries under the Plan; and (b)
no modification or amendment shall be made which has the effect of
decreasing retroactively the Accounts of any Participant or of reducing
the nonforfeitable percentage of the Company Contribution Account of a
Participant below the nonforfeitable percentage thereof computed under the
Plan as in effect on the later of the date on which the amendment is
adopted or becomes effective; and provided further, that any amendment of
the Plan that involves a material increase in benefits for officers of the
Company, a material increase in cost or a material change in design, other
than technical amendments required by law or regulations, must be approved
by the Board of Directors. No amendment shall eliminate or reduce an early
retirement benefit or eliminate an optional form of benefit except as
permitted by law.
11.02 Termination or Permanent Discontinuance of Contributions. The Company may
by action of the Committee terminate the Plan with respect to all
participating locations or any of them or direct complete discontinuance
of contributions hereunder by all or any of the participating location for
any reason at any time. In case of such termination or complete
discontinuance of contributions hereunder, there shall automatically vest
in the appropriate Participants nonforfeitable rights to the Company
Contributions credited to their Accounts, and the total amount in each
Participant's Accounts shall be distributed, as the Committee shall
direct, to him or for his benefit.
11.03 Partial Termination. In the event of a partial termination of the Plan,
the provisions of Section 11.02 shall be applicable only to the
Participants affected by such partial termination.
11.04 Benefits in Case of Merger or Consolidation. The Plan may not be merged or
consolidated with, nor may its assets or liabilities be transferred to,
any other plan unless each Participant, spouse or Surviving Spouse, former
Participant, retired
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Participant or Beneficiary under the Plan would, if the resulting plan
were then terminated, receive a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had then terminated.
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ARTICLE XII
MISCELLANEOUS
12.01 Benefits Payable from Trust Fund. All persons with any interest in the
Trust Fund shall look solely to the Trust Fund for any payments with
respect to such interest.
12.02 Elections. Elections for benefits or Beneficiaries hereunder shall be made
by a Participant in the manner prescribed by the Committee for such
purposes, within the prescribed time limits.
12.03 No Right to Continued Employment. Neither the establishment of the Plan
nor the payment of any benefits thereunder nor any action of the Company,
the Board of Directors, the Committee or the Trustee shall be held or
construed to confer upon any person any legal right to be continued in the
employ of the Company.
12.04 Inalienability of Benefits and Interests. No benefit payable under the
Plan or interest in the Trust Fund shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or charge, and any such attempted action shall be void and no such benefit
or interest shall be in any manner liable for or subject to debts,
contracts, liabilities, engagements or torts of any Participant, Surviving
Spouse or Beneficiary.
12.05 Qualified Domestic Relations Orders.
(a) The provisions in Section 12.04 shall also apply to the creation,
assignment or recognition of aright to any benefit payable with
respect to a Participant pursuant to a domestic relations order,
unless such order: (i) is determined to be a qualified domestic
relations order, as defined in Section 414(p) of the Code, or (ii)
was entered before January 1, 1985.
(b) If the Committee is in receipt of a domestic relations order, or
the Committee is otherwise aware that a qualified domestic
relations order affecting a Participant's account is being
sought, the Committee may take such action as necessary
(including, without limitation, restricting the participant's
ability to withdraw or borrow funds in his or her Accounts) in
order to administer the Plan consistently with the terms of any
such qualified domestic relations order.
12.06 Payments for Exclusive Benefit of Participants. Payments of benefits in
respect of the interest of a Participant under the Plan to any person
other than such Participant
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in accordance with the provisions of the Plan shall be deemed to be for
the exclusive benefit of such Participant.
12.07 New Jersey Law to Govern. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance with the laws of the State of New Jersey, except
to the extent such laws are pre-empted by ERISA.
12.08 No Guarantee. Neither the Company nor the Trustee guarantee the Trust
Fund in any manner against loss or depreciation.
12.09 Address of Record. Each individual or entity with an actual or potential
interest in the Plan shall file and maintain a current record address with
the Plan. Communications mailed by the Company, Trustee, or Committee to
such record address fulfills all obligations to provide required
information to Participants, including former employees, Surviving Spouses
and Beneficiaries, in regard to the Plan. If no record address is filed,
it may be presumed that the address used by the Company in forwarding
statements of a Participant's Account is the record address.
12.10 Unlocated Spouse. Notwithstanding the consent requirement in Section 1.08,
if the Participant establishes to the satisfaction of the Committee that
such written consent cannot be obtained because there is no spouse or the
spouse cannot be located, a waiver shall be deemed to be valid. Any
consent necessary under Section 1.08 will be valid only with respect to
the spouse who signs the consent, or in the event of a deemed election,
the designated spouse.
12.11 Agent for Process. The Secretary of Kraft Foods North America, Inc.
shall be the designated agent for the service of legal process.
12.12 Payment in the Event of Incompetency. If the Committee finds that a
Participant or other person entitled to a benefit is unable to care for
his affairs because of illness or accident or is a minor, the Committee
may direct that any benefit payment due the Participant, unless claim
shall have been made therefor by a duly appointed legal representative, be
paid to his spouse, a child, or a parent for the benefit of such
Participant, and any such payment so made shall be a complete discharge of
the liabilities of the Plan therefor.
12.13 Transfer of Accounts to This Plan.
(a) Affiliated Plans. If a participant of a U.S. qualified
Affiliated Plan becomes eligible to be a Participant of this Plan
before receiving a distribution from
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the Affiliated Plan, his Account under the Affiliated Plan shall be
transferred to this Plan by way of a trustee-to-trustee transfer.
This Plan shall be considered as a successor plan with regard to
such employee and all Affiliated Plan contributions transferred
shall be treated as though they were made under this Plan for
purposes of vesting, withdrawals and distributions. In the absence
of an applicable Participant election, assets transferred from an
Affiliated Plan shall be invested in the equivalent investment funds
under this Plan or, if an equivalent investment fund does not exist,
then the assets from the Affiliated Plan shall be invested in the
Interest Income Fund; and the accounts of participants and
beneficiaries under the Affiliated Plan will become their Accounts
as Participants and Beneficiaries under this Plan, effective as of
the transfer date. Once a Participant has received a distribution
from the Affiliated Plan, it shall be treated as a Prior Plan for
purposes of this Section 12.13.
(b) Prior Plans. This Plan does not accept trustee-to-trustee
transfers from a Prior Plan. However, the Trustee is authorized
to accept as a Rollover Contribution any contribution that meets
the following criteria:
(i) the contribution is made by, or on behalf of, an
Eligible Employee;
(ii) the contributed amounts were distributed from the Prior Plan
as an "eligible rollover distribution"(as defined in Section
7.06);
(iii) the contribution is made either (a) as a direct rollover from
the Prior Plan to this Plan, or (b) by the Eligible Employee,
within 60 days after the date such distribution is received by
the Eligible Employee;
(iv) if applicable, the spousal consent requirements of
Code Section 417(x)(2) were complied with; and
(v) such Rollover Contribution meets any other conditions as
determined necessary by the Trustee or Committee to comply
with Code Section 408(d)(3).
Rollover Contributions shall be held in the Eligible Employee's
Rollover Contribution Account. The Eligible Employee is at all
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times fully vested with respect to his Rollover Contribution
Account.
(c) RJR Plan. In connection with the spin-off of RJR Nabisco, Inc.
by RJR Nabisco Holdings Corp. effective as of June 14, 1999,
certain individuals who were participating in the RJR Plan
immediately prior to the spin-off, ceased to participate in the
RJR Plan effective as of such date and, as of such date,
commenced participation in this Plan (such individuals being
hereinafter referred to as "Transferred Nabisco Employees". In
connection with such commencement of participation in the Plan,
this Plan shall accept a transfer of such Transferred Nabisco
Employees' accounts (including any outstanding participant loans)
under the RJR Plan in accordance with the provisions of ARTICLE
XV. In addition, this Plan shall accept a transfer of the
Accounts and any unused forfeiture amounts that are attributable
to the Accounts of any individual who terminated employment with
Nabisco, Inc. or an affiliate (other than an affiliate that is a
participating company under the RJR Plan) prior to June 14, 1999,
in accordance with the provisions of ARTICLE XV. If an individual
who is a participant in the RJR Plan becomes an Employee after
June 14, 1999 and elects to transfer amounts from the RJR Plan to
this Plan, this Plan shall accept a transfer of such Employee's
accounts (including any outstanding participant loans) under the
RJR Plan in accordance with the provisions of ARTICLE XV.
(d) Certain 401(k) Plans. With respect to an Eligible Employee who,
pursuant to an Asset Purchase Agreement entered into on November
19, 1999, has an accrued benefit from a qualified plan maintained
by Favorite Brands International, Inc. transferred to the Nabisco
Retirement Savings Plan (the "Savings Plan") or an accrued
benefit from a qualified plan maintained by Trolli, Inc.
transferred to the Nabisco Retirement Plan (the "Retirement
Plan") and who becomes a Participant before receiving a
distribution from the Savings Plan, as applicable, including any
outstanding loan balances, shall be transferred to this Plan by
way of a trustee-to-trustee transfer.
With respect to an Eligible Employee who previously was a
participant in the Stella D'Oro Biscuit Co., Inc. Salary
Reduction Plan (For Employees Who are Members of B.C. & T.C.W.
Local 50) (the "Local 50 Plan") or the Stella D'Oro Biscuit Co.,
Inc. Salary Reduction Plan for Employees of Local 550 (the "Local
550 Plan") and who becomes a Participant before receiving a
distribution from the Local 50 Plan, his account balance in the
Local 50 Plan or the Local 550 Plan, as applicable, including any
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outstanding loan balances, shall be transferred to this Plan by way
of a trustee-to-trustee transfer.
All service credited under the Savings Plan, the Retirement Plan,
the Local 50 Plan and the Local 550 Plan shall be taken into account
for all purposes under the Plan. In the absence of an applicable
Participant election, assets transferred from the Savings Plan, the
Retirement Plan, the Local 50 Plan or the Local 550 Plan shall be
invested in the equivalent investment funds under this Plan or, if
an equivalent investment funds does not exist, then the assets from
the Savings Plan, the Retirement Plan, the Local 50 Plan or the
Local 550 Plan shall be invested in the Interest Income Fund. Once a
Participant has received a distribution from the Savings Plan, the
Retirement Plan, the Local 50 Plan or the Local 550 Plan, it shall
be treated as a Prior Plan for purposes of this Section 12.13.
12.14 Transfer Of Accounts from this Plan to an Affiliated Plan. If a
Participant transfers employment from the Company to an Affiliated Company
and thereafter becomes eligible to participate in an Affiliated Plan, the
assets in his Accounts in the Plan shall be transferred to such Affiliated
Plan in accordance with the terms thereof.
12.15 Direct or Indirect Transfer. With respect to any Eligible Employee who is
actively employed, the Plan shall accept any "eligible rollover
distribution"(as defined in Section 7.06) from a defined benefit plan,
money purchase pension plan (including a target benefit plan), stock bonus
plan, or profit sharing plan or a conduit individual retirement account.
12.16 Payment of Expenses.
(a) Direct charges and expenses arising out of the purchase or sale of
securities, and taxes levied on or measured by such transactions may
be charged against the Account(s) or Investment Fund for which the
transactions took place.
(b) Direct charges or expenses arising out of the establishment and
maintenance of any funding account with an insurance company or
other financial institution may be charged against the Account(s) or
Investment Fund(s) for which the funding account is established.
(c) Investment Manager fees arising out of the establishment and
maintenance of any investment Fund may be charged against the
Investment Fund for which the Investment Manager fees are incurred.
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(d) Trustee fees attributable to the Trust, auditor fees for the plan,
and IRS user fees may be paid directly from the Trust. The Committee
shall determine the manner in which these fees shall be charged
against the Accounts or Investment Funds held in the Trust.
(e) Any other charges or expenses relating to the maintenance or
administration of the Plan that are permitted under applicable law
to be paid from the Trust including, but not limited to,
recordkeeping fees, may be paid directly from the Trust. The
Committee shall determine the manner in which these charges and
expenses shall be charged against the Accounts or Investment Funds
held in the Trust.
(f) Any of the expenses in (a)-(e) above may, at the option of the
Company, be paid wholly or partly directly by the Company.
(g) The Company shall pay all other expenses reasonably incurred to
administering the Plan.
(h) The Committee may authorize additional expenses to be charged
directly from the Trust; provided that payment of such additional
expenses from the Trust is permitted under applicable law, such fees
are reasonable, and that any change in fee policy is communicated to
Participants in a timely manner.
12.17 Transfer of Accounts to the R. J. Reynolds Tobacco Company Capital
Investment Plan. The assets in the Accounts (including any outstanding
Participant loans) of any individual who terminates employment with the
Company or an Affiliated Company and commences employment with R. J.
Reynolds Tobacco Company (or its affiliates) may (upon the election of
such individual) be transferred to the corresponding accounts under the
RJR Plan.
12.18 Headings. Headings of Articles and Sections of the Plan are inserted
for convenience of reference. They constitute no part of the Plan.
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ARTICLE XIII
CLAIMS PROCEDURE
13.01 Initial Determination. The initial determination of a Participant's,
Surviving Spouse's or Beneficiary's eligibility for, and the amount of, a
benefit shall be made by the Administrative Committee, or in its absence,
the Committee, which shall mail or deliver to each covered individual who
has filed an effective claim for a benefit a written statement of the
amount of his benefit or a notice of denial of his claim on or before the
90th day following the Committee's receipt of such claim. If special
circumstances require additional time for processing the claim, the
Administrative Committee, or in its absence, the Committee, may delay
issuing its statement or notice for an additional 90 days provided that
the Participant, Surviving Spouse or Beneficiary is notified of the
circumstances necessitating the delay and the date the Committee expects
to render its final opinion. A claim for benefits is not effective unless
filed in the manner prescribed by the Committee. Each notice of whole or
partial denial of claimed benefits shall set forth the specific reasons
for the denial, the time within which an appeal must be made by the
Participant, Surviving Spouse or Beneficiary or his duly authorized
representative, and shall contain such other information as may be
required by applicable law. If a statement or notice is not issued within
the prescribed period, the claim shall be deemed denied.
13.02 Review. Each Participant, Surviving Spouse or Beneficiary whose claim for
benefits has been wholly or partially denied shall have such rights to
review documents and submit comments as applicable law and regulations of
the Committee may provide, and shall also have the right to request the
Committee to review such denial; such request to be made on forms
prescribed by the Committee. A request for review shall be filed by the
Participant, Surviving Spouse or Beneficiary or his duly authorized
representative on or before the 60th day following the earlier of the
Participant's, Surviving Spouse's or Beneficiary's receipt of notice of
denial of his claim or the expiration of the prescribed period for issuing
a statement of benefits or notice of denial. The Committee shall issue a
written statement on or before the 60th day following its receipt of such
request stating the Committee's decision on review and the reasons
therefore, including specific references to pertinent Plan provisions on
which the decision is based, and any other information required by
applicable law. If special circumstances require additional time for
processing such review, the Committee may delay issuing its decision for
an additional 60 days provided that the Participant, Surviving Spouse or
Beneficiary is notified of such circumstances and the date the Committee
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expects to render its final decision. If the decision is not issued within
the prescribed period, the appeal shall be deemed denied.
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ARTICLE XIV
LIMITATION ON BENEFITS
14.01 Code Section 415 Limits.
(a) The following definitions shall be applied in construing this
Section.
(1) Defined Benefit Plan means any defined benefit plan (as
defined in Section 415(k) of the Code) maintained by any
Affiliated Company.
(2) Related Plan means any Defined Contribution Plan (as defined
in Section 415(k) of the Code), other than the Plan,
maintained by any Affiliated Company or any individual account
maintained for voluntary contributions made by a Participant
under a Defined Benefit Plan.
(3) Total Compensation means all remuneration paid to an Employee
by any Affiliated Company, as determined pursuant to the
provisions of Treasury Regulation Section 1.415-2(d)(11)(i).
(4) Annual Addition means the sum of the following amounts
credited to a Participant's account for the limitation year:
(A) employer contributions;
(B) employee contributions;
(C) forfeitures; and
(D) amounts allocated to an individual medical account, as
defined in Section 415(1)(2) of the Code, which is part
of a pension or annuity plan maintained by the employer
and amounts derived from contributions paid or accrued
after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement
medical benefits allocated to the separate account of a
key employee, as defined in Section 419A(d)(3) of the
Code, under a welfare
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benefit fund, as defined in Section 419(e) of the Code,
maintained by the employer.
(b) Limitations Applicable to Participants in Defined Contribution
Plans Only
(i) The Annual Addition credited to a Participant under the Plan
or any Related Plan for any Limitation Year must not exceed
the lesser of (1) $30,000 (or, if greater, 25% of the defined
benefit dollar limitation set forth in Section 415(b)(1) of
the Code as in effect for the Plan Year) or (2) 25% of the
Participant's Total Compensation for such Limitation Year.
(ii) Excess Annual Additions. If the amount of Annual Additions
which are credited to a Participant under this Plan for any
Limitation Year exceeds the maximum amount permitted under
this Section ("Excess Annual Additions", and if such excess
was caused by the allocation of forfeitures, a reasonable
error in estimating a Participant's annual compensation, a
reasonable error in determining the amount of Basic
Contributions and Supplemental Pre-Tax Contributions that may
be made with respect to the Participant under the limitations
of this Section, or other limited facts and circumstances
which the Commissioner of Internal Revenue finds justified,
the Excess Annual Additions may be reduced for such Limitation
Year in the following manner:
(A) Supplemental After-Tax Contributions (and any income
attributable thereto ) made by the Participant shall be
distributed to the Participant to the extent such
distributions reduce the Excess Annual Additions. Any
Supplemental After-Tax Contributions that are so
distributed shall not be considered as an Annual
Addition for the Limitation Year and shall be
disregarded for purposes of Section 3.08.
(B) If there remains any Excess Annual Additions after the
application of subparagraph (i) of this paragraph,
Supplemental Pre-Tax Contributions (and any income
attributable thereto) made by the Participant shall be
distributed to the Participant to the extent that such
distributions reduce the Excess Annual
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Additions. Any Supplemental Pre-Tax Contributions
that are so distributed shall not be considered as an
Annual Addition for the Limitation Year and shall be
disregarded for purposes of Sections 3.07 and 3.08.
(C) If there remains any Excess Annual Additions after the
application of subparagraphs (i) and (ii) of this
paragraph, Basic Contributions (and any income
attributable thereto) made by the Participant shall be
distributed to the Participant to the extent that such
distributions reduce the Excess Annual Additions. Any
Basic Contributions that are so distributed shall not be
considered as an Annual Addition for the Limitation Year
and shall be disregarded for purposes of Sections 3.07
and 3.08.
(D) If there remains any Excess Annual Additions after the
application of subparagraphs (i), and (ii) and (iii) of
this paragraph, such Excess Annual Additions shall be
used to reduce Company Contributions for the next
Limitation Year (and succeeding Limitation Years, as
necessary) for the Participant. However, if the
Participant is not participating in the Plan for the
applicable Limitation Year, the Excess Annual Additions
shall be held in a suspense account for that Limitation
Year and allocated in the next Limitation Year to all
remaining Participants in the same proportion as the
Compensation paid to such Participants during such
Limitation Year. Furthermore, the Excess Annual
Additions shall be used to reduce Company Contributions
for the next Limitation Year (and succeeding Limitation
Years, as necessary) for all of such Participants. Any
Excess Annual Additions that are treated in accordance
with this subparagraph (iv) for the Limitation Year
shall not be considered as Annual Additions for such
Limitation Year.
(E) If the suspense account is in existence at any time
during the Limitation Year in accordance with this
Section, investment gains and losses and other
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income and expenses shall not be allocated to the
suspense account.
(F) If this Plan is terminated and at the time of such
termination a balance remains in the suspense account
which, because of the limitations imposed by this
Section, cannot be credited to any Participant, such
balance shall revert to the Company.
(c) Adjustments on Account of Excess Credits. If it is determined at any
time that the Defined Contribution Fraction and the Defined Benefit
Fraction exceed 1.0, the maximum benefit under any applicable
Defined Benefit Plan will be adjusted to the extent necessary to
satisfy the combined fraction limitation.
(d) In addition to other limitations set forth in the Plan and
notwithstanding any other provisions of the Plan, contributions (and
contributions to all other Defined Contribution Plans required to be
aggregated under this Plan under the provisions of Section 415 of
the Code), shall not be made in an amount in excess of the amount
permitted under Section 415 of the Code.
14.02 Code Section 416 Limits. This Section is intended to ensure the Plan's
compliance with Section 416 of the Code. It shall be applicable to
Participants for any Plan Year with respect to which the Plan is
top-heavy.
(a) Definitions. The following definitions shall be applied in
construing this Section.
(i) Top-Heavy Plan means any plan maintained by the Company or
an Affiliated Company if, as of the Determination Date, the
Top-Heavy Ratio for the plan and all other plans in the
Aggregation Group exceeds 60%. The plan will be deemed a
"super top-heavy plan" if, as of the Determination Date,
the Plan would meet the test specified above for being a
Top-Heavy Plan if 90% were substituted for 60% in each
place it appears in this subsection(i).
(ii) Determination Date means the last day of the preceding Plan
Year (or, in the case of the first plan year of a plan, the
last day of such Plan Year). When plan aggregation is
required, calculation of accrued benefits as of the
Determination Date which fall within the same calendar year
will be used.
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(iii) Valuation Date means the same date as the Determination
Date.
(iv) Key Employee means each Employee or former Employee who is, at
any time during the Plan Year ending on the Determination
Date, or was, during any one of the four Plan Years preceding
the Plan Year ending on the Determination Date, any one or
more of the following:
(1) An officer of the Company or an Affiliated Company
having an annual compensation greater than 50% of the
dollar limitation in effect under Code Section
415(b)(I)(A) for any Plan Year;
(2) One of 10 Employees having annual compensation from the
Company or an Affiliated Company of more than the dollar
limitation in effect under Code Section 415(c)(1)(A) and
owning (or considered as owning within the meaning of
Code Section 318) both the largest interests in the
Company or an Affiliated Company and a 1/2% ownership
interest;
(3) Any person owning (or considered as owning within the
meaning of Code Section 318) more than 5% of the
outstanding stock of the Company (or stock having more
than 5% of the total combined voting power of all stock
of the Company); or
(4) Any person who has annual compensation of more than
$150,000 and would be described in subsection (3) above,
if "1%" was substituted for "5%"
For purposes of determining whether a person is an officer in
subsection (1) above, in no event will more than 50 Employees
be considered Key Employees solely by reason of officer
status. In addition, persons who are merely nominal officers
will not be treated as Key Employees solely by reason of their
titles as officers. For purposes hereof, compensation is as
defined in Section 1.415-2(d) of the Income Tax Regulations.
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(v) Non-Key Employee means any Participant in the Plan (including
a beneficiary of such Participant) who is not a Key Employee.
(vi) Aggregation Group means all plans that are subject to Required
Aggregation (in accordance with subsection 14.02(b)). The
Aggregation Group may also include plans subject to Permissive
Aggregation (in accordance with subsection 14.02(c)), if such
aggregation would eliminate the status of plans in the
Aggregation Group as Top-Heavy Plans.
(b) Required Aggregation. This Plan and all other qualified plans,
including any terminated plans, maintained by the Company or an
Affiliated Company which include a Key Employee must be
aggregated to determine if the group as a whole is top-heavy. In
addition, each other qualified plan maintained by the Company or
an Affiliated Company which enables any plan in which a Key
Employee is a Participant to meet the requirements of Sections
410(a)(4) and 410 of the Code must be aggregated.
(c) Permissive Aggregation. The Company may include other plans
maintained by the Company or an Affiliated Company which when
considered as a group with the required aggregation group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410
of the Code, to determine if the group as a whole is top-heavy,
provided such plans are comparable in benefits or contributions.
(d) Top-Heavy Ratio.
(i) The top-heavy ratio is a fraction, the numerator of which
is the sum of account balances under the defined
contribution plans in the Aggregation Group for all Key
Employees and the present value of accrued benefits under
the defined benefit plans for all Key Employees, and the
denominator of which is the sum of the account balances
under the defined contribution plans in the Aggregation
Group for all Participants and the present value of accrued
benefits under the defined benefit plans in the Aggregation
Group for all Participants. Both the numerator and
denominator are adjusted to include any distributions made
in the five-year period ending on the "Determination Date"
and any contributions due but unpaid as of the
Determination Date.
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(ii) The value of account balances and the present value of accrued
benefits will be determined as of the most recent Valuation
Date. The account balances and accrued benefits of a
Participant who is not a Key Employee but who was a Key
Employee in a prior year will be disregarded. The calculation
of the top-heavy ratio, and the extent to which distributions,
rollovers and transfers are taken into account will be made in
accordance with Section 416 of the Code and the regulations
thereunder.
(iii) If any Participant has not performed an Hour of Service for
the Company at any time during the five-year period ending on
the Determination Date, the account of such Participant shall
not be taken into account.
(e) Minimum Vesting. For any Plan Year in which the Plan is a top-heavy
plan as determined pursuant to Section 416 of the Code, a
Participant will have a nonforfeitable right to a percentage of the
Participant's Accounts derived from Company Contributions as set
forth below if such schedule is more favorable to the Participant
than the vesting schedule under Section 7.02.
Years of Service Completed
For Vesting Purposes Vested Interest
-------------------- ---------------
Less than two 0%
Two but less than three 20%
Three but less than four 40%
Four but less than five 60%
Five or more 100%
The above vesting schedule applies to all benefits the meaning of
Section 411(a)(7) of the Code, including benefits accrued before the
effective date of Section 416 of the Code and benefits accrued
before the Plan became top-heavy. However, any Participants who have
completed at least three (3) years of service for vesting purposes
as of the last day of the last Plan Year (a) before the Plan became
top-heavy or (b) in which the Plan is top-heavy, shall have the
right to elect to continue to have the vesting schedule in effect on
the last day of such Plan Year applied to all of his benefits under
the Plan. Further, no reduction in vested benefits may occur in the
event the Plan's status as top-heavy changes for any Plan Year.
53
61
(f) Minimum Required Contribution. It is intended that the Company or
an Affiliated Company will meet the minimum contribution
requirements of Section 416(c) of the Code by providing a minimum
contribution (which may include forfeitures otherwise allocable)
without regard to any Social Security contributions for such Plan
Year for each Participant who is a non-key employee in an amount
equal to at least 3% of such Participant's compensation (as defined
in Section 1.415-2(d) of the Income Tax Regulations) for such Plan
Year, Such 3% minimum contribution requirement shall be increased to
4% for any year in which the Company or an Affiliated Company also
maintains a defined benefit pension plan if necessary to avoid the
application of Section 416(h)(1) of the Code, relating to the
special adjustments to Section 415 limits of the Code for top-heavy
plans, if the adjusted limitations of Section 416(h)(1) would
otherwise be exceeded if such minimum contribution were not so
increased. The minimum contribution required shall be made to any
non-key employee who is still employed on the last day of the plan
year regardless as to the number of hours of Service performed
during the year and regardless of the employee's level of
compensation.
A Non-Key Employee who is also covered under a defined benefit plan
that is part of the same Aggregation Group shall receive his minimum
benefit under the defined benefit plan, offset by the actuarially
determined value of the minimum contribution made under this Plan.
If for the Plan Year the Plan becomes a super top-heavy plan, then
the denominator of both the defined contribution plan fraction and
the defined benefit plan fraction shall be calculated as set forth
in Section 14.01 (b) for the limitation year ending in such Plan
Year by substituting "1.0" for "1.25" in each place such figure
appears.
The percentage minimum contribution required hereunder shall in no
event exceed the percentage contribution made for the Key Employee
for whom such percentage is the highest for the Plan Year after
taking into account contributions or benefits under other qualified
plans in this Plan's aggregation group providing no other defined
benefit plan uses the defined contribution plan to satisfy Code
Section 401 (a) as provided in Section 416(c)(2)(B)(ii) of the Code.
54
62
ARTICLE XV
SPECIAL PROVISIONS PERTAINING TO TRANSFERS
FROM THE RJR NABISCO CAPITAL INVESTMENT PLAN
Amounts transferred from accounts of the RJR Plan shall be accounted for
in accordance with the following rules:
15.01 Amounts transferred from the RJR Plan to this Plan consisting of
Participant's "Basic Contribution Account" (as such term was defined in
the RJR Plan) attributable to elective deferrals made pursuant to Section
401 (k) of the Code and any earnings attributable to such elective
deferrals, shall be credited to such Participant's Basic Contribution
Account under this Plan.
15.02 Amounts transferred from the RJR Plan to this Plan consisting of
Participant's "Supplemental Pre-Tax Contribution Account" (as such term
was defined in the RJR Plan) attributable to elective deferrals made
pursuant to Section 401 (k) of the Code and any earnings attributable to
such elective deferrals, shall be credited to such Participant's
Supplemental Pre-Tax Contribution Account under this Plan.
15.03 Amounts transferred from the RJR Plan to this Plan consisting of a
Participant's "Supplemental After-Tax Contribution Account"(as such term
was defined in the RJR Plan), shall be credited to such Participant's
Supplemental After-Tax Contribution Account under this Plan.
15.04 Amounts transferred from the RJR Plan consisting of a Participant's
"Company Contribution Account" as such term was defined in the RJR Plan)
attributable to "matching contributions" (as defined under Code Section
401(m)(4)(A)) and any earnings attributable to such matching
contributions, shall be credited to such Participant's Company
Contribution Account under this Plan.
15.05 Amounts transferred from the RJR Plan consisting of a Participant's
"Rollover Account" (as such term was defined in the RJR Plan), shall be
credited to such Participant's Rollover Account under this Plan.
15.06 Amounts transferred from the RJR Plan consisting of a Participant's
"After-Tax Basic Contribution Account" (as such term was defined in the
RJR Plan), shall be credited to such Participant's After-Tax Basic
Contribution Account under this Plan.
55
63
15.07 All applicable "benefit options" (within the meaning of Section
411(d)(6)(B)(ii) of the Code and the Treasury Regulations thereunder) that
are attributable to any amounts transferred from the RJR Plan shall
continue to apply with respect to such transferred amounts held under this
Plan.
15.08 Any outstanding loan transferred to the Plan from the RJR Plan will
continue to be held on the same terms as those contained in the loan
agreement between the Participant and the RJR Plan, except that the Plan
will be substituted as the obligee of the loan.
15.09 Any unused forfeiture amounts that are attributable to the account of any
individual who terminated employment with the Company prior to June 14,
1999 shall be transferred to this Plan and held as unused forfeitures
under this Plan.
15.10 The provisions of Section 6.05, relating to the restoration of
forfeitures, shall apply to any individual who: (i) was a participant in
the RJR Plan, (ii) terminated employment with the Company prior to June
14, 1999, (iii) received a distribution of his vested interest under the
RJR Plan, (iv) was re-employed by the Company or any Affiliated Company on
or after June 14, 1999 prior to completing five (5) consecutive Breaks in
Service (including, for this purpose, any breaks in service that might
have occurred under the RJR Plan), and (v) repays the full amount
previously distributed to him within five (5) years of the date he is
re-employed by the Company or any Affiliated Company.
15.11 All applicable "benefit options" (within the meaning of Section
411(d)(6)(B)(ii) of the Code and the Treasury Regulations thereunder)
that are attributable to amounts transferred from the Stella D'Oro
Biscuit Co., Inc. 401 (k) Profit Sharing Plan, the Stella D'Oro Biscuit
Co., Inc. Profit Sharing Plan, the Cornnuts, Inc. Profit Sharing and
Retirement Plan or any other qualified plan from which amounts were
transferred to the RJR Plan and subsequently transferred to this Plan
pursuant to this ARTICLE XV, shall continue to apply with respect to
such transferred amounts held under this Plan.
56
64
CIP -- COMPENSATION
SCHEDULE A - COMPENSATION
I. The following payments are included as Compensation for all
Participants:
- Basic Salary
- Overtime
- Shift Premium Pay
- Commissions
- Sales incentive payments paid in cash
- Vacation Pay (except as noted in II)
- Management Incentive Plan bonus or any similar management bonus if (i)
payment is made on a non-deferred basis and (ii), the total aggregate
amount of such bonuses do not exceed the regular AIAP award for the
plan year and/or the maximum award payable under the AIAP.
- Compensation deferred pursuant to salary reduction arrangement under
Code Sections 401 (k), 125 or, effective as of December 31, 2001,
132(f)(4) to which the Company makes contributions.
- Lump Sum payments in lieu of an increase in basic salary.
- Payments under the Kraft Incentive Plan
- Amounts paid under the Field Operation Incentive Plan
- Cash denominated awards under the LTIP which are granted in lieu of
regular AIAP awards or on a contractually required annual basis.
- Salary continuation payments paid in semi-monthly installments
- All U.S. based payroll amounts whether or not the employee is U.S.
based.
57
65
II. The following payments are not included as Compensation for
Participants:
Any form of compensation not listed in Part I, and specifically excluding
the following:
- Vacation Pay taken in lieu of vacation
- Moving expenses
- Housing differential
- Bonus or other award payment which have been previously deferred
- Change of control bonus
- Stay-on/completion bonus
- Special incentive or bonus payments paid on an irregular or one-time
basis unless designated for inclusion by the CEO
- Commendation Awards, Contest Awards or any other bonus paid on an
irregular or one time basis (Nabisco, Inc.)
- Company contributions under any employee benefit plan (except
contributions on account of employee elections to defer salary under
Code Sections 401(k), 125 or, effective as of December 31, 2001,
132(f)(4).
- Amounts deferred pursuant to the Nabisco Scholastic Savings Plan.
58
EX-4.2
4
y53602ex4-2.txt
NABISCO, INC. EMPLOYEE SAVINGS PLAN
1
NABISCO, INC.
EMPLOYEE SAVINGS PLAN
(Restated Effective December 31, 2000)
2
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS..........................................................1
1.01 Account....................................................1
1.02 Administrative Committee...................................1
1.03 Affiliated Company.........................................1
1.04 Affiliated Plan............................................1
1.05 After-Tax Contribution.....................................1
1.06 Automatic Enrollment Date..................................1
1.07 Base Pay...................................................1
1.08 Basic Contributions........................................2
1.09 Basic Contribution Account.................................2
1.10 Beneficiary................................................2
1.11 Board of Directors.........................................2
1.12 Code.......................................................2
1.13 Committee..................................................3
1.14 Company....................................................3
1.15 Company Contributions......................................3
1.16 Company Contribution Account...............................3
1.17 Disability.................................................3
1.18 Effective Date.............................................3
1.19 Eligible Employee..........................................3
1.20 Employee...................................................4
1.21 Employer...................................................4
1.22 Enrollment Date............................................4
1.23 ERISA......................................................4
1.24 Holland Participant........................................4
1.25 Hour of Service............................................4
1.26 Investment Fund or Funds...................................4
1.27 Job Elimination............................................5
1.28 Nabisco Controlled Group...................................5
1.29 Participant................................................5
1.30 Period of Severance........................................5
i
3
1.31 Plan.......................................................5
1.32 Plan Year..................................................5
1.33 Pre-Tax Contribution.......................................5
1.34 Prior Plan.................................................5
1.35 Rollover Contributions.....................................5
1.36 Rollover Contribution Account..............................6
1.37 Service....................................................6
1.38 Severance Date.............................................6
1.39 Supplemental Contributions.................................7
1.40 Supplemental Contribution Account..........................7
1.41 Surviving Spouse...........................................7
1.42 Termination of Employment..................................7
1.43 Trustee....................................................7
1.44 Trust Fund.................................................7
1.45 Valuation Date.............................................8
ARTICLE II - PARTICIPATION.......................................................9
2.01 Eligibility................................................9
2.02 Participation..............................................9
2.03 Participant Status........................................10
ARTICLE III - CONTRIBUTIONS.....................................................11
3.01 Basic Contributions.......................................11
3.02 Supplemental Contributions................................11
3.03 Pre-Tax Contributions.....................................11
3.04 Change in Participant Contributions.......................12
3.05 Suspension of Participant Contributions...................12
3.06 Company Contributions.....................................13
3.07 Code Section 401(k) and 401(m) Nondiscrimination Tests....15
3.08 Restrictions on Pre-Tax Contributions.....................16
3.09 Qualified Military Service................................17
ARTICLE IV - TRUST FUND AND INVESTMENT FUNDS....................................18
4.01 The Trust Agreement.......................................18
ii
4
4.02 The Trustee...............................................18
4.03 Separate Funds............................................18
4.04 Investment Funds..........................................18
4.05 Temporary Investment......................................18
4.06 Investment of Participant Contributions...................18
4.07 Voting by Participants....................................19
4.08 Investment Managers.......................................19
4.09 Participant Responsibility for Selection of Funds.........19
ARTICLE V - ACCOUNTS............................................................21
5.01 Valuation of Accounts.....................................21
5.02 Valuation Upon Transfer, Withdrawal or Distribution.......21
5.03 Statement of Accounts.....................................21
ARTICLE VI - VESTING AND FORFEITURES............................................22
6.01 Vesting of Participant's Contributions....................22
6.02 Vesting of Company Contributions..........................22
6.03 Forfeiture on Termination of Employment...................23
6.04 Disposition of Forfeitures................................23
6.05 Restoration of Forfeitures................................23
ARTICLE VII - DISTRIBUTIONS.....................................................24
7.01 Distribution of Benefits..................................24
7.02 Proof of Death and Right of Beneficiary...................26
7.03 Completion of Appropriate Forms...........................26
7.04 Investment Pending Distribution...........................26
7.05 Direct Rollovers..........................................26
ARTICLE VIII - WITHDRAWAL PRIOR TO TERMINATION OF
EMPLOYMENT AND SPECIAL PRE-TAX
CONTRIBUTION RULES...............................................28
8.01 Election to Withdraw from Accounts........................28
8.02 Withdrawal of After-Tax and Company Contributions.........28
8.03 Rules Applicable to Withdrawals Prior to
Termination of Employment.................................28
iii
5
8.04 Hardship Withdrawals......................................29
8.05 Restrictions on Pre-Tax Contribution Distributions........29
ARTICLE IX - LOANS..............................................................31
9.01 Loan Provisions...........................................31
ARTICLE X - ADMINISTRATION OF PLAN..............................................33
10.01 Nabisco Employee Benefits Committee.......................33
10.02 Administrative Committee..................................33
10.03 Authority and Duties of Various Fiduciaries...............34
10.04 Named Fiduciaries.........................................35
10.05 Delegation................................................36
10.06 Multiple Capacities.......................................36
ARTICLE XI - AMENDMENTS, TERMINATION, PERMANENT
DISCONTINUANCE OF CONTRIBUTIONS, MERGER
OR CONSOLIDATION...................................................37
11.01 Amendments................................................37
11.02 Termination or Permanent Discontinuance of Contributions..37
11.03 Partial Termination.......................................37
11.04 Benefits in Case of Merger or Consolidation...............37
ARTICLE XII - MISCELLANEOUS.....................................................38
12.01 Benefits Payable from Trust Fund..........................38
12.02 Elections.................................................38
12.03 No Right to Continued Employment..........................38
12.04 Inalienability of Benefits and Interests..................38
12.05 Qualified Domestic Relations Orders.......................38
12.06 Payments for Exclusive Benefit of Participants............38
12.07 New Jersey Law to Govern..................................38
12.08 No Guarantee..............................................39
12.09 Address of Record.........................................39
12.10 Unlocated Spouse..........................................39
12.11 Agent for Process.........................................39
12.12 Payments in the Event of Incompetency.....................39
iv
6
12.13 Transfer of Accounts to this Plan.........................39
12.14 Transfer of Plan Assets to an Affiliated Plan.............40
12.15 Headings..................................................41
12.16 Payment of Expenses.......................................41
12.17 Direct or Indirect Transfer...............................41
ARTICLE XIII - CLAIM PROCEDURE..................................................43
13.01 Initial Determination.....................................43
13.02 Review....................................................43
ARTICLE XIV - LIMITATIONS ON BENEFITS...........................................44
14.01 Code Section 415 Limits...................................44
14.02 Code Section 416 Limits...................................46
v
7
ARTICLE I
DEFINITIONS
1.01 Account means with respect to any Participant, his Basic and
Supplemental Contribution Accounts and his Company Contribution
Account, and any subaccounts thereunder, including, but not limited to,
subaccounts containing that portion of his Basic and/or Supplemental
Contributions which a Participant has designated as pre-tax
contributions made by the Company on his behalf pursuant to a salary
reduction agreement and any investment earnings and gains or losses
thereon. Some Participants may also have Rollover Contribution
Accounts.
1.02 Administrative Committee means the Administrative Committee appointed
by the Committee pursuant to Section 10.02 to carry out the day to day
responsibilities of the Plan Administrator.
1.03 Affiliated Company means the Company and any corporation which is a
member of a controlled group of corporations (as defined in Section
414(b) of the Code) which includes the Company; any trade or business
(whether or not incorporated) which is under common control (as defined
in Section 414(c) of the Code) with the Company; any organization
(whether or not incorporated) which is a member of an affiliated
service group (as defined in Section 414(m) of the Code) which includes
the Company; and any other entity required to be aggregated with the
Company pursuant to regulations under Section 414(o) of the Code. For
purposes of Article XIV, the definition of Affiliated Company shall be
modified in accordance with Code Section 415(h).
1.04 Affiliated Plan means a defined contribution plan sponsored by an
Affiliated Company if such plan has been designated by the Committee as
an Affiliated Plan.
1.05 After-Tax Contribution means that portion of the Basic and/or
Supplemental Contributions which are made by a Participant on an
after-tax basis, i.e. those contributions not designated as Pre-Tax
Contributions.
1.06 Automatic Enrollment Date means, for each Eligible Employee, a date
determined by the Committee, which date is no earlier than three weeks
following the date the Eligible Employee first becomes eligible to
participate in the Plan in accordance with Section 2.01(a).
1.07 Base Pay means, with respect to any Plan Year, wages, overtime, shift
differential pay, vacation pay (excluding pay taken in lieu of a
vacation), sick pay, holiday pay, salary continuation paid in
installments, and other forms of cash compensation that are included on
the Participant's Federal income tax form W-2 for the calendar year
beginning in such Plan Year with respect to the Participant's periods
of active participation in the Plan, except such compensation as may be
specifically excluded by the Committee. Base Pay includes pay deferred
pursuant to salary reduction
8
arrangements under Code Sections 401(k), 125 and, effective
as of December 31, 2001, 132(f)(4). Base Pay does not include
severance pay (or salary continuation paid in a lump sum), any form of
bonus pay or contributions by the Company to any other employee
benefit plan on behalf of an Employee. Base Pay in excess of
(a) $200,000 in any Plan Year beginning on or after January 1, 1989
and ending prior to January 1, 1994, or (b) $150,000 in any Plan Year
thereafter (subject to adjustment as provided in Code Section
401(a)(17)), shall not count for purposes of this Plan.
1.08 Basic Contributions means the contributions of a Participant which are
credited to his Basic Contribution Account in accordance with Section
3.01.
1.09 Basic Contribution Account means that portion of the Trust Fund which,
with respect to any Participant, is attributable to his own Basic
Contributions and any investment earnings and gains or losses thereon.
1.10 Beneficiary means the beneficiary designated by the Participant under
the Company's group term life insurance plan, unless the Participant
has designated any other person or persons, other than the
Participant's Surviving Spouse, (who may be designated contingently or
successively and which may be an entity other than a natural person) on
a form supplied by the Administrative Committee to receive benefits
payable in the event of the death of the Participant; provided, however
that if the Participant is married at the date of his death, the
Beneficiary shall be the Participant's Surviving Spouse, and any
Beneficiary designation that does not name the Participant's Surviving
Spouse as the Beneficiary shall be void unless it has been consented
thereto on a form supplied by the Administrative Committee in writing
by the Participant's Surviving Spouse and such consent (i) designates
the alternative Beneficiary and/or form of benefit (which may not be
changed without spousal consent), (ii) acknowledges the effect of such
election, and (iii) is witnessed by a notary public. In the event of
the Participant's death without an effective Beneficiary designation,
any Plan benefits payable shall be paid in equal parts to the
Participant's surviving children or, if the Participant has no
surviving children, to the Participant's surviving parents or, if the
Participant has no surviving parents, to the Participant's surviving
siblings or, if the Participant has no surviving siblings, to the
Participant's estate. Section 9.01(d) should be referred to in the
event of the death of a Participant with an outstanding loan balance,
Section 12.05 should be referred to in the event of a Qualified
Domestic Relations Order and Section 12.12 should be referred to for
payment in the event of incompetency of a Beneficiary.
1.11 Board of Directors means, prior to August 2001, the Board of Directors
of Nabisco, Inc. and after July 2001, the Board of Directors of Kraft
Foods North America, Inc., and any committee of directors authorized by
such Board to act in its behalf with reference to the Plan.
1.12 Code means the Internal Revenue Code of 1986 as amended from time to
time. Reference to any Section or subsection of the Code includes
reference to any
2
9
comparable or succeeding provisions of any legislation which amends,
supplements or replaces such Section or Subsection.
1.13 Committee means the Nabisco Employee Benefits Committee which shall act
as the Plan Administrator for the Plan. The Committee shall have the
duties and powers described in Article X.
1.14 Company means, prior to August 2001, Nabisco, Inc. Subsequent to July
2001, Company means the Nabisco Biscuit & Snacks Group of Kraft Foods
North America, Inc. With respect to any corporate act after July 2001,
Company means Kraft Foods North America, Inc.
1.15 Company Contribution means the contributions made by the Company which
are credited to a Participant's Company Contribution Account in
accordance with Section 3.06.
1.16 Company Contribution Account means that portion of the Trust Fund
which, with respect to any Participant, is attributable to any
contributions made in his behalf by the Company, and any investment
earnings and gains or losses thereon.
1.17 Disability means being disabled as determined by the Federal Social
Security Administration.
1.18 Effective Date of this restatement means December 31, 2000. The
original effective date is February 1, 1987.
1.19 Eligible Employee means any Employee who is paid on an hourly basis,
who is paid from a United States dollar payroll maintained in the
United States, and who has met the eligibility requirements of Section
2.01; provided, that except as the Committee may otherwise provide on a
basis uniformly applicable to all persons similarly situated, no person
shall be an "Eligible Employee" for purposes of the Plan:
(a) who is excepted by the Committee,
(b) 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, provided that employee
retirement benefits were negotiated in good faith thereunder,
or
(c) 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.
3
10
Notwithstanding any provision of the Plan to the contrary, Eligible
Employee shall not include any person who becomes an Employee pursuant
to the Asset Purchase.
Agreement entered into on November 19, 1999 among Favorite
Brands International Holding Corp., Favorite Brands
International, Inc., Sather Trucking Corporation, Trolli,
pInc., Nabisco, Inc., Nabisco Brands Company, and Nabisco
Technology Company and who works at a facility in the
following locations:
Favorite Brands International, Inc. and Trolli, Inc. Locations
1. Bannockburn, Illinois 8. Pittston, Pennsylvania
2. Chicago, Illinois 9. Round Lake, Minnesota
3. DesPlanes, Nevada 10. New Orleans, Louisiana
4. Henderson, Nevada 11. Oklahoma City, Oklahoma
5. Kendallville, Indiana 12. San Bernadino, California
6. Ligonier, Indiana 13. Creston, Iowa
7. Chattanooga, Tennessee 14. Plantation, Florida
The exclusion from participation of those Employees who became
Employees pursuant to the Asset Purchase Agreement of November
19, 1999, shall not apply beginning as of the date of the
Nabisco Retirement Savings Plan and the Nabisco Retirement
Plan are merged with the Plan.
1.20 Employee means any person employed by (or, after July 2001,
working at) the Employer.
1.21 Employer means, prior to August 2001, Nabisco, Inc. and any
member of the Nabisco Controlled Group that participates in
the Plan. Subsequent to July 2001, Employer means the Nabisco
Biscuit & Snacks Group of Kraft Foods North America, Inc.
1.22 Enrollment Date means the business day on which an Eligible
Employee's application for participation is processed.
1.23 ERISA means the Employee Retirement Income Security Act of
1974, and as is amended from time to time.
1.24 Holland Participant means a Participant who is employed at the
Company's plant in Holland, Michigan and who is a member of
BCT Local 697.
1.25 Hour of Service means any hour, regardless of whether or not
duties have been performed, for which an Employee is paid, or
entitled to payment, by the Company or any Affiliated Company.
The determination of Hours of Service shall be consistent with
the minimum requirements of Department of Labor Regulation
Section 2530.200b-2.
1.26 Investment Fund or Funds means the separate funds in which
Participant and Company Contributions to the Plan are invested
in accordance with Article IV.
4
11
1.27 Job Elimination means the elimination of an existing position
at the sole discretion of the Company when, because of
changing needs or circumstances, (i) the job is no longer
performed, or (ii) the job is still performed, but fewer
employees are needed to perform it.
1.28 Nabisco Controlled Group means Nabisco, Inc. and any other
corporation that was a member of the controlled group of
corporations (as defined in Section 1563(a) of the Code) that
included Nabisco, Inc. as of December 10, 2000.
1.29 Participant means any person participating in the Plan as
provided in Article II. Except for purposes of Sections 2.01,
2.02 and 6.02(ii) and Article 3, an Eligible Employee who has
made a rollover or transfer to the Plan which meets the
requirements of Section 12.13 or 12.15 and for whom a Rollover
Contribution Account is maintained shall be treated as a
Participant and such Eligible Employee shall become a
Participant for all purposes after meeting the requirements of
Sections 2.01 and 2.02. In addition, in any Plan Year in which
the Plan is top-heavy (as defined in Section 14.02) and for purposes
of Section 14.02(f), "Participant" shall include an Eligible Employee
not otherwise described in the preceding two sentences who shall,
pursuant to Treasury Regulation Section 1.416-1, Q&A M-10, receive the
contribution described in Section 14.02(f), and such Eligible Employee
shall become a Participant for all purposes after meeting the
requirements of Sections 2.01 and 2.02.
1.30 Period of Severance means all periods of time commencing on
the Severance Date of an Employee and ending on the date of
his reemployment by the Company or an Affiliated Company.
1.31 Plan means the Nabisco, Inc. Employees Savings Plan, as
described herein or as hereafter amended.
1.32 Plan Year means the period from each December 31 through the
next December 30. The Limitation Year shall be the calendar
year.
1.33 Pre-Tax Contribution means that portion of the Basic and/or
Supplemental Contributions which a Participant has designated
as pre-tax contributions made by the Company on his behalf
pursuant to a salary reduction agreement.
1.34 Prior Plan means any U.S. qualified plan (or an individual
retirement account, annuity or bond in which a qualified plan
distribution was separately invested pursuant to Code Sections
408(d)(3)(A)(ii) and (D)(i)), other than an Affiliated Plan or
the Nabisco Plan for Pensions, which the Committee has
approved so that an Eligible Employee may make a rollover
contribution to this Plan, pursuant to Section 12.13.
1.35 Rollover Contributions means the amount contributed to the
Plan as a rollover contribution from a Prior Plan in
accordance with Section 12.13(b).
5
12
1.36 Rollover Contribution Account means that portion of the Trust
Fund which, with respect to any Eligible Employee, is
attributable to his Rollover Contributions and any investment
earnings or losses thereon.
1.37 Service means all periods of time, both before, on and after
February 1, 1987, during which an Employee is employed by the
Company (or, after July 2001, working at the Company) or any
Affiliated Company commencing with the first day of employment
or the first day of reemployment and ending with his Severance
Date which next follows the first day of employment or the
first day of reemployment, as the case may be. The first day
of employment or the first day of reemployment shall be deemed
to be the first day in which he performs an Hour of Service.
Periods of Service commencing on the first day of employment
and ending on the next following Severance Date shall be
aggregated on a day by day basis and 365 days of aggregated
Service shall constitute one year of Service. Service shall
include any period of authorized part-time employment, periods
of authorized leave of absence up to a maximum of one year,
periods of absence due to service in the Armed Forces of the
United States, as required pursuant to Code Section 414(u),
periods of absence due to unpaid leave taken pursuant to the
Family and Medical Leave Act of 1993 or similar state laws (to
the extent required by such laws, but only to the extent such
leave is not otherwise credited under this Section 1.37), and
periods of absence up to a maximum of 12 consecutive months
due to illness or disability. For purposes of determining
Service, an Employee shall be credited with any period of
employment with the Company (or, after July 2001, at the
Company) or an Affiliated Company during which he may be
otherwise ineligible for participation in the Plan. Service
will include any period of time beginning on an Employee's
Severance Date and ending on the date on which he performs an
Hour of Service, provided that such Hour of Service is
performed within 12 months of the date his employment was
terminated or he was otherwise first absent from work,
whichever is applicable.
Notwithstanding the preceding paragraph and unless otherwise
determined by the Committee, Service with an Affiliated
Company that was not a member of the Nabisco Controlled Group
as of December 10, 2000 shall only be taken into account
subsequent to the time that such corporation became an
Affiliated Company.
1.38 Severance Date shall mean the earlier of the following:
(a) the date on which an Employee quits, retires, dies,
or is discharged; or
(b) the first anniversary of the first date of a period
in which an Employee remains absent from Service
(with or without pay) with the Company or any
Affiliated Company for any reason other than quit,
retirement, death or termination; provided, however,
the absence from Service of an Employee receiving
benefits under one or more long-term disability plans
of the Company or an Affiliated Company is not a
severance until the earliest of normal retirement
age, the cessation of such disability payments
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or the expiration of the initial 24 months of long-term
disability payments; provided further that if such an
Employee in active employment after his normal retirement age
becomes disabled, his Severance Date is the date such
long-term disability plan benefits commence or would
commence.
In the case of an Employee who is absent from work by
virtue of (i) the Employee's pregnancy, (ii) birth of
the Employee's child, (iii) placement of a child with
the Employee by adoption, or (iv) caring for any such
child for a period of up to a year immediately
following such birth or placement, the Severance Date
is the second anniversary of the first day of absence
from Service provided that the period between the
first and second anniversary of such first day of
absence if neither counted as Service nor a Break in
Service.
1.39 Supplemental Contributions means the contributions which a
Participant elects to make to the Plan in accordance with
Section 3.02.
1.40 Supplemental Contribution Account means that portion of the
Trust Fund which, with respect to any Participant, is
attributable to his own Supplemental Contributions and any
investment earnings and gains or losses thereon.
1.41 Surviving Spouse means the person to whom the Participant is
married, under applicable state law, at the time of the
Participant's death and to whom the benefits under the Plan
shall be payable in the event of the Participant's death
unless a valid Beneficiary designation and consent thereto by
the Participant's spouse has been made and received by the
Committee, or unless such benefits are subject to a qualified
domestic relations order as defined in Section 414(p) of the
Code.
1.42 Termination of Employment means separation from the employment
of the Company and all Affiliated Companies 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 a "Termination of
Employment" and provided further, that if an Employee is
rehired by the Company or an Affiliated Company within 30 days
of his or her separation from the employment of the Company or
an Affiliated Company, such separation shall not be considered
to be a "Termination of Employment."
1.43 Trustee means a trustee or trustees at any time acting as such
under a trust agreement or agreements established for purposes
of this Plan.
1.44 Trust Fund means the cash and other properties arising from
(i) contributions made by Participants and by the Company in
accordance with the provisions of this Plan, (ii) funds
transferred from a Prior Plan, and (iii) any investment
earnings and gains or losses thereon. The Trust Fund is held
and administered by the Trustee pursuant to Article IV.
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1.45 Valuation Date means each business day and any other date the
Committee deems desirable or necessary to value the Trust Fund
in accordance with Article V.
When used herein, the masculine shall include the feminine, and the singular
shall include the plural, unless the context clearly indicates otherwise.
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ARTICLE II
PARTICIPATION
2.01 Eligibility.
(a) Any Eligible Employee shall be eligible to become a
Participant in the Plan as of the first Enrollment
Date coincident with or next following his completion
of six months of Service or, if earlier, the date
negotiated under a collective bargaining agreement.
Notwithstanding the foregoing sentence, an Eligible
Employee employed by Planters LifeSavers shall be
eligible to become a Participant in the Plan as of
the first Enrollment Date coincident with or next
following his date of hire.
(b) All Eligible Employees who participate in this Plan
shall participate under the terms and conditions
herein stated.
(c) An Employee who was a participant in the Nabisco
Retirement Savings Plan, Nabisco Retirement Plan,
Stella D'Oro Biscuit Co., Inc. Profit Sharing Plan,
Stella D'Oro Biscuit Co. Midwest, Inc. Retirement
Plan or Stella D'Oro Biscuit Co., Inc. Salary
Reduction Plan (for Employees of Local 50) on the
date that any such plan merged with the Plan shall
become a Participant as of the Enrollment Date
coinciding with or next following the merger date.
All service under any such plan shall be taken into
account for determining participation under the Plan.
2.02 Participation.
(a) An Eligible Employee may become a Participant on any
Enrollment Date by making application in a manner
prescribed by the Committee in which he:
(i) designates the percentage of his Base Pay to
be contributed as Basic Pre-Tax and/or
After-Tax Contributions in accordance with
Section 3.01;
(ii) designates any percentage of his Base Pay to
be contributed as Supplemental Pre-Tax
and/or After-Tax Contributions in accordance
with Section 3.02;
(iii) authorizes applicable payroll deductions
from his Base Pay for Basic and Supplemental
Contributions; and
(iv) chooses one or more Investment Fund(s) for
his Accounts.
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(b) An Employee, other than an Employee in the Bakery,
Confectionery, Tobacco Workers and Grain Millers
Union, who becomes an Eligible Employee on or after
August 1, 1998 may become a Participant pursuant to
this Section 2.02(b). If the Eligible Employee does
not make the application contemplated in Section
2.02(a) prior to his Automatic Enrollment Date, such
Eligible Employee shall become a Participant
effective as of his Automatic Enrollment Date and
shall be deemed to have (i) authorized payroll
deductions for Basic Contributions in accordance with
Section 3.01, equal to 2% of his Compensation and
(ii) elected to invest such contributions in the
Fidelity Asset Manager: Income. If Section 3.03 is
applicable to the Eligible Employee, the Basic
Contributions shall be Pre-Tax Contributions.
Notwithstanding the foregoing, the Eligible Employee
may at any time elect a different contribution
percentage (including 0%) in accordance with Section
3.04 and/or different Investment Funds in accordance
with Section 4.06.
2.03 Participant Status. An Eligible Employee who has once become a
Participant shall remain a Participant so long as he remains in the
Service of the Company or an Affiliated Company, and shall cease to be
a Participant upon his Termination of Employment, except that if he has
met the conditions for entitlement to a benefit, he shall remain as an
inactive Participant so long as he has an Account balance. Active
participation, however, including contributions to the Plan by or for a
Participant, shall automatically be suspended effective as of the
Participant's Severance Date. Participation in the Plan shall cease as
of the date Accounts are transferred to an Affiliated Plan pursuant to
Section 12.13.
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ARTICLE III
CONTRIBUTIONS
3.01 Basic Contributions. Each Participant may contribute a percentage of
his gross Base Pay as Basic Contributions which are eligible to receive
a matching Company Contribution; such percentage shall be 1% to 6% of
Base Pay in 1% increments. Basic Contributions are matched with Company
Contributions in accordance with Section 3.06. The Basic Contributions
shall be made through payroll deductions and are credited to
Participants' Accounts as soon as reasonably possible following the
date of payment of the Compensation from which the contribution is
taken. Basic Contributions can be made either as After-Tax Basic
Contributions or, if and when Section 3.03 becomes applicable to the
Participant, as Pre-Tax Basic Contributions. If no such designation is
made, Basic Contributions shall be After-Tax Contributions.
Participating units, all of which may elect Basic and Supplemental
After-Tax Contributions under Sections 3.01 and 3.02, are set forth in
Schedule A, which is maintained by the Committee and may be revised
from time to time without further amendment to reflect changes under
the applicable collective bargaining agreement or under an agreement
for the acquisition or sale of a business.
3.02 Supplemental Contributions. A Participant who has authorized the
maximum Basic Contribution rate of 6% may also make additional
contributions under the Plan which are not subject to matching Company
Contributions by authorizing additional payroll deductions of 1% to 10%
of his Base Pay in 1% increments, which are credited to Participants'
Accounts as soon as reasonably possible following the date of payment
of the Compensation from which the contribution is taken. Supplemental
Contributions can be made either as After-Tax Supplemental
Contributions or, if and when Section 3.03 becomes applicable to the
Participant, as Pre-Tax Supplemental Contributions. If no such
designation has been made, Supplemental Contributions shall be
After-Tax Contributions.
3.03 Pre-Tax Contributions.
(a) This Section 3.03 is applicable only to all non-union hourly
employees and those bargaining units who have collectively
bargained for the right to make Pre-Tax Contributions.
Participating units, all of which may elect Basic and
Supplemental Pre-Tax Contributions under Sections 3.01 and
3.02, are set forth in Schedule A, which is maintained by the
Committee and may be revised from time to time without further
amendment to reflect changes under the applicable collective
bargaining agreement or under an agreement for the acquisition
or sale of a business.
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(b) Subject to Section 3.08, any Participant eligible under
3.03(a) to do so may elect that up to 16% of his gross Base
Pay that he has elected to contribute to the Plan pursuant to
Sections 3.01 and 3.02, be further designated in 1% increments
as Pre-Tax Contributions. Pre-Tax Contributions shall be
contributed by the Company to the Plan on behalf of the
Participant in lieu of an equal amount being paid to him as
Base Pay. A Participant may not designate more than the dollar
amount specified by the Internal Revenue Service as Pre-Tax
Contributions in any calendar year. Such Pre-Tax Contributions
are credited to Participants Accounts as soon as reasonably
practicable following the date of payment of the Compensation
from which the contribution is taken. Basic and Supplemental
contributions not designated as Pre-Tax Contributions shall be
After-Tax Contributions.
(c) The Committee shall have the right to establish rules with
respect to the making of elections pursuant to this Section,
including, without limitation, the right to require that any
such election be made at such time prior to its becoming
effective as the Committee shall determine and the right to
restrict the Participant's right to change such election. Such
Pre-Tax Contributions are intended to be treated for federal
income tax purposes as contributions made by the Company under
a qualified cash or deferred arrangement (as defined in Code
Section 401(k)), but shall be treated as if they were
contributions by a Participant for the purpose of the Plan
except where the Plan expressly indicates otherwise.
3.04 Change in Participant Contributions. Subject to the provisions of
Sections 3.01, 3.02, 3.03 and 3.07, a Participant may elect to change
the percentage of his authorized payroll deduction by giving notice to
the Committee in such manner as the Committee may prescribe. If the
Committee makes a mistake-of-fact with regard to any contribution, it
shall, depending on the mistake-of-fact, either (i) cause said
contribution to be returned to the Participant without restriction, or
(ii) accept additional contributions for the affected period. Examples
of a "mistake-of-fact" would be the continuation of payroll deductions
after a Participant has requested the suspension of such deductions or
failure to act on written instructions to take deductions.
3.05 Suspension of Participant Contributions.
(a) A Participant may elect to suspend his Basic or Supplemental
Contributions by notifying the Committee in advance in the
manner prescribed by the Committee. The suspension shall
become effective with the next practicable payroll period
commencing on or after processing such request. No Company
Contributions shall be made on behalf of a Participant during
a period of suspension of Basic Contributions.
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(b) A Participant who has suspended his Basic or Supplemental
Contributions may elect to apply to the Committee to resume
his contributions in the manner prescribed by the Committee.
The resumption shall become effective as of the first payroll
period practicable commencing on or after processing his
request.
(c) No contributions may be made by a Participant for any period
of unpaid absence from Service. A Participant who has ceased
to make contributions under the Plan in accordance with this
subsection (c) shall again be eligible to resume making
contributions on the date he returns to Service as an Eligible
Employee and gives notice to the Committee in the prescribed
manner.
(d) A Participant who has ceased to make contributions under the
Plan because he has ceased to be an Eligible Employee but,
nevertheless, continues to be an Employee shall again be
eligible to resume making contributions on the date he again
becomes an Eligible Employee and gives notice to the Committee
in the prescribed manner.
3.06 Company Contributions.
(a) Prior to August 2001, Company contributions are made by
Nabisco, Inc. After July 2001, Company contributions are made
with respect to the Nabisco Biscuit & Snacks Group of Kraft
Foods North America, Inc.
(b) With respect to each payroll period, the Company shall
contribute on behalf of each Participant an amount equal to
25% of such Participant's Basic Contributions to the Plan for
such payroll period unless a bargaining unit negotiated for
this Plan without a match. Company Contributions under this
paragraph will be paid to the Trustee as soon as practicable
and at least on a monthly basis. Effective February 1, 1987,
with respect to participants at the Pennsauken, New Jersey
plant, continuing until the closure of such plant in March
1993, the Company Contribution shall be an amount equal to 30%
of each such Participant's Basic Contributions. Effective July
1, 1996, the Company Contributions for Holland Participants
only shall be an amount equal to 50% of each such Holland
Participant's Basic Contributions for each payroll period.
Participating units for which no Company Contributions have
been negotiated are set forth in Schedule A which is
maintained by the Committee and may be revised from time to
time without further amendment to reflect changes under an
applicable collective bargaining agreement or under an
agreement for the acquisition or sale of a business.
With respect to a former participant in (or an Eligible
Employee who works at a location covered by) the Nabisco
Retirement Savings Plan who becomes a Participant in the Plan
on or after the merger date of the
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Nabisco Retirement Savings Plan with the Plan, the Company
Contributions shall be an amount equal to 50% of such
Participant's Basic Contributions for each payroll period.
With respect to a former participant in (or an Eligible
Employee who works at a location covered by) the Nabisco
Retirement Plan who becomes a Participant in the Plan on or
after the merger date of the Nabisco Retirement Plan with the
Plan, the Company Contributions shall be an amount equal to
50% of such Participant's Basic Contributions not exceeding 4%
of Base Pay for each payroll period.
With respect to those hourly locations that, pursuant to
collective bargaining agreements or negotiations, have become
covered under the salaried welfare plans of the Company and
are described in Schedule C, the Company shall contribute on
behalf of each affected Participant an amount equal to 50% of
such Participant's Basic Contributions to the Plan for each
payroll period.
With respect to a former participant in (or an Eligible
Employee who works at a location covered by) the Stella D'Oro
Biscuit Co., Inc. Profit Sharing Plan, the Company shall make
an annual profit sharing contribution on a discretionary basis
in the amount required under the operative collective
bargaining agreement covering such former participants.
(c) Each Affiliated Company participating in the Plan shall for
any Plan Year contribute a portion of the total Company
Contributions, made pursuant to subsection (b) above, equal to
the aggregate amounts which are credited for such Plan Year to
the accounts of Participants for periods while they are
Employees of each such Affiliated Company.
(d) In satisfaction of its obligation under this Section 3.06, the
Company shall pay its contribution in cash.
(e) In any Plan Year in which the Plan is top-heavy (as defined in
Section 14.02) the Company shall make additional Company
Contributions to the extent necessary to comply with the
minimum top-heavy contribution requirement as set forth in
Section 14.02(f).
(f) Each Company Contribution to the Plan is conditioned on its
deductibility.
In the event that the Commissioner of the Internal Revenue
Service determines that the Plan does not qualify for
tax-exempt status under Section 401 of the Code and issues an
adverse determination with respect to its initial
qualification, the Company Contributions made on or after the
date on which such determination is applicable shall be
returned to the Company without interest within one year after
such determination, but
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only if the application for determination is made by the time
prescribed by law for filing the Company's return for the
taxable year in which the Plan was adopted, or such later date
as the Secretary of the Treasury may prescribe.
In the event that a Company Contribution to the Plan is made
by a mistake of fact or all or part of the Company's
deductions under Section 404 of the Code for contributions to
the Plan are disallowed by the Internal Revenue Service, the
portion of the contributions attributable to such mistake of
fact or to which such disallowance applies shall be returned
to the Company without interest. Any such return shall be made
within one year after the making of such contribution by
mistake of fact or disallowance of deductions, as the case may
be.
3.07 Code Section 401(k) and 401(m) Nondiscrimination Tests. The Plan is
subject to the following nondiscrimination tests.
(a) Definitions. For purposes of this Section, the following
additional definitions shall be used for Plan Years beginning
after 1996:
(i) Highly Compensated Employee means an individual who
performs service during the determination year and is
an Employee who is a 5-percent owner (as defined in
Code Section 416(i)(1)) at any time during the Plan
Year or the preceding Plan Year, or an Employee who
received compensation in excess of $80,000 (adjusted
for changes in the cost of living) and is a member of
the "Top-Paid Group" for the preceding Plan Year.
(ii) "Top-Paid Group" means those Employees who are in the
top 20-percent of all Employees based on compensation
paid by the Company.
(b) Average Actual Deferral Percentage Test ("ADP"). For each Plan
Year, Participants' Pre-Tax Contributions shall satisfy the
requirements described under Section 401(k)(3)(A)(ii) of the
Code. The Committee shall have the right to limit Pre-Tax
Contributions of Highly Compensated Employees as it deems
necessary to satisfy such requirements.
(c) Average Actual Contribution Percentage Test ("ACP"). For each
Plan Year, matching Company Contributions and Participant
After-Tax Contributions shall satisfy the requirements under
Section 401(m)(2) of the Code. The Committee shall have the
right to limit matching Company Contributions and Participant
After-Tax Contributions of Highly Compensated Employees as it
deems necessary to satisfy such requirements.
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3.08 Restrictions on Pre-Tax Contributions.
(a) In no event may the Pre-Tax Basic and Pre-Tax Supplemental
Contributions made by the Company on behalf of any Participant
exceed $9,240 (as adjusted in accordance with Code Section
402(g)(5)). In the event the dollar limit for pre-tax
contributions is reached with respect to a Participant during
a calendar year, all additional contributions made on behalf
of the Participant for that calendar year will be made on an
after-tax basis, including, if necessary, a portion of the
contributions that the Participant had designated as Basic
Contributions.
(b) The Committee shall have the right to establish rules with
respect to the making of elections of pre-tax contributions,
including, without limitation, the right to require that any
such election be made at such time prior to its becoming
effective as the Committee shall determine and the right to
restrict the Participant's right to change such election. Such
contributions are intended to be treated for federal income
tax purposes as contributions made by the Company under a
qualified cash or deferred arrangement (as defined in Section
401(k) of the Code) but shall be treated as if they were
contributions by a Participant for the purpose of the Plan
except where the Plan expressly indicates otherwise.
(c) Notwithstanding any other provision of the Plan, Allocable
Excess Pre-Tax Contributions and income allocable thereto
shall be distributed no later than April 15 to Participants
who claim Allocable Excess Pre-Tax Contributions for the
preceding calendar year. "Allocable Excess Pre-Tax
Contributions" shall mean the amount of Pre-Tax Contributions
for a calendar year that the Participant allocates to this
Plan that exceed the limits of Code Section 402(g).
(d) The Participant's claim shall be in writing, shall be
submitted to the Committee no later than March 1; shall
specify the Participant's Allocable Excess Pre-Tax
Contributions for the preceding calendar year; and shall be
accompanied by the Participant's written statement that if
such amounts are not distributed, such Allocable Excess
Pre-Tax Contributions, when added to amounts deferred under
other plans or arrangements described in Sections 401(k),
402(h), 408(k) or 403(b) of the Code, exceed the limit imposed
on the Participant by Section 402(g) of the Code for the year
in which the deferral occurred. A Participant is deemed to
notify the Committee of any Allocable Excess Pre-Tax
Contributions that arise by taking into account only those
amounts deferred pursuant to this Plan and any other Plans of
a Participating Company.
(e) The Allocable Excess Pre-Tax Contributions distributed to a
Participant with respect to a calendar year shall be adjusted
for income and, if there is a loss allocable to the Allocable
Excess Pre-Tax Contributions, shall in no
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event be less than the lesser of the Participant's Pre-Tax
Account under the Plan or the Participant's Pre-Tax
Contributions for the Plan Year.
3.09 Qualified Military Service. Any Participant who resumes
participation in the Plan following a period of qualified military
service shall have the right to make-up Basic Contributions and
Supplemental Contributions that were not made on account of
qualified military service as provided under Code Section 414(u).
Such contributions shall be After-Tax Contributions except to the
extent that Section 3.03 applied to such Participant during the
period of qualified military service. The Company will make
contributions as described in Section 3.06 with respect to any
Basic Contributions and Supplemental Contributions made by a
Participant under this Section 3.09 in the same manner and in the
same amount as if the contributions were made by the Participant
during qualified military service.
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ARTICLE IV
TRUST FUND AND INVESTMENT FUNDS
4.01 The Trust Agreement. The Company shall enter into a trust agreement
which shall contain such provisions as shall render it impossible for
any part of the corpus of the Trust or income therefrom to be at any
time used for, or diverted to, purposes other than for the exclusive
benefit of Participants. Any or all rights or benefits accruing to any
person under the Plan with respect to any Company contributions
deposited under the Trust Agreement shall be subject to all the terms
and provisions of the Trust which shall specifically incorporate and be
subject to the provisions of the Plan.
4.02 The Trustee. The Trustee will be a corporate trustee appointed by the
Corporate Employee Plans Investment Committee of Philip Morris
Companies Inc. (the "Philip Morris Committee"), unless such authority
is transferred to the Compensation and Governance Committee of Kraft
Foods Inc. (the "Kraft Committee").
4.03 Separate Funds. Subject to Section 4.04, the Trustee shall maintain
separate Investment Funds within the Fund as are designated by the
Company.
4.04 Investment Funds. The Philip Morris Committee, unless such authority is
transferred to the Kraft Committee, shall select the Investment Funds
offered under the Plan and reserves the right to eliminate or add Funds
from time to time, including Funds that invest in the common stock of
an Affiliated Company.
4.05 Temporary Investment. Pending permanent investment of the assets of any
Investment Fund, the Trustee temporarily may hold cash or make
short-term investments in obligations of the United States Government,
commercial paper, an interim investment fund for tax qualified employee
benefit plans established by the Trustee unless otherwise provided by
applicable law, or other investments of a short-term nature.
4.06 Investment of Participant Contributions.
(a) Election. All Basic Contributions, Supplemental Pre-Tax
Contributions, Supplemental After-Tax Contributions and
Company Contributions will be invested at the election of the
Participant in multiples of 1% in any one or combination of
the Investment Funds under the Plan, subject to any
restrictions imposed on investing in any stock fund. A
Participant may make or change an election on any day by
giving notice to the Committee in the prescribed manner. Any
such election or change of election shall be effective as of
the first payroll period after it is processed.
(b) Reallocation of Investments. A Participant may elect on any
day to reallocate the investment of his Accounts to any one or
combination of the Investment Funds, in multiples of 1% by
giving notice to the Committee
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in such manner as the Committee may prescribe. The amounts
reallocated will be based upon values as of the Valuation Date
applicable to the processing of the request.
4.07 Voting by Participants.
(a) Voting of Stock Generally. Each Participant shall have the
right and shall be afforded the opportunity to instruct the
Trustee how to vote that proportionate number of the total
number of shares of stock held in any Fund that consists of
the common stock of the Company or an Affiliated Company which
is the same proportion that the value of his interest bears to
the total value of such Fund. Instructions by Participants to
the Trustee shall be in such form and pursuant to such
regulations as the Committee may prescribe. Any such
instructions shall remain in the strict confidence of the
Trustee.
(b) Tender or Exchange Offers. In the event of a tender or
exchange offer for any or all shares of Stock, the Committee
shall notify each Participant or Beneficiary and utilize its
best efforts to timely distribute or cause to be distributed
to him such information as will be distributed to other
shareholders of such Stock in connection with any such tender
or exchange offer. Each Participant or his Beneficiary shall
have the right to instruct the Trustee in writing not to
tender or exchange shares of Stock credited to his Account
under the Trust Fund. Unless the Trustee determines that ERISA
requires it to act otherwise, the Trustee shall not tender or
exchange any shares of Stock credited to a Participant's
Account under the Trust Fund unless specific instructions to
tender or exchange such shares have been received. For
purposes of this Section 4.07(b), "Stock" shall mean the stock
held in any Fund that consists of the common stock of the
Company or an Affiliated Company.
4.08 Investment Managers. The Philip Morris Committee may enter into a
written agreement with or direct the Trustee to enter into an
agreement with one or more investment managers to manage the
investments of one or more of the Investment Funds. Such investment
managers may include legal reserve life insurance companies which enter
into group annuity contracts with the Trustee. The Philip Morris
Committee may remove any such investment manager or any successor
investment manager, or direct the Trustee to do so, and any such
investment manager may resign. In addition, the Philip Morris Committee
may, upon removal or resignation of an investment manager, provide for
the appointment of a successor investment manager. The Kraft Committee
shall discharge the duties described in this Section 4.08 if such
authority is transferred from the Philip Morris Committee to the Kraft
Committee.
4.09 Participant Responsibility For Selection of Funds. Each Participant is
solely responsible for the selection of his Investment Funds. Neither
the Trustee, the
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Committee, any Administrative Committee, the Company nor any of the
directors, officers or employees of the Company or any Affiliated
Company is required to advise a Participant as to the manner in which
his Accounts should be invested. The fact that a security is available
to Participants for investment under the Plan shall not be construed as
a recommendation for the purchase of that security, nor shall the
designation of any Investment Fund impose any liability on the Company,
any Affiliated Company, their directors, officers or employees, the
Trustee, the Committee, or any Administrative Committee.
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ARTICLE V
ACCOUNTS
5.01 Valuation of Accounts. As of each Valuation Date, the Accounts of each
Participant shall be adjusted to reflect any appreciation or
depreciation in the fair market value and any income earned by each
Investment Fund in which the Participant's Accounts are invested since
the prior Valuation Date. Such fair market value shall be the aggregate
fair market value of all securities or other property held for each
Investment Fund, plus cash and accrued earnings, less accrued expenses
and proper charges against each Investment Fund.
When determining the value of Participant Accounts, any deposits due
which have not been deposited in the Trust Fund on behalf of the
Participant shall be added to his Accounts. Similarly, adjustments of
accounts for appreciation or depreciation of an Investment Fund shall
be deemed to have been made as of the Valuation Date to which the
adjustment relates, even though they are actually made as of a later
date.
5.02 Valuation Upon Transfer, Withdrawal or Distribution. The valuation of
accounts for purposes of an in-service withdrawal, a transfer of
accounts to another Investment Fund, or a cash distribution shall be
the same as described in Section 5.01.
5.03 Statement of Accounts. Each Participant shall be furnished at least
annually a statement setting forth the value of his Accounts.
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ARTICLE VI
VESTING AND FORFEITURES
6.01 Vesting of Participant's Contributions. Each Participant's Basic
Contribution Account, Supplemental Contribution Account and Rollover
Account shall at all times be fully vested.
6.02 Vesting of Company Contributions. A Participant shall become fully
vested in his Company Contribution Account upon the earliest of (i)
completion of 60 months of Service, (ii) 24 months of employment after
his initial Enrollment Date, or (iii) the occurrence of any one of the
following:
(a) attainment of age 65;
(b) retirement at age 65;
(c) disability (as defined by the Social Security Administration);
(d) death;
(e) termination of employment as a result of Job Elimination;
(f) termination of the Plan, or
(g) complete discontinuance of Company Contributions.
The foregoing notwithstanding, if negotiated with a collective
bargaining unit when negotiating Plan coverage for the unit, an
Eligible Employee who is a member of such unit shall be immediately and
fully vested in his Account if he enrolls in the Plan as of the first
possible date for members of his unit.
With respect to an Employee who becomes a Participant following the
merger of the Nabisco Retirement Savings Plan (the "Savings Plan"), the
Nabisco Retirement Plan (the "Retirement Plan"), the Stella D'Oro
Biscuit Co., Inc. Profit Sharing Plan (the "Profit Sharing Plan"), the
Stella D'Oro Biscuit Co. Midwest, Inc. Retirement Plan (the "Midwest
Plan"), or the Stella D'Oro Biscuit Co., Inc. Salary Reduction Plan
(for Employees of Local 50) (the "Local 50 Plan") with the Plan, the
following additional conditions shall apply regarding any amount
credited to his Company Contribution Account:
(a) The vested percentage shall not be less than the vested
percentage, determined as of the merger date, of the
Employee's (i) matching contribution account and supplemental
contribution account under the Savings Plan or (ii) the amount
attributable to employer contributions under the Retirement
Plan.
(b) A "Year of Service" under the Savings Plan shall be equivalent
to 12 months of Service under the Plan.
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(c) With respect to a former participant in the Savings Plan or
the Retirement Plan, the Employee's Enrollment Date shall be
the later of November 19, 1999 or the date of hire by the
Company.
(d) The Employee shall be credited with 12 months of Service for
the period beginning July 1, 2000 and ending June 30, 2001 if
he would have been credited with a "Year of Service" under the
Savings Plan for such period. A "Year of Service" shall have
the meaning described in Section 8.2 of the Savings Plan.
(e) All service under the Savings Plan, Retirement Plan, Profit
Sharing Plan, Midwest Plan and Local 50 Plan as of the merger
date will be taken into account under the Plan.
(f) As of the merger date, all participants in the Profit Sharing
Plan, Midwest Plan and Local 50 Plan will have a 100% vested
interest in their Company Contribution Account.
(g) With respect to a former participant in the Retirement Plan,
any such Employee will have a 100% vested interest upon
attaining age 55 while employed by the Company.
6.03 Forfeiture on Termination of Employment. If a Participant's employment
is terminated prior to attainment of age 65 for reasons other than
Retirement, Disability, death, or Job Elimination the portion, if any,
of his Company Contribution Account in which he is not vested shall be
forfeited upon the earlier of (i) the accrual of five (5) consecutive
Break in Service years, or (ii) the receipt of a cash-out and, under
circumstances where all Participant Contributions were distributed
prior to Termination of Employment or there are no Participant
Contributions, a cash-out will be deemed to have been made on the date
the Termination of Employment occurred. All forfeitures pursuant to
(ii) above are subject to the provisions of Section 6.05. A "Break in
Service" is any 12-consecutive month period beginning on a Severance
Date during which an Employee does not complete an Hour of Service.
6.04 Disposition of Forfeitures. All forfeitures shall be used to reduce
Company Contributions otherwise payable to the Plan.
6.05 Restoration of Forfeitures. Any amount forfeited pursuant to the
provisions of clause (ii) of Section 6.03 shall be restored to the
Account of a Participant if the Participant is re-employed before he
accrues five consecutive Break in Service years. The restoration will
occur without the requirement that the Participant repay to the Plan
any amounts previously distributed to him.
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ARTICLE VII
DISTRIBUTIONS
7.01 Distribution of Benefits.
(a) Termination of Employment. A Participant who has a Termination
of Employment for reasons other than retirement, disability or
death shall receive a lump sum distribution of the value of
his vested Accounts, subject to the provisions of Section 7.01
(e). Distribution shall be made as soon as administratively
feasible following the valuation of the Participant's
Accounts. If the Committee has not received an application for
distribution by the time specified in subsection (d) below, a
distribution shall automatically be made at such time.
(b) Retirement or Disability. A Participant who has a Termination
of Employment due to retirement or disability shall receive a
lump sum distribution of the value of his Accounts.
Distribution shall be made as soon as administratively
feasible following the valuation of the Participant's
Accounts. However and notwithstanding anything in this Plan to
the contrary, a Participant may not postpone payment beyond
April 1 of the calendar year following the calendar year in
which he attains age 70 1/2. Participants who are not 5%
owners (as defined in Code Section 416(i)(1)(B)) and who
attained age 70 1/2 prior to January 1, 1988, are not required
to have their distribution commence prior to April 1 of the
calendar year following the calendar year in which they
retire, regardless of their age.
(c) Death. The Accounts of a Participant who has died shall be
distributed to his Beneficiary in a single lump sum payment.
Payment will be made after notification and verification of
the Participant's death; provided, however, that if the
Beneficiary is the Participant's Surviving Spouse, a
distribution shall not be made until after a written
application for distribution from the Surviving Spouse has
been received by the Committee. The Accounts shall be valued
as soon as administratively feasible after receipt of the
written application for distribution, and distribution shall
be made as soon as administratively feasible following the
valuation of the Participants Accounts. If the Committee has
not received an application for distribution by the time the
Participant would have attained age 65, the distribution shall
automatically be made at such time.
(d) Latest Date for Distribution. Distributions to a Participant
shall commence no later than the April 1 following the
calendar year in which the Participant attains age 70 1/2.
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(e) Small Lump Sum Cash-Outs. The foregoing notwithstanding, if
the value of the Participant's Account does not exceed $5,000,
a distribution shall be made to the Participant as soon as
administratively feasible after a written application for
distribution has been received by the Committee, valued as
soon as administratively feasible after receipt of such
application; provided, however, that if the Committee does not
receive a written application for distribution within 90 days
after the Participant's Termination of Employment, the Account
shall be valued and distribution shall be made as soon as
administratively feasible after the expiration of such 90-day
period. In no event shall the Account of a Participant which
is in excess of the amount of $5,000 be distributed to him or
on his behalf prior to the time specified in (d) above without
the written consent of the Participant or, if applicable, his
Surviving Spouse.
(f) QDRO. Notwithstanding subsections (a)-(e) above and Section
8.05, if a qualified domestic relations order, as described in
Section 12.05, requires the distribution of all or part of a
Participant's benefits under the Plan, the establishment or
acknowledgment of the alternate payee's rights to benefits
under the Plan in accordance with the qualified domestic
relations order shall in all events be applied in a manner
consistent with the terms of the Plan. Notwithstanding the
foregoing, (i) the Committee is authorized, pursuant to such
uniform and nondiscriminatory rules as it shall establish
which shall be consistent with applicable law and the terms of
the applicable qualified domestic relations order, to cash out
benefits to which alternate payees may be entitled prior to
the date such benefits would otherwise become payable in
accordance with the applicable provisions of the Plan, and
(ii) in no event shall the recognition of an alternate payee's
rights in accordance with this Section 7.01(f) be deemed to
include the right to make a withdrawal pursuant to the
provisions of Article VI, make a loan application pursuant to
the provisions of Article IX or to receive any benefits in the
form of a partial payment.
(g) Company/Affiliated Company Stock Fund Distributions. With
respect to any Investment Fund that consists of the common
stock of the Company or an Affiliated Company, the Participant
or his Beneficiary may elect that the distribution from any
such Investment Fund be made in the form of cash or shares of
stock, except that any fractional portion of a share shall be
paid in cash. If a Participant does not make an election in
connection with the distribution, all amounts shall be paid in
cash.
(h) Installment Distributions. Notwithstanding any provision of
the Plan to the contrary, a Participant or Beneficiary may
elect to receive the value of his Accounts in monthly or
annual installment payments; provided, however, such
Participant may elect at any time to receive the remaining
amount credited to his Accounts in a lump-sum distribution.
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7.02 Proof of Death and Right of Beneficiary. The Committee may require and
rely upon such proof of death and such evidence of the right of any
Beneficiary to receive the undistributed value of the Account of a
deceased Participant as the Committee may deem proper, and its
determination of death and of the right of such Beneficiary or other
person to receive payments shall be conclusive.
7.03 Completion of Appropriate Forms. The Committee has prescribed
forms/procedures providing notice to it in order for a distribution to
be made under the Plan. In the event a Participant or Beneficiary does
not comply with such procedures before the date a distribution becomes
payable under the terms of the Plan, distribution from such
Participant's or Beneficiary's Account may, at the option of the
Committee (taking into account Section 12.12), be mailed to the Address
of Record as provided in Section 12.09.
7.04 Investment Pending Distribution.
(a) The provisions of Section 4.06 shall continue to apply to the
accounts of inactive Participants.
(b) A Participant is not entitled to any interest, dividends or
any other form of investment proceeds on his Account for the
period between the Valuation Date and the date payment is
made.
7.05 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 Article, 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.
(a) 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 or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; 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); and any hardship distribution described in Code
Section 401(k)(2)(B) made after 1998.
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(b) Eligible Retirement Plan. An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, and individual retirement annuity described in
section 408(b) of the Code, and annuity plan described in
section 403(b) 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) 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) Direct Rollover. A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
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ARTICLE VIII
WITHDRAWAL PRIOR TO TERMINATION OF EMPLOYMENT
AND SPECIAL PRE-TAX CONTRIBUTION RULES
8.01 Election to Withdraw from Accounts. As of any Valuation Date and
subject to Sections 8.02, 8.03 and 8.04, a Participant may elect to
withdraw, in cash only and in a stated amount, all or a portion of the
value of vested amounts in his Accounts from which withdrawals are
allowed.
8.02 Withdrawal of After-Tax and Company Contributions. Withdrawals as
described in Section 8.01 and subject to the rules of Section 8.03
shall be applied by the Committee against a Participant's Accounts as
follows:
Tax-free Withdrawal: Any dollar amount up to 100% of his After-Tax
Contributions contributed prior to January 1, 1987, or their value, if
less.
Regular Withdrawal: The amount available as a Tax-free Withdrawal, plus
any dollar amount up to the remaining value of his After-Tax
Contributions, his Rollover Account and vested Company Account.
Participants with less than five years of Plan participation may not
withdraw After-Tax Contributions that were matched by the Company and
are in the Plan for less than 24 months or Company Contributions that
are in the Plan for less than 24 months.
Hardship Withdrawal: A Participant who qualifies for a financial
hardship as defined in Section 8.04 may withdraw up to 100% of the
amount available under a Regular Withdrawal, plus the remaining value,
if any, of his After-Tax Contributions, the remaining vested value of
his Company Contributions and an amount from his Pre-Tax Contributions
Account that does not exceed his Pre-Tax Contributions plus earnings
credited to such contributions as of December 31, 1988.
Withdrawal Upon Attainment of Age 59 1/2 or Disability: A Participant
who has attained age 59 1/2 or is totally disabled, as such term is
defined by the Social Security Administration, may withdraw the amount
available under a Regular Withdrawal, plus any dollar amount up to the
remaining vested value of his After-Tax, Company and Pre-Tax
Contributions.
8.03 Rules Applicable to Withdrawals Prior to Termination of Employment. The
following rules shall, except as noted in Section 8.04, apply to
withdrawals under this Article VIII:
(a) Withdrawals may only be made by prior notice to the Committee
in the manner prescribed by the Committee.
(b) Excluding Hardship withdrawals, no more than one withdrawal
may be made in any six-month period.
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(c) Excluding Hardship withdrawals, in no event may a Participant
make a withdrawal in an amount less than $1,000, or the
maximum amount available for withdrawal as a Tax-free
Withdrawal or a Regular Withdrawal, if less.
(d) In no event may a Participant elect an order of withdrawal
other than set forth in Section 8.02, nor may a Participant
select the classification or Investment Fund from which his
stated amount of withdrawal will be withdrawn.
(e) Payments of withdrawal amounts will be made as soon as
practicable after a Participant's election to withdraw.
(f) Amounts received from any Prior or Affiliated Plan in a
trust-to-trust transfer which were subject to Code Section
401(k), under such Plan, shall be subject to Code Section
401(k) requirements under this Plan.
8.04 Hardship Withdrawals.
Financial hardship for purposes of Section 8.02 shall mean that a
Participant requires a withdrawal of money for an immediate and heavy
financial need. Such withdrawal cannot exceed the sum of (i) the amount
required to meet such need and (ii) any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably
anticipated as a result of the distribution. No withdrawal shall be
permitted unless the hardship cannot reasonably be relieved from other
sources, including distributions (other than hardship withdrawals) and
nontaxable loans available under this Plan or any other plan, through
reimbursement or compensation by insurance or otherwise by liquidation
of assets to the extent such liquidation would not itself cause an
immediate and heavy financial need, by cessation of all Pre-Tax
Contributions or After-Tax Contributions under the Plan, or by
borrowing from commercial sources on reasonable commercial terms.
Purchase by a Participant of a primary residence, the need to prevent
eviction or foreclosure on the primary residence of a Participant,
post-secondary education tuition, related fees, and room and board for
a Participant or his dependents and any non-reimbursed medical expense
of a Participant or his dependents may generally be considered
situations of heavy financial need, unless otherwise governed by law or
regulation. The Committee may, under rules established by it which are
uniformly applicable to all similarly situated Participants, determine
other circumstances where a Participant has a heavy financial need and
the decision of the Committee as to whether a Participant satisfies the
financial hardship rule shall be conclusive, unless otherwise governed
by law or regulation.
8.05 Restrictions on Pre-Tax Contribution Distributions. Notwithstanding any
other provision in this Plan to the contrary, a Participant's Pre-Tax
Contribution Accounts may not be distributed earlier than upon one of
the following events:
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(a) The Participant's retirement, death, disability or Termination
of Employment;
(b) The termination of the Plan without the establishment of a
successor plan;
(c) A Participant's attainment of age 59 1/2;
(d) A Participant's hardship, restricted as set forth in Section
8.04.
(e) The sale or disposition of the Company or any Affiliated
Company to an unrelated corporation, which does not maintain
the Plan, of substantially all of the assets used in a trade
or business, but only with respect to Employees who continue
with the acquiring corporation; or
(f) The sale or disposition by the Company or any Affiliated
Company of its interest in a subsidiary to an unrelated entity
which does not maintain the Plan, but only with respect to
Employees who continue employment with the subsidiary.
This Section is intended to comply with the earliest distribution
requirements of Treasury Reg. 1.401(k)-l(d) and is not intended to add
any forms of distribution not otherwise allowed under the Plan.
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ARTICLE IX
LOANS
9.01 Loan Provisions. An active Participant may make application to the
Committee to borrow from the Trust Fund and the Committee may in its
sole discretion permit such a loan upon the conditions hereinafter
specified and any other rules promulgated by the Committee.
(a) Loans shall be made available to all Participants on a
reasonably equivalent basis and (i) shall not be made
available to highly compensated employees (as defined in
Section 414(q) of the Code) in an amount greater than the
amount made available to other Participants, and (ii) shall
not be permitted for purchasing securities or in any way
financing a securities investment.
(b) The maximum amount of a loan to a Participant shall not exceed
the lesser of: (i) 50% of the Participant's vested interest in
his Account; or (ii) $50,000, reduced by the highest
outstanding loan balance during the preceding twelve months.
The minimum loan amount is $1,000. Notwithstanding the
foregoing, no amount of a Participant's Account shall be
considered available for a loan if it is subject to a
qualified domestic relations order as such term is defined
under Section 414(p)(1)(A) of the Code.
(c) The Committee shall have complete discretion in determining
lien priorities among the various investments in the Account.
The Committee shall determine the interest rate for each loan,
consistent with the rate being charged by other lending
institutions for a similar loan to an unrelated borrower on
the same date. A loan shall be deemed to be an investment of a
Participant's individual Account and all interest payments and
repayments of principal shall be credited to the Account of
the Participant.
(d) The Participant shall be required to authorize payroll
deductions from his compensation in an amount sufficient to
repay the loan over its term. Loan repayment amounts shall be
credited to a Participant's Account as of the date of payment
of the Compensation from which the repayment is taken. In the
event of default of the Participant before the loan is repaid
in full, the unpaid balance thereof shall become due and
payable and, to the extent that the outstanding amount is not
repaid within 60 days after demand for payment is sent, such
amount shall be deemed to have been distributed and the
Trustee shall first satisfy the indebtedness from the amount
payable to the Participant before making any payment to the
Participant. In the event of a Participant's death before the
loan is repaid in full, the Participant's estate shall be the
Beneficiary with respect to the outstanding
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loan notwithstanding any other deemed or actual Beneficiary
designation and the unpaid loan balance shall be deemed to
have been distributed to the Participant's estate.
Upon a Participant's Termination of Employment, the
Participant can repay any outstanding loan balance in full or
continue to repay the outstanding balance in the same amount
and at the same rate as prior to the Termination of
Employment. Repayments after a Participant's Termination of
Employment shall be effected as determined by the Committee.
(e) During the repayment period for the loan, the Participant
shall be permitted to fully participate in the Plan.
(f) The Participant shall execute such other documents as the
Committee shall request.
(g) Only one loan for each Participant may be outstanding at one
time.
(h) The Committee may make additional rules for loans under the
Plan, provided that such rules are administered in a
nondiscriminatory manner.
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ARTICLE X
ADMINISTRATION OF PLAN
10.01 Nabisco Employee Benefits Committee.
(a) The general administration of the Plan and the responsibility
for carrying out the provisions of the Plan shall be placed in
the Committee, consisting of not less than three persons.
(b) Any member of the Committee may resign by delivering his
written resignation to the Secretary of the Committee and such
resignation shall become effective upon the date specified
therein. A member shall be deemed to have resigned if he
leaves the active employment of the Company and all Affiliated
Companies.
(c) The Committee shall elect from its members a Chairman, and
shall also elect a Secretary who may, but need not, be one of
the members of the Committee. The Committee may appoint from
its members such committees with such powers as it shall
determine, and may authorize one or more of its members, or
any agent, to execute or deliver any instrument or make any
payment in its behalf.
(d) The Committee shall hold meetings upon such notice, at such
place or places, and at such time or times as it may from time
to time determine.
(e) A majority of the members of the Committee shall constitute a
quorum for the transaction of business. All resolutions or
other action taken by the Committee shall be by the vote of a
majority of the members of the Committee present at any
meeting or without a meeting by an instrument in writing
signed by a majority of the members of the Committee.
(f) No member of the Committee shall receive any compensation for
his service as such, and, except as may be required by
applicable law, no bond or other security is required of him
in such capacity in any jurisdiction.
10.02 Administrative Committee.
(a) The Committee, in its discretion, may delegate its
administrative duties and responsibilities to one or more
Administrative Committees each consisting of three or more
persons, who shall be appointed by and serve at the
pleasure of the Committee and one or more of whom may also
be members of such Committee. Vacancies in the
Administrative Committee shall be filled by the Committee
but the Administrative Committee may act, notwithstanding
any vacancies, so long as there are at least two members of
such Committee. The members of an Administrative
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Committee shall serve without compensation for their services
as such, but shall be reimbursed by the Company for all
necessary expenses incurred in the discharge of their duties.
(b) Subject to restrictions imposed by the Committee, an
Administrative Committee's powers shall include the
following powers:
(i) to interpret Plan provisions with respect to
eligibility, service, vesting and determination of
benefits,
(ii) to calculate benefits and authorize the payment of
benefits by the Plan trustees through disbursement
accounts as directed by the Administrative Committee,
(iii) to authorize the payment of routine Plan expenses
exclusive of trustee, investment manager, or actuary
fees,
(iv) to prepare and/or approve the filing of required
governmental reports,
(v) to maintain Plan and Account records,
(vi) to prepare employee announcements, forms and
procedures, and
(vii) to review denials of benefit claims made by
Participants or Beneficiaries.
The Administrative Committee, at its discretion, may delegate to
assistants, including employees in the Company's Employee Benefits
Department, ministerial and clerical duties.
10.03 Authority and Duties of Various Fiduciaries.
(a) The Committee (or the Administrative Committee acting on
behalf of the Committee) shall have the exclusive right to
interpret the Plan and to decide any and all matters
arising under the Plan or in connection with its
administration, including determination of and eligibility
for the amount of distributions and withdrawals. The
Company shall have no power to direct or modify any
interpretations, determinations, or decisions of the
Committee. The Committee may amend the Plan, subject to the
provisions of Section 11.01. Further, the Committee may
adopt rules for the administration of the Plan and the
conduct of its business and such rules shall be consistent
with the provisions of the Plan.
(b) The Committee and any other named fiduciary may each employ
counsel, agents, and such clerical and accounting services as
it may require in
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carrying out its responsibilities under the Plan. All
fiduciaries shall be entitled to rely upon tables, valuations,
certificates, opinions, and reports furnished by any actuary,
accountant, or legal counsel appointed under the provisions of
the Plan.
(c) The Committee shall keep in convenient form such personnel
data as may be necessary for the Plan. The Committee shall
prepare, distribute, and file such reports and notices as may
be required by applicable law or regulation.
(d) The members of the Committee shall use that degree of care,
skill, prudence and diligence that a prudent man acting in
a like capacity and familiar with such matters would use in
his conduct of a similar situation. A member of the
Committee shall not be liable for the breach of fiduciary
responsibility of another fiduciary unless (i) he
participates knowingly in, or knowingly undertakes to
conceal, an act or omission of such other fiduciary,
knowing such act or omission is a breach; or (ii) by his
failure to discharge his duties solely in the interest of
the Participants, Surviving Spouses and Beneficiaries for
the exclusive purpose of providing their benefits and
defraying reasonable expenses of administering the Plan not
met by the Company, he has enabled such other fiduciary to
commit a breach; or (iii) he has knowledge of a breach by
such other fiduciary and does not make reasonable efforts
to remedy the breach; or (iv) the Committee improperly
allocates duties among its members or delegates duties to
others and fails to properly review such allocation or
delegation of fiduciary responsibilities.
(e) The Company will indemnify and hold harmless the members of
the Committee and any person to whom fiduciary
responsibilities are delegated under this Plan against any
cost or expense (including attorney's fees) or liability
(including any sum paid in settlement of a claim with the
approval of the Company) arising out of any act or omission to
act, except in the case of willful misconduct.
(f) Whenever, in the administration of the Plan, any discretionary
action is required, the authorized party shall exercise his
authority in a nondiscriminatory manner so that all persons
similarly situated will receive substantially the same
treatment.
10.04 Named Fiduciaries.
(a) The Committee and any Administrative Committee shall each
constitute named fiduciaries as such term is defined in ERISA.
(b) Any fiduciary appointed as a named fiduciary by the Company by
resolution or appointed by an appropriate instrument executed
by an
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officer of the Company thereunto authorized shall also
constitute a named fiduciary in respect of the duties
delegated to him or it in such resolution or instrument.
10.05 Delegation. Any named fiduciary designated herein or appointed as
provided herein, unless precluded from doing so by the terms of such
appointment, may by appropriate instrument designate any person
(including any firm or corporation) to carry out part or all of such
fiduciary's responsibilities and upon such designation the named
fiduciary shall have no liability, except as imposed by applicable law,
for any act or omission of such person. The foregoing does not preclude
any other fiduciary to the extent allowed by ERISA and the terms of his
appointment from delegating part or all of such fiduciary's
responsibilities with respect to the Plan.
10.06 Multiple Capacities. Any fiduciary may serve in more than one
fiduciary capacity with respect to the Plan.
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ARTICLE XI
AMENDMENTS, TERMINATION, PERMANENT DISCONTINUANCE
OF CONTRIBUTIONS, MERGER OR CONSOLIDATION
11.01 Amendments. Subject to the provisions hereinafter set forth, the
Company reserves the right at any time and from time to time by action
of the Committee in writing, both retroactively and prospectively, to
modify or amend, in whole or in part, any or all of the provisions of
the Plan; provided, however, that (a) no such modification or amendment
shall make it possible for any part of the funds of the Plan to be used
for, or diverted to, purposes other than for the exclusive benefit of
Participants, Surviving Spouses or Beneficiaries under than Plan; and
(b) no modification or amendment shall be made which has the effect of
decreasing retroactively the Accounts of any Participant or of reducing
the nonforfeitable percentage of the Company Contribution Account of a
Participant below the nonforfeitable percentage thereof computed under
the Plan as in effect on the later of the date on which the amendment
is adopted or becomes effective; and provided further, that any
amendment of the Plan that involves a material increase in benefits for
officers of the Company, a material increase in cost or a material
change in design, other than technical amendment required by law or
regulations, must be approved by the Board of Directors. No amendment
shall eliminate or reduce an early retirement benefit or eliminate an
optional form of benefit except as permitted by law.
11.02 Termination or Permanent Discontinuance of Contributions. The Company
may by action of the Committee terminate the Plan with respect to all
participating locations or any of them or direct complete
discontinuance of contributions hereunder by all or any of the
locations for any reason at any time. In case of such termination or
complete discontinuance of contributions hereunder, there shall
automatically vest in the appropriate Participants nonforfeitable
rights to the Company contributions credited to their Accounts, and the
total amount in each Participant's Accounts shall be distributed, as
the Committee shall direct, to him or for his benefit.
11.03 Partial Termination. In the event of a partial termination of the
Plan, the provisions of Section 11.02 shall be applicable only to
the Participants affected by such partial termination.
11.04 Benefits in Case of Merger or Consolidation. The Plan may not be merged
or consolidated with, nor may its assets or liabilities be transferred
to, any other plan unless each Participant, spouse or Surviving Spouse,
former Participant, retired Participant or Beneficiary under the Plan
would, if the resulting plan were then terminated, receive a benefit
immediately after the merger, consolidation, or transfer which is equal
to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer if the Plan
had then terminated.
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ARTICLE XII
MISCELLANEOUS
12.01 Benefits Payable from Trust Fund. All persons with an interest in the
Trust Fund shall look solely to the Trust Fund for any payments with
respect to such interest.
12.02 Elections. Elections for benefits or Beneficiaries hereunder shall be
made by a Participant in the manner prescribed by the Committee for
such purposes, within the prescribed time limits.
12.03 No Right to Continued Employment. Neither the establishment of the Plan
nor the payment of any benefits thereunder nor any action of the
Company, the Board of Directors, the Committee, or the Trustee shall be
held or construed to confer upon any person any legal right to be
continued in the employ of the Company.
12.04 Inalienability of Benefits and Interests. No benefit payable under the
Plan or interest in the Trust Fund shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any such attempted action shall be void and
no such benefit or interest shall be in any manner liable for or
subject to debts, contracts, liabilities, engagements or torts of any
Participant, Surviving Spouse or Beneficiary.
12.05 Qualified Domestic Relations Orders.
(a) The provisions in Section 12.04 shall also 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: (i) is determined to be a
qualified domestic relations order, as defined in Section
414(p) of the Code, or (ii) was entered before January 1,
1985.
(b) If the Committee is in receipt of a domestic relations
order, or the Committee is otherwise aware that a qualified
domestic relations order affecting a Participant's account
is being sought, the Committee may take such action as
necessary (including, without limitation, restricting the
participant's ability to withdraw or borrow funds in his or
her Accounts) in order to administer the Plan consistently
with the terms of any such qualified domestic relations
order.
12.06 Payments for Exclusive Benefit of Participants. Payments of benefits in
respect of the interest of a Participant under the Plan to any person
other than such Participant in accordance with the provisions of the
Plan shall be deemed to be for the exclusive benefit of such
Participant.
12.07 New Jersey Law to Govern. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance
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with the laws of the State of New Jersey, except to the extent such
laws are pre-empted by ERISA.
12.08 No Guarantee. Neither the Company nor the Trustee guarantee the
Trust Fund in any manner against loss or depreciation.
12.09 Address of Record. Each individual or entity with an actual or
potential interest in the Plan shall file and maintain a current record
address with the Plan. Communications mailed by the Company, Trustee,
or Committee to such record address fulfills all obligations to provide
required information to Participants, including former employees,
Surviving Spouses and Beneficiaries, in regard to the Plan. If no
record address is filed, it may be presumed that the address used by
the Company in forwarding statements of a Participant's Account is the
record address.
12.10 Unlocated Spouse. Notwithstanding the consent requirement in Section
1.10, if the Participant establishes to the satisfaction of the
Committee that such written consent cannot be obtained because there is
no spouse or the spouse cannot be located, a waiver shall be deemed to
be valid. Any consent necessary under Section 1.10 will be valid only
with respect to the spouse who signs the consent, or in the event of a
deemed election, the designated spouse.
12.11 Agent for Process. The Secretary of Kraft Foods North America, Inc.
shall be the designated agent for the service of legal process.
12.12 Payments in the Event of Incompetency. If the Committee finds that a
Participant or other person entitled to a benefit is unable to care for
his affairs because of illness or accident or is a minor, the Committee
may direct that any benefit payment due the Participant, unless claim
shall have been made therefor by a duly appointed legal representative,
be paid to his spouse, a child or a parent for the benefit of such
Participant, and any such payment so made shall be a complete discharge
of the liabilities of the Plan therefor.
12.13 Transfer of Accounts to This Plan.
(a) Affiliated Plans. If a participant of a U.S. qualified
Affiliated Plan becomes eligible to be a Participant of
this Plan before receiving a distribution from the
Affiliated Plan, this Account under the Affiliated Plan
shall be transferred to this Plan by way of a
trustee-to-trustee transfer. This Plan shall be considered
as a successor plan with regard to such employee and all
Affiliated Plan contributions transferred shall be treated
as though they were made under this Plan for purposes of
vesting, withdrawals and distributions. In the absence of
an applicable Participant election, assets transferred from
an Affiliated Plan shall be invested in equivalent
investment funds under this Plan or, if an equivalent
investment fund does not exist, in the Money Market Fund
or, effective October 1, 1994, the Interest Income Fund;
and the accounts of participants and
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beneficiaries under the Affiliated Plan will become their
Accounts as Participants and Beneficiaries under this Plan,
effective as of the transfer date. Once a Participant has
received a distribution from the Affiliated Plan, it shall be
treated as a Prior Plan for purposes of this Section 12.13.
(b) Prior Plans. This Plan does not accept trustee-to-trustee
transfers from a Prior Plan. However, the Trustee is
authorized to accept as a Rollover Contribution any
contribution that meets the following criteria:
(i) the contribution is made by, or on behalf of, an
Eligible Employee;
(ii) the contributed amounts were distributed from the Prior
Plan as an "eligible rollover distribution" (as defined
in Section 7.05)
(iii) the contribution is made either (a) as a direct rollover
from the Prior Plan to this Plan, or (b) by the Eligible
Employee, within 60 days after the date such
distribution is received by the Eligible Employee;
(iv) if applicable, the spousal consent requirements of
Code Section 417(a)(2) were complied with; and
(v) such Rollover Contribution meets any other conditions as
determined necessary by the Trustee or Committee to
comply with Code Section 408(d)(3).
Rollover Contributions shall be held in the Eligible
Employee's Rollover Contribution Account. The Eligible
Employee is at all times fully vested with respect to his
Rollover Contributions.
(c) As of July 1, 1998, upon the spin-off and transfer of
hourly participants' accounts from the Cornnuts, Inc.
Profit Sharing and Retirement Plan (the "Cornnuts Plan") to
this Plan, each hourly participant of the Cornnuts Plan
shall have an Account in this Plan. The Cornnuts Plan
shall be treated as an Affiliated Plan and this Plan shall
provide, at a minimum, protection for any benefits under
the Affiliated Plan that are required under Code Section
411(d)(6). In the absence of an applicable Participant
election, assets transferred from such an Affiliated Plan
shall be invested in equivalent investment funds under this
Plan. Service with such Affiliated Plan shall be
recognized for purposes of vesting in Company Contributions
under Section 6.02.
12.14 Transfer of Plan Assets to an Affiliated Plan. If a Participant
transfers employment from the Company to an Affiliated Company and
thereafter becomes eligible to participate in an Affiliated Plan, the
assets in his Accounts in the Plan shall be transferred to such
Affiliated Plan in accordance with the terms thereof.
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12.15 Headings. Headings of Articles and Sections of the Plan are inserted
for convenience of reference. They constitute no part of the Plan.
12.16 Payment of Expenses.
(a) Direct charges and expenses arising out of the purchase or
sale of securities, and taxes levied on or measured by such
transactions may be charged against the Account(s) or
Investment Fund for which the transactions took place.
(b) Direct charges or expenses arising out of the establishment
and maintenance of any funding account with an insurance
Company or other financial institution may be charged against
the Account(s) or Investment Fund for which the funding
account is established.
(c) Investment Manager fees arising out of the establishment and
maintenance of any Investment Fund may be charged against the
Investment Fund for which the Investment Manager fees are
incurred.
(d) Trustee fees attributable to the Trust, auditor fees for the
plan, and IRS user fees may be paid directly from the Trust.
The Committee shall determine the manner in which these fees
shall be charged against the Account(s) or Investment Funds
held in the Trust.
(e) Any other charges or expenses relating to the maintenance or
administration of the Plan that are permitted under applicable
law to be paid from the Trust including, but not limited to,
recordkeeping fees, may be paid directly from the Trust. The
Committee shall determine the manner in which these charges
and expenses shall be charged against the Accounts or
Investment Funds held in the Trust.
(f) Any of the expenses in (a)-(e) above may, at the option of
the Company, be paid wholly or partly directly by the
Company.
(g) The Company shall pay all other expenses reasonably
incurred in administering the Plan.
(h) The Committee may authorize additional expenses to be charged
directly from the Trust; provided that such fees are in
compliance with applicable law, are reasonable, and that any
change in fee policy is communicated to Participants in a
timely manner.
12.17 Direct or Indirect Transfer. With respect to any Participant who is
actively employed, the Plan shall accept any "eligible rollover
distribution" (as defined in Section 7.05) from a defined benefit plan,
money purchase pension plan (including a target benefit
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plan), stock bonus plan, profit sharing plan, or a conduit individual
retirement account.
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ARTICLE XIII
CLAIM PROCEDURE
13.01 Initial Determination. The initial determination of a Participant's,
Surviving Spouse's or Beneficiary's eligibility for, and the amount of,
a benefit shall be made by the Administrative Committee, or in its
absence, the Committee which shall mail or deliver to each covered
individual who has filed an effective claim for a benefit a written
statement of the amount of his benefit or a notice of denial of his
claim on or before the 90th day following the Committee's receipt of
such claim. If special circumstances require additional time for
processing the claim, the Administrative Committee, or in its absence,
the Committee may delay issuing its statement or notice for an
additional 90 days provided that the Participant, Surviving Spouse or
Beneficiary is notified of the circumstances necessitating the delay
and the date the Committee expects to render its final opinion. A claim
for benefits is not effective unless filed on forms prescribed by the
Committee. Each notice of whole or partial denial of claimed benefits
shall set forth the specific reasons for the denial, the time within
which an appeal must be made by the Participant, Surviving Spouse or
Beneficiary or his duly authorized representative, and shall contain
such other information as may be required by applicable law. If a
statement or notice is not issued within the prescribed period, the
claim shall be deemed denied.
13.02 Review. Each Participant, Surviving Spouse or Beneficiary whose claim
for benefits has been wholly or partially denied shall have such rights
to review documents and submit comments as applicable law and
regulations of the Committee may provide, and shall also have the right
to request the Committee to review such denial; such request to be made
on forms prescribed by the Committee. A request for review shall be
filed by the Participant, Surviving Spouse or Beneficiary or his duly
authorized representative on or before the 60th day following the,
earlier of the Participant's, Surviving Spouse's or Beneficiary's
receipt of notice of denial of his claim or the expiration of the
prescribed period for issuing a statement of benefits or notice of
denial. The Committee shall issue a written statement on or before the
60th day following its receipt of such request stating the Committee's
decision on review and the reasons therefore, including specific
references to pertinent Plan provisions on which the decision is based,
and any other information required by applicable law. If special
circumstances require additional time for processing such review, the
Committee may delay issuing its decision for an additional 60 days
provided that the Participant, Surviving Spouse or Beneficiary is
notified of such circumstances and the date the Committee expects to
render its final decision. If the decision is not issued within the
prescribed period, the appeal shall be deemed denied.
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ARTICLE XIV
LIMITATION ON BENEFITS
14.01 Code Section 415 Limits.
(a) The following definitions shall be applied in construing
this Section.
(1) Defined Benefit Plan means any defined benefit plan (as
defined in Section 415(k) of the Code) maintained by any
Affiliated Company.
(2) Related Plan means any Defined Contribution Plan (as
defined in Section 415(k) of the Code), other than the
Plan, maintained by any Affiliated Company or any
individual account maintained for voluntary
contributions made by a Participant under a Defined
Benefit Plan.
(3) Total Compensation means all remuneration paid to an
Employee by any Affiliated Company, as determined
pursuant to the provisions of Treasury Regulation
Section 1.415-2(d)(11)(i).
(4) Annual Addition means the sum of the following amounts
credited to a Participant's account for the limitation
year:
(i) employer contributions;
(ii) employee contributions;
(iii) forfeitures; and
(iv) amounts allocated to an individual medical
account, as defined in Section 415(l)(2) of the
Code, which is part of a pension or annuity plan
maintained by the employer and amounts derived
from contributions paid or accrued after December
31, 1985, in taxable years ending after such date,
which are attributable to post-retirement medical
benefits allocated to the separate account of a
key employee, as defined in Section 419A(d)(3) of
the Code, under a welfare benefit fund, as defined
in Section 419(e) of the Code, maintained by the
employer.
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(b) Limitations Applicable to Participants in Defined
Contribution Plans Only.
(i) The Annual Addition credited to a Participant under
the Plan or any Related Plan for any Limitation Year
must not exceed the lesser of (1) $30,000 (or, if
greater, 25% of the defined benefit dollar limitation
set forth in Section 415(b)(1) of the Code as in
effect for the Plan Year) or (2) 25% of the
Participant's Total Compensation for such Limitation
Year.
(ii) Excess Annual Additions. If as a result of the
allocation of forfeitures, a reasonable error in
estimating a Participant's annual compensation, or under
other limited facts and circumstances which the
Commissioner of Internal Revenue finds justified, the
Annual Additions which cause the limitations of Code
Section 415 for the limitation year to be exceeded shall
not be deemed Annual Additions in that limitation year
and shall be treated as follows:
The excess amounts in the Participant's Account
attributable to Supplemental After-Tax Contributions
shall first be returned to the Participant. If
necessary, Company Contributions shall be used to reduce
Company Contributions for the next limitation year (and
succeeding limitation years, as necessary) for that
Participant if that Participant is covered by the Plan
as of the end of the limitation year. However, if that
Participant is not covered by the Plan as of the end of
the limitation year, then the excess amounts shall be
held unallocated in a suspense account for the
limitation year and allocated and reallocated in the
next limitation year to all of the remaining
Participants in the Plan. Furthermore, the excess
amounts must be used to reduce Company Contributions for
the next limitation year (and succeeding limitation
years, as necessary) for all of the remaining
Participants in the Plan. If a suspense account is in
existence at any time during the limitation year in
accordance with this Section, investment gains and
losses and other income shall be allocated to the
suspense account. To the extent that investment losses
are allocated to the suspense account, the entire amount
allocated to Participants from the suspense account,
including any such gains or other income or less any
losses, is considered as the Annual Addition.
(c) In addition to other limitations set forth in the Plan and
notwithstanding any other provisions of the Plan,
contributions (and contributions to all other Defined
Contribution Plans required to be aggregated under this Plan
under the provisions of Section 415 of the Code), shall not be
made in an amount in excess of the amount permitted under
Section 415 of the Code.
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14.02 Code Section 416 Limits. This Section is intended to ensure the Plan's
compliance with Section 416 of the Code. It shall be applicable to
Participants for any Plan Year with respect to which the Plan is
top-heavy.
(a) Definitions. The following definitions shall be applied in
construing this Section.
(i) Top-Heavy Plan means any plan maintained by the
Company or an Affiliated Company if, as of the
Determination Date, the Top-Heavy Ratio for the plan
and all other plans in the Aggregation Group exceeds
60%. The plan will be deemed a "super top-heavy plan"
if, as of the Determination Date, the Plan would meet
the test specified above for being a Top-Heavy Plan
if 90% were substituted for 60% in each place it
appears in this subsection (i).
(ii) Determination Date means the last day of the preceding
Plan Year (or, in the case of the first plan year of a
plan, the last day of such Plan Year). When plan
aggregation is required, calculation of accrued benefits
as of the determination dates which fall within the same
calendar year will be used.
(iii) Valuation Date means the same date as the
Determination Date.
(iv) Key Employee means each Employee or former Employee who
is, at any time during the Plan Year ending on the
"Determination Date", or was, during any one of the four
Plan Years preceding the Plan Year ending on the
Determination Date, any one or more of the following:
(1) An officer of the Company or an Affiliated Company
having an annual compensation greater than 50% of
the dollar limitation in effect under Code Section
415(b)(1)(A) for any Plan
Year;
(2) One of 10 Employees having annual compensation
from the Company or an Affiliated Company of more
than the dollar limitation in effect under Code
Section 415(c)(1)(A) and owning (or considered as
owning within the meaning of Code Section 318)
both the largest interests in the Company or an
Affiliated Company and a 1/2% ownership interest;
(3) Any person owning (or considered as owning within
the meaning of Code Section 318) more than 5% of
the outstanding stock of the Company (or stock
having more
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than 5% of the total combined voting power of all
stock of the Company); or
(4) Any person who has annual compensation of more
than $150,000 and would be described in subsection
(3) above, if "1%" was substituted for "5%".
For purposes of determining whether a person is an officer in
subsection (1) above, in no event will more than 50 Employees
be considered Key Employees solely by reason of officer
status. In addition, persons who are merely nominal officers
will not be treated as Key Employees solely by reason of their
titles as officers. For purposes hereof, compensation is as
defined in Section 1.415-2(d) of the Income Tax Regulations.
(v) Non-Key Employee means any Participant in the Plan
(including a beneficiary of such Participant) who is not
a Key Employee.
(vi) Aggregation Group means all plans that are subject to
Required Aggregation (in accordance with subsection
14.02(b). The Aggregation Group may also include plans
subject to Permissive Aggregation (in accordance with
subsection 14.02(c)), if such aggregation would
eliminate the status of plans in the Aggregation Group
as Top-Heavy Plans.
(b) Required Aggregation. This Plan and all other qualified
plans, including any terminated plans, maintained by the
Company or an Affiliated Company which include a Key
Employee must be aggregated to determine if the group as a
whole is top-heavy. In addition, each other qualified plan
maintained by the Company or an Affiliated Company which
enables any plan in which a Key Employee is a Participant
to meet the requirements of Sections 410(a)(4) and 410 of
the Code must be aggregated.
(c) Permissive Aggregation. The Company may include other plans
maintained by the Company or an Affiliated Company which when
considered as a group with the required aggregation group,
would continue to satisfy the requirements of Sections
401(a)(4) and 410 of the Code, to determine if the group as a
whole is top-heavy, provided such plans are comparable in
benefits or contributions.
(d) Top-Heavy Ratio.
(i) The top-heavy ratio is a fraction, the numerator of
which is the sum of account balances under the
defined contribution plans in the Aggregation Group
for all Key Employees and the present value of
accrued benefits under the Defined Benefit Plans for
all Key Employees, and the denominator of which is
the sum of the
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account balances under the defined contribution plans in
the Aggregation Group for all Participants and the
present value of accrued benefits under the defined
benefit plans in the Aggregation Group for all
Participants. Both the numerator and denominator are
adjusted to include any distributions made in the
five-year period ending on the "Determination Date" and
any contributions due but unpaid as of the Determination
Date.
(ii) The value of account balances and the present value of
accrued benefits will be determined as of the most
recent Valuation Date. The account balances and accrued
benefits of a Participant who is not a Key Employee but
who was a Key Employee in a prior year will be
disregarded. The calculation of the top-heavy ratio, and
the extent to which distributions, rollovers and
transfers are taken into account will be made in
accordance with Section 416 of the Code and the
regulations thereunder.
(iii) If any Participant has not performed an Hour of Service
for the Company at any time during the five-year period
ending on the Determination Date, the account of such
Participant shall not be taken into account.
(e) Minimum Vesting. For any Plan Year in which the Plan is a
top-heavy plan as determined pursuant to Section 416 of the
Code, a Participant will have a nonforfeitable right to a
percentage of the Participant's Accounts derived from Company
Contributions as set forth below if such schedule is more
favorable to the Participant than the vesting schedule under
Section 7.02.
Years of Service Completed
For Vesting Purposes Vested Interest
Less than two 0%
Two but less than three 20%
Three but less than four 40%
Four but less than five 60%
Five or more 100%
The above vesting schedule applies to all benefits within the
meaning of Section 411 (a)(7) of the Code, including benefits
accrued before the effective date of Section 416 of the Code
and benefits accrued before the Plan became top-heavy.
However, any Participants who has completed at least three (3)
years of service for vesting purposes as of the last day of
the last Plan Year (a) before the Plan became top-heavy or (b)
in which the Plan is top-heavy, shall have the right to elect
to continue to have the vesting schedule in effect on the last
day of such Plan Year applied to all of his benefits under the
Plan. Further, no reduction in vested benefits may
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55
occur in the event the Plan's status as top-heavy changes for
any Plan Year.
(f) Minimum Required Contribution. It is intended that the
Company or an Affiliated Company will meet the minimum
contribution requirements of Section 416(c) of the Code by
providing a minimum contribution (which may include
forfeitures otherwise allocable) without regard to any
Social Security contributions for such Plan Year for each
Participant who is a non-key employee in an amount equal to
at least 3% of such Participant's compensation (as defined
in Section 1.415-2(d) of the Income Tax Regulations) for
such Plan Year. Such 3% minimum contribution requirement
shall be increased to 4% for any year in which the Company
or an Affiliated Company also maintains a defined benefit
pension plan if necessary to avoid the application of
Section 416(h)(1) of the Code, relating to the special
adjustments to Section 415 limits of the Code for top-heavy
plans, if the adjusted limitations of Section 416(h)(1)
would otherwise be exceeded if such minimum contribution
were not so increased. The minimum contribution required
shall be made to any non-key employee who is still employed
on the last day of the plan year regardless as to the
number of hours of Service performed during the year and
regardless of the employee's level of compensation.
A non-key employee who is also covered under a defined benefit
plan that is part of the same aggregation group shall receive
his minimum benefit under the defined benefit plan, offset by
the actuarially determined value of the minimum contribution
made under this Plan.
If for the Plan Year the Plan becomes a super top-heavy plan,
then the denominator of both the defined contribution plan
fraction and the defined benefit plan fraction shall be
calculated as set forth in Section 14.01(b) for the limitation
year ending in such Plan Year by substituting "1.0" for "1.25"
in each place such figure appears.
The percentage minimum contribution required hereunder shall
in no event exceed the percentage contribution made for the
Key Employee for whom such percentage is the highest for the
Plan Year after taking into account contributions or benefits
under other qualified plans in this Plan's aggregation group
providing no other defined benefit plan uses the defined
contribution plan to satisfy Code Section 401 (a) as provided
in Section 416(c)(2)(B)(ii) of the Code.
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SCHEDULE A
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit NUH Addison, IL Yes Yes Yes
Biscuit Sales BCT #300 Addison, IL Yes Yes Yes
Biscuit Sales NUH Albuquerque, NM Yes Yes Yes
Biscuit NUH Altoona, PA Yes Yes Yes
Biscuit NUH Amherst, NY Yes Yes Yes
Biscuit Sales BCT #16 Amherst, NY Yes Yes Yes
Biscuit Sales IBT #952 Anaheim, CA Yes Yes Yes 5/96
Biscuit NUH Asheville, NC Yes Yes Yes
Biscuit Production IAM #2 Atlanta, GA Yes Yes Yes 1/95
Biscuit Production IBEW #613 Atlanta, GA Yes Yes Yes 1/95
Biscuit Production BCT #42 Atlanta, GA Yes Yes Yes
Biscuit NUH Atlanta, GA Yes Yes Yes
Biscuit NUH Aurora, CO Yes Yes Yes
Biscuit BCT #26 Aurora, CO Yes Yes Yes
Biscuit Sales IBT #570 Baltimore, MD Yes Yes Yes 11/1/96
Biscuit Sales NUH Baltimore, MD Yes Yes Yes
Biscuit Sales NUH Bangor, ME Yes Yes Yes
Biscuit IBT #734 Bedford Park, IL No No No
Biscuit Sales RWDSU #441 Birmingham, AL Yes Yes Yes 2/1/97
Biscuit Sales NUH Birmingham, AL Yes Yes Yes
Biscuit Sales IBT #483 Boise, ID Yes Yes No 11/1/96
Biscuit NUH Boise, ID Yes Yes Yes
Biscuit NUH Boston, MA Yes Yes Yes
Biscuit Sales BCT #300 Broadview, IL Yes Yes Yes
Biscuit NUH Brockton, MA Yes Yes Yes
Biscuit NUH Buena Park, CA No No No
Biscuit Production BCT #83 Buena Park, CA Yes Yes Yes
57
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit Production IBT #952 Buena Park, CA Yes Yes Yes 5/96
Foods Production BCT #16 Buffalo, NY Yes Yes Yes
Foods Production IUOE #71AB Buffalo, NY Yes Yes Yes 6/1/95
Foods Production IAM #330 Buffalo, NY Yes Yes Yes 1/1/95
Biscuit NUH Buffalo, NY Yes Yes Yes
Biscuit Sales NUH Burlington, VT Yes Yes Yes
Biscuit Sales NUH Cairo, IL Yes Yes Yes
Foods Production NUH Cambridge, MD Yes Yes Yes
Biscuit Sales NUH Casper, WY Yes Yes Yes
Biscuit NUH Cedar Rapids, IA Yes Yes Yes
Biscuit IBT #238 Cedar Rapids, IA Yes Yes Yes
Biscuit Sales NUH Charleston, SC Yes Yes Yes
Biscuit Sales NUH Charlotte, NC Yes Yes Yes
Biscuit Sales NUH Chattanooga, TN Yes Yes Yes 5/96
Biscuit IBT #515 Chattanooga, TN No No No
Biscuit NUH Chesapeake, VA Yes Yes Yes
Biscuit Production IUOE #399 Chicago, IL Yes Yes Yes
Biscuit Production IAM #8 Chicago, IL Yes Yes Yes 1/95
Biscuit Production BCT #300 Chicago, IL Yes Yes Yes
Biscuit NUH Chicago, IL Yes Yes Yes
Biscuit NUH Cincinnati, OH Yes Yes Yes
Biscuit NUH Cleveland, OH Yes Yes Yes
Biscuit Sales BCT #26 Colorado Springs, CO Yes Yes Yes
Biscuit NUH Colorado Springs, CO Yes Yes Yes
Biscuit Sales NUH Columbia, SC Yes Yes Yes
Biscuit Sales NUH Columbus, OH Yes Yes Yes
Biscuit Sales IBT #163 Compton, OH Yes Yes Yes 5/96
Biscuit Sales NUH Corpus Christi, TX Yes Yes Yes
Biscuit BCT #11 Corpus Christi, TX Yes Yes Yes
Biscuit BCT #163 Corpus Christi, TX Yes Yes Yes
58
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit NUH Culver City, CA Yes Yes Yes
Biscuit IBT #63 Culver City, CA Yes Yes Yes
Biscuit NUH Dallas, TX Yes Yes Yes
Field IBT #767 Dennison, TX No No No
Biscuit Sales BCT #72 Denver, CO Yes Yes Yes
Biscuit NUH Denver, CO Yes Yes Yes
Biscuit NUH Des Moines, IA Yes Yes Yes
Biscuit IBT #147 Des Moines, IA No No No
Biscuit NUH Des Moines, IA Yes Yes Yes
Biscuit NUH Detroit, MI Yes Yes Yes
Biscuit Sales NUH Dothan, AL Yes Yes Yes
Biscuit Sales NUH Duncan, SC Yes Yes Yes
Biscuit NUH Dunellen, NJ Yes Yes Yes
Biscuit IBT #560 Dunellen, NJ Yes Yes Yes
Biscuit NUH Earth City, MO Yes Yes Yes
Biscuit IBT #688 Earth City, MO Yes No Yes
Biscuit Sales IBT #560 Edison, NJ Yes Yes Yes 1/95
Biscuit Sales NUH El Paso, TX Yes Yes Yes
Biscuit Sales NUH Erie, PA Ye Yes Yes
Biscuit NUH Eugene, OR Yes Yes Yes
Biscuit IBT#57 Eugene, OR Yes Yes Yes
Biscuit Sales NUH Evansville, IN Yes Yes Yes
Biscuit Sales IBT #33 Fairfax, VA No No No 5/96
Biscuit Production IUOE #68-68A Fairlawn, NJ Yes Yes Yes
Biscuit Production BCT #719 Fairlawn, NJ Yes Yes Yes
Biscuit IBT #807 Fairlawn, NJ Yes Yes Yes
Biscuit Sales IBT #116 Fargo, ND Yes Yes Yes 1/1/97
Biscuit NUH Fargo, ND Yes Yes Yes
Biscuit Sales IBT #51 Farmington, MI Yes Yes Yes 6/1/96
Biscuit NUH Farmington, MI Yes Yes Yes
59
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit NUH Flint, MI Yes Yes Yes
Biscuit IBT #332 Flint, MI No No No
Biscuit Sales NUH Ft. Lauderdale, FL Yes Yes Yes
Biscuit NUH Ft. Wayne, IN Yes Yes Yes
Biscuit Sales IBT #414 Ft. Wayne, IN Yes Yes No 6/1/96
Biscuit Sales IBT #559 Glastonbury, CT Yes Yes Yes 1/1/96
Biscuit NUH Glastonbury, CT Yes Yes Yes
Biscuit NUH Glenview, IL Yes Yes Yes
Biscuit BCTU #300 Glenview, IL Yes Yes Yes
Biscuit Sales NUH Goldsboro, NC Yes Yes Yes
Biscuit NUH Green Bay, WI Yes Yes Yes
Biscuit Sales IBT #75 Green Bay, WI Yes Yes Yes 8/1/96
Biscuit Sales NUH Greensboro, NC Yes Yes Yes
Biscuit NUH Greenville, SC Yes Yes Yes
Biscuit Sales IBT #114 Hamilton, OH Yes Yes Yes
Biscuit NUH Hamilton, OH Yes Yes Yes
Biscuit NUH Hayword, CA Yes Yes Yes
Biscuit IBT #70 Hayword, CA No No No
Biscuit IBT #853 Hayword, CA No No No
Biscuit Sales IBT #2 Helena, MT Yes No Yes
Biscuit NUH Helena, MT Yes Yes Yes
Biscuit NUH Henrietta, NY Yes Yes Yes
Biscuit IBT #791 Henrietta, NY Yes Yes Yes
PLS RWDSU #82 Holland, MI Yes Yes Yes 50%
LS NUH Holland, MI Yes Yes Yes 50%
Biscuit Sales NUH Honolulu, HI Yes Yes Yes
Biscuit Sales IBT #463 Horsham, PA Yes Yes No 6/1/95
Biscuit NUH Horsham, PA Yes Yes Yes
Biscuit Production MILL #2232 Houston, TX Yes Yes Yes
Biscuit Production IBEW #716 Houston, TX Yes Yes Yes
60
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit Production BCT #163 Houston, TX Yes Yes Yes
Biscuit IBT #988 Houston, TX Yes Yes Yes
Biscuit NUH Houston, TX Yes Yes Yes
Biscuit Sales NUH Huntington, WV Yes Yes Yes
Foods Production UFCW #700 Indianapolis, IN Yes Yes No 6/1/96
Biscuit Sales IBT #135 Indianapolis, IN Yes Yes Yes 2/1/97
Biscuit Sales IBT #745 Irving, TX Yes Yes Yes 4/95
Biscuit NUH Irving, TX Yes No Yes
Biscuit Sales NUH Jacksonville, FL Yes Yes Yes
Biscuit NUH Kansas City, MO Yes Yes Yes
FSD NUH Kent, WA No No No
Biscuit NUH Kent, WA Yes Yes Yes
Biscuit IBT #117 Kent, WA Yes Yes Yes
Biscuit IBT #174 Kent, WA Yes Yes Yes
Biscuit Sales NUH LaCrosse, WI Yes Yes Yes
Biscuit Sales NUH Lafayette, LA Yes Yes Yes
Biscuit Sales NBC Landover, MD Yes Yes Yes
Biscuit NBC Lansing, MI Yes Yes Yes
Biscuit Sales IBT #14 Las Vegas, NV Yes Yes Yes 5/96
Biscuit NUH Las Vegas, NV Yes Yes Yes
Biscuit Sales IBT #669 Latham, NY Yes Yes Yes 8/1/94
Biscuit NUH Latham, NY Yes Yes Yes
Biscuit Sales IBT #878 Little Rock, AK Yes Yes Yes
Biscuit NUH Little Rock, AK Yes Yes Yes
Biscuit NUH Los Angeles, CA Yes Yes Yes
Biscuit Sales IBT #89 Louisville, KY Yes Yes Yes
Biscuit Sales NUH Louisville, KY Yes Yes Yes
Biscuit Sales NUH Lubbock, TX Yes Yes Yes
Biscuit Sales NUH Macedonia, OH Yes Yes Yes
Biscuit Sales IBT #52 Macedonia, OH Yes Yes Yes
61
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit NUH Macon, GA Yes Yes Yes
Biscuit IBT #528 Macon, GA No No No
Biscuit NUH Mansfield, Yes Yes Yes
Biscuit NUH Marlton Yes Yes Yes
Biscuit Sales BCT #719 Maspeth, NY (Garage) Yes Yes Yes
Biscuit NUH Maumelle Yes Yes Yes
Biscuit IBT #878 Maumelle Yes Yes Yes
Biscuit NUH Medford, OR Yes Yes Yes
Biscuit IBT #962 Medford, OR Yes Yes Yes
Biscuit NUH Melbourne, FL Yes Yes Yes
Biscuit IBT #984 Memphis, TN Yes Yes Yes
Biscuit NUH Memphis, TN Yes Yes Yes
Biscuit NUH Meridian, MS Yes Yes Yes
Biscuit NUH Methuen, MA Yes Yes Yes
Biscuit IBT #686 Methuen, MA Yes Yes Yes
Biscuit NUH Miami, FL Yes Yes Yes
Biscuit NUH Milpitas, CA Yes Yes Yes
Biscuit IBT #078 Milpitas, CA Yes Yes Yes
Biscuit IBT #296 Milpitas, CA Yes Yes No
Biscuit NUH Minneapolis, MN (East and West) Yes Yes Yes
Biscuit Sales IBT #289 Minneapolis, MN (East and West) Yes Yes Yes 1/1/96
Biscuit NUH Modesto, CA Yes Yes Yes
Biscuit Sales NUH Montgomery, AL Yes Yes Yes
Biscuit NUH Montgomery, NY Yes Yes Yes
Biscuit IBT #338 Montgomery, NY Yes Yes Yes
Biscuit IBT #64 Montgomery, NY Yes Yes Yes
Biscuit IBT #26 Monticello, NY Yes Yes Yes
Biscuit IUOE #399 Naperville, IL Yes No Yes
Biscuit AFGM #343 Naperville, IL Yes No Yes
Biscuit IAM #1202 Naperville, IL Yes No Yes
62
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit Sales NUH Nashville, TN Yes Yes Yes
Biscuit NUH New Bedford, MA Yes Yes Yes
Biscuit Production IBT #344 New Berlin, WI Yes Yes Yes
Biscuit NUH New Berlin, WI Yes Yes Yes
Biscuit Sales BCT #719 New Hyde Park, NY Yes Yes Yes
Biscuit IBT #807 New Hyde Park, NY No No No
Biscuit Sales IBT #270 New Orleans, LA Yes No Yes
Biscuit NUH New Orleans, LA Yes Yes Yes
Biscuit Production BCT #357 Niagara Falls, NY Yes Yes Yes
Biscuit Production F&O #90 Niagara Falls, NY Yes Yes Yes 50%
Biscuit Production IBT #586 Niagara Falls, NY Yes Yes No 1/?/95
Biscuit BCT #1 Niles, IL Yes Yes Yes
Biscuit IBT #734 Niles, IL No No No
Biscuit Sales BCT #42 Norcross, GA Yes Yes Yes
Biscuit NUH Norcross, GA Yes Yes Yes
Biscuit Sales IBT #64 North Smithfield, RI Yes Yes Yes 1/1/96
Biscuit NUH North Smithfield, RI Yes Yes Yes
Biscuit IBT #64 North Smithfield, RI Yes Yes Yes
Stella BCT #50 NY/NJ Yes Yes Yes
Stella IBT #550 NY/NJ Yes Yes Yes
Biscuit Sales BCT #719 Oakdale, NY Yes Yes Yes
Biscuit NUH Oakdale, NY Yes Yes Yes
Biscuit BCT #125 Oakdale, NY Yes Yes Yes
Biscuit Sales NUH Oklahoma City, OK Yes Yes Yes
Biscuit Sales NUH Olean, NY Yes Yes Yes
Biscuit IBT #554 Omaha, NE No No No
Biscuit NUH Ontario, CA Yes Yes Yes
Biscuit IBT #166 Ontario, CA Yes Yes Yes
Biscuit IBT #952 Ontario, CA Yes Yes Yes
Biscuit Sales NUH Orlando, FL Yes Yes Yes
63
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit IBT #186 Oxnard, CA No No No
Biscuit IBT #627 Peoria, IL No No No
Biscuit Production BCT #492 Philadelphia, PA Yes Yes Yes
Biscuit NUH Philadelphia, PA Yes Yes Yes
Biscuit NUH Phoenix, AZ Yes Yes Yes
Biscuit IBT #104 Phoenix, AZ Yes Yes No
Biscuit Production IUOE #95-95A Pittsburgh, PA Yes Yes Yes
Biscuit Production BCT #12-A Pittsburgh, PA Yes Yes Yes
Biscuit NUH Pittsburgh, PA Yes Yes Yes
Biscuit NUH Pleasanton, CA Yes Yes Yes
Biscuit BCT #719 Pleasantville, NY Yes Yes Yes
Biscuit Sales NUH Portland, OR/ME Yes Yes Yes
Biscuit Production IAM #63 Portland, OR Yes Yes Yes 1/95 ?
Biscuit Production IUOE #87 Portland, OR Yes Yes Yes 1/95 ?
Biscuit Production BCT #364 Portland, OR Yes Yes Yes
Biscuit IBT #206 Portland, OR Yes Yes No
Biscuit IBT #305 Portland, OR Yes Yes Yes
Biscuit IBT #962 Portland, OR Yes Yes Yes
Biscuit NUH Portland, OR Yes Yes Yes
Biscuit Sales NUH Portsmouth, VA Yes Yes Yes
Biscuit Sales NUH Quincy, IL Yes Yes Yes
Biscuit IBT #891 Richland, MS Yes Yes Yes
Biscuit NUH Richland, MS No No No
Biscuit Sales NUH Richmond, VA Yes Yes Yes
Biscuit Production BCT #358 Richmond, VA Yes Yes Yes
Biscuit Sales BCT #719 Ridgewood, NY Yes Yes Yes
Biscuit IBT #807 Ridgewood, NY No No No
Biscuit Sales IBT #166 Riverside, Va Yes Yes Yes 5/96
Biscuit Sales NUH Roanoke, VA Yes Yes Yes
Biscuit NUH Rock Island, IL No No No
64
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit IBT #137 Sacramento, CA No No No
Biscuit IBT #150 Sacramento, CA No No No
Biscuit ILWU #17 Sacramento, CA No No No
Biscuit NUH Sacramento, CA Yes Yes Yes
Biscuit Sales NUH Salt Lake City, UT Yes Yes Yes
Biscuit Sales NUH San Antonio, TX Yes Yes Yes
Biscuit BCT #111 San Antonio, TX Yes Yes Yes
Biscuit Sales IBT #683 San Diego, CA Yes Yes Yes 5/96
Biscuit NUH San Francisco, CA Yes Yes Yes
Biscuit IBT #85 San Francisco, CA Yes Yes No
Biscuit IBT #853 San Francisco, CA No No No
Biscuit IBT #860 San Francisco, CA No No No
Biscuit NUH San Jose, CA Yes Yes No
Biscuit IBT #296 San Jose, CA No No No
Biscuit Sales NUH Savannah, GA Yes Yes Yes
Biscuit NUH Scranton, PA Yes Yes Yes
Biscuit NUH Seattle Yes Yes Yes
Biscuit IBT #962 Seattle Yes Yes Yes
Biscuit Sales BCT #719 Secaucus, NJ Yes Yes Yes
Biscuit NUH Secaucus, NJ Yes Yes Yes
SPD UFCW #880 Sevil Plt. No No No
Biscuit Sales NUH Sheffield, AL Yes Yes Yes
Biscuit Sales IBT #568 Shreveport, LA Yes No Yes
Biscuit NUH Shreveport, LA Yes Yes Yes
Biscuit Sales NUH Sioux Falls, SD Yes Yes Yes
Biscuit NUH Smithfield, RI Yes Yes Yes
Biscuit IBT #64 Smithfield, RI Yes Yes Yes
Biscuit Sales IBT #690 Spokane, WA Yes Yes Yes 7/1/94
Biscuit NUH Spokane, WA Yes Yes Yes
Biscuit NUH Springfield Yes Yes Yes
65
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit IBT #823 Springfield Yes Yes Yes
Biscuit IBT #688 St. Louis, MO Yes No Yes 8/1/92
Biscuit Sales NUH St. Louis, MO Yes Yes Yes
Biscuit Sales IBT #145 Stamford, CT Yes Yes Yes 1/1/96
Biscuit IBT #559 Stamford, CT Yes Yes Yes
Foods Production IBT #695 Stoughton, WI Yes Yes Yes 5/1/95 or 7/1/92 ?
PLS Local #26 Suffolk, VA Yes Yes Yes 50% 1/96
Biscuit IBT #182 Syracuse, NY Yes Yes Yes
Biscuit NUH Tacoma, WA Yes Yes Yes
Biscuit Sales IBT #79 Tampa, FL Yes Yes Yes 4/1/95
Biscuit IBT #79 Tampa, FL Yes Yes Yes
Biscuit Sales IBT #560 Teterboro, NJ Yes Yes Yes 1/1/95
Biscuit NUH Teterboro, NJ Yes Yes Yes
Biscuit Sales NUH Thomasville, GA Yes Yes Yes
Biscuit Production AFGM #58 Toledo, OH Yes Yes Yes
Biscuit NUH Toledo, OH Yes Yes Yes
Biscuit NUH Tolleson Yes Yes No
Biscuit IBT #104 Tolleson Yes Yes No
Biscuit IBT #104 Tucson, AZ Yes Yes No
Biscuit NUH Tucson, AZ Yes Yes Yes
Biscuit Sales NUH Tulsa, OK Yes Yes Yes
Biscuit Sales IBT #745 Tyler, TX Yes No Yes
Biscuit NUH Tyler, TX Yes Yes Yes
PL NUH Urbana, OH Yes Yes Yes 50% 7/1/98
Biscuit Sales IBT #186 Valencia, CA Yes Yes Yes 5/96
Biscuit Sales NUH Waco, TX Yes Yes Yes
Biscuit Sales IBT #697 Washington, PA Yes Yes Yes
Biscuit NUH Washington, PA Yes Yes Yes
Biscuit NUH Westbrook Yes Yes Yes
Biscuit NUH Westbury, NY Yes Yes Yes
66
After- Pre- 25% Effective Date
Co./Division Participating Unit Location Tax Tax Match (if after 1/1/92)
------------ ------------------ -------- --- --- ----- -----------------
Biscuit BCT #719 Westbury, NY Yes Yes Yes
Biscuit IBT #807 Westbury, NY No No No
Biscuit NUH Williamsport, MD Yes Yes Yes
Biscuit NUH Wilmington, NC Yes Yes Yes
Biscuit Production NUH Wrighstown, WI Yes Yes Yes
Biscuit NUH Wyomissing, PA Yes Yes Yes 50%
67
SCHEDULE C
Location Effective Date
-------- --------------
Fort Smith, AR NUH May 1, 1998
Suffolk, VA UAW August 1, 1998
Greenfield, CA NUH September 1, 1998
Minneapolis Plant AFGM October 1, 1998
Chattanooga, TN NUH January 1, 1999
Buena Park, CA IUOE March 1, 1999
Fairfax, VA NUH July 1, 1999
Grand Rapids, MI NUH July 1, 1999
Wyomissing, PA NUH October 1, 1999
Pensacola, FL NUH February 1, 2000
Fresno, CA NUH March 1, 2000
Endicott, NY NUH April 1, 2000
Harrisburg, PA NUH July 1, 2000
Wichita, KS NUH January 1, 2001
Omaha, NE NUH January 1, 2001
Landover, MD NUH January 1, 2001
Salisbury, MD NUH March 1, 2001
Endicott, NY NUH April 1, 2001
Knoxville, TN NUH July 1, 2001
Bethlehem, PA NUH August 1, 2001
EX-5.1
5
y53602ex5-1.txt
OPINION OF HUNTON & WILLIAMS
1
Exhibit 5.1
[Letterhead of Hunton & Williams]
October 9, 2001
The Board of Directors
Philip Morris Companies Inc.
120 Park Avenue
New York, New York 10017-5592
Philip Morris Companies Inc.
Registration of Shares for the Nabisco, Inc. Capital Investment Plan and
the Nabisco, Inc. Employee Savings Plan
Ladies and Gentlemen:
We have acted as counsel to Philip Morris Companies Inc., a Virginia
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended,
with respect to 11,000,000 shares of the Company's common stock, $0.33 1/3 par
value (the "Shares"), together with an indeterminate amount of interests (the
"Interests"), to be offered pursuant to the Nabisco, Inc. Capital Investment
Plan (the "CIP Plan") and the Nabisco, Inc. Employee Savings Plan (the "ESP
Plan" and together with the CIP Plan, the "Nabisco Plans").
In rendering this opinion, we have relied upon, among other things, our
examination of the Nabisco Plans and such records of the Company and its
subsidiaries and certificates of its officers and of public officials as we have
deemed necessary.
Based upon the foregoing and the further qualifications stated below, we
are of the opinion that:
1. the Company is duly incorporated, validly existing and in good
standing under the laws of the Commonwealth of Virginia; and
2. the Interests, when issued in accordance with the terms of the CIP
Plan and the ESP Plan, as the case may be, will be legally issued, fully paid
and non-assessable and will constitute the binding obligations of the CIP Plan
and the ESP Plan, as the case may be.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to such registration statement.
Very truly yours,
/s/ Hunton & Williams
EX-23.2
6
y53602ex23-2.txt
CONSENT OF PRICEWATERHOUSECOOPERS LLP
1
Exhibit 23.2
CONSENT OF PRICEWATERHOUSECOOPERS LLP
INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 29, 2001 relating to the
financial statements, which appears in the 2000 Annual Report to Shareholders of
Philip Morris Companies Inc., which is incorporated by reference in Philip
Morris Companies Inc.'s Annual Report on Form 10-K for the year ended December
31, 2000. We also consent to the incorporation by reference in this Registration
Statement of our report dated January 29, 2001 relating to the financial
statement schedule, which appears in such Annual Report on Form 10-K. We also
consent to the incorporation by reference in this Registration Statement of our
reports dated June 15, 2001 relating to the financial statements, which appear
in the Annual Reports of the Nabisco, Inc. Capital Investment Plan and the
Nabisco, Inc. Employee Savings Plan on Forms 11-K for the year ended December
30, 2000.
/s/ PRICEWATERHOUSECOOPERS, LLP
-------------------------------
PRICEWATERHOUSECOOPERS, LLP
New York, New York
October 9, 2001
EX-23.3
7
y53602ex23-3.txt
CONSENT OF DELOITTE & TOUCHE LLP
1
Exhibit 23.3
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of Philip Morris Companies Inc. Form S-8 dated October 9, 2001 of
our reports dated June 23, 2000 relating to the financial statements, which
appear in the Annual Reports of the Nabisco, Inc. Capital Investment Plan and
the Nabisco, Inc. Employee Savings Plan on Forms 11-K for the year ended
December 30, 2000.
/s/ DELOITTE & TOUCHE, LLP
--------------------------
DELOITTE & TOUCHE, LLP
Parsippany, New Jersey
October 9, 2001