Exhibit 10.4
DEL MONTE
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
(Fourth
Restatement)
As amended and restated effective
January 1, 2009
DEL MONTE
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions
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1
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Section 1.1.
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Actively
Employed
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1
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Section 1.2.
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Actuarial
Equivalent Value
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1
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Section 1.3.
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Additional
Benefits Plan
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2
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Section 1.4.
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Affiliate
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2
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Section 1.5.
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Annuity
Starting Date
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2
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Section 1.6.
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Applicable
Mortality Table
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2
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Section 1.7.
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Beneficiary
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2
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Section 1.8.
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Board
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2
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Section 1.9.
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Cause
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2
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Section 1.10.
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Claimant
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3
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Section 1.11.
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Code
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3
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Section 1.12.
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Committee
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3
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Section 1.13.
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Compensation
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3
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Section 1.14.
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Compensation
Credits
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4
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Section 1.15.
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Corporation
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4
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Section 1.16.
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Del Monte Foods
Company
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4
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Section 1.17.
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Effective
Date
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4
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Section 1.18.
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Employer
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4
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Section 1.19.
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Excess
Plan
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4
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Section 1.20.
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Final Average
Compensation
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5
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Section 1.21.
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Gross
Benefit
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5
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Section 1.22.
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Heinz
Participant Preservation Arrangement
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5
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Section 1.23.
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Interest
Factor
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5
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Section 1.24.
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Net
Benefit
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5
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Section 1.25.
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Participant
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5
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Section 1.26.
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Plan
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5
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Section 1.27.
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Plan
A
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5
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Section 1.28.
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Plan
Administrator
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5
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Section 1.29.
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Plan
Year
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5
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Section 1.30.
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PRA
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5
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Section 1.31.
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Retirement
Contribution Account
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6
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Section 1.32.
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Section 417
Rate
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6
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Section 1.33.
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Service
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6
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Section 1.34.
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Specified
Employee
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6
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Section 1.35.
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Termination of
Employment
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6
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ARTICLE 2 Participation
and Eligibility for Benefits
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6
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Section 2.1.
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Participation
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6
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Section 2.2.
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Eligibility for
Benefits
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7
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Section 2.3.
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Death
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7
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i
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ARTICLE 3
Benefits
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7
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Section 3.1.
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Amount of
Benefits
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7
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Section 3.2.
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Payment of
Benefits
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9
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Section 3.3.
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Benefits in
Cases of Reemployment
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9
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ARTICLE 4
Administration and Authority
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10
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Section 4.1.
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Corporation and
Board of Directors
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10
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Section 4.2.
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Committee;
Organization
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10
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Section 4.3.
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Powers and
Responsibility
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11
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Section 4.4.
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Expenses
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13
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Section 4.5.
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Indemnity of
Committee
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13
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ARTICLE 5 Amendment and
Termination
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13
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Section 5.1.
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Right to
Terminate
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13
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Section 5.2.
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Amendment
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14
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ARTICLE 6
Miscellaneous
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14
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Section 6.1.
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Headings
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14
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Section 6.2.
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Unfunded
Plan
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14
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Section 6.3.
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Authorization
for Trust
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14
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Section 6.4.
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No Employment
Rights
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14
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Section 6.5.
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Benefits Not
Assignable or Transferable
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14
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Section 6.6.
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Laws
Applicable
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14
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Section 6.7.
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FICA and Other
Taxes
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15
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Section 6.8.
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Acceleration of
Payment
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15
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Section 6.9.
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Special Rules
for Delayed Payment
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15
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ARTICLE 7 Claims
Procedure
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16
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Section 7.1.
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Filing of a
claim for benefits
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16
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Section 7.2.
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Notification to
claimant of decision
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16
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Section 7.3.
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Appeal
Process
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17
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Section 7.4.
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Decision on
Appeal
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17
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Section 7.5.
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Effect of
Extensions
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17
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Schedule A Gross
Benefit Based on Service and Final Average Compensation
(FAC)
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1
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ii
DEL MONTE
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
DEL MONTE CORPORATION, a Delaware
corporation, adopted the “Supplemental Executive Retirement
Plan for Former Employees of the Heinz Group” (the
“Heinz Plan”), effective as of December 20, 2002,
in order to compensate eligible executive employees for retirement
benefits which cannot be paid under the Corporation’s
qualified plans because of statutory limitations and to aid in the
retention of such employees and to comply with the terms of the
Agreement and Plan of Merger dated as of June 12, 2002, among
H. J. Heinz Company, Del Monte Foods Company, SKF Foods Inc. and
the Corporation. Effective as of January 1, 2005, Del Monte
Corporation has amended and restated the Heinz Plan, re-named the
Heinz Plan as the “Del Monte Corporation Supplemental
Executive Retirement Plan” (the “Plan”), expanded
the group of eligible employees and adjusted for offsets for other
benefits paid. Effective as of June 1, 2006, Del Monte
Corporation has amended and restated the Plan to allow
participation by otherwise eligible individuals who are employed by
subsidiaries of the Corporation, clarify the definition of
“service,” and eliminate the December 20, 2007
vesting requirement for employees who are terminated without cause
in connection with the Transformation Plan announced by Del Monte
Foods Company on June 22, 2006.
The Plan is intended to be
“unfunded” and maintained “primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees” for purposes of
ERISA. Accordingly, the Plan is not intended to be covered by Parts
2 through 4 of Subtitle B of Title I of ERISA. The existence of any
trust fund as may be established from time to time is not intended
to change this characterization of the Plan.
Compliance
This Plan is intended to comply with
the American Jobs Creation Act of 2004 and new Internal Revenue
Code Section 409A and the regulations and guidance thereunder
from and after January 1, 2005. This Plan was operated in good
faith compliance in 2005, 2006, 2007 and 2008 in compliance with
Notice 2005-1 and subsequent notices of transition relief under
Code Section 409A. This Plan is amended and restated as of
January 1, 2009.
ARTICLE 1
Definitions
Unless otherwise required by the
context, capitalized terms used herein shall have the meanings set
forth in this Article 1. Any capitalized term not specifically
defined herein shall have the meaning set forth in the
PRA.
Section 1.1. Actively
Employed shall mean
an Employee on the Corporation’s active payroll, including
Employees on approved leaves of absence, who have not had a
Termination of Employment.
Section 1.2. Actuarial
Equivalent Value shall mean a benefit or amount of equivalent
value determined as follows:
(a) For the purpose of converting an
annuity in one form to any other form of annuity, an interest rate
of 8 % and the UP-84 Mortality Table is used.
(b) For the purpose of determining a
lump sum present value of an annuity benefit or other lump sum
amount:
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(i)
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The lump sum
present value of a Participant’s benefit based on his PRA
Credit Balance or other cash balance pension plan is an amount
equal to the Credit Balance (or cash balance plan account balance)
as of the Valuation Date for such date, and if such date is not the
same date as used under this Plan, increased as described in
Section 3.1(b)(ii) for each month from such date to the
determination date under this Plan.
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(ii)
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The lump sum
present value of a Participant’s defined contribution plan
benefit is the account balance as of the determination date for
purposes of determining the benefit under this Plan or, if frozen
or otherwise determined prior to such date, the account balance as
of such date increased as described in Section 3.1(b)(ii) to
the Plan.
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(iii)
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The lump sum
present value of an annuity is an amount equal to the lump sum
present value of the benefit expressed as an Actuarially Equivalent
Single Life Annuity payable at Normal Retirement Date and present
valued using the Section 417 Rate and Applicable Mortality
Table determined for the first day of the Plan Year in which the
determination date for this Plan occurs.
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(c) For all other purposes and where
not specifically provided otherwise, an interest rate of 8% and the
UP-84 Mortality Table are used.
1
Section 1.3. Additional
Benefits Plan shall
mean the Del Monte Corporation Additional Benefits Plan, as amended
from time to time, or any successor plan thereto with respect to
any benefit under that plan based on a defined benefit plan
formula. Effective as of January 1, 2005, the Del Monte
Corporation Supplemental Benefits Plan was merged into the
Additional Benefits Plan so that all excess benefits would be paid
from a single plan. The time and form of benefits provided under
the Additional Benefits Plan are the same as provided under this
Plan.
Section 1.4.
Affiliate shall mean
as of any date, (i) the Corporation, and (ii) any
company, person or organization which, on such date, (A) is a
member of the same controlled group of corporations (within the
meaning of Code §414(b)) as is the Corporation; (B) is a
trade or business (whether or not incorporated) which controls, is
controlled by or is under common control with [within the meaning
of Code §414(c)] the Corporation; (C) is a member of an
affiliated service group [as defined in Code §414(m)] which
includes the Corporation; or (D) is required to be aggregated
with the Corporation pursuant to regulations promulgated under Code
§414 (0).
Section 1.5.
Annuity Starting Date
shall mean the first day of the month following the
Participant’s death or Termination of Employment.
Section 1.6.
Applicable Mortality
Table shall mean the mortality table prescribed in Rev.
Rul. 2001-62
Section 1.7.
Beneficiary shall mean
the person or persons designated by the Participant to receive any
death benefit paid under Section 3.1(c) of the Plan as set
forth on a form filed with the Plan Administrator or, in the
absence of such form, the Participant’s Beneficiary
designated under PRA or, in the absence of a PRA Beneficiary, the
Beneficiary designated under the Participant’s Del Monte life
insurance beneficiary form or, in the absence of a life insurance
Beneficiary, pursuant to the descent and distribution laws of the
Participant’s state of residence.
Section 1.8.
Board shall mean the
Board of Directors of the Corporation or its duly appointed
delegate or delegates.
Section 1.9.
Cause shall
mean
(a) (i) the same definition for
“Cause” set forth in any employment agreement between
the Participant and the Corporation in effect when the event(s)
occur, or, in the absence of such an employment agreement, any of
the following: (ii) any act of theft, misappropriation,
embezzlement, intentional fraud or similar conduct by the
Participant involving the Corporation or any Affiliate;
(iii) the conviction or the plea of nolo contendere or
the equivalent in respect of a felony involving an act of
dishonesty, moral turpitude, deceit or fraud by the Participant;
(iv) any damage of a material nature to the business or
property of the Corporation or any Affiliate caused by the
Participant’s willful or grossly negligent conduct; or
(v) the Participant’s failure to act in accordance with
any specific lawful instructions given to Participant in connection
with the performance of his duties for the Corporation or any
Affiliate.
2
(b) Participant shall be deemed to
have been terminated for Cause (i) on the date and as
determined by the Board, if Participant is employed by the
Corporation pursuant to a written employment agreement, or
(ii) on the date and as determined by the Plan Administrator
for all other Participants. The designation of termination for
Cause by the Plan Administrator under this Plan shall not be used
for any other purpose and shall not be used against either the
Corporation or any Participant.
Section 1.10.
Claimant shall have
the definition set forth in Article 7.
Section 1.11.
Code shall mean the
Internal Revenue Code of 1986 and the regulations promulgated
thereunder, as amended from time to time.
Section 1.12.
Committee shall mean
the Corporation’s “Del Monte Corporation Compensation
and Employee Benefits Committee of the Board of
Directors.”
Section 1.13.
Compensation shall
mean:
(a) “Compensation”
includes basic salary, overtime, shift differential, commissions,
sales bonuses paid in cash, plus amounts deferred under qualified
cash or deferred arrangements, such as before-tax contributions to
plans sponsored by the Employer through employee benefit plans
maintained under Code Sections 401(k) and 125. Compensation does
not include awards under the Employer’s long term incentive
or commendation award program plans, any amounts realized on
account of the award, exercise or sale of Del Monte Foods Company
stock or its equivalent under Employer compensation or incentive
programs involving a stock-related award; Employer contributions
(other than contributions on account of employee elections to defer
salary under Code Sections 401(k) or 125 or 132(f)) under any
employee benefit plan, including any savings plan, bonus or other
awards payment of which has been deferred, severance payments
unless made in the form of salary continuation and prior to the
date of termination of employment, moving expenses, housing
differential, lump sum vacation payments in lieu of taking
vacation, and any amounts of additional W-2 income representing
taxable employee benefits and corresponding Employer payments of
additional withholding on taxable employee benefits (commonly
referred to as “grossed up compensation”). Compensation
is adjusted as described in subsections (b), (c) and
(d) below. For a Participant who participated in the Heinz
Participant Preservation Arrangement, Compensation prior to
December 20, 2002 is maintained for the applicable Participant
on a schedule maintained by the Plan Administrator.
(b) Compensation shall include any
amounts excluded under the PRA by reason of Code sections
401(a)(17) and 415.
(c) For any Annual Incentive Plan
bonus awarded to a Participant, whether the amount is paid in cash
or deferred, Compensation shall include such amount in the Plan
Year that awards are paid generally to employees who have not
deferred any bonus amount.
(d) Compensation shall not
include any amount of compensation, paid or deferred, attributable
to fringe benefits (including, without limitation, car allowances
and the value of any insurance benefit), perquisites, sign-on
bonuses, or other special type of bonus.
3
Section 1.14.
Compensation Credits
shall mean Compensation, but excluding amounts described in
Section 1.13(b) and (c), of the Participant for a calendar
month multiplied by the Accruing Factor. The Accruing Factor is a
percentage of monthly Compensation as follows:
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% of Monthly
Compensation
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Below age 30
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3
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%
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At least 30 but below 35
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4
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%
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At least 35 but below 40
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5
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%
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At least 40 but below 45
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6
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%
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At least 45 but below 50
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8
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%
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At least 50 but below 55
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10
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%
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At least 55 but below 60
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11
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%
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At least 60 but below 65
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12
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%
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Age 65 and over
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13
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%
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(a) Participant Age is attained age
as of the end of the calendar month.
(b) The Compensation Credit is
rounded to the nearest whole cent.
Section 1.15.
Corporation shall mean
Del Monte Corporation, a Delaware corporation, or any successor
thereto.
Section 1.16.
Del Monte Foods
Company shall mean Del Monte Foods Company, a Delaware
corporation.
Section 1.17.
Effective Date shall
mean the effective date of this amendment and restatement,
January 1, 2009.
Section 1.18.
EBC shall mean the Del
Monte Corporation Employee Benefits Committee.
Section 1.19.
Employer shall mean
the Corporation and any Affiliate of the Corporation.
Section 1.20.
Excess Plan shall mean
the Corporation’s “Del Monte Corporation Employees
Retirement and Savings Excess Plan,” as amended from time to
time, under which an account is maintained for certain Participants
which was frozen, other than for earnings, from and after
December 31, 2004.
4
Section 1.21.
Final Average
Compensation shall mean the average annual Compensation of
a Participant during the five (5) highest compensated years of
the Participant’s last ten (10) years of Service, or of
the Participant’s entire Service if Service is less than five
(5) years. If a Participant has five (5) or more, but
fewer than ten (10) years of Service, the five
(5) highest compensated years of the Participant’s
entire period of Service shall be used. To the extent needed to
determine the five (5) highest compensated years, Compensation
determined in the Heinz Participant Preservation Arrangement may be
used. Annual Compensation shall be determined on the basis of a
calendar year.
Section 1.22.
Gross Benefit shall
have the definition set forth in Article 3,
Section 3.1.
Section 1.23.
Heinz Participant
shall mean an employee who was a participant in the Plan
immediately prior to December 20, 2002 and is identified on a
list maintained by the Committee.
Section 1.24.
Heinz Participant Preservation
Arrangement shall mean the data maintained by the Plan
Administrator with respect to eligible employees who were
participants in the Plan immediately prior to the December 20,
2002 original effective date of the Plan and their compensation
with respect to this Plan for periods prior to December 20,
2002.
Section 1.25.
Interest Factor shall
mean, for a given month from and after June 1, 2001, the sum
of (i) the annual rate of the 6-month Treasury bill for that
given month, plus (ii) 1.5%, that sum (iii) divided by 12
to produce a monthly rate as of the first day of such given month;
provided that for each Plan Year the effective annual rate for that
Plan Year shall not be less than 4.5%. The 6-month Treasury bill
rate for a given calendar month will be determined based on the
rate published in the Federal Reserve Bulletin H.15 in the
immediately preceding month as the rate for 6-month Treasury bills
for the second preceding month.
Section 1.26.
Net Benefit shall have
the definition set forth in Article 3, Section 3.1.
Section 1.27.
Participant shall have
the definition set forth in Article 2.
Section 1.28.
Plan shall mean the
“Del Monte Corporation Supplemental Executive Retirement
Plan”, formerly known as the “Del Monte Corporation
Supplemental Executive Retirement Plan for Former Employees of the
Heinz Group”, as set forth herein and as amended from time to
time.
Section 1.29.
Plan A shall mean the
“Employees’ Retirement System of H. J. Heinz Company
(“Plan A”) for Salaried Employees,” as in effect
immediately prior to December 20, 2002, as sponsored by H. J.
Heinz Company.
Section 1.30.
Plan Administrator
shall have the definition set forth in Article 4.
Section 1.31.
Plan Year shall mean a
calendar year.
Section 1.32.
PRA shall mean the
“Del Monte Corporation Retirement Plan for Salaried
Employees,” as in effect from time to time.
5
Section 1.33.
Retirement Contribution
Account shall mean the separate Retirement Contribution
Account maintained under the Del Monte Savings Plan as of
December 31, 2004 with respect to profit sharing contributions
and which includes the Retirement Savings Account for any
Participant which was transferred from the “H. J. Heinz
Company Employees Retirement and Savings Plan” to the Del
Monte Savings Plan on or about February 2004.
Section 1.34.
Section 417 Rate
shall mean the annual interest rate on 30-year Treasury securities
(constant maturities) applicable for the month containing the
Annuity Starting Date (or for any other month, as applicable) as
specified by the Internal Revenue Service in revenue rulings,
notices or other guidance published in the Internal Revenue
Bulletin for the second month preceding the month for which the
Annuity Starting Date or other date is determined.
Section 1.35.
Service shall mean the
Period of Service under PRA for vesting purposes and the years of
service identified for any Participant listed in the Heinz
Participant Preservation Arrangement but only to the extent not
included in the Period of Service under PRA; provided, that Service
shall not include any Period of Severance nor any Period of Service
that is recognized by PRA for vesting purposes as past service
credit with an non-affiliated employer or predecessor employer
(“Prior Employer”) unless liabilities for such service
from the Prior Employer’s qualified plan have been
transferred to PRA or another pension plan of the Corporation and
there is a reduction under Section 3.1(b)(vi) of this Plan on
account of such liability; provided that no such service shall be
credited under this Plan until the Participant has completed three
(3) Years of Service with the Employer at the Vice President
grade or higher, without regard to any service with a Prior
Employer or the Employer.
Section 1.36.
Specified Employee
means a Participant who is a “key employee” as defined
for purposes of Code Section 416(i)(1)(A)(i), (ii), or
(iii) (applied in accordance with the regulations thereunder
and disregarding Section 416(i)(5) of the Code), of the
Corporation or its Affiliates. If a person is a Specified Employee
as of December 31 of the preceding Plan Year, he or she is
treated as a Specified Employee for the 12-month period beginning
on April 1 of the Plan Year. For purposes of this
Section 1.36, the term “compensation” will be
defined in accordance with Code Reg. §1.409A-1(i)(2), applied
on a consistent basis for each period. Whether an individual is a
Specified Employee will be determined in accordance with the
requirements of Code Section 409A and the final
regu