Exhibit 10.2
ADDITIONAL BENEFITS PLAN
OF
DEL MONTE
CORPORATION
As Amended and Restated Effective as
of January 1, 2009
ADDITIONAL BENEFITS PLAN
OF
DEL MONTE
CORPORATION
INDEX
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Section 1
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PURPOSE OF
PLAN
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1
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Section 2
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DEFINITIONS
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1
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2.1
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“Administrator or Plan
Administrator”
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1
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2.2
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“AIP”
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1
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2.3
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“Additional Benefit”
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2
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2.4
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“Board of
Directors”
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2
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2.5
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“Claimant”
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2
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2.6
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“Code”
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2
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2.7
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“Committee”
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2
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2.8
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“Compensation”
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2
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2.9
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“Corporation”
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3
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2.10
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“Covered
Individual”
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3
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2.11
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“Defined
Benefit Plan”
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3
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2.12
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“Effective Date”
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3
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2.13
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“Eligibility Date”
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3
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2.14
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“Eligible
Individual”
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3
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2.15
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“Employee”
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4
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2.16
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“EBC”
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4
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2.17
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“Individual Account Plan”
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4
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2.18
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“Interest
Factor”
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4
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2.19
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“Participating Company”
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4
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2.20
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“Plan”
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4
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2.21
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“Plan
Administrator”
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4
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2.22
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“Prior
Plan”
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4
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2.23
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“Savings
Compensation”
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4
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2.24
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“Spinco
Employee”
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4
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2.25
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“Specified Employee”
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5
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2.26
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“Termination of
Employment”
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5
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Section 3
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PROVISIONS
APPLICABLE TO DEFINED BENEFIT PLANS
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5
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3.1
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Eligibility
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5
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3.2
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Amount of
Benefits
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5
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3.3
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Form of Benefit
Payments
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6
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3.4
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Timing of
Benefit Payment
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7
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Section 4
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PROVISIONS
APPLICABLE TO INDIVIDUAL ACCOUNT PLANS
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7
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4.1
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Eligibility
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7
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4.2
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Amount of
Additional Benefits
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7
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4.3
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Form of
Additional Benefits
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8
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4.4
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Additional
Benefits Election
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8
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4.5
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No
Withdrawals
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9
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4.6
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Accounting
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9
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Section 5
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AMENDMENT
AND TERMINATION
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9
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5.1
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Amendment
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9
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5.2
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Right to
Terminate
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10
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Section 6
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ADMINISTRATION AND AUTHORITY
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10
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6.1
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Corporation and
Board of Directors
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10
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6.2
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Committee;
Organization
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11
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6.3
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Powers and
Responsibility
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11
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6.4
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Records of
Committee
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13
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6.5
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Reporting and
Disclosure
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14
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6.6
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Correction of
the Plan
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14
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6.7
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Indemnification
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14
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6.8
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Interpretation
of Plan
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14
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Section 7
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CLAIMS
PROCEDURES
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14
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7.1
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Filing of a
claim for benefits
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14
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7.2
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Notification to
Claimant of decision
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15
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7.3
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Procedure for
review
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15
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7.4
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Decision on
review
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15
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7.5
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Action by
authorized representative of Claimant
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16
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7.6
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Effect of
Extensions
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16
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Section 8
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MISCELLANEOUS
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16
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8.1
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Assignment
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16
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8.2
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Governing
Law
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16
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8.3
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Plan
Independent of Employment Relationship
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16
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8.4
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Non-Duplication
of Benefit
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16
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8.5
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Unfunded
Plan
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17
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8.6
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Receipt and
Release for Payment
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17
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8.7
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Acceleration of
Payment
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17
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8.8
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Special Rules
for Delayed Payment
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18
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Section 9
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PRIOR
BENEFITS
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18
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9.1
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Benefits Prior
to Effective Date
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18
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9.2
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Protected
Benefits
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19
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-ii-
ADDITIONAL BENEFITS PLAN
OF
DEL MONTE
CORPORATION
Effective as of January 1,
2009, as amended and restated
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Section
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1 PURPOSE OF
PLAN
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This Plan is adopted principally for
the purpose of restoring benefit payments to those Covered
Individuals under each Defined Benefit Plan and those Eligible
Individuals under each Individual Account Plan whose benefits would
otherwise be reduced by the limitations imposed by
Section 401(a)(17), Section 415 or any other applicable
section of the Code. In addition, for certain individuals, the Plan
restores the benefit otherwise not provided under the qualified
defined benefit pension plan on account of any annual incentive
award or salary deferred until Termination of
Employment.
The Plan was first effective as of
January 1, 1990 and restated in 1996. This restated plan is a
continuation of the Plan effective as of December 20, 2002 and
reflects the merger of the Supplemental Benefits Plan of Del Monte
Corporation (“SUPP”) into this Plan effective as of
January 1, 2005. The benefits of Covered Individuals and
Eligible Individuals who commenced Plan benefits or who terminated
employment with the Corporation prior to December 20, 2002 are
provided under the terms of the Plan prior to December 20,
2002. The benefits of Covered Individuals who commenced benefits
under the SUPP or who terminated employment with the Corporation
prior to January 1, 2005 are provided under the terms of the
SUPP prior to January 1, 2005 and are paid under this Plan
from and after January 1, 2005 as “grandfathered”
benefits. The benefits of Covered Individuals and Eligible
Individuals who Terminated Service prior to January 1, 2009
and after December 31, 2004 are provided under the terms of
the Plan in effect as of January 1, 2005, as amended and as
administered in good faith compliance with Code Section 409A
during the transition period under that law. This restated plan
document makes final changes for compliance with Code
Section 409A. It also removes references to Defined Benefit
Plan A because there are no active Participants with a Defined
Benefit Plan A benefit as of January 1, 2009.
This Plan also intends to comply
with the American Jobs Creation Act of 2004 and Section 409A
of the Code as of January 1, 2009, subject to amendment to
comply with regulations and guidance issued thereunder from time to
time. For purposes of Treas. Reg. § 1.409A-1(c)(2), this Plan
may be regarded as two or more plans.
When used herein, the words and
phrases defined hereinafter shall have the following meaning unless
a different meaning is clearly required by the context.
2.1 “ Administrator or Plan
Administrator ” means the administrator set forth in
Section 6.3.
2.2 “ AIP ” means
the Del Monte Annual Incentive Plan or any successor bonus plan
providing annual bonus awards, or any predecessor incentive award
plan of the Corporation or any predecessor.
2.3 “ Additional
Benefit ” means the benefit or benefits payable under
Section 4 of this Plan.
2.4 “ Board of
Directors ” means the Board of Directors of Del Monte
Corporation.
2.5 “ Claimant ”
shall have the definition set forth in Section 7.1.
2.6 “ Code ”
means the Internal Revenue Code of 1986, as amended, or as it may
be amended from time to time.
2.7 “ Committee ”
means the Del Monte Corporation Compensation and Employee Benefits
Committee.
2.8 “ Compensation
” means the basic salary, overtime, shift differential,
commissions, sales bonuses paid in cash, and Annual Incentive Award
Plan bonus not deferred by a Participant, 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 is determined monthly when and as paid, or when
deferred under Section 401(k) or Section 125 employee
benefit plans. 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
Corporation 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 Corporation payments of additional
withholding on taxable employee benefits (commonly referred to as
“grossed up compensation”). Further, Compensation does
not include any “change in control bonus” as determined
under any Corporation or Affiliated Company sponsored Salary and
Benefit Continuation Program or any bonus described as a
“stay-on bonus” that is authorized by the Corporation
or any affiliated company. Effective as of November 1, 1993,
Compensation includes single sum amounts paid and designated under
the Corporation’s salary administration policy as lump sum
adjustments to salary. For purposes of this Section, amounts under
Code Section 125 include any amounts not available to a
Participant in cash in lieu of group health coverage because the
Participant is unable to certify that he or she has other health
coverage, effective as of January 1, 2003; further, an amount
will be treated as an amount under Code Section 125 only if
the Employer does not request or collect information regarding the
Participant’s other health coverage as part of the enrollment
process for the health plan. Compensation does not include any
allowance for perquisites or automobiles which are considered part
of W-2 income representing taxable employee benefits.
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2.9 “ Corporation
” means Del Monte Corporation in respect of its employees,
each Participating Company in respect of its employees, and any
successor to any of said companies if such successor be the
Corporation or an Affiliated Company.
2.10 “ Covered
Individual ” means each individual who becomes entitled
to payment of a benefit under a Defined Benefit Plan by reason of
death, retirement or other Termination of Employment of an
Employee, including a Participant, his or her Surviving Spouse or
Beneficiary which benefit is subject to reductions that can be
restored under Section 3 of this Plan and which benefit is not
provided or replaced under the terms of a written agreement between
the Employee and the Corporation providing such benefits in lieu of
this Plan. A Covered Individual does not include a Spinco Employee
from the December 20, 2002 until January 1,
2005.
2.11 “ Defined Benefit
Plan ” means the Del Monte Corporation Retirement Plan
for Salaried Employees and any other defined benefit retirement
plan which principally uses a career compensation formula or cash
balance plan formula based on a personal retirement account and is
intended to qualify under Section 401(a) of the Code and has
been adopted by the Corporation or a Participating
Company.
2.12 “ Effective Date
” means January 1, 2009 with respect to the provisions
set forth in this Plan, except as otherwise set forth
herein.
2.13 “ Eligibility Date
” means determining when an Eligible Individual is first
eligible to participate in the Plan under Section 4, which is
when an employee of the Corporation:
(a) is eligible to participate in
the Individual Account Plan whether or not the individual has
elected to participate in the Individual Account Plan,
and
(b) has met the service requirements
of the Individual Account Plan to be fully vested in the employer
matching contributions, whether or not the individual has actually
participated in the Individual Account Plan, and
(c) when the Savings Compensation,
recognized for purposes of the Individual Account Plan, is first
limited by Section 401(a)(17) of the Code or would be limited
if the individual participated in the Individual Account Plan, in
the Plan Year. For purposes of this
sub-Section 2.13(c),Savings Compensation is first limited on
the last day of the payroll period during which an Eligible
Individual’s Savings Compensation first exceeds the annual
limitations imposed by Section 401(a)(17) of the Code or, if
earlier, the November 15 of a Plan Year in which the Plan
Administrator determines that an Eligible Individual’s
Savings Compensation is likely to exceed such limitations by the
end of the Plan Year.
2.14 “ Eligible
Individual ” means a participant in an Individual Account
Plan, or any individual who is eligible to be a participant in an
Individual Account Plan, who has had an Eligibility Date and whose
benefit in addition to that provided by the Individual Account Plan
is not provided under the terms of a written agreement between the
Employee and the Corporation providing such benefits in lieu of
this Plan. An Eligible Individual does not include a Spinco
Employee from December 20, 2002 until January 1,
2005.
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2.15 “ Employee ”
means an individual who is an employee of the Corporation or a
Participating Company and who is covered by or eligible to
participate in a Defined Benefit Plan or an Individual Account
Plan.
2.16 “ EBC ”
shall mean the Del Monte Corporation Employee Benefits
Committee.
2.17 “ Individual Account
Plan ” means the Del Monte Savings Plan, the Del Monte
Saver Plan (formerly the Del Monte Certain Hourly Savings Plan),
and any other individual account savings plan intended to qualify
under Section 401(a) of the Code and adopted by the
Corporation or a Participating Company.
2.18 “ Interest Factor
” means, for a given month from and after January 1,
2009, 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. 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.
2.19 “ Participating
Company ” means any domestic company more than 50% of the
voting stock of which is directly or indirectly owned by Del Monte
Corporation which is designated as a Participating Company in this
Plan by the Committee.
2.20 “ Plan ”
means the Additional Benefits Plan of Del Monte Corporation, as set
forth herein or as may be hereafter amended.
2.21 “ Plan
Administrator ” means the Committee serving as
“administrator” within the meaning of
Section 3(16) of ERISA.
2.22 “ Prior Plan
” means the Additional Benefits Plan of RJR Nabisco, Inc. and
Participating Companies as of December 31, 1989 which is
intended as a predecessor plan of the Plan and for which prior
benefits and elections were recognized under this Plan from and
after January 1, 1990.
2.23 “ Savings
Compensation ” means Compensation as determined under
Section 2.8 and as adjusted by eliminating bonus or incentive
compensation of any form, whether paid or deferred in any year; and
commissions.
2.24 “ Spinco Employee
” means an individual who is an employee of a Corporation
business unit that was included in the group of former Heinz
businesses that became part of Del Monte Corporation as a result of
the Merger under the Agreement and Plan of Merger dated as of
June 12, 2002 among H. J. Heinz Company, SKF Foods Inc., Del
Monte Corporation and Del Monte Foods Company and who participates,
or is eligible to participate, in the qualified plans provided for
employees at such
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locations prior to January 1,
2004 unless the individual becomes eligible to participate in the
plan specifically identified in Section 2.11 of this Plan or
is eligible to participate in the plans identified in
Section 2.16 of this Plan as a “SF Employee”, as
defined in such plan. As of January 1, 2004, a Spinco Employee
means an employee who is a “PA Employee”, as defined in
the Del Monte Savings Plan.
2.25 “ 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 2.24, 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 regulations
issued thereunder and is only applicable for period when the
Corporation or any Affiliate has stock that is publicly traded on
an established securities market or otherwise in accordance with
Code Reg. § 1.409A-1(i).
2.26 “ Termination of
Employment ” shall mean the ceasing of employment with
the Corporation and any Affiliate, voluntarily or involuntarily,
for any reason and shall be a separation from service within the
meaning of Code Reg. § 1.409A-1(h). Termination of Employment
includes death, except as otherwise provided herein.
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Section
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3 PROVISIONS
APPLICABLE TO DEFINED BENEFIT PLANS
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3.1 Eligibility .
All Employees from and after the
Effective Date who participate in a Defined Benefit Plan are
eligible to receive benefits under this Plan computed in accordance
with Section 3.2 upon Termination of Employment; provided that
no benefit is payable under this Plan unless the Employee is fully
vested in his or her benefit under such Defined Benefit
Plan.
3.2 Amount of Benefits
.
(a) Excess Benefit The amount
of the benefit payable under the Plan to a Covered Individual shall
be the difference, each expressed as a Credit Balance, of
(1) the benefit that would be provided to such Covered
Individual under the Defined Benefit Plan if such benefit were
calculated under the terms of the Defined Benefit Plan without
application of certain legal limitations, as set forth in
subsection (b) below; minus (2) the benefit actually
payable to such Covered Individual from such Defined Benefit Plan.
The benefit is determined as of a Participant’s Termination
of Employment for any reason.
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(b) For purposes of determining the
amount in (a)(1) above, the following shall apply:
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(1)
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Compensation
under such Defined Benefit Plan shall be determined without regard
to the limits imposed by Section 401(a)(17) of the
Code.
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(2)
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The limitations
imposed by Section 415 of the Code shall be
disregarded.
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(c) In the event a Covered
Individual’s benefits payable from a Defined Benefit Plan are
increased subsequent to retirement or other Termination of
Employment due to an increase in the maximum benefits payable under
Section 415 of the Code, the benefits payable hereunder, will
not be adjusted or reduced.
(d) Additional Benefit In
addition to the benefit determined under Section 3.2(a), a
lump sum benefit determined as follows may be provided to a Covered
Individual who participates in the Defined Benefit Plan and who has
deferred any Annual Incentive Plan Bonus(es); provided that if a
Covered Individual becomes eligible for a payment under the
Corporation’s Supplemental Executive Retirement Plan (SERP),
any benefit under this subsection (d) shall be forfeited as it
will be included in the SERP benefit. The benefit is the
difference, expressed in the form of a Credit Balance between
(1) the benefit that would be provided to such Covered
Individual under the Defined Benefit Plan if such benefit were
calculated under the terms of the Defined Benefit Plan without
application of the legal limitations set forth in
Section 3.1(b) and based on Full Compensation, as set forth in
subsection (e) below; minus (2) the benefit that would be
provided to such Covered Individual under the Defined Benefit Plan
if such benefit were calculated under the terms of the Defined
Benefit Plan without application of the legal limitations set forth
in Section 3.1(b) but using Compensation as defined in
Section 2.8.
(e) For purposes of determining the
benefit under Section 3.2(d), Full Compensation shall mean
Compensation that includes, as applicable, for any Annual Incentive
Plan bonus awarded to a Participant and deferred in whole or in
part, such amount credited in the Plan Year that awards are paid
generally to employees who have not deferred any bonus
amount.
3.3 Form of Benefit Payments
.
(a) After the benefit has been
determined under Section 3.2, it will be paid to a Covered
Individual in the form of a lump sum equal to the Credit Balance
determined under Section 3.2 as of the Participant’s
date of Termination of Employment.
(b) After January 1, 2005 and
prior to January 1, 2008, the benefit was paid in the same
form as the benefit paid to a Covered Individual under the Defined
Benefit Plan and with an Annuity Starting Date prior to
January 1, 2008 in reliance on the transition guidance under
Code Section 409A.
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3.4 Timing of Benefit Payment
.
The benefit under
this Plan is payable in the seventh (7 th ) full calendar month
following the Employee’s Termination of Employment. Actual
payment may be made on a later date to the extent permitted under
Code Section 409A and Treas. Reg. §
1.409A-3(d).
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Section
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4 PROVISIONS
APPLICABLE TO INDIVIDUAL ACCOUNT PLANS
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4.1 Eligibility .
All Eligible Individuals on or after
the Effective Date are eligible to receive Additional Benefits
under this Plan computed in accordance with Section 4.2;
provided, that no benefit may be paid unless the Eligible
Individual is fully Vested, as defined in Section 4.2 or would
be fully Vested if the Eligible Individual were participating in an
Individual Account Plan.
4.2 Amount of Additional
Benefits .
(a) The Amount of the Additional
Benefit, if any, shall be equal to (1) the amount by which the
Savings Compensation of the Eligible Individual (as if the Eligible
Individual had enrolled in the Individual Account Plan when first
eligible) exceeds the limitations imposed by
Section 401(a)(17) of the Code, multiplied by (2) the
maximum percentage of Savings Compensation, for that Plan Year,
which is subject to Corporation matching contribution upon the
deferral or contribution to the underlying Individual Account Plan
by a participant in such plan and multiplied by (3) the
maximum percentage of Corporation matching contributions, for that
Plan Year, in the underlying Individual Account Plan plus
(4) an amount equal to interest as calculated under
Section 4.6(b) applied to the foregoing amount for the period
when the Eligible Individual’s Savings Compensation
recognized under the Individual Account Plan exceeds the
limitations under Section 401(a)(17) of the Code. The amount
of the Additional Benefit is determined and awarded as of
December 31 of each year f