DEFERRED COMPENSATION PLAN FOR
DIRECTORS
(as amended and restated
effective January 1, 2008)
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1
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2
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Section 1.1
“Administrator”
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2
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2
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Section 1.3 “Annual Enrollment
Period”
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2
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Section 1.4
“Beneficiary”
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2
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2
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Section 1.6 “Change of
Control”
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2
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Section 1.7 “Cash
Account”
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3
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Section 1.8 “Cash
Compensation”
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3
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3
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Section 1.10 “Company
Stock”
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3
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3
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Section 1.12 “Deferred
Compensation”
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3
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3
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Section 1.14 “Effective
Date”
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4
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Section 1.15 “Entry
Date”
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4
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Section 1.16 “Equity
Account”
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Section 1.17 “Equity
Compensation”
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4
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Section 1.18 “Individual
Account”
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Section 1.19
“Participant”
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4
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Section 1.20 “Payment
Date”
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4
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4
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4
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Section 1.23 “Separation from
Service”
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4
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Section 1.24 “Unforeseen
Hardship”
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4
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Section 1.25 “Valuation
Date”
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4
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ARTICLE 2 PLAN ELIGIBILITY AND
PARTICIPATION
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4
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4
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Section 2.2 Participation
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4
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ARTICLE 3 CONTRIBUTION CREDITS AND
VESTING
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5
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Section 3.1 Elective Deferral
Contributions
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5
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5
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Section 3.3 Individual Accounts
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5
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5
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Section 3.5 Administrative
Expenses
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5
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Section 3.6 Equitable Procedures
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6
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Section 3.7 Unfunded Status of
Plan
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6
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6
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Section 4.1 Entitlement to
Benefits
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6
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Section 4.2 Deferred Compensation
Benefit
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6
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Section 4.3 Death Benefit
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6
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Section 4.4 Change of Control
Benefit
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7
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Section 4.5 Unforeseen Hardship
Distribution
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7
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Section 4.6 Election to Change the Form of
a Distribution
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7
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i
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Page
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ARTICLE 5 PLAN ADMINISTRATION
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8
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Section 5.1 Authority of
Administrator
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8
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8
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Section 5.3 Records and Rules
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Section 5.4 Claims Procedure
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Section 5.5 Legal Incompetence
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9
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Section 5.6 Correction of Errors
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Section 5.7 Duration of
Appointment
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9
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ARTICLE 6 PLAN AMENDMENT, TERMINATION AND
DISCONTINUANCE OF CONTRIBUTIONS
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9
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Section 6.1 Amendment of Plan
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Section 6.2 Suspension and Termination of
Plan; Discontinuance of Contributions
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10
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Section 6.3 Distribution upon Complete
Termination and Administration Following Discontinuance of All
Contribution Credits
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10
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ARTICLE 7 MISCELLANEOUS PROVISIONS
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10
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Section 7.1 No Other Rights
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10
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Section 7.2 Nonalienation of
Benefits
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10
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10
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11
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Section 7.5 Controlling Law
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Section 7.6 Effect of Invalidity of
Provision
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Section 7.8 Nature of Participant and
Beneficiary Rights
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Section 7.9 Regulatory Guidance
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Section 7.10 Discretion of
Administrator
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Section 7.11 Liability and
Indemnification
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12
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Section 7.13 Beneficiary
Designation
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12
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Section 7.14 Compliance with Code
Section 409A
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ii
Purpose.
The purpose of this Plan is to establish a method for the deferral
of compensation by the Directors of PepsiAmericas. Inc. This will
assist the Company in attracting and retaining as members of its
Board of Directors those persons whose abilities, experience, and
judgment will contribute to the continued progress of the Company.
The Plan is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended.
Effective
Date. This Plan is a continuation, amendment and restatement of
the Company’s Deferred Compensation Plan for Directors
originally adopted March 20, 1970, and subsequently amended
from time to time. The effective date of the restated Plan as
described herein is January 1, 2008.
As used herein,
the following words and phrases shall have the meaning indicated
unless otherwise defined or required by the context:
Section 1.1
“Administrator” shall mean the individual(s)
that the Board appoints as Administrator.
Section 1.2
“Agreement” shall mean the Deferred Compensation
Election Form between a Participant and the Company. The terms of
such Agreement shall outline the amount of compensation that a
Participant elects to defer and shall enumerate any terms or
requirements specifically applicable for such
Participant.
Section 1.3
“Annual Enrollment Period” shall mean with
respect to any Plan Year, the period prior to the first day of the
Plan Year (or, in the case of those notified of first eligibility
during a Plan Year, the period ending thirty (30) days
thereafter) during which a Director must enroll (in accordance with
Section 2.2) in order to make deferrals for the Plan
Year.
Section 1.4
“Beneficiary” shall mean the recipient or
recipients last designated by the Participant in writing, on forms
provided by the Administrator and filed with the Administrator, who
shall receive any benefit payable under the Plan upon the death of
such Participant. If no such designation of Beneficiary has been
received by the Secretary prior to the date of death of the
Participant or in the event all such designated Beneficiaries shall
fail to survive the Participant, any such benefit shall be payable
in a lump sum in accordance with the provisions of
Sections 4.3.
Section 1.5
“Board” shall mean the Board of Directors of the
Company.
Section 1.6
“Change of Control” shall be deemed to have
occurred if:
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(a)
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any
one person or more than one person acting as a group acquires
ownership of stock of the Company that, together with the stock
held by such person or group, constitutes more than fifty percent
(50%) of the total fair market value or total voting power of the
stock of the Company, other than a merger in which the holders of
the Company’s common stock immediately prior to the merger
have substantially the same proportionate ownership of common stock
of the surviving corporation immediately after the merger. However,
if any one person or more than one person acting as a group, is
considered to own more than fifty percent (50%) of the total fair
market value or total voting power of the stock of the Company, the
acquisition of additional stock by the same person or persons is
not considered to cause a change in the ownership of the Company or
to cause a change in the effective control of the Company;
or
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(b)
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any
one person, or more than one person acting as a group acquires (or
has acquired during the twelve (12) month period ending on the
date of the most recent acquisition by such person or persons)
ownership of stock of the Company
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possessing thirty percent (30%)
percent or more of the total voting power of the stock of the
Company; or
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(c)
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any
one person, or more than one person acting as a group acquires (or
has acquired during the twelve (12) month period ending on the
date of the most recent acquisition by such person or persons)
assets from the Company and/or a direct or indirect subsidiary that
has a total gross fair market value equal to or more than forty
percent (40%) of the total gross fair market value of all of the
assets of the Company and all of its direct or indirect
subsidiaries, taken as a whole, immediately prior to such
acquisition or acquisitions;
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(d)
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any
one person, or more than one person acting as a group acquires (or
has acquired during the twelve (12) month period ending on the
date of the most recent acquisition by such person or persons)
stock of one or more direct or indirect subsidiaries of the Company
where the total gross fair market value of the assets of such
subsidiary(ies) is equal to or more than forty percent (40%) of the
total gross fair market value of all of the assets of the Company
and all of its direct or indirect subsidiaries, taken as a whole,
immediately prior to such acquisition or acquisitions;
or
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(e)
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a
majority of the members of the Company’s or a direct or
indirect subsidiary’s Board is replaced during any twelve
(12) month period by Directors whose appointment or election
is not endorsed by a majority of the members of the Company’s
or the relevant subsidiary’s Board prior to the date of the
appointment or election.
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Notwithstanding
(a), (b), (c) or (d) above, a proposed transaction
wherein PepsiCo, Inc. would acquire a less than fifty percent (50%)
interest in the common stock of the Company or its successor shall
not constitute a Change of Control.
Section 1.7
“Cash Account ” shall mean the sub-account of
the Individual Account that contains the Participant’s
deferred Cash Compensation.
Section 1.8
“Cash Compensation ” shall mean the amount paid
to the Director in cash.
Section 1.9
“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time.
Section 1.10
“Company Stock” shall mean the common stock of
the PepsiAmericas, Inc. Company.
Section 1.11
“Company” shall mean PepsiAmericas, Inc., a
Delaware corporation and its successors and assigns.
Section 1.12
“Deferred Compensation” shall mean the amount
credited to the Participant’s Individual Account.
Section 1.13
“Director” shall mean a non-employee Director of
the Company.
3
Section 1.14
“Effective Date” shall mean the effective date
of the Plan, which was March 20, 1970. “ Restatement
Effective Date ” means January 1, 2008.
Section 1.15
“Entry Date” shall mean the date that
Participant first meets the eligibility and participation
requirements of Section 2.1 and 2.2.
Section 1.16
“Equity Account ” shall mean the sub-account of
the Individual Account that contains the Participant’s
deferred Equity Compensation.
Section 1.17
“Equity Compensation ” shall mean the amount
paid to a Director in the form of Company Stock.
Section 1.18
“Individual Account” shall mean the total amount
standing to the credit of a Participant on the Company’s
books pursuant to the terms of the Plan.
Section 1.19
“Participant” shall mean a Director with a Cash
Account or Equity Account under the Plan.
Section 1.20
“Payment Date” shall mean the first day of the
month following a Director’s Separation from
Service.
Section 1.21
“Plan Year” shall mean the twelve
(12) month period commencing each January 1 and ending each
December 31.
Section 1.22
“Plan” shall mean the PepsiAmericas, Inc.
Deferred Compensation Plan for Directors as contained herein and as
amended from time to time.
Section 1.23
“Separation from Service ” shall mean the
separation from service by the Participant within the meaning of
Code Section 409A.
Section 1.24
“Unforeseen Hardship” shall mean a
Participant’s severe financial hardship resulting from an
unforeseeable emergency such as (a) an illness or accident of
the Participant or the Participant’s spouse or dependent,
(b) the loss of the Participant’s property because of
casualty, or (c) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant, as determined by the Administrator.
Section 1.25
“Valuation Date” shall mean the last day of the
Plan Year.
ARTICLE 2
PLAN ELIGIBILITY AND PARTICIPATION
Section 2.1
Eligibility . All Directors of the Company are eligible to
participate in this Plan on the date that they become a
Director.
Section 2.2
Participation . A Director shall become a Participant upon
execution of an Agreement during the Annual Enrollment
Period.
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ARTICLE 3
CONTRIBUTION CREDITS AND VESTING
Section 3.1
Elective Deferral Contributions . During the Annual
Enrollment Period, a Participant may elect to defer up to one
hundred percent (100%) of his/her annual Cash Compensation and/or
Equity Compensation by entering into an Agreement with the Company
and specifying in such Agreement the source and percentage of such
contributions. Such contributions shall be credited to the Cash
Account or Equity Account of the Participant’s Individual
Account.
Section 3.2
Vesting . A Participant shall be 100% vested in all amounts
deferred to his or her Individual Account; provided however, a
Director shall forfeit permanently any payment of Deferred
Compensation to which he would be entitled for any month or portion
thereof in which he engages, either as an officer, director,
employee, proprietor, partner, shareholder owning more than 10% of
the capital stock of any corporation, or consultant, in any
business competitive with that being carried on by the Company, as
determined by the Board in its sole discretion at the time payment
of Deferred Compensation is to be made.
Section 3.3
Individual Accounts . The Administrator shall establish and
maintain an Individual Account in the Company’s financial
books and records in the name of each Participant, and the
Administrator shall credit this Individual Account with Deferred
Compensation elected by a Participant in accordance with this
Article 3 and the Participant’s Agreement. Such
Individual Account shall be a record keeping account.
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(a)
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The
Administrator shall credit the Cash Account with interest
compounded annually as of each Valuation Date based upon the prime
rate of interest as reported in The Wall
Street Journal on the last day of the Plan
Year.
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(b)
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Monthly distributions from the Cash
Account shall be calculated by, first, determining the total value
of the Cash Account and accrued interest as provided in (a) above
to the Payment Date. To this amount (the Principal) shall be
applied an interest rate equal to the simple average of the Prime
Rate of interest as reported in The Wall
Street Journal , on December 31 of each of the
three years immediately preceding the Payment Date, with the
principal and inter
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