AMENDMENT NO. 5
TO
THE EARTHGRAINS COMPANY
EMPLOYEE STOCK OWNERSHIP/401(k) PLAN
WHEREAS, The Earthgrains Company (formerly Campbell Taggart, Inc.
and hereafter referred to as the "Company") adopted The Earthgrains Company
Employee Stock Ownership/401(k) Plan (hereafter referred to as the "Plan"),
effective as of July 1, 1994; and
WHEREAS, the Company desires to amend said Plan, effective as of
July 1, 1998;
NOW, THEREFORE, the Plan is hereby amended, effective as of July 1,
1998, in the following respects.
I.
Section 2.1(cc) of the Plan is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"(cc) "Participant" means an Active Participant or a Former
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Participant. Except for purposes of Articles 3 through 7
and 15 and 16, the term "Participant" also includes any
Employee who has satisfied the eligibility conditions of
Sections 3.1(a), (c), (d) and (e) but not the conditions
of Section 3.1(b) and for whom a Plan Account is
maintained to reflect a Rollover Contribution."
II.
Paragraph (iii) of Section 2.1(ee) of the Plan is hereby deleted in
its entirety and the following is substituted in lieu thereof:
"(iii) Notwithstanding anything contained herein to the contrary,
in determining an Employee's Years of Service for purposes
of the vesting requirements set forth in Article 11 for an
Employee who was an employee of an employer listed below
on the date specified below and who becomes an Employee of
an Employer who is eligible to participate in the Plan in
accordance with Section 3.1 on the date immediately
following such date below, such Employee's last period of
continuous service with such employer before the date
specified below shall be counted:
Southern Bakeries August 18, 1998
IBC Grand Junction October 3, 1998
CooperSmith, Inc. January 16, 1998
San Luis Sourdough March 11, 1998
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H & L Baking Company July 1, 1997
Brothers Baking Company, Inc. July 1, 1997
Heiner's Bakery, Inc. November 30, 1996"
III.
Section 3.1 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"3.1. Eligibility.
------------------
An Employee shall be eligible to participate in the Plan if the
following conditions are satisfied:
(a) The Employee is employed by an Adopting Employer;
(b) With respect to an Employee who is employed on June 30,
1998 or any day thereafter, if (i) such Employee is not
covered by the terms of an existing or expired collective
bargaining agreement, such Employee has been credited with
six (6) months of service, or (ii) if such Employee is
covered by the terms of an existing or expired collective
bargaining agreement which does not exclude such Employee
from participation in the Plan in accordance with 3.1(e)
below, such Employee has been credited with one (1) Year
of Service;
(c) The Employee is (i) a resident of the United States, or
(ii) a citizen of the United States who is employed by
Europate, S.A. or by Bimbo, S.A.;
(d) The Employee is not a Leased Employee with respect to the
Employer; and
(e) The Employee is not covered by a collective bargaining
agreement entered into with an adopting Employer pursuant
to which retirement benefits were the subject of good
faith bargaining which agreement excludes the Employee
from participation in the Plan. (See Appendix H for a list
of unions whose collective bargaining agreements provide
for participation in the Plan).
The Committee shall notify each Employee of the date he becomes
eligible to participate in the Plan and the necessary actions that
may be required on his part to obtain or participate in all
benefits of the Plan.
The term "six months of service" as used in (b) above means the
period of continuous service beginning on the date the Employee is
first credited
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with an Hour of Service and ending on the date which is six months
following such date.
Notwithstanding anything contained herein to the contrary, an
employee who was an employee of an employer listed below on the
date immediately preceding the date below and who became an
Employee of the Company or an Adopting Employer on the date
specified below shall become a Participant in the Plan on the date
specified below if such Employee satisfied, on the date specified
below, the conditions specified in subsections 3.1(a), (c), (d) and
(e) above, notwithstanding that the condition of paragraph (b) of
Section 3.1 was not satisfied:
Southern Bakeries August 19, 1998
IBC Grand Junction October 4, 1998
CooperSmith, Inc. January 17, 1998
San Luis Sourdough March 12, 1998
H & L Baking Company July 2, 1997
Brothers Baking Company, Inc. July 2, 1997
Heiner's Bakery, Inc. December 1, 1996"
IV.
Section 11.1 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"11.1. Vesting.
---------------
(a) A Participant who is a Participant on July 1, 1998, other
than a Participant who is covered by a collective
bargaining agreement, shall have a non-forfeitable
interest in his entire Plan Account.
(b) A Participant who is covered by a collective bargaining
agreement shall obtain a non-forfeitable interest in his
Plan Account attributable to Employer Matching
Contributions upon the occurrence of (i) his death or
Disability, while an Employee, (ii) layoff for a period
exceeding twelve (12) consecutive months, (iii) entry into
active duty with any branch of the military services of
the United States, or (iv) termination of employment
following attainment of age sixty (60). As of any date
prior to the occurrence of an event described in (i)
through (iv) above, such Participant shall obtain a
non-forfeitable interest in his Plan Account attributable
to Employer Matching Contributions in accordance with the
vesting schedule set forth below based upon the number of
Years of Service credited to such Participant as of such
date:
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Years of Service Vested Percentage
---------------- -----------------
1 0%
2 or more 100%
(c) Anything contained herein to the contrary notwithstanding,
(i) a Participant shall have a non-forfeitable interest in
his Plan Account attributable to the ten (10) Company
Shares, if any, allocated to his Plan Account in
accordance with the provisions of Section 6.1 of the Plan,
and (ii) an Employee who on October 14, 1996 was employed
in the MIS Department and who was transferred on October
15, 1996 to Electronic Data Systems shall have a
non-forfeitable interest in his Plan Account as of the
date of such transfer."
V.
The second paragraph of Section 11.3 of the Plan is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"The portion of the Participant's Plan Account in which he does not
have a vested interest shall be applied, for the Plan Year in which
the Participant's employment with all Employers terminates, first
to restore amounts in accordance with the provisions of this
Section 11.3 and the remainder, if any, thereafter shall be applied
to reduce administrative expenses of the Plan. If the Participant
is reemployed by the Company or an Adopting Employer before he
incurs five (5) consecutive Breaks in Service, then he shall have
restored to his Employer Matching Contribution Account as of the
last day of the calendar month in which he is reemployed an amount
equal to the amount of such forfeiture. Any amount restored shall
come from forfeitures, and if such forfeitures are not sufficient,
the Company shall restore such amount."
VI.
Section 15. 1 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"15.1. Eligibility.
-------------------
A Participant may withdraw an amount from his Plan Account in
accordance with such rules and procedures as prescribed by the
Committee for the administration of a withdrawal program under the
Plan. The withdrawal program shall be administered by the Committee
on a uniform and nondiscriminatory basis. For purposes of this
Article 15, (a) an alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p), and (b) an
Employee described in Section 2.1 (cc) who has satisfied
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the eligibility conditions of Section 3.1(a), (c), (d) and (e) and
for whom a Plan Account is maintained to reflect a Rollover
Contribution, shall not be permitted to make a withdrawal from the
Plan pursuant to this Section."
VII.
Section 16.1 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"16.1. Loan Program; Eligibility.
---------------------------------
A Participant who is employed by the Employer may borrow from the
Trust in accordance with such rules and procedures as prescribed by
the Committee for the administration of a loan program under the
Plan. The loan program shall be administered by the Committee on a
uniform and nondiscriminatory basis and in a manner designed to
insure that loans are available to all such Participants on a
reasonably equivalent basis. For purposes of this Article 16, (a)
an alternate payee under a qualified domestic relations order, as
defined in Code Section 414(p), and (b) an Employee described in
Section 2.1 (cc) who has satisfied the eligibility conditions of
Section 3.1(a), (c), (d) and (e) and for whom a Plan Account is
maintained to reflect a Rollover Contribution, shall not be
permitted to borrow from the Plan."
VIII.
Section 18.1(b) of the Plan is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"(b) If he did not satisfy the eligibility conditions of
Section 3.1 on the day before his employment terminated,
he shall become (or again become) an Active Participant on
the first payday immediately following the date on which
he satisfies (or again satisfies) such eligibility
conditions."
IX.
The first paragraph of Section 20.2 of the Plan is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"An Active Participant, or an Employee who satisfies the
eligibility conditions of Sections 3.1(a), (c), (d) and (e) but not
necessarily the conditions of Section 3.1(b), may contribute to the
Trust Fund cash amounts distributed from any other qualified plan
or conduit individual retirement account (as described in Code
Section 408(d)(3)(A)(ii)) within sixty (60) days after such
distribution, if the distribution is eligible for
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rollover treatment under the applicable provisions of Code Section
402(a) or 408(d). Contributions made under this Section shall be
identified as "Rollover Contributions" for purposes of this Plan."
X.
Section 22.2 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"22.2. Initial Review of Claim.
-------------------------------
The Committee shall consider all properly filed claims for
distribution or benefit and shall notify the claimant in writing
within ninety (90) days of receipt of the claim as to whether the
claim is allowed or denied. If an extension of time for processing
such claim is needed, notice of the extension shall be given prior
to the written termination of the initial ninety (90) day period.
Such notice shall specify the circumstances requiring an extension
and the date by which a final decision will be reached. The
extended date may not be later than one hundred eighty (180) days
after the original claim is filed.
If the Committee denies a claim, the written notice informing the
claimant of the denial shall include the following:
(a) The specific reason(s) for the denial of the claim;
(b) The pertinent Plan provision(s) on which the denial is
based;
(c) A description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary; and
(d) An explanation of the claim review procedure available to
the claimant.
The Committee may deny a claim in whole or in part and shall notify
the claimant of the extent of the denial."
XI.
Section 22.3. of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"22.3. Claim Review Procedure.
------------------------------
A claimant who receives notice that his claim for distribution or
benefit is denied in whole or in part may, within sixty (60) days
after the receipt of
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the notice, apply to the Committee for a review of the decision.
Such application must be made on a form provided by the Committee
for this purpose.
A claimant who files a claim for review with the Committee shall
have the following rights:
(a) Upon reasonable notice to the Committee, the claimant may
examine documents in the possession of the Committee that
are pertinent to the decision under review; and
(b) The claimant may submit written comments and issues to the
Committee relating to the decision under review.
The Committee shall notify the claimant in writing within sixty
(60) days of the later of the receipt of the application for review
or the receipt of written comments and issues from the claimant as
to whether the claim is allowed or denied; provided that special
circumstances do not require an extension of the time for
processing the review. If an extension is needed, the Committee
must give written notice within the initial sixty (60) day period
specifying the reasons for the extension and the date on which the
review will be complete; provided that such review will be
completed within one hundred twenty (120) days of the date the
original application was received. If the application is denied,
the written notice informing the claimant of the denial shall
include the information specified in Section 22.2."
XII.
Section 25.3 of the Plan is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"25.3. Interests Not Transferable.
----------------------------------
Subject to Code Section 401(a)(13)(B), and except as may be
required by application of the withholding provisions of the Code
or of any state's tax laws, no benefit or interest under the Plan
shall be subject to assignment or alienation, either voluntary or
involuntary. Payment of benefits to an alternate payee under a
qualified domestic relations order meeting the requirements of Code
Section 414(p) shall be made on the date specified in the qualified
domestic relations order, which date may be prior to the
Participant's "earliest retirement age", as defined in Code Section
414(p), if the qualified domestic relations order so provides."
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XIII.
Effective as of July 1, 1998, the Plan is amended by adding a new
Appendix H, as attached hereto.
IN WITNESS WHEREOF, The Earthgrains Company has caused this
Amendment No. 5 to the Plan to be executed in its name by its duly
authorized officer as of the 30th day of June, 1999.
THE EARTHGRAINS COMPANY
By: /s/ Steven G. Gebben
-------------------------------------------
Title: Manager, Employee Benefits
----------------------------------------
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Appendix H
----------
Collective Bargaining Agreements
--------------------------------
Providing for Participation in Plan
-----------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
BARGAINING CONTRACT EFFECTIVE
LOCATION UNION UNIT LOCAL NUMBER CLASS DATE
- -----------------------------------------------------------------------------------------------------------------------------
ATLANTA BCT AH01 42 0276-21 Garage 4/1/98
- -----------------------------------------------------------------------------------------------------------------------------
ATLANTA IBT AH03 728 0203-01 Transport 11/1/98
- -----------------------------------------------------------------------------------------------------------------------------
CARROLLTON RWDS DC01 587 0311-30 Prod/Sand/Maint 8/1/99
- -----------------------------------------------------------------------------------------------------------------------------
DALLAS BCT BG04 111 0302-23 Sales 9/1/99
- -----------------------------------------------------------------------------------------------------------------------------
DALLAS BCT BG01 111 0213-21 Bakery Store 9/1/99
- -----------------------------------------------------------------------------------------------------------------------------
FT WORTH IBT BG05 997 0205-09 Sales 9/1/99
- -----------------------------------------------------------------------------------------------------------------------------
GRAND JUNCTION BCT CU01 26 4137-01 Inside 8/1/99
- -----------------------------------------------------------------------------------------------------------------------------
HOUSTON IBT BQ03 988 0114-10 Sales 11/1/99
- -----------------------------------------------------------------------------------------------------------------------------
MONTGOMERY RWDSU CC01 RWDSU 0304-30 Inside Mfg. 4/1/98
- -----------------------------------------------------------------------------------------------------------------------------
NASHVILLE IBT CE01 327 0135-01 Eng/Garage/Sanitation 6/1/98
- -----------------------------------------------------------------------------------------------------------------------------
NASHVILLE IBT CE04 327 0134-04 Transport 6/1/98
- -----------------------------------------------------------------------------------------------------------------------------
OAKLAND IBT CF06 856 0204-01 Office 10/1/98
- -----------------------------------------------------------------------------------------------------------------------------
OWENSBORO IBT CH11 215 0127-07 Evansville Route Sales 1997
- -----------------------------------------------------------------------------------------------------------------------------
PARIS IBT EC01 111 0269-20 Inside Manufacturing 8/31/98
- -----------------------------------------------------------------------------------------------------------------------------
PARIS BCT EC03 111 0171-02 Garage 12/1/98
- -----------------------------------------------------------------------------------------------------------------------------
PHOENIX IBT CK01 104 0187-03 Bakery Store 1997
- -----------------------------------------------------------------------------------------------------------------------------
PHOENIX IBT CK04 104 0146-01 Sales/Transport 1997
- -----------------------------------------------------------------------------------------------------------------------------
SACRAMENTO IBT CM08 150 0151-04 Office 7/1/98
- -----------------------------------------------------------------------------------------------------------------------------
SPRINGFIELD UFCW CQ01 322 0801-80 Bakery Store 11/1/00
- -----------------------------------------------------------------------------------------------------------------------------
TUCSON BCT CR03 104 0146-01 Sales 1997
- -----------------------------------------------------------------------------------------------------------------------------
WACO BCT 8G06 111 0279-20 Sales 9/1/99
- -----------------------------------------------------------------------------------------------------------------------------
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