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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VALMONT INDUSTRIES, INC.
(Exact Name of Issuer as Specified in its Charter)
Delaware 47-0351813
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation of Organization) Identification No.)
Valmont Industries, Inc.
Valley, Nebraska 68064
(Address of Principal Executive Offices) (Zip Code)
Valmont Employee Retirement Savings Plan
(Full Title of the Plan)
Terry J. McClain, Vice President
and Chief Financial Officer
Valmont Industries, Inc.
Valley, Nebraska 68064
(Name and Address of Agent for Service)
Telephone Number, Including Area Code,
of Agent for Service: 402-359-2201
<TABLE>
<CAPTION>
CALCULATION OF ADDITIONAL REGISTRATION FEE
=============================================================
Title of Amount to Proposed maxi- Proposed maxi- Amount of
securi- be regis- mum offering mum aggregate registra-
ties to be tered price per offering price tion fee
registered share (2) (2)
<S> <C> <C> <C> <C>
Common 100,000 $16.50 $1,650,000 $569.00
Stock shares
<FOOTNOTE>
1 In addition, pursuant to Rule 416(c), this Registration
Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described
herein.
2 Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) on the basis of the
average of the high and low sales prices on December 27, 1994.
</TABLE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. INCORPORATION BY CERTAIN DOCUMENTS BY REFERENCE
Valmont Industries, Inc. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents
previously filed with the Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 25, 1993.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since
the end of the Company's fiscal year ended December 25, 1993.
(c) The description of the Company's common stock contained in
registration statements on Form 8-A filed under the Exchange
Act, including any amendments or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference in the Registration Statement and to be a part thereof
from the date of filing of such documents.
The Plan, interests in which are covered by this Registration
Statement, hereby incorporates by reference in this Registration
Statement its Annual Report on Form 11-K for its latest fiscal year.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Article IX of the Certificate of Incorporation of the
Company, the Company shall, to the extent required, and may, to the
extent permitted, by Section 102 and Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to
time, indemnify and reimburse all persons whom it may indemnify and
reimburse pursuant thereto. No director shall be liable to the
Company or its stockholders for monetary damages for breach of
fiduciary duty as a director with respect to acts or omissions
occurring on or after April 27, 1987. A director shall continue to
be liable for (i) any breach of a director's duty of loyalty to the
Company or its stockholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation
of law; (iii) paying a dividend or approving a stock repurchase
which would violate Section 174 of the General Corporation Law of
the State of Delaware; or (iv) any transaction from which the
director derived an improper personal benefit.
The bylaws of the Company provide for indemnification of Company
officers and directors against all expenses, liability or losses
reasonably incurred or suffered by them to the extent legally
permissible under the Delaware General Corporation Law where any
such person was, is, or threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact such person
was serving the Company in such capacity. Generally, under Delaware
law, indemnification will only be available where an officer or
director can establish that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Company.
The Company also maintains a director and officer insurance policy
which insures the Company, its subsidiaries and their officers and
directors against damages, judgments, settlements and costs incurred
by reason of wrongful acts committed by such persons in their
capacities as officers and directors.
Item 8. EXHIBITS
4.1 - Valmont Employee Retirement Savings Plan, with Exhibits
No. 1 through No. 7
23 - Consent of KPMG Peat Marwick
24 - Powers of Attorney for Directors of the Company
The undersigned registrant hereby undertakes to submit or cause to
be submitted the Valmont Employee Retirement Savings Plan, and any
amendments thereto, to the Internal Revenue Service in a timely
manner and to make all changes required by the IRS in order to
qualify such plans under the Internal Revenue Code.
Item 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however that paragraph (A)(1)(i) and (A)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by the paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered thereon, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated
by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by jurisdiction the
question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-8, and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Valley, and
the State of Nebraska, on this 29th day of December, 1994.
VALMONT INDUSTRIES, INC.
/s/ Mogens C. Bay
_________________________
Mogens C. Bay
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below on the 29th
day of December, 1994 by the following persons in the capacities
indicated.
Signature Title
/s/ Mogens C. Bay
__________________________ Director, President and
Mogens C. Bay Chief Executive Officer
(Principal Executive Officer)
/s/ Terry J. McClain
__________________________ Vice President and
Terry J. McClain Chief Financial Officer
(Principal Financial Officer)
/s/ Brian C. Stanley
__________________________ Vice President - Investor
Brian C. Stanley Relations & Controller
(Principal Accounting Officer)
Robert B. Daugherty* Director
Charles M. Harper* Director
Allen F. Jacobson* Director
Lloyd P. Johnson* Director
John E. Jones* Director
Thomas F. Madison* Director
Walter Scott, Jr.* Director
Robert G. Wallace* Director
* This Registration Statement has been signed by the
undersigned as attorney-in-fact on behalf of each person so
indicated pursuant to a power of attorney duly executed by
each such person.
/s/ Mogens C. Bay
____________________________
Mogens C. Bay
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933,
the Valmont Employee Retirement Savings Plan has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Valley,
and the State of Nebraska, on this 29th of December, 1994.
VALMONT EMPLOYEE RETIREMENT SAVINGS PLAN
/s/ Mogens C. Bay
By:___________________________
Mogens C. Bay
Policy Committee Member
/s/ Terry J. McClain
By:___________________________
Terry J. McClain
Policy Committee Member
/s/ Tom L. Whalen
By:___________________________
Tom L. Whalen
Policy Committee Member
INDEX TO EXHIBITS
EXHIBIT NO. EXHIBIT PAGE
4.1 Valmont Employee Retirement
Savings Plan, with Exhibits
No. 1 through No. 7
23 Consent of KPMG Peat Marwick
24 Powers of Attorney for
Directors of the Company
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
(Amended and Restated Effective January 1, 1989)
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
Table of Contents
ARTICLE I
DEFINITIONS 1
ARTICLE II
ADMINISTRATION
2.1 Powers and Responsibilities of the Employer 6
2.2 Assignment and Designation of Administrative
Authority 6
2.3 Allocation and Delegation of Responsibilities 7
2.4 Powers, Duties and Responsibilities 7
2.5 Records and Reports 8
2.6 Appointment of Advisors 8
2.7 Information from Employer 8
2.8 Payment of Expense 9
2.9 Claims Procedure 9
2.10 Claims Review Procedure 9
ARTICLE III
ELIGIBILITY
3.1 Conditions of Eligibility 10
3.2 Application for Participation 10
3.3 Determination of Eligibility 10
3.4 Termination of Eligibility 10
3.5 Omission of Eligible Employee 10
3.6 Inclusion of Ineligible Employee 10
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 Employee Deposits 11
4.2 Employer Contributions 12
4.3 Amount of Employer's Contribution 13
4.4 Accounts 13
4.5 Overall Limitation of Benefits 14
4.6 Adjustment for Excessive Contributions 15
4.7 Actual Deferral Percentage Tests 16
4.8 Adjustment to Actual Deferral Percentage
Tests 17
4.9 Maximum After-Tax Deposit Percentage 17
4.10 Adjustment for Excessive Contribution
Percentage 19
4.11 Transfers from Qualified Plans 19
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VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
Table of Contents
Page No.
ARTICLE V
INVESTMENT ALLOCATIONS AND VALUATIONS
5.1 Investment Funds 21
5.2 Participant Investment and Elections 21
5.3 Credits to Participants 22
5.4 Changes in Investment Options 22
ARTICLE VI
DETERMINATION, DISTRIBUTION AND WITHDRAWAL OF BENEFITS
6.1 Determination of Benefits Upon Retirement 22
6.2 Determination of Benefits Upon Death 23
6.3 Determination of Benefits in Event of Disability 23
6.4 Determination of Benefits Upon Termination 23
6.5 Distribution of Benefits 25
6.6 Distribution for Minor Beneficiary 26
6.7 Time of Payment 26
6.8 Withdrawals 26
6.9 Loans to Participants 29
ARTICLE VII
TRUSTEE
7.1 Basic Responsibilities of the Trustee 30
7.2 Investment Powers and Duties of the Trustee 30
7.3 Audit 30
7.4 Resignation, Removal and Succession of Trustee 31
7.5 Master Trust 31
ARTICLE VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 Amendment 31
8.2 Termination 32
8.3 Merger or Consolidation 32
ARTICLE IX
TRANSFERRED EMPLOYEES
9.1 Transferred Participant 33
9.2 Transferred Employee 33
9.3 Committee Rights 34
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VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
Table of Contents
Page No.
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 Adoption by Other Corporations 34
10.2 Requirements of Participating Employers 34
10.3 Designation of Agent 35
10.4 Employee Transfers 35
10.5 Amendment 35
10.6 Discontinuance of Participation 35
10.7 Committee's Authority 36
ARTICLE XI
TOP-HEAVY PROVISIONS
11.1 Minimum Employer Contribution 36
11.2 Top-Heavy Determination 36
11.3 Top-Heavy Definitions 37
11.4 Adjustments to Section 415 Limitations 40
ARTICLE XII
MISCELLANEOUS
12.1 Participant's Rights 40
12.2 Alienation 40
12.3 Construction of Agreement 41
12.4 Gender and Number 41
12.5 Legal Action 41
12.6 Prohibition Against Diversion of Funds 41
12.7 Bonding 42
12.8 Employer's and Trustee's Protective Clause 42
12.9 Receipt and Release for Payments 42
12.10 Named Fiduciaries and Allocation of Responsibility 42
12.11 Headings 43
12.12 Approval by Internal Revenue Service 43
12.13 Notification 44
-iii-
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
THIS AGREEMENT, made and entered into this 11th day of July,
1991, by and between VALMONT INDUSTRIES, INC. ("Employer") and
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION ("Trustee").
Effective January 1, 1989, except as set forth in Section
4.2, the Employer and the Trustee amend and restate the Valmont
Employee Retirement Savings Plan and Trust to provide as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act
of 1974, as amended.
1.2 "Affiliated Employer" means the Employer and any
corporation which is a member of a controlled group of
corporations (as defined in Code 414(b)) which
include the Employer; any trade or business (whether or
not incorporated) which is under common control (as
defined in Code 414(c)) with the Employer; any
organization (whether or not incorporated) which is a
member of an affiliated service group (as defined in
Code 414(m)) which includes the Employer; and any
other entity required to be aggregated with the
Employer pursuant to Regulations under Code 414(o).
1.3 "Agreement" or "Plan" means this instrument and all its
amendments.
1.4 "Anniversary Date" means the last day of the Plan Year.
1.5 "Beneficiary" or "Beneficiaries" means the person or
persons to whom the share of a deceased Participant's
Account is payable, as provided in the Plan.
1.6 Break in Service" means a twelve month consecutive
Period of Severance. A "Period of Severance" means a
period of time during which the Employee is no longer
employed by the Employer. Such period shall begin on
the date the Employee retires, quits, is discharged, or
otherwise severs employment with the Employer
(including an Employee who becomes Totally and
Permanently Disabled).
1.7 "Code" means the Internal Revenue Code of 1986, as
amended.
1.8 "Early Retirement Date" means the first day of the
calendar month coinciding with or next following the
date the Participant reaches age fifty-five and has
completed five Years of Service.
1.9 "Eligible Employee" means any full-time, regular
Employee who has satisfied the provisions of Section
3.1., except Employees whose employment is governed by
the terms of a collective bargaining agreement under
which retirement benefits were the subject of good
faith bargaining between the parties.
1.10 "Employee" means any person who is employed by the
Employer, but excludes any person who serves only as a
director, and any person who is employed as an
independent contractor. Employee includes any leased
employees within the meaning of Code 414(n)(2) unless
such employees are covered by a plan described in Code
414(n)(5) and such employees do not constitute more
than 20% of the recipient's nonhighly compensated work
force.
1.11 "Family Member" means an individual described in Code
414(q)(6)(B).
1.12 "Fiscal Year" means the Employer's accounting year
based upon a fifty-two to fifty-three week accounting
period ending on the last Saturday in December and
commencing on the next day.
1.13 "Forfeiture" means that portion of a Participant's
Account that is not Vested and occurs during any Plan
Year in which a 1-Year Break in Service occurs after a
Participant terminated service prior to retirement.
1.14 "415 Compensation" means the Participant's wages,
salaries, commissions, bonuses, fees for professional
service and other amounts for personal services
actually rendered in the course of employment with the
Employer, and in the case of a Participant who is an
Employee within the meaning of Code 401(c)(1), the
Participant's earned income (as described in Code
401(c)(2)) paid during the Limitation Year. "415
Compensation" shall exclude (1)(A) contributions made
by the Employer to a plan of deferred compensation to
the extent that, before the application of the Code
415 limitations to the Plan, the contributions are
not includable in the gross income of the Employee for
the taxable year in which contributed, (B) any
distributions from a plan of deferred compensation
regardless of whether such amounts are includable in
the gross income of the Employee when distributed
except any amounts received by an Employee pursuant to
an unfunded non-qualified plan to the extent such
amounts are includable in the gross income of the
Employee; (2) amounts realized from the exercise of a
non-qualified stock option or when restricted stock (or
property) held by an Employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture; (3) amounts realized from the sale,
exchange or other disposition of stock acquired under a
qualified stock option; and (4) other amounts which
receive special tax benefits, such as premiums for
group term life insurance (but only to the extent that
the premiums are not includable in the gross income of
the Employee). Notwithstanding the preceding, "415
Compensation" shall be limited to $200,000 (unless
adjusted as permitted under Code 415(d)).
1.15 "Highly Compensated Participant" means any Participant
who, during the Determination Year or the Look-Back
Year:
(a) was at any time a Five Percent Owner.
(b) received 415 Compensation from the Employer in
excess of $75,000. In determining whether an
individual has 415 Compensation of more than
$75,000, 415 Compensation from each employer
required to be aggregated under Code 414(b),
(c), and (m) shall be taken into account.
(c) received 415 Compensation from the Employer in
excess of $50,000 and was in the top-paid group of
Employees for the Plan Year. An Employee is in
the top-paid group of Employees for any Plan Year
if such Employee is in the group consisting of the
top twenty percent of the Employees when ranked on
the basis of 415 Compensation paid during the Plan
Year. In determining whether an individual has
415 Compensation of more than $50,000, 415
Compensation from each employer required to be
aggregated under Code 414(b), (c), and (m)
shall be taken into account.
(d) was at any time an officer.
The "Look-Back Year" shall be the calendar year ending
with or within the Plan Year for which testing is being
performed. The "Determination Year" shall be the
period of time, if any, which extends beyond the Look-
Back Year and ends on the last day of the Plan Year for
which testing is being performed (the "Lag Period").
If the Lag Period is less than twelve months long, the
threshold amounts specified in (b), (c) and (d) above
shall be prorated based upon the number of months in
the Lag Period.
Notwithstanding the above, in the case of the
Determination Year, a Participant not described in
paragraphs (b), (c) or (d) for the Look-Back Year
(without regard to this paragraph) shall not be treated
as described in paragraphs (b), (c) or (d) unless such
Participant is a member of the group consisting of the
100 Employees paid the greatest 415 Compensation during
the Determination Year.
For purposes of this section, the determination of 415
Compensation shall be made without regard to Code
125, 402(a)(8), 402(h)(1)(B) and, in the case of
Employer contributions made pursuant to a salary
reduction agreement, without regard to Code 403(b).
Additionally the dollar threshold amounts specified in
(b) and (c) above shall be adjusted at such time and in
such manner as is allowed by the Code.
A "Non-Highly Compensated Participant" is any
Participant who is not a Highly Compensated
Participant.
1.16 "Investment Manager" means any person, firm or
corporation who is a registered investment adviser
under the Investment Advisers Act of 1940, a bank or an
insurance company, and (a) who has the power to manage,
acquire, or dispose of Plan assets, and (b) who
acknowledges in writing his fiduciary responsibility to
the Plan.
1.17 "Late Retirement Date" means the last day of the
calendar quarter coinciding with or next following a
Participant's actual retirement after having reached
his Normal Retirement Date.
1.18 "Limitation Year" means the Plan Year.
1.19 "Net Profit" means, with respect to any Fiscal Year,
the Employer's net income or profit (after taxes and
contributions to the Plan) for such Fiscal Year
determined upon the basis of the Employer's books in
accordance with generally accepted accounting
principles.
1.20 "Normal Retirement Date" means the first day of the
month coinciding with or next following the
Participant's sixty-fifth birthday ("Normal Retirement
Age"). Notwithstanding any other provisions of the
Plan, upon attaining age 65, while employed by the
Employer or a Participating Employer, a Participant's
interest in his Account shall be nonforfeitable.
1.21 "Participant" shall mean any Eligible Employee who
participates in the Plan as provided in Sections 3.1
and 3.2, and has not for any reason become ineligible
to participate further in the Plan.
1.22 "Participant's Account" shall mean the account
established and maintained by the Committee for each
Participant with respect to his total interest in the
Plan.
1.23 "Pay" means the total compensation paid or accrued by
the Employer with respect to the Participant, including
overtime, bonuses, the taxable portion of any exercised
employee stock option of the Employer and payments
under any incentive plan of the Employer. "Pay" shall
exclude Employer contributions to the VERSP Restoration
Plan (but not the Employee contribution), severance
pay, mortgage differential, EVAC earnings/accrued,
foreign hardship, housing allowance, relocation
allowance and expatriate allowances; only the first
$200,000 (or larger amount as adjusted pursuant to the
Code) shall be taken into account.
1.24 "Plan Year" means the Plan's accounting year of twelve
months commencing on January 1 of each year and ending
the following December 31.
1.25 "Total and Permanent Disability" means a physical or
mental condition of a Participant resulting from bodily
injury, disease, or mental disorder which renders him
incapable of engaging in any occupation or employment
for remuneration or profit, as determined by the
Committee.
1.26 "Trust Fund" means the assets of the Plan.
1.27 "Valuation Date" means the last day of each calendar
month.
1.28 "Vested" means the portion of a Participant's Account
that is nonforfeitable.
1.29 "Year of Service" is determined for purposes of
determining an Employee's initial or continued
eligibility to participate in the Plan, his
nonforfeitable interest in his account balance derived
from Employer contributions, and his Early Retirement
Age. An Employee shall receive credit for the time
periods commencing with his first day of employment or
reemployment and ending on the date a break in service
begins. An Employee shall also receive credit for any
period of severance of less than twelve consecutive
months; any period less than 12 months shall count as a
full Year of Service.
Years of Service with any Affiliated Employer shall be
recognized.
ARTICLE II
ADMINISTRATION
2.1 Powers and Responsibilities of the Employer.
(a) The Employer shall be empowered to appoint
and remove the Trustee and the Administrator (which
shall be a committee of not less than three individuals
("Committee")) as it deems necessary for the proper
administration of the Plan to assure that the Plan is
being operated for the exclusive benefit of the
Participants and their Beneficiaries in accordance with
the terms of this Agreement, the Code and the Act.
(b) Since the principal purpose of the Plan is to
provide benefits at Normal Retirement Age, the
principal goal of the investment of the funds in the
Plan should be both security and long-term stability
with moderate growth commensurate with the anticipated
retirement dates of Participants. The Committee shall
carry out the Plan's funding policy and method and is
authorized to unilaterally change this funding policy
and method and to provide for alternative investments.
(c) The Committee may in its discretion appoint
an Investment Manager to manage all or a designated
portion of the assets of the Plan. In such event, the
Trustee shall follow the directive of the Investment
Manager in investing the assets of the Plan managed by
the Investment Manager.
(d) The Employer shall periodically review the
performance of any fiduciary or other person to whom
duties have been delegated or allocated by it under the
provisions of the Plan. This requirement may be
satisfied by formal periodic review of the Employer or
by a qualified person specifically designated by the
Employer through day-to-day conduct and evaluation or
through other appropriate methods.
2.2 Assignment and Designation of Administrative Authority.
Any person, including, but not limited to, the directors,
shareholders, officers, and Employees of the Employer, shall be
eligible to serve as Committee members. Any person so appointed
shall signify his acceptance by filing written acceptance with
the Employer. A Committee member may resign by delivering his
written resignation to the Employer or be removed by the Employer
by delivery of written notice of removal, to take effect at a
date specified therein, or upon delivery to the Administrator if
no date is specified.
The Employer, upon the resignation or removal of a
Committee member, shall promptly designate, in writing, a
successor. If the Employer does not appoint any Committee
members, the Employer will function as the Administrator.
2.3 Allocation and Delegation of Responsibilities. The
responsibilities of each Committee member may be specified by the
Employer and accepted in writing by each member. In the event
that no such delegation is made by the Employer, the Committee
may allocate the responsibilities among itself. The Trustee
thereafter shall accept and rely upon any documents executed by
the appropriate member until such time as the Employer or the
Committee file with the Trustee a revocation of such designation.
Except where there has been an allocation and delegation of
authority, the Committee shall act by a majority of its number,
but the Committee may authorize one or more Committee members to
sign papers on its behalf.
2.4 Powers, Duties and Responsibilities. The primary
responsibility of the Committee is to administer the Plan for the
exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Committee shall
administer the Plan in accordance with its terms and shall have
the power to determine all questions arising in connection with
the administration, interpretation and application of the Plan.
Any such determination by the Committee shall be conclusive and
binding upon all persons. The Committee may correct any defect,
supply any information or reconcile any inconsistency in such
manner and to such extent as shall be deemed necessary or
advisable to carry out the purpose of this Agreement; provided,
however, that any interpretation or construction shall be done in
a nondiscriminatory manner and shall be consistent with the
intent that the Plan shall continue to be deemed a qualified plan
under the terms of Code 401(a) and shall comply with the terms
of the Act. The Committee shall have all powers necessary or
appropriate to accomplish its duties under this Plan.
The Committee shall be charged with the duties of the
general administration of the Plan, including, but not limited
to, the following:
(a) to determine all questions relating to the
eligibility of Employees to participate or remain a
Participant;
(b) to compute, certify and direct the Trustee
with respect to the amount and the kind of benefits to
which any Participant shall be entitled;
(c) to authorize and direct the Trustee with
respect to all nondiscretionary or otherwise directed
disbursements from the Trust;
(d) to maintain all necessary records for the
administration of the Plan;
(e) to interpret the provisions of the Plan and
to make and publish such rules for regulation of the
Plan as are consistent with its terms;
(f) to determine the size and type of any
contract to be purchased from an insurer, and to
designate the insurer from which such contract shall be
purchased.
(g) to compute and certify to the Employer and to
the Trustee from time to time the sums of money
necessary or desirable to be contributed to the Trust
Fund;
(h) to consult with the Employer and the Trustee
regarding the short and long-term liquidity needs of
the Plan in order that the Committee can exercise any
investment discretion in a manner designed to
accomplish specific objectives;
(i) to assist any Participant regarding his
rights, benefits or elections available under the Plan;
(j) to determine the investment options available
under the Plan; except, that no investment in Employer
stock shall be made unless this Plan is amended by the
Employer's Board of Directors to provide for such
investment.
2.5 Records and Reports. The Committee shall keep a record
of all actions taken and shall keep all other books of account,
records, and other data that may be necessary for proper
administration of the plan and shall be responsible for supplying
all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as
required by law.
2.6 Appointment of Advisors. The Committee, or the
Trustee, with the consent of the Committee, may appoint counsel,
specialists, and other advisors and persons as the Committee or
the Trustee deems appropriate in connection with the
administration of the Plan.
2.7 Information from Employer. To enable the Committee to
perform its functions, the Employer shall supply full and timely
information to the Committee on all matters relating to the Pay
of all Participants, their Years of Service, their retirement,
death, disability or termination of employment, and such other
pertinent facts as the Committee may require; and the Committee
shall advise the Trustee of such foregoing facts as may be
pertinent to the Trustee's duties under the Plan. The Committee
may rely upon such information as is supplied by the Employer and
shall have no duty or responsibility to verify such information.
2.8 Payment of Expenses. All expenses of administration
shall be paid out of the Trust Fund unless paid by the Employer.
Such expenses shall include any expenses incident to the
functioning of the Committee, including, but not limited to, fees
of accountants, counsel and other specialists, and other costs of
administering the Plan. Until paid, the expenses shall
constitute a liability of the Trust Fund. However, the Employer
may reimburse the Trust for any administrative expense incurred
pursuant to the above. Any administration expense paid to the
Trust as a reimbursement shall not be considered as an Employer
contribution.
2.9 Claims Procedure. Claims for benefits under the Plan
shall be filed with the Committee on forms supplied by the
Employer. Written notice of the disposition of a claim shall be
furnished to the claimant within sixty days after the application
thereof is filed. In the event the claim is denied, the reasons
for the denial shall be specifically set forth in the notice in
language calculated to be understood by the claimant, pertinent
provisions of the Plan shall be cited, and, where appropriate, an
explanation as to how the claimant can perfect the claim will be
provided. In addition, the claimant shall be furnished with an
explanation of the Plan's claims review procedure.
2.10 Claims Review Procedure. Any Employee, former Employee,
or Beneficiary of either, who has been denied a benefit by a
decision of the Committee pursuant to Section 2.9 shall be
entitled to request the Committee to give further consideration
to his claim by filing with the Committee a request for a
hearing. Such request, together with a written statement of the
reasons why the claimant believes his claim should be allowed,
shall be filed with the Committee no later than sixty days after
receipt of the written notification provided for in Section 2.9.
The Committee shall then conduct a hearing within the next sixty
days, at which the claimant may be represented by an attorney or
any other representative of his choosing and at which the
claimant shall have an opportunity to submit written and oral
evidence and arguments in support of his claim. At the hearing
(or prior thereto upon five business days' written notice to the
Committee) the claimant or his representative shall have an
opportunity to review all documents in the possession of the
Committee which are pertinent to the claim at issue and its
disallowance. A final decision as to the allowance of the claim
shall be made by the Committee within sixty days of receipt of
the appeal unless there has been an extension of sixty days and
shall be communicated in writing to the claimant. Such
communication shall be written in a manner calculated to be
understood by the claimant and shall include specific reasons for
the decision and specific references to the pertinent Plan
provisions on which the decision is based.
ARTICLE III
ELIGIBILITY
3.1 Conditions of Eligibility. Any Eligible Employee who
has completed one Year of Service shall be eligible to
participate as of the first day of the calendar quarter
coincident with or next following the anniversary of the date of
hire. Notwithstanding the preceding, an Employee who was a
Participant on January 1, 1989 shall be eligible to continue to
participate in the Plan as of such date.
3.2 Application for Participation. In order to become a
Participant, each Eligible Employee must enroll for participation
in the Plan and agree to its terms. Upon the acceptance of any
benefits under the Plan, such Employee shall automatically be
bound by theterms and conditionsof the Planand all itsamendments.
3.3 Determination of Eligibility. The Committee shall
determine the eligibility of each Employee for participation in
the Plan based upon information furnished by the Employer. Such
determination shall be conclusive and binding upon all persons,
as long as the same is made in accordance with the Plan and the
Act, provided such determination shall be subject to review per
Section 2.10.
3.4 Termination of Eligibility. A Participant shall cease
to be eligible to participate in the Plan as of the date the
Employee terminates employment with the Employer. An Employee on
layoff with the Employer shall be considered to have terminated
employment with the Employer at the time such Employee is
considered to have terminated his employment with the Employer
under the Employer's layoff policies.
3.5 Omission of Eligible Employee. If any Employee who
should be included as a Participant in the Plan is erroneously
omitted and discovery of such omission is not made until after a
contribution by his Employer for the year has been made and
allocated, the appropriate Employer shall make a subsequent
contribution with respect to the omitted Employee in the amount
which the said Employer would have contributed with respect to
him had he not been omitted. Such contribution shall be made
regardless of whether or not it is deductible in whole or in part
in any taxable year under the Code by such Employer.
3.6 Inclusion of Ineligible Employee. If any person who
should not have been included as a Participant in the Plan is
erroneously included and discovery of such incorrect inclusion is
not made until after a contribution has been made and allocated,
the appropriate Employer shall not be entitled to recover the
contribution made with respect to the ineligible person
regardless of whether or not a deduction is allowable with
respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall
constitute a Forfeiture for the Fiscal Year in which the
discovery is made.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 Employee Deposits.
(a) Each pay period, a Participant may deposit to
the Plan 1% to 15% (inclusive and in integers) of his
Pay for that period. The Participant shall elect
whether all or, none, or a portion of these deposits
are to be made on a pre-tax basis pursuant to 401(k)
of the Code ("Pre-Tax Deposits") or to be made on an
after-tax basis ("After-Tax Deposits"). The first 6%
of Pay deposited by a Participant on a pre-tax basis
shall be called "Matched Pre-Tax Deposits." The
Employee deposits shall be made by payroll deduction
and transferred by the Employer to the Trustee as soon
as practicable.
(b) For taxable years beginning after December
31, 1986, a Participant's Pre-Tax Deposits shall not
exceed $7,000 for the taxable year of the Participant.
This dollar limitation shall be adjusted annually as
provided in Code 415(d). The adjusted limitation
shall be effective as of each January 1. In the event
this dollar limitation is exceeded, the Trustee shall
distribute such excess amount, and any income allocable
thereto, to the Participant not later than the first
April 15th following the close of the Participant's
taxable year.
(c) For the purposes of Section 4.1(b),
contributions made to the Plan during 1987 which are
attributable to service with the Employer during 1986
shall not be included if:
(1) the Participant makes an election with
respect to such contribution before
January 1, 1987, and
(2) the Employer identifies the amount of
such contribution before January 1,
1987.
(d) In the event that a Participant is also a
participant in (1) another qualified cash or deferred
arrangement (as defined in Code 401(k)), (2) a
simplified employee pension (as defined in Code
408(k)), or (3) a salary reduction arrangement
(within the meaning of Code 3121(a)(5)(D)) and the
elective deferrals, as defined in Code 402(g)(3),
made under such other arrangement(s) and this Plan
cumulatively exceed $7,000 (or such amount adjusted
annually as provided in Code 415(d)) for such
Participant's taxable year, the Participant may, not
later than March 1 following the close of his taxable
year, notify the Committee in writing of such excess
and request that his Pre-Tax Deposits be reduced by an
amount specified by the Participant. Such amount may
then be distributed in the same manner as provided in
Section 4.1(b).
(e) A Participant may change the rate of his
deposit, and his designation under subsection 4.1(a),
but not retroactively, effective on the first pay day
coincident with or following the January 1, April 1,
July 1 or October 1 in any year. Such change and
designation shall be made to the Employer, in writing,
on the form and in the manner prescribed by the
Committee at least 30 days prior to the effective date
of the change. A Participant shall not be permitted to
change the rate of his deposits and his designation
more than twice during any Plan Year.
(f) Notwithstanding any other provision of the
Plan, a Participant shall be fully Vested to the
portion of his account, plus related gains or losses,
attributable to his own deposits.
4.2 Employer Contributions.
(a) Notwithstanding any other provisions of this
Plan, the Employer shall, for each Plan Year,
contribute 3/4% of the Pay of each Participant, in
addition to any other contributions. This shall be
called the "Basic Contribution."
(b) The Employer shall match the Matched Pre-Tax
Deposits up to 3% of a Participant's Pay at a rate of
50 per dollar. The remaining Matched Pre-Tax Deposits
of a Participant shall be matched at a rate of 75 per
dollar. No Employer matching contribution shall be
made with respect to deposits which are not Matched
Pre-Tax Deposits.
(c) In addition to the Employer Contributions
described above, a Supplemental Contribution may be
made by the Employer ("Supplemental Match"). The
Supplemental Match, if any, shall be the amount
determined by the Compensation Committee of the Board
of Directors of the Employer ("Compensation
Committee"). The Supplemental Match shall be allocated
in such nondiscriminative manner as determined by the
Compensation Committee.
Any Supplemental Match shall be made quarterly, semi-
annually or annually, as determined by the Employer.
A Participant who is not employed on the last day of
the period for which a Supplemental Match is made
shall not be entitled to the Supplemental Match.
(d) The amount of any Employer contributions
shall be reduced by the value of any Forfeitures.
(e) The provisions of this Section 4.2 shall be
effective April 1, 1989, notwithstanding any other
provisions of the Plan.
4.3 Amount of Employer's Contribution. The Employer shall
determine the amount of any contribution to be made by it to the
Plan under the terms of the Agreement. The Employer's
determination of such contribution shall be binding on all
Participants, the Employer, and the Trustee. Such determination
shall be final and conclusive and shall not be subject to change
as a result of a subsequent audit by the Internal Revenue Service
or as a result of any subsequent adjustment of the Employer's
records. The Trustee shall have no right or duty to inquire into
the amount of the Employer's contribution or the method used in
determining the amount of the Employer's contribution.
4.4 Accounts.
(a) The Committee shall establish and maintain an
account in the name of each Participant to which the
Committee shall credit at least as of each Anniversary
Date all amounts allocated to each Participant.
(b) The Employer shall provide the Committee with
all information required by the Committee to make a
proper allocation of the Employer's contribution for
each Fiscal Year. As soon as practicable after the
date of receipt by the Committee of such information,
the Committee shall allocate such contribution, plus
any earnings or losses allocated under Paragraph
4.4(c), to each Participant's Account.
(c) Before allocation of Forfeitures and Employer
contributions, any net appreciation or depreciation of
the value of the Trust Fund (exclusive of assets
segregated for distribution) shall be allocated as of
the last day of each Allocation Period. The allocation
shall be pro rata based upon the account balances at
the beginning of the applicable period.
4.5 Overall Limitation of Benefits.
(a) The Annual Addition to a Participant's
Account shall not exceed the lesser of $30,000 (or such
greater amount as may be determined by the Secretary of
the Treasury) or twenty-five percent of the
Participant's 415 Compensation for the Limitation Year.
In addition, all qualified defined contribution plans
of the Employer, terminated or not, shall, for purposes
of these limitations, be considered as one plan.
Rollover contributions (as per Section 4.11) are
not included in the term Annual Additions.
(b) "Annual Additions" means the sum credited the
Participant's Account for a Limitation Year of the
following:
(i) Employer contributions (including Pre-
Tax Deposits);
(ii) After-Tax Deposits;
(iii) Forfeitures;
(iv) Amounts allocated to an individual
medical account, as defined in Code
415(l)(2), which is part of an annuity
or pension plan maintained by the
Employer; and
(v) Amounts attributable to post-retirement
medical benefits allocated to a separate
account of a Key Employee under a
welfare plan maintained by the Employer.
(b) If an Employee is a Participant in one or
more defined benefit plans and one or more defined
contribution plans maintained by the Employer, the sum
of the defined benefit plan fraction and the defined
contribution plan fraction for any year may not exceed
one. The defined benefit plan fraction for any year is
a fraction (a) the numerator of which is the projected
annual benefit of the Participant under the Plan
(determined as of the close of the Plan Year), and (b)
the denominator of which is the lesser of (i) the
product of 1.25, multiplied by the dollar limitation in
effect under 415(b)(1)(A) of the Code for such year,
or (ii) the product of 1.4 multiplied by the amount
which may be taken into account under 415(b)(1)(B) of
the Code for such year. The defined contribution plan
fraction for any year is a fraction (a) the numerator
of which is the sum of the Annual Additions to the
Participant's Account as of the close of the Plan Year
and (b) the denominator of which is the lesser of the
following amounts determined for such year and for each
prior Year of Service with the Employer:
(i) The product of 1.25, multiplied by the dollar
limitation in effect under Code 415(c)(1)(A) for
such year (determined without regard to Code
415(1)(b)), or
(ii) The product of 1.4, multiplied by the amount which
may be taken into account under Code
415(c)(1)(B) (or 415(c)(7) or 415(c)(8), if
applicable) with respect to such individual under
the Plan for the year;
provided, however, the Committee may elect to use the
special transition rule allowed under 235(d) of the
Tax Equity and Fiscal Responsibility Act of 1982.
(c) If the sum of the defined benefit plan
fraction and the defined contribution plan fraction
shall exceed one in any year for any Participant in
this Plan, the Employer shall adjust the numerator of
the defined contribution plan fraction so that the sum
of both fractions shall not exceed one in any year for
such Participant. The adjustment shall be made as
provided in Section 4.6.
(d) The Limitation Year shall be the Plan Year.
(e) In the case of a group of employers which
constitutes a controlled group of corporations, trades
or businesses under common control (as defined in
1563(a) or 414(b) as modified by 415(h) of the
Code), all such employers shall be considered a single
employer for purposes of applying the limitation of
Code 415.
4.6 Adjustment for Excessive Contributions.
(a) To the extent that any Annual Addition to a
Participant's Account exceeds the maximum provided in
Section 4.5, the Committee shall consider such amount
of the Employer's contribution as a contribution carry-
over to the next Plan Year at which time it shall be
allocated as provided.
(b) In the event the Employer shall make an
excessive contribution to the Trust under a mistake of
fact, as that term is used in 403(c)(2)(A) of the
Act, the Employer may demand repayment of such excess
amount at any time within one year following the time
of payment, and the Trustee shall return such amount to
the Employer within the one year period.
4.7 Actual Deferral Percentage Tests.
(a) For each Plan Year, the annual allocation
derived from Pre-Tax Deposits shall satisfy one of the
following tests:
(1) The Actual Deferral Percentage for the Highly
Compensated Participant group shall not be
more than the Actual Deferral Percentage of
the Non-Highly Compensated Participant group
multiplied by 1.25, or
(2) The excess of the Actual Deferral Percentage
for the Highly Compensated Participant group
over the Actual Deferral Percentage for the
Non-Highly Compensated Participant group
shall not be more than two percentage points
or such lesser amount determined pursuant to
regulations to prevent the multiple use of
this alternative limitation with respect to
any Highly Compensated Participant.
Additionally, the Actual Deferral Percentage
for the Highly Compensated Participant group
shall not exceed the Actual Deferral
Percentage for the Non-Highly Compensated
Participant group multiplied by 2.
(b) "Actual Deferral Percentage" means, with
respect to the Highly Compensated Participant group and
Non-Highly Compensated Participant group for a Plan
Year, the average of the ratios, calculated separately
for each Participant in such group, of the amount of
Employer 401(k) Contributions allocated to each
Participant for the Plan Year, to the Participant's Pay
for the Plan Year, or the portion of the Plan Year for
which the Participant was eligible. For the purpose of
determining the Actual Deferral Percentage of a Highly
Compensated Participant, the Employer 401(k)
Contributions and Pay of such Highly Compensated
Participant shall include the Employer 401(k)
Contributions and Pay of Family Members, and such
affected Family Members shall be disregarded in
determining the Actual Deferral Percentage for the Non-
Highly Compensated Participants group.
(c) A Highly Compensated Participant and a Non-
Highly Compensated Participant shall include any
Employee eligible to make Pre-Tax Deposits, whether or
not any are made.
(d) For purposes of this section, if two or more
plans which include cash or deferred arrangements are
considered one plan for the purposes of Code
401(a)(4) or 410(b), the cash or deferred
arrangements included in such plans shall be treated as
one arrangement.
(e) For purposes of this section, if a Highly
Compensated Participant is a Participant under two or
more cash or deferred arrangements of the Employer or
an Affiliated Employer, all such cash or deferred
arrangements shall be treated as one cash or deferred
arrangement for the purpose of determining the deferral
percentage with respect to such Highly Compensated
Participant.
(f) "Employer 401(k) Contributions" means the sum
of Pre-Tax Deposits.
4.8 Adjustment to Actual Deferral Percentage Tests. In the
event the initial allocations do not satisfy either test set
forth in Section 4.7 on or before the 15th day of the third month
following the end of each Plan Year, but in no event later than
the close of the following Plan Year, each Highly Compensated
Participant, beginning with the Participant having the highest
Actual Deferral Percentage, shall have his portion of excess Pre-
Tax Deposits (and any income allocable to such portion)
distributed to him until one of the tests set forth in Section
4.7 is satisfied. If there is a loss allocable to such excess
amount, the distribution shall in no event be less than the
lesser of the Participant's Pre-Tax Deposit Account or the
Participant's Pre-Tax Deposits for the Plan Year.
4.9 Maximum After-Tax Deposit Percentage.
(a) The maximum After-Tax Deposit Percentage for
the Highly Compensated Participant group shall not
exceed the greater of:
(1) 125 percent of such percentage for the
Non-Highly Compensated Participant
group; or
(2) the lesser of 200 percent of such
percentage for the Non-Highly
Compensated Participant group, or such
percentage for the Non-Highly
Compensated Participant group plus 2
percentage points or such lesser amount
determined pursuant to regulations to
prevent the multiple use of this
alternative limitation with respect to
any Highly Compensated Participant.
(b) "After-Tax Deposit Percentage" for a Plan
Year means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated
Participant group, the average of the ratios
(calculated separately for each Participant in each
group) of:
(1) the After-Tax Deposits plus Employer
contributions made pursuant to 4.2(b)
and (c) (to the extent these are
Matching Contributions) for each
Participant for the Plan Year; to
(2) the Participant's Pay for the Plan Year,
or the portion of the Plan Year for
which the Participant was eligible.
(c) For purposes of determining the After-Tax
Deposit Percentage, the Committee may elect pursuant to
regulations to take into account elective deferrals (as
defined in Code 402(g)(3)(A)) and qualified non-
elective contributions (as defined in Code
401(m)(4)(C)) contributed to any plan maintained by
the Employer. In addition, the After-Tax Deposit
Percentage for a Highly Compensated Participant shall
be determined by including After-Tax Deposits and Pay
of Family Members, and such affected Family Members
shall be disregarded in determining the After-Tax
Deposit Percentage of Non-Highly Compensated
Participants.
(d) For purposes of this section, if two or more
plans of the Employer to which matching contributions,
Employee contributions, or elective deferrals are made
are treated as one plan for purposes of Code Section
410(b), such plans shall be treated as one plan for
purposes of this Section 4.9. In addition, if a Highly
Compensated Participant participates in two or more
plans described in Code 401(a) or arrangements
described in Code 401(k) which are maintained by the
Employer or an Affiliated Employer to which such
contributions are made, all such contributions shall be
aggregated for purposes of this Section 4.9.
(e) For purposes of Sections 4.9 and 4.10, a
Highly Compensated Participant and Non-Highly
Compensated Participant shall include any Employee
eligible to have After-Tax Deposits allocated to his
account for the Plan Year.
4.10 Adjustment for Excessive Contribution Percentage.
(a) In the event that the After-Tax Deposit
Percentage for the Highly Compensated Participant group
exceeds the After-Tax Deposit Percentage for the Non-
Highly Compensated Participant group pursuant to
Section 4.9, the Committee, on or before the fifteenth
day of the third month following the end of the Plan
Year, but in no event later than the close of the
following Plan Year, shall direct the Trustee to
distribute to the Highly Compensated Participant group
the amount of Excess Aggregate Contributions (and any
income allocable to such contributions). Such
distribution shall be made on behalf of the Highly
Compensated Participant group in order of their After-
Tax Deposit Percentages beginning with the highest of
such percentages. If there is a loss allocable to such
excess amount, the distribution shall in no event be
less than the lesser of the Participant's After-Tax
Deposit Account attributable to After-Tax Deposits for
the Plan Year.
(b) For purposes of this section, Excess
Aggregate Contributions means, with respect to any Plan
Year, the excess of:
(1) the aggregate amount of After-Tax
Deposits actually made on behalf of the
Highly Compensated Participant group for
such Plan Year, over
(2) the maximum amount of such contributions
permitted under the limitations of
Section 4.9.
4.11 Transfers from Qualified Plans.
(a) With the consent of the Committee, amounts
may be transferred from other qualified plans, provided
that the trust from which such funds are transferred
permits the transfer to be made and, in the opinion of
legal counsel for the Employer, the transfer will not
jeopardize the tax exempt status of the Plan or Trust
or create adverse tax consequences to the Employer.
The amounts transferred shall be set up in a separate
account herein referred to as a "Participant's Rollover
Account." Notwithstanding any provisions to the
contrary, a rollover contribution from a qualified plan
maintained for individuals who are self-employed within
the meaning of Code 401(c)(1) and subject to the
requirements of Code 401(d) shall be subject to the
conditions and restrictions of Code 401(d), and
Regulations thereunder, in addition to all other
conditions and requirements of the Act.
(b) Amounts in a Participant's Rollover Account
shall be held by the Trustee pursuant to the provisions
of this Plan, and such amounts shall not be subject to
forfeiture for any reason and may not be withdrawn by,
or distributed to the Participant, in whole or in part,
except as provided in Paragraph (c) of this Section and
Section 6.8.
(c) At Normal Retirement Date, or such other date
when the Participant or his Beneficiary shall be
entitled to receive benefits, the fair market value of
the Participant's Rollover Account shall be used to
provide additional benefits to the Participant in the
form the Participant elects pursuant to Section 6.5.
(d) For purposes of this Section, the term
"amounts transferred from another qualified plan" shall
mean: (1) amounts transferred to this Plan directly
from another qualified plan; (2) lump-sum distributions
received by an Employee from another qualified plan
which are eligible for tax free rollover treatment and
which are transferred by the Employee to this Plan
within sixty days following his receipt thereof; (3)
amounts transferred to this Plan from a conduit
individual retirement account provided that the conduit
individual retirement account has no assets other than
assets and related earnings which were previously
distributed to the Employee by another qualified plan
as a lump-sum distribution which were eligible for tax
free rollover treatment and which were deposited in
such conduit individual retirement account within sixty
days of receipt thereof; and (4) amounts distributed to
the Employee from a conduit individual retirement
account meeting the requirements of clause (3) above,
and transferred by the Employee to this Plan within
sixty days of his receipt thereof from such conduit
individual retirement account.
Prior to accepting any transfers to which this
Section applies, the Committee may require the Employee
to establish that the amounts to be transferred to this
Plan meet the requirements of this Section and may also
require the Employee to provide an opinion of counsel
satisfactory to the Employer that the amounts to be
transferred meet the requirements of this Section.
ARTICLE V
INVESTMENT ALLOCATIONS AND VALUATIONS
5.1 Investment Funds.
(a) The monies contributed to the Plan shall be
turned over to the Trustee. The Trustee shall cause
the Trust Fund to consist of the following three funds:
(i) An Equity Fund;
(ii) A Fixed Income Fund; and
(iii) A Balanced Fund.
(b) The Equity Fund, except for amounts
temporarily held pending investment and amounts held
for disbursements, shall be invested, pursuant to the
provisions of the Plan, primarily in common stock.
(c) The Fixed Income Fund shall be invested in
guaranteed investment contracts.
(d) The Balanced Fund shall be a combination of
fixed and equity investments.
5.2 Participant Investment and Elections.
(a) All contributions hereunder and the
Participant's Rollover Account shall be invested, as
elected by the Participant, under one of the following
methods:
(i) Entirely in the Equity Fund;
(ii) Entirely in the Fixed Income Fund;
(iii) Entirely in the Balanced Fund; or
(iv) Divided among the three funds in 25%
increments.
(b) Twice per calendar year, any investment
election may be changed. With respect to
contributions, the change will be effective the first
pay period in the first calendar quarter beginning at
least thirty days after the Employer is notified of the
change in election. Existing balance transfers shall
be made as of the first calendar quarter which occurs
at least thirty days after the Participant's election.
Existing balance transfers may only be made in amounts
of $1,000 or more, or in 25% increments.
5.3 Credits to Participants.
(a) As soon as reasonably practicable after each
payroll period any amounts of Employee deposits and
Employer contributions made by and/or for Participants
shall be remitted by the Employer to the Trustee and
credited to the applicable fund.
(b) As of each Valuation Date, the Trustee shall
certify to the Administrator the aggregate fair market
value of the Trust Fund and of each fund. As of each
calendar quarter, the Committee shall allocate the
Employer Contributions and Employee deposits received
by the Trustee since the last calendar quarter. In
addition, the Committee shall cause the Participant's
Accounts (and subdivisions of such accounts) to be
decreased by any amounts withdrawn or distributed from
such Accounts since the last calendar quarter (with any
partial withdrawal charged first against the
Participant's account balance as of the end of the last
calendar quarter). Finally, as of each calendar
quarter, the Administrator shall allocate the Trust
investment income, gain or loss (realized or
unrealized) by each fund since the last Valuation Date,
pro rata based upon each Participant's account balance
as of the immediately preceding calendar quarter.
5.4 Changes in Investment Options. Notwithstanding Section
8.1, this Article V may be amended from time to time, in whole or
in part; provided, however, amending the Plan to provide or allow
for the investment of any of the funds of this Plan in securities
of the Employer shall not be done without the approval of the
Employer's Board of Directors.
ARTICLE VI
DETERMINATION, DISTRIBUTION AND WITHDRAWAL OF BENEFITS
6.1 Determination of Benefits Upon Retirement. Upon his
Normal Retirement Date or Early Retirement Date, all amounts
credited to a Participant's Account as of the last day of the
month in which retirement occurs shall become distributable to
him in accordance with this Article. However, a Participant may
postpone the termination of his employment with the Employer to a
later date, in which event the participation of such Participant
in the Plan shall continue until his Late Retirement Date. Upon
a Participant's Normal Retirement Date, Early Retirement Date or
Late Retirement Date, as the case may be, the Trustee shall
distribute all amounts credited to such Participant's Account in
accordance with Section 6.5.
6.2 Determination of Benefits Upon Death.
(a) Upon the death of a Participant before
retirement or other termination of his employment, all
amounts credited to such Participant's Account as of
the last day of the month in which the death occurs
shall become fully Vested. Within sixty days after the
end of the calendar quarter in which the death occurs,
or as soon as practicable thereafter, the Committee
shall direct the Trustee, in accordance with the
provisions of Section 6.5, to distribute the value of
the deceased Participant's Account to the Participant's
spouse, if living, or if there is no spouse living, to
the Participant's issue, per stirpes, or if neither the
Participant's spouse nor any of his issue are living,
then to such Participant's estate. Notwithstanding the
preceding, the Participant may elect a Beneficiary
other than his surviving spouse, but only if the
surviving spouse consents to the other Beneficiary in
accordance with Code 417.
(b) The Committee may require such proper proof
of death and such evidence of the right of any person
to receive payment of the value of the account of a
deceased Participant or a deceased former Participant
as the Committee may deem appropriate. The Committee's
determination of death and of the right of any person
to receive payment shall be conclusive.
6.3 Determination of Benefits in Event of Disability. In
the event of a Participant's Total and Permanent Disability prior
to retirement or separation from service, all amounts credited to
such Participant's Account as of the last day of the month in
which such disability occurs shall become fully Vested. Such
Participant's Account shall be distributed in accordance with the
provisions of Section 6.5.
6.4 Determination of Benefits Upon Termination.
(a) If, prior to five Years of Service, a
Participant terminates employment with the Employer for
a reason other than retirement, death or Total and
Permanent Disability, the interest of such Participant
shall be distributed as soon as reasonably possible
after the date of termination, subject to the rules and
procedures uniformly applied by the Committee.
Notwithstanding the preceding, however, no distribution
shall be made until the Participant is no longer
employed by an Affiliated Employer except as provided
in Article IX. The amount to be distributed shall be
based upon the following vesting schedule:
Years of Service Vested Interest
Less than 2 Years 0%
2 25%
3 50%
4 75%
5 or More 100%
The value of such Vested Employer contributions shall
be payable to the Participant in the same form as
provided in Section 6.5.
(b) A Participant's Vested interest shall not be
reduced as the result of any direct or indirect
amendment to this Article. In the event that this
Agreement is amended to change or modify Section
6.4(a), a Participant with at least three Years of
Service as of the expiration date of the election
period, may elect to be subject to the pre-amendment
vesting schedule. If a Participant fails to make such
election, then such Participant shall be subject to the
new vesting schedule. The Participant's election
period shall commence on the adoption date of the
amendment and shall end sixty days after the latest of:
(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
(3) the date the Participant receives written
notice of the amendment from the Employer or
Administrator.
(c) If any former Participant shall be reemployed
by the Employer before a Break in Service occurs he
shall continue to participate in the Plan in the same
manner as if such termination had not occurred. For
the purposes of Section 6.4(a) and for calculating
years for participation in the Plan, if a Former
Participant is reemployed after a Break in Service has
occurred, the Years of Service shall include Years of
Service prior to his Break in Service. A Participant
shall not incur a Period of Severance that would
otherwise be counted if said period is attributable to
Maternity or Paternity Leave. The first Period of
Severance shall be ignored to the extent that such
period is attributable to Maternity or Paternity Leave.
"Maternity or Paternity Leave" shall mean an absence
from work for any period by reason of the Employee's
pregnancy, birth of the Employee's child, placement of
a child with the Employee in connection with the
adoption of such child, or any absence for the purpose
of caring for such child for a period immediately
following such birth or placement.
(d) Notwithstanding any provision in the Plan to
the contrary, a Participant's benefits shall be
distributed to him not later than April 1 of the
calendar year following the calendar year in which he
attains age seventy and one-half. Alternatively,
distributions to a Participant must begin no later than
the April 1 following such calendar year and must be
made over a period not to exceed the greatest period of
the life of the Participant (or the lives of the
Participant and the Participant's designated
Beneficiary) or the life expectancy of the Participant
(or the life expectancies of the Participant and his
designated Beneficiary).
6.5 Distribution of Benefits.
(a) Subject to the provisions set forth below, a
Participant or his Beneficiary may elect to have any
amount to which he is entitled under the Plan
distributed in one or more of the following methods:
(i) One lump-sum cash payment;
(ii) Payment in two to fifteen annual
installments. Such installments shall
be credited with full earnings.
(b) A Participant who separates from service
prior to his Early Retirement Date and his Normal
Retirement Age shall have his account distributed to
him if the value of his total Vested interest in the
Plan is $3,500 or less. If such Participant's Vested
interest exceeds $3,500, the Participant may elect to
defer receipt of his account until he attains age 65.
Such a deferred account shall be paid to the
Participant as soon as practicable after the Valuation
Date immediately following the date the Participant
attains age 65.
(c) A Participant who separates from service, or
dies while employed by the Employer, after he attains
his Early Retirement Date or age 65, or after he has
become Totally and Permanently Disabled, may elect (or
his beneficiary may elect in the event of death) to
have his interest in the Plan retained by the Plan
until age 69 (or the Participant would have attained
age 69 in the event of his death). Such deferred
amounts shall be paid (or commence to be paid) as soon
as practicable after the Valuation Date immediately
following the date the Participant attains age 69 (or
the Participant would have attained age 69 in the event
of his death). Prior to age 69, all or a portion of
such deferred amounts may be withdrawn twice each Plan
Year. A withdrawal shall be made as of the end of a
calendar quarter with at least 30 days' prior written
notice to the Employer. Upon attaining age 69, any
amounts not withdrawn shall be distributed according to
Section 6.5(a).
6.6 Distribution for Minor Beneficiary. In the event a
distribution is to be made to a minor, then the Committee may in
its discretion direct that such distribution be paid to the legal
guardian, or if none, to a parent of such Beneficiary or a
responsible adult with whom the Beneficiary maintains his
residence, or to the custodian for such Beneficiary under the
Uniform Gift to Minors Act or Gift to Minors Act, if such is
permitted by the laws of the state in which said Beneficiary
resides. Such a payment to the legal guardian or parent of a
minor Beneficiary shall fully discharge the Trustee, Employer and
Plan from further liability on account thereof.
6.7 Time of Payment. Subject to the provisions above, any
payment called for under Article VI shall be made not later than
sixty days after the calendar quarter next following the event
(retirement, death, disability, withdrawal request, or other
termination of employment) giving rise to the right to payment,
unless, where the Participant has died, it is impossible for the
Committee to determine, within such sixty days, the Beneficiary
or legal representative entitled to the payment. In such case,
the Committee shall make payment as soon as possible after such
person can be determined.
6.8 Withdrawals.
(a) A Participant may, without penalty, withdraw
part or all of his deposits which are not Pre-Tax
Deposits effective the calendar quarter next following
the filing of a written request, provided that said
written request is filed at least thirty days prior to
such calendar year. Any withdrawn deposits shall
include an allocation of earnings related to the
deposits as required by the Code.
(b) In case of hardship (as determined for
purposes of Code 401(k)) a Participant may at any
time apply in writing to the Committee for an otherwise
permissible withdrawal and/or for payment of the
Participant's nonforfeitable portion of Employer
matching and supplemental contributions and the
Employee deposits made pursuant to Code 401(k) and
all earnings of the fund attributable to the Employee's
interest in the Plan, except for earnings related to
Pre-Tax Deposits credited to the Participant's account
after December 31, 1988. If the Committee determines
that the Participant would suffer a severe financial
hardship if the withdrawal were not permitted, the
Committee may, but shall not be required to, grant the
request for payment. If the Committee does grant the
request, the Committee, in its sole and absolute
discretion, may direct that the payment be made
directly to the Participant, jointly to the Participant
and a third party to whom the Participant is indebted,
or directly to such third party. Any withdrawal made
pursuant to this Section shall be effective as of the
calendar quarter next following the date of receipt of
such written request, or at such time as the Committee
reasonably determines.
A hardship withdrawal may only be allowed for one
of the following reasons:
(i) Medical expenses of the Employee, the
Employee's spouse, or dependents of the
Employee.
(ii) To avoid eviction from the Employee's
principal residence (including foreclosure on
the mortgage).
The following conditions must be satisfied in
order for a Participant to receive a hardship
withdrawal.
(i) The amount of hardship withdrawal cannot
exceed the amount required to fulfill the
financial need.
(ii) The Employee must have received any other
distributions available from the Plan.
(iii) The Employee must have borrowed all amounts
that may be borrowed from the Plan and from
other commercial sources.
(iv) Pre-Tax Deposits must be suspended for at
least 12 months after the receipt of the
hardship distribution.
(v) The Participant must provide a written
representation that his financial need cannot
be satisfied through any of the following:
a. Reimbursement or compensation by
insurance or otherwise.
b. Reasonable liquidation of the Employee's
assets (including the assets of the
Employee's spouse).
c. Ceasing Employee deposits to the Plan.
d. Borrowing from commercial sources on
reasonable commercial terms.
(c) An Employee who has attained age 65, may at
any time apply in writing to the Committee for an
otherwise permissible withdrawal and/or for payment of
the Participant's nonforfeitable portion of Employer
matching and supplemental contributions and the
Employee deposits made pursuant to Code 401(k) and
all earnings of the fund attributable to the Employee's
interest in the Plan. Upon such request, the
withdrawal shall be granted. Any withdrawal made
pursuant to this Section shall be effective as of the
calendar quarter next following the date of receipt of
such written request, or at such time as the Committee
reasonably determines.
(d) Withdrawals shall be made in the following
order:
(i) Unmatched and matched deposits that are
not Pre-Tax Deposits and which were made
for Plan Years beginning before 1987;
(ii) Unmatched and matched deposits (plus
earnings thereon) that are not Pre-Tax
Deposits and which were made for Plan
Years beginning after 1986;
(iii) Earnings on the amounts described in
Section 6.8(d)(i);
(iv) Rollover amounts received by the Plan
pursuant to Section 4.11, except that
amounts received from a plan of a
company acquired by the Employer or its
affiliates shall retain the nature of
the old plan and shall be withdrawn in
the order set forth in this subparagraph
6.8(d);
(v) Matched and unmatched deposits which are
Pre-Tax Deposits and their earnings;
(vi) Other Employer contributions and
earnings thereon.
(e) Only two withdrawals may be made per calendar
year.
6.9 Loans to Participants. The Committee shall establish a
Participant Loan Program. Under the Participant Loan Program,
upon the application of any Participant and direction of the
Committee, the Trustee shall make a loan or loans to such
Participant, not to exceed the lesser of 50% of the sum of the
Vested portion of the Participant's Account or $50,000.
The Participant Loan Program shall be administered by the
Committee. The Committee shall establish a separate written
document to be known as the Participant Loan Rules. The
Participant Loan Rules are hereby incorporated by this reference
as a part of this Plan document. The Participant Loan Rules
shall contain the following:
(a) The procedure for applying for loans.
(b) The basis upon which loans will be approved
or denied.
(c) Any limitations on the types and amounts of
loans.
(d) The procedure for determining a reasonable
rate of interest.
(e) The types of collateral which may secure a
loan.
(f) The events constituting default and the steps
to be taken to preserve plan assets in the event of
default.
(g) Any other provisions that the Committee deems
appropriate and that are not inconsistent with the
preceding, the Code or the Act.
Loans shall be made available to all Participants in a uniform
nondiscriminatory manner and on a reasonably equivalent basis.
Loans shall not be made available to highly compensated
Employees, officers or shareholders in an amount (percentage of
account balances) greater than the amount made available to other
Participants.
ARTICLE VII
TRUSTEE
7.1 Basic Responsibilities of the Trustee.
(a) Consistent with the funding policy and method
of the Plan and at the direction of the Committee the
Trustee shall invest, manage, and control the Plan
assets.
(b) At the direction of the Committee, the
Trustee shall pay benefits required under the Plan to
be paid to Participants, or, in the event of their
death, to their Beneficiaries.
(c) The Trustee shall maintain records of
receipts and disbursements.
7.2 Investment Powers and Duties of the Trustee. The
Trustee shall have all the powers, to the extent not inconsistent
with the provisions of the Plan, set forth in the Minnesota
Trustees Powers Act. The Declaration of Trust executed by
Northwestern National Bank of Minneapolis (now Norwest Bank
Minneapolis, N.A.) on July 30, 1956, creating the Northwestern
Bank Investment Fund for Employee Benefit Plans, the Declaration
of Trust executed by said Bank on July 25, 1961, creating the
Northwestern Bank Specialized Investment Fund for Employee
Benefit Plans, and the Declaration of Trust executed by said Bank
on June 30, 1970, creating the Northwestern Bank Income Fund for
Employee Benefit Plans are hereby made a part of this Plan.
Notwithstanding any other provision of this Plan the Trustee may
cause any part or all of the money of this Trust without
limitation as to the amount to be commingled with the money of
trusts created by others and invested and reinvested as a part of
any one or more of the Funds heretofore or hereafter created by
any Declaration of Trust, and money of this Trust so added to any
of the Funds heretofore or hereafter created by any Declaration
of Trust shall be subject to all of the provisions of said
Declaration of Trust as it is amended from time to time.
Notwithstanding the foregoing, the investment for this Trust
under any Declaration of Trust shall be in accordance with the
requirements of the Act.
7.3 Audit. If an audit of the Plan's records shall be
required by the Act for any Plan Year, the Committee shall engage
on behalf of all Participants an independent qualified public
accountant for that purpose.
7.4 Resignation, Removal and Succession of Trustee.
(a) The Trustee may resign at any time by
delivering to the Employer, at least thirty days before
its effective date, a written notice of his
resignation.
(b) The Employer may remove the Trustee by
mailing by registered or certified mail, addressed to
such Trustee at his last known address, at least thirty
days before its effective date, a written notice of his
removal.
(c) Upon the death, resignation, incapacity, or
removal of any Trustee, a successor may be appointed by
the Employer; and such successor, upon accepting such
appointment in writing and delivering same to the
Employer, shall, without further act, become vested
with all the estate, rights, powers discretions, and
duties of his predecessor with like respect as if he
were originally named as a Trustee herein. Until such
a successor is appointed, the remaining Trustee shall
have full authority to act under the terms of this
Agreement.
(d) The Employer may designate one or more
successors prior to the death, resignation, incapacity,
or removal of a Trustee. In the event a successor is
so designated and accepts such designation, the
successor shall, without further act, become vested
with all the estate, rights, powers, discretions, and
duties of his predecessor with the like effect as if he
were originally named as Trustee herein immediately
upon the death, resignation, incapacity or removal of
his predecessor.
(e) Whenever any Trustee hereunder ceases to
serve as such, he shall furnish to the Employer and the
Committee a written statement of account with respect
to the portion of the Plan Year during which he served
as Trustee.
7.5 Master Trust. At the discretion of the Employer, the
assets of the Plan may be held under a master trust agreement
between the Trustee and the Employer with assets of other plans
qualified under Code 401(a).
ARTICLE VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 Amendment. The Employer shall have the right at any
time and from time to time to amend, in whole or in part, any or
all of the provisions of this Agreement. However, no such
amendment shall authorize or permit any part of the Trust Fund
(other than such part as is required to pay taxes and
administration expenses) to be used for or diverted to purposes
other than for the exclusive benefit of the Participants or their
Beneficiaries; no such amendment shall cause any reduction in the
amount credited to the account of any Participant, or cause or
permit any portion of the Trust Fund to revert to or become the
property of the Employer.
For purposes of this Section, a Plan amendment which
has the effect of (1) eliminating or reducing an early retirement
benefit or a retirement-type subsidy, (2) eliminating an optional
form of benefit (as provided in Internal Revenue Service
regulations) or (3) restricting, directly or indirectly, the
benefit provided to any Participant prior to the amendment shall
be treated as reducing the amount credited to the account of a
Participant except that an amendment described in clause (2)
(other than an amendment having an effect described in clause
(1)) shall not be treated as reducing the amount credited to the
account of a Participant to the extent so provided in Internal
Revenue Service regulations.
The Plan may be amended either through action of the
Employer's Board of Directors or Valmont Industries, Inc.'s Chief
Executive Officer; provided, however, amendments that would
provide any of the following requires Board of Director approval:
A. Termination of the Plan.
B. Purchase or acquisition of Employer securities by the
Plan.
C. Supplemental contributions, other than those provided
in Section 4.2(c).
D. Significantly increase the cost of the Plan as a
percentage of Employer payroll.
8.2 Termination. The Employer shall have the right at any
time to terminate the Plan by delivering to the Trustee and the
Committee written notice of such termination. A complete
discontinuance of the Employer's contributions to the Plan shall
be deemed to constitute a termination. Upon any termination
(full or partial) or complete discontinuance of contributions,
all amounts credited to the affected Participants' Accounts shall
become one hundred percent Vested and shall not be subject to
forfeiture and all unallocated amounts shall be allocated to the
accounts of all Participants in accordance with the provisions
hereof.
8.3 Merger or Consolidation. The Plan and Trust may be
merged or consolidated with, or its assets may be transferred to
any other plan and trust only if the benefits which would be
received by a Participant of this Plan, in the event of a
termination of the Plan immediately after such transfer, are at
least equal to the benefits the Participant would have received
if the Plan had terminated immediately before the transfer.
ARTICLE IX
TRANSFERRED EMPLOYEES
9.1 Transferred Participant. Notwithstanding any other
provisions of the Plan, in the case of a Participant
("Transferred Participant") who transfers employment from the
Employer to any other Affiliated Employer, the following special
provisions shall apply:
(a) If the Transferred Participant's new employer
has a qualified plan under Code 401(a), ("Qualified
Plan"), the entire account balance of the Transferred
Participant shall be transferred (with the
corresponding liability to the Transferred Participant)
to the plan of the new employer, and the Participant
shall continue to accumulate Years of Service towards
vesting in his account. If such a Participant forfeits
a portion or all of his transferred account, the
forfeiture shall constitute a forfeiture to the
transferee plan.
(b) If 9.1(a) does not apply, the Transferred
Participant's Account shall remain in this Plan and the
Transferred Participant's service with any Affiliated
Employer shall count towards Vesting in this Plan.
9.2 Transferred Employee. Notwithstanding any other
provisions of the Plan, in the case of an Employee who transfers
employment from another Affiliated Employer ("Transferred
Employee"), the following special provisions shall apply:
(a) The Transferred Employee's interest in a
Qualified Plan of his former employer, if any, may be
transferred to this Plan along with the corresponding
liability to the Transferred Employee.
(b) Separate accounting shall be made for any
amounts transferred which are employee elected salary
deferrals under code 401(k). Such account shall be
subject to all of the limitations imposed by Code
401(k).
(c) Any amounts transferred shall vest in
accordance with the vesting provisions of the other
Qualified Plan and shall be distributed in accordance
with this Plan, subject to Section 9.2(b).
(d) Any Transferred Employee shall immediately
participate in this Plan as of his date of hire by the
Employer if a proper enrollment application is filed
with the Plan.
9.3 Committee Rights. The Committee may adopt whatever
rules and procedures it deems appropriate to effectuate the
provisions of this Article IX. The Committee also has the right
to not allow (on a nondiscriminatory basis) any transfer
contemplated by this Article IX.
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 Adoption by Other Corporations. With the consent of
the Board of Directors of the Employer or the Chief Executive
Officer of Valmont Industries, Inc., any other corporation,
whether an affiliate or subsidiary or not, may adopt this Plan
and all of its provisions, and participate herein and be known as
a Participating Employer.
10.2 Requirements of Participating Employers. In such event:
(a) Each such Participating Employer shall be
required to use the same Trustee as provided in this
Plan.
(b) The Trustee may, but shall not be required
to, commingle, hold and invest as one Trust Fund all
contributions made by Participating Employers, as well
as all increments thereof.
(c) The transfer of any Participant from or to a
company participating in this Plan, whether he be an
Employee of the Employer or a Participating Employer,
shall not affect such Participant's rights under the
Plan, and all amounts credited to such Participant's
Account as well as his accumulated service time with
the transferor or predecessor, and his length of
participation in the Plan, shall continue to his
credit.
(d) Any contributions made by a Participating
Employer, as provided for in this Plan, shall be paid
to and held by the Trustee for the exclusive benefit of
the Employees of such Participating Employer and the
Beneficiaries of such Employees, subject to all the
terms and conditions of this Plan. On the basis of
information furnished by the Administrator, the
Committee shall keep separate books and records
concerning the affairs of each Participating Employer
hereunder and as to the Accrued Benefits of the
Participants of each Participating Employer.
(e) Any expenses of the Trust which are to be
paid by the Employer or borne by the Trust Fund shall
be paid by each Participating Employer in the same
proportion that the total amount standing to the credit
of all Participants employed by such Employer bears to
the total standing to the credit of all Participants.
10.3 Designation of Agent. Each Participating Employer
shall be deemed to be a part of this Plan; provided, however,
that with respect to all of its relations with the Trustee and
Committee for the purpose of this Plan, each Participating
Employer shall be deemed to have designated irrevocably the
Employer as its agent. Unless the context of the Plan clearly
indicates the contrary, the word "Employer" shall be deemed to
include each Participating Employer as related to its adoption of
the Plan.
10.4 Employee Transfers. It is anticipated that an Employee
may be transferred between Participating Employers, and in the
event of any such transfer, the Employee involved shall carry
with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and
the Participating Employer to which the Employee is transferred
shall thereupon become obligated hereunder with respect to such
Employee in the same manner as was the Participating Employer
from whom the Employee was transferred.
10.5 Amendment. Amendment of this Plan by the Employer at
any time when there shall be a Participating Employer may be made
without the consent of the Participating Employers.
10.6 Discontinuance of Participation. Any Participating
Employer shall be permitted to discontinue or revoke its
participation in the Plan. At the time of any such
discontinuance or revocation, satisfactory evidence thereof and
of any applicable conditions imposed shall be delivered to the
Trustee. The Trustee shall thereafter transfer, deliver and
assign contracts and other Trust Fund assets allocable to the
Participants or such Participating Employer to such new Trustee
as shall have been designated by such Participating Employer, in
the event that it has established a separate pension plan for its
Employees. If no successor is designated, the Trustee shall
retain such assets for the Employees of said Participating
Employer pursuant to the provisions of Article VII hereof. In no
such event shall any part of the corpus or income of the Trust as
it relates to such Participating Employer be used for or diverted
for purposes other than for the exclusive benefit of the
Employees of such Participating Employer.
10.7 Committee's Authority. The Committee shall have
authority to make any and all necessary rules or regulations,
binding upon all Participating Employers and all Participants, to
effectuate the purpose of this Article.
ARTICLE XI
TOP-HEAVY PROVISIONS
11.1 Minimum Employer Contribution. For any Plan Year
beginning after December 31, 1983, in which this Plan is a Top-
Heavy Plan, the contribution and Forfeitures allocated to the
account of each Non-Key Employee on the Determination Date shall
be equal to the lesser of three percent of the Non-Key Employee's
415 Compensation or in the case where the Employer has no defined
benefit plan which designates this Plan to satisfy 401 of the
Code, the largest percentage of Employer contributions and
Forfeitures, as a percentage of the first $200,000 of the Key
Employee's 415 Compensation, allocated on behalf of any Key
Employee for that year. The minimum allocation is determined
without regard to any Social Security contribution. This minimum
allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation
of the year because of (i) the Participant's failure to complete
1,000 Hours of Service; (ii) the Participant's failure to make
mandatory Employee contributions to the Plan; or (iii)
Compensation less than a stated amount, provided, however, this
provision shall not apply to any Participant who was not employed
by the Employer on the last day of the Plan Year and shall not
apply to the extent any Participant is covered under any other
plan or plans of the Employer and the Employer has provided that
the minimum allocation or benefit requirement applicable to top-
heavy plans will be met in the other plan or plans.
11.2 Top-Heavy Determination. This Plan shall be deemed to
be a Top-Heavy Plan within the meaning of 416(g) of the Code
if, as of the Determination Date, either the aggregate of the
accounts of Key Employees under the Plan exceed 60% of the
aggregate of the accounts of all Employees under the Plan, or the
Plan is part of a Required or Permissive Aggregation Group
(within the meaning of 416(g)(2) of the Code) and the Required
or Permissive Aggregation Group is top-heavy. The aforesaid
percentage shall be derived by the calculation on the
Determination Date of a fraction (the "Top-Heavy Ratio"), the
numerator of which is the sum of the accounts of Key Employees
under this Plan (plus the Aggregate Present Value of Cumulative
Accrued Benefits for Key Employees under a defined benefit plan
which is part of a Required or Permissive Aggregation Group), and
the denominator of which is a similar sum determined for all
Employees.
11.3 Top-Heavy Definitions.
(a) Aggregate Account. A Participant's Aggregate
Account as of the Determination Date is the sum of:
(i) his Participant's combined Account
Balance as of the most recent valuation occurring
within a twelve month period ending on the
Determination Date;
(ii) an adjustment for any contributions due
as of the Determination Date. Such adjustment
shall be the amount of any contributions actually
made after the Valuation Date but before the
Determination Date except for the first Plan Year
when such adjustment shall also reflect the amount
of any contributions made after the Determination
Date that are allocated as of a date in that first
Plan Year;
(iii) any Plan distributions made within the
Plan Year that includes the Determination Date or
within the four preceding Plan Years. However, in
the case of distributions made after the Valuation
Date and prior to the Determination Date, such
distributions are not included as distributions
for top heavy purposes to the extent that such
distributions are already included in the
Participant's Aggregate Account balance as of the
Valuation Date. Notwithstanding anything herein
to the contrary, all distributions, including
distributions made prior to January 1, 1984, will
be counted.
(iv) any Employee contributions, whether
voluntary or mandatory. However, amounts
attributable to tax deductible qualified
deductible employee contributions shall not be
considered to be a part of the Participant's
Aggregate Account balance.
(v) with respect to unrelated rollovers and
plan-to-plan transfers (ones which are both
initiated by the Employee and made from a plan
maintained by one employer to a plan maintained by
another employer), if this Plan provides for
rollovers or plan-to-plan transfers, it shall
always consider such rollover or plan-to-plan
transfer as a distribution for the purposes of
this Section. If this Plan is the plan accepting
such rollovers or plan-to-plan transfers, it shall
not consider such rollovers or plan-to-plan
transfers accepted after December 31, 1983 as part
of the Participant's Aggregate Account balance.
However, rollovers or plan-to-plan transfers
accepted prior to January 1, 1984 shall be
considered a part of the Participant's Aggregate
Account balance.
(vi) with respect to related rollovers and
plan-to-plan transfers (ones either not initiated
by the Employee or made to a plan maintained by
the same employer), if this Plan provides the
rollover or plan-to-plan transfer, it shall not be
counted as a distribution for purposes of this
Section. If this Plan is the plan accepting such
rollover or plan-to-plan transfer, it shall
consider such rollover or plan-to-plan transfer as
part of the Participant's Aggregate Account
balance, irrespective of the date on which such
rollover or plan-to-plan transfer is accepted.
(b) Aggregation Groups. "Required Aggregation
Group" shall mean:
(i) each plan of the Employer in which a Key
Employee is a Participant, and
(ii) each other plan of the Employer which
enables any plan described in (i) to meet the
requirements of 401(a)(4) or 410 of the Code;
"Permissive Aggregation Group" shall mean the
Required Aggregation Group combined with any other
plan maintained by the Employer, provided the
resulting combination group would continue to
satisfy the requirement of 401(a)(4) and 410 of
the Code once such other plan was taken into
account. The Committee shall determine which plan
or plans maintained by the Employer shall be taken
into account in determining the Permissive
Aggregation Group.
(c) Determination Date. "Determination Date"
shall mean the last day of the preceding Plan Year.
(d) Key Employee. A "Key Employee" means an
Employee, former Employer, and the Beneficiaries of
each who, at any time during the Plan Year or any of
the preceding four years, has been included in one of
the following four categories:
(i) An officer of the Employer having "415
Compensation" for a Plan Year greater than
150% of the amount in effect under Code
415(c)(1)(A) for the Plan Year.
(ii) One of the ten employees having annual "415
Compensation" for a Plan Year greater than
the dollar limitation in effect under Code
415(c)(1)(A) for the calendar year in which
such Plan Year ends and owning (or considered
as owning within the meaning of Code 318)
both more than one-half percent interest and
the largest interests in the Employer.
(iii) A Five Percent Owner. "Five Percent Owner"
means any person who owns (or is considered
as owning within the meaning of Code 318)
more than five percent of the outstanding
stock of the Employer or stock possessing
more than five percent of the total combined
voting power of all stock of the Employer or,
in the case of a unincorporated business, any
person who owns more than five percent of the
capital or profits interest in the Employer.
In determining percentage ownership,
employers that would otherwise be aggregated
under Code 414(b), (c), and (m) shall be
treated as separate employers.
(iv) A One Percent Owner having an annual 415
Compensation from the Employer of more than
$150,000. "One Percent Owner" means any
person who owns (or is considered as owning
within the meaning of Code 318) more than
one percent of the outstanding stock of the
Employer or stock possessing more than one
percent of the total combined voting power of
all stock of the Employer or, in the case of
an unincorporated business, any person who
owns more than one percent of the capital or
profits interest in the Employer. In
determining percentage ownership hereunder,
employers that would otherwise be aggregated
under Code 414(b), (c), and (m) shall be
treated as separate employers. However, in
determining whether an individual has 415
Compensation of more than $150,000, 415
Compensation from each employer required to
be aggregated under Code 414(b), (c) and
(m) shall be taken into account.
A "Non-Key Employee" means any Participant who is not a
Key Employee.
(e) Top-Heavy Group. A "Top-Heavy Group" shall
mean any Aggregation Group if, as of the Determination
Date, the sum of the aggregate of the accounts of Key
Employees under all defined contribution plans included
in such group and the present value of cumulative
accrued benefits for Key Employees under all defined
benefit plans included in such group does not exceed
60% of a similar sum determined for all Employees.
11.4 Adjustments to Section 415 Limitations. If, during any
Limitation Year an Employee participates in both a defined
contribution plan and a defined benefit plan maintained by the
Employer which comprise a Top-Heavy Group, the Administrative
Committee shall calculate the denominators of the Defined Benefit
Fraction and Defined Contribution Plan Fraction under
subparagraph 4.5(b) by substituting "1.0" for "1.25" for each
place it appears in Article 4.5(b).
ARTICLE XII
MISCELLANEOUS
12.1 Participant's Rights. This Plan shall not be deemed to
constitute a contract between the Employer and any Participant or
to be a consideration or an inducement for the employment of any
Participant or Employee. Nothing contained in this Plan shall be
deemed to give any Participant or Employee the right to be
retained in the service of the Employer or to interfere with the
right of the Employer to discharge any Participant or Employee at
any time regardless of the effect which such discharge shall have
upon him as a Participant of this Plan.
12.2 Alienation. No benefit which shall be payable out of
the Trust Fund to any person (including a Participant or his
Beneficiary) shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements, or torts of any
such person, nor shall it be subject to attachment or legal
process for or against such person, and the same shall not be
recognized by the Trustee, except to such extent as may be
required by law. Except, however, this provision shall not apply
to the extent a Participant or Beneficiary is indebted to the
Plan, for any reason, under any provision of this Agreement and
at the time a distribution is to be made to or for his benefit,
such proportion of the amount distributed as shall equal such
indebtedness shall be paid by the Trustee to the Trustee or the
Committee, at the direction of the Committee, to apply against or
discharge such indebtedness. Prior to making a payment, however,
the Participant or Beneficiary must be given written notice by
the Committee that such indebtedness is to be deducted in whole
or in part from his Participant's Account. If the Participant or
Beneficiary does not agree that the indebtedness is a valid claim
against his Vested Participant's Account, he shall be entitled to
a review of the validity of the claim in accordance with the
procedures provided in Sections 2.9 and 2.10.
In the event a Participant's benefits are garnisheed or
attached by order of any court, the Committee may bring an action
for a declaratory judgment in a court of competent jurisdiction
to determine the proper recipient of the benefits to be paid by
the Plan. During the pendency of said action, any benefits that
become payable shall be paid into the court as they become
payable, to be distributed by the court to the recipient it deems
proper at the close of said action.
Notwithstanding the preceding, the Plan shall pay
benefits in accordance with any qualified domestic relations
order as defined in 206(d) of the Act ("QUADRO"). The
Committee shall develop written procedures to determine the
status of, and to administer distributions under QUADROs. In
addition, if a QUADRO so provides, an alternate payee's
distribution may be made as soon as practicable following the
last day of the calendar quarter immediately following the
determination by the Committee that the Order or Decree
constitutes a QUADRO.
12.3 Construction of Agreement. This Plan and Trust shall
be construed and enforced according to the Act and the laws of
the State of Delaware, other than its laws respecting choice of
law, to the extent not preempted by the Act.
12.4 Gender and Number. Wherever any words are used herein
in the masculine, feminine or neuter gender, they shall be
construed as though they were also used in another gender in all
cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as
though they were also used in the other form in all cases where
they would so apply.
12.5 Legal Action. In the event any claim, suit or
proceeding is brought regarding the Trust and/or Plan to which
the Trustee, the Committee or a Committee member may be a party,
and such claim, suit or proceeding is resolved in favor of the
Trustee or Administrator, they shall be entitled to be reimbursed
from the Trust Fund for any and all costs, attorney's fees, and
other expenses pertaining thereto incurred by them for which they
shall have become liable.
12.6 Prohibition Against Diversion of Funds. It shall be
impossible by operation of the Plan or of the Trust by
termination of either, by power of revocation or amendment, by
the happening of any contingency, by collateral arrangement or by
any other means, for any part of the corpus or income of any
trust fund maintained pursuant to the Plan or any funds
contributed thereto to be used for, or diverted to, purposes
other than the exclusive benefit of Participants, retired
Participants, or their Beneficiaries.
12.7 Bonding. Every fiduciary, except a bank or an
insurance company, unless exempted by the Act and regulations
thereunder, shall be bonded in an amount not less than ten
percent of the amount of the funds such fiduciary handles;
provided, however that the minimum bond shall be $1,000 and the
maximum bond, $500,000. The amount of funds handled shall be
determined at the beginning of each Plan Year by the amount of
funds handled by such person, group or class to be covered and
their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds
to be handled during the then current year. The bond shall
provide protection to the Plan against any loss by reason of acts
of fraud or dishonesty by the fiduciary alone or in connivance
with others. The surety shall be a corporate surety company (as
such term is used in 412(a)(2) of the Act). Notwithstanding
anything in this Agreement to the contrary, the cost of such
bonds shall be an expense of and may, at the election of the
Committee, be paid from the Trust Fund or by the Employer.
12.8 Employer's and Trustee's Protective Clause. Neither
the Employer nor the Trustee, nor their successors, shall be
responsible for the validity of any contract of insurance issued
hereunder or for the failure on the part of the insurer to make
payments provided by any such contract, or for the action of any
person which may delay payment or render a contract null and void
or unenforceable in whole or in part.
12.9 Receipt and Release for Payments. Any payment to any
Participant, his legal representative, Beneficiary or to any
guardian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of this Agreement,
shall, to the extent thereof, be in full satisfaction of all
claims hereunder against the Trustee and the Employer, either of
whom may require such Participant, legal representative,
Beneficiary, guardian or committee, as a condition precedent to
such payment, to execute a receipt and release thereof in such
form as shall be determined by the Trustee or Employer.
12.10 Named Fiduciaries and Allocation of Responsibility.
The "named fiduciaries" of this Plan are the Committee, the
Trustee and any Investment Manager. The named fiduciaries shall
have only those specific powers, duties, responsibilities, and
obligations as are specifically given them under this Agreement.
In general, the Employer shall have the sole responsibility for
making the contributions provided for under Article IV; and shall
have the sole authority to appoint and remove the Trustee, the
Committee members, and any Investment Manager which may be
provided for under this Agreement; to formulate the Plan's
funding policy and method; and to amend or terminate, in whole or
in part, this Agreement. The Committee shall have the sole
responsibility for the administration of this Agreement, which
responsibility is specifically described in this Agreement. The
Trustee shall have the sole responsibility of management of the
assets held under the Trust, except those assets, the management
of which has been assigned to an Investment Manager, who shall be
solely responsible for the management of the assets assigned to
it, all as specifically provided in this Agreement. Each named
fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the
provisions of this Agreement, authorizing or providing for such
direction, information or action. Furthermore, each named
fiduciary may rely upon any such direction, information or action
of another named fiduciary as being proper under this Agreement,
and is not required under this Agreement to inquire into the
propriety of any such direction, information or action. It is
intended under this Agreement that each named fiduciary shall be
responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under this Agreement. No named
fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
12.11 Headings. The headings and subheadings of this
Agreement have been inserted for convenience of reference and are
to be ignored in any construction of the provisions hereof.
12.12 Approval by Internal Revenue Service.
(a) Notwithstanding anything herein to the
contrary, if, pursuant to an application filed by or in
behalf of the Plan, the Commissioner of the Internal
Revenue Service or his delegate should determine that
the Plan does not initially qualify as a tax-exempt
plan and trust under 401 and 501 of the Code, and
such determination is not contested, or if contested,
is finally upheld, then the plan shall be void ab
initio and all amounts contributed to the Plan by the
Employer, less expenses paid, shall be returned within
one year and the Plan shall terminate, and the Trustee
shall be discharged from all further obligations.
(b) Notwithstanding any provisions to the
contrary, except Section 3.6, any contribution by the
Employer to the Trust Fund is conditioned upon the
deductibility of the contribution by the Employer under
the Code and, to the extent any such deduction is
disallowed, the Employer may within one year following
a final determination of the disallowance, whether by
agreement with the Internal Revenue Service or by final
decision of a court of competent jurisdiction, demand
repayment of such disallowed contribution and the
Trustee shall return such contribution within one year
following the disallowance.
12.13 Notification. Notwithstanding anything herein to
the contrary, all transactions hereunder are processed on a
calendar quarter basis and require a minimum of 30 days advance
written notice by the Participant.
IN WITNESS WHEREOF, this Agreement has been executed
effective the day and year first above written.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNEAPOLIS, N.A.
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
VALMONT EMPLOYEE RETIREMENT SAVINGS PLAN
EXHIBIT I
PARTICIPATING EMPLOYERS
Valmont Industries, Inc.
FIRST AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below. This Amendment is
effective January 1, 1989.
ARTICLE I
Section 1.3 is amended to read, as follows:
"1.3 "Agreement" or "Plan" means this instrument and its
amendments, which shall be a profit sharing plan."
ARTICLE II
Section 1.9 is amended to read, as follows:
"1.9 "Eligible Employee" means any full-time, regular
Employee who has satisfied the provisions of Section
3.1, except Employees whose employment is governed by
the terms of a collective bargaining agreement under
which retirement benefits were the subject of good
faith bargaining between the parties.
"A full-time, regular Employee is an employee whom the
Employer has designated as regular, full-time.
"Eligible Employee shall not include any Employee
employed by Valmont Electric."
ARTICLE III
Section 1.11 is amended to read, as follows:
"1.11 "Family Member" means, with respect to an affected
Participant, such Participant's spouse, such
Participant's lineal descendants and ascendants and
their spouses, all as described in Code
414(q)(6)(B)."
ARTICLE IV
Section 1.23 is amended to read, as follows:
"1.23 "Pay" means the total compensation paid or accrued by
the Employer with respect to the Participant for a Plan
Year, including overtime, bonuses, the taxable portion
of any exercised employee stock option of the Employer
and payments under any incentive plan of the Employer.
"Pay" shall exclude Employer contributions to the VERSP
Restoration Plan (but not the Employee contribution),
severance pay, mortgage differential, EVAC
earnings/accrued, foreign hardship, housing allowance,
relocation allowance and expatriate allowances; only
the first $200,000 (or larger amount as adjusted
pursuant to the Code) shall be taken into account."
ARTICLE V
Section 3.7 is added to the Plan to read, as follows:
"3.7 Reemployed Participant. A former Participant who
received a distribution of his interest in the Plan,
forfeited some of his Account and is reemployed by the
Employer shall have his forfeitures in the Plan restored."
ARTICLE VI
Section 4.1(f) is amended to read, as follows:
"(f) Notwithstanding any other provision of the
Plan, a Participant shall be fully Vested to the
portion of his account, plus related gains or losses,
attributable to his own deposits and contributions,
including salary reduction contributions and after-tax
contributions of the Employee.
ARTICLE VII
Section 4.2(c) is amended to read, as follows:
"(c) In addition to the Employer Contributions
described above, a Supplemental Contribution may be
made by the Employer ("Supplemental Match"). The
Supplemental Match, if any, shall be the amount
determined by the Compensation Committee of the Board
of Directors of the Employer ("Compensation
Committee"). The Supplemental Match shall be allocated
in the same manner as either contributions described in
Section 4.2(a) or Section 4.2(b), at the discretion of
the Compensation Committee.
Any Supplemental Match shall be made quarterly, semi-
annually or annually, as determined by the Employer. A
Participant who is not employed on the last day of the
period for which a Supplemental Match is made shall not
be entitled to the Supplemental Match."
ARTICLE VIII
Section 4.5(f) is added to the Plan to read, as follows:
"(f) Notwithstanding anything contained in the Plan to
the contrary, the limitations, adjustments and other
requirements prescribed in this Section shall at all times
comply with the provisions of Code Section 415 and the
Regulations thereunder, the terms of which are specifically
incorporated herein by reference."
ARTICLE IX
Section 4.9(b) is amended to read, as follows:
"(b) "After-Tax Deposit Percentage" for a Plan Year
means, with respect to the Highly Compensated Participant
group and Non-Highly Compensated Participant group, the
average of the ratios (calculated separately for each
Participant in each group) of:
(1) the After-Tax Deposits for each Participant for
the Plan Year; to
(2) the Participant's Pay for the Plan Year, or the
portion of the Plan Year for which the Participant
was eligible."
ARTICLE X
Section 4.11(e) is added to the Plan to read, as
follows:
"(e) This Plan shall not accept any direct or
indirect transfers (as that term is defined and interpreted
under Code Section 401(a)(11) and the Regulations
thereunder) from a defined benefit plan, money purchase plan
(including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a life
annuity form of payment to the Participant. Also,
notwithstanding anything herein to the contrary, a transfer
directly to this Plan from another qualified plan (or a
transaction having the effect of such a transfer) shall only
be permitted if it will not result in the elimination or
reduction of any 'Section 411(d)(6) protected benefit' as
described in Section 8.1."
ARTICLE XI
Section 4.12 is added to the Plan to read, as follows:
"4.12 Miscellaneous. Notwithstanding any other
provisions of the Plan, the following shall apply:
"(a) The availability of employee contributions
and matching contributions shall not discriminate in
favor of Highly Compensated Employees.
"(b) The amount of excess aggregate contributions
for a Highly Compensated Employee under the Plan will
be determined in the following manner. First, the
actual contribution ratio (ACR) of the Highly
Compensated Employee with the highest ACR is reduced to
the extent necessary to satisfy the actual contribution
percentage (ACP) test or cause such ratio to equal the
ACR of the Highly Compensated Employee with the next
highest ratio. Second, this process is repeated until
the ACP test is satisfied. The amount of excess
aggregate contributions for a Highly Compensated
Employee is then equal to the total of Employee,
matching and other contributions taken into account for
the ACP test minus the product of the Employee's
contribution ratio as determined above and the
Employee's Compensation.
"(c) In the case of a Highly Compensated Employee
whose actual contribution ratio (ACR) is determined
under the family aggregation rules, the determination
of the amount of excess aggregate contributions shall
be made as follows: the ACR is reduced in accordance
with the 'leveling' method described in Section
1.401(a)-1(e)(2) of the regulations and the excess
aggregate contributions are allocated among the Family
Members in proportion to the contributions of each
Family Member that have been combined.
"(d) The amount of excess aggregate contributions
for a Plan Year shall be determined only after first
determining the excess contributions that are treated
as employee contributions due to recharacterization.
"(e) The distribution (or forfeiture, if
applicable) of excess aggregate contributions will
include the income allocable thereto. The income
allocable to the excess aggregate contributions
includes income for the Plan Year for which the excess
aggregate contributions were made.
"(f) Matching contributions shall not be made
with respect to excess aggregate contributions
(pursuant to Section 4.10) distributed to Highly
Compensated Employees.
"(g) Excess aggregate contributions shall be
corrected within two and one-half months following the
Plan Year in which the excess aggregate contributions
occur.
"(h) The distribution of excess aggregate
contributions shall be made on the basis of the
respective portions of such amounts attributable to
each highly compensated employee.
"(i) The Plan hereby incorporates by reference
Section 1.401(m)-2(b) of the Regulations. If the
multiple use limitations of the Regulations are
exceeded, such excess shall be corrected by first
reducing the actual contribution percentage and second
by reducing the actual deferral percentage of Highly
Compensated Employees in the manner described in
Regulation 1.401(m)-2(c)(3).
"(j) For purposes of determining whether a plan
satisfies the actual contribution percentage test of
Section 401(a), all employee and matching contributions
that are made under two or more plans that are
aggregated for purposes of Section 401(a)(4) and 410(b)
(other than Section 410(b)(2)(A)(ii)) are to be treated
as made under a single plan.
"(k) In calculating the actual contribution
percentage for purposes of Section 401(a), the actual
contribution ratio of a Highly Compensated Employee
will be determined by treating all plans subject to
Section 401(a) under which the Highly Compensated
Employee is eligible (other than those that may not be
permissively aggregated) as a single plan.
"(l) In the case of a Highly Compensated Employee
who is either a 5% owner or one of the ten most highly
compensated employees and is thereby subject to the
family aggregation rules of Section 414(q)(6), the
actual contribution ratio (ACR) for the Family Group
(which is treated as one highly compensated employee)
is the ACR determined by combining the contributions
and compensation of all eligible Family Members.
Except to the extent taken into account in the
preceding sentence, the contributions and compensation
of all Family Members are disregarded in determining
the actual contribution percentages for the groups of
Highly Compensated Employees and Nonhighly Compensated
Employees."
ARTICLE XII
Section 6.4(a) is amended to read as follows:
"6.4 Determination of Benefits Upon Termination.
(a) Subject to the vesting required by Section
4.1(f), if, prior to five Years of Service, a
Participant terminates employment with the Employer for
a reason other than retirement, death or Total and
Permanent Disability, the interest of such Participant
shall be distributed as soon as reasonably possible
after the date of termination, subject to the rules and
procedures uniformly applied by the Committee.
Notwithstanding the preceding, however, no distribution
shall be made until the Participant is no longer
employed by an Affiliated Employer except as provided
in Article IX. The amount to be distributed shall be
based upon the following vesting schedule:
Years of Service Vested Interest
Less than 2 Years 0%
2 25%
3 50%
4 75%
5 or More 100%
The value of such Vested Employer contributions shall
be payable to the Participant in the same form as
provided in Section 6.5."
ARTICLE XIII
Section 6.5(b) is amended to read, as follows:
"(b) A Participant who separates from service
prior to his Early Retirement Date and his Normal
Retirement Age shall have his account distributed to
him if the value of his total Vested interest in the
Plan is, and has always been, $3,500 or less. If such
Participant's Vested interest exceeds, or has ever
exceeded, $3,500, the Participant may elect to defer
receipt of his account until he attains age 65. Such a
deferred account shall be paid to the Participant as
soon as practicable after the Valuation Date
immediately following the date the Participant attains
age 65."
ARTICLE XIV
Section 11.1 is amended to read, as follows:
"11.1 Minimum Employer Contribution. For any Plan
Year beginning after December 31, 1983, in which this Plan
is a Top-Heavy Plan, the contribution and Forfeitures
allocated to the account of each Non-Key Employee on the
Determination Date shall be equal to the lesser of three
percent of the Non-Key Employee's 415 Compensation or in the
case where the Employer has no defined benefit plan which
designates this Plan to satisfy 401 of the Code, the
largest percentage of Employer contributions and
Forfeitures, as a percentage of the first $200,000 of the
Key Employee's 415 Compensation, allocated on behalf of any
Key Employee for that year. The minimum allocation is
determined without regard to any Social Security
contribution. This minimum allocation shall be made even
though, under other Plan provisions, the Participant would
not otherwise be entitled to receive an allocation, or would
have received a lesser allocation of the year because of (i)
the Participant's failure to complete 1,000 Hours of
Service; (ii) the Participant's failure to make mandatory
Employee contributions to the Plan; or (iii) Compensation
less than a stated amount, provided, however, this provision
shall not apply to any Participant who was not employed by
the Employer on the last day of the Plan Year and shall not
apply to the extent any Participant is covered under any
other plan or plans of the Employer and the Employer has
provided that the minimum allocation or benefit requirement
applicable to top-heavy plans will be met in the other plan
or plans.
"If the highest rate allocated to a Key Employee, for a
year in which the Plan is Top Heavy is less than 3%, amounts
contributed as a result of a salary reduction agreement
shall be included in determining contributions made on
behalf of Key Employees.
"If the Employer maintains more than one plan, Non-Key
Employees covered under only a defined benefit plan shall
receive the defined benefit minimum. Non-Key Employees
covered only by a defined contribution plan will receive the
defined contribution minimum.
"If the Employer maintains more than one plan, the Top-
Heavy Minimums shall be provided by each plan."
ARTICLE XV
In all other respects the Plan is hereby confirmed.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
SECOND AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below.
ARTICLE I
Section 1.9 is amended, effective January 1, 1992, to read
as follows:
"1.9 'Eligible Employee' means any full-time, regular
Employee who has satisfied the provisions of Section 3.1.
Employees at the Valmont Industries, Inc., Tulsa, Oklahoma
facility, who, up to February 28, 1992, were covered by a
collective bargaining agreement ("Tulsa Former Union
Employees") shall be Eligible Employees effective April 1,
1992, regardless of their Years of Service. An Employee
whose conditions of employment are subject to the terms of a
collective bargaining agreement shall not be an Eligible
Employee unless such collective bargaining agreement
provides to the contrary.
"A full-time, regular Employee is an Employee whom the
Employer has designated as full-time, regular.
"Eligible Employee shall not include any Employee
employed by Valmont Electric."
ARTICLE II
Section 5.1(c) is amended, effective January 1, 1992, to
read as follows:
"(c) The Fixed Income Fund shall be invested in
guaranteed investment contracts, bank investment
contracts, fixed income funds, bonds or other fixed
income investments, or any combination thereof."
ARTICLE III
Section 6.9 is amended, effective January 1, 1992, to read
as follows:
"6.9 Loans to Participants. The Committee shall
establish a Participant Loan Program. Under the Participant
Loan Program, upon the application of any Participant and
direction of the Committee, the Trustee shall make a loan or
loans to such Participant, not to exceed the lesser of 50%
of the sum of the Vested portion of the Participant's
Account or $50,000.
"Each Participant Loan shall be secured and
collateralized by the Participant's interest in the Plan.
Upon default, the Committee shall execute upon said security
interest by reducing the Participant's Account by the amount
of the Default.
"The Participant Loan Program shall be administered by
the Committee. The Committee shall establish a separate
written document to be known as the Participant Loan Rules.
The Participant Loan Rules are hereby incorporated by this
reference as a part of this Plan document. The Participant
Loan Rules shall contain the following:
"(a) The procedure for applying for loans.
"(b) The basis upon which loans will be approved
or denied.
"(c) Any limitations on the types and amounts of
loans.
"(d) The procedure for determining a reasonable
rate of interest.
"(e) The types of collateral which may secure a
loan.
"(f) The events constituting default and the steps
to be taken to preserve plan assets in the event of
default.
"(g) Any other provisions that the Committee deems
appropriate and that are not inconsistent with the
preceding, the Code or the Act.
"Loans shall be made available to all Participants
in a uniform nondiscriminatory manner and on a
reasonably equivalent basis. Loans shall not be made
available to highly compensated Employees, officers or
shareholders in an amount (percentage of account
balances) greater than the amount made available to
other Participants."
ARTICLE IV
Section 6.10 is added to the Plan, effective January 1,
1993, to read as follows:
"6.10 Transfer to Other Qualified Plans. The
Committee, or its designee, within a reasonable period of
time before making an Eligible Rollover Distribution, shall
provide a written explanation to the recipient that:
"(a) the recipient may have his distribution
transferred directly to another Eligible
Retirement Plan;
"(b) if the distribution is not directly transferred
to another Eligible Retirement Plan, 20% will be
withheld from the distribution for Federal income
taxes;
"(c) the distribution will not be subject to Federal
income tax, at the time of distribution, if the
distribution is transferred to an Eligible
Retirement Plan within 60 days of the date on
which the recipient received the distribution;
and
"(d) if applicable, the possibility of favorable tax
treatment for unrealized appreciation on Employer
securities and five or ten year forward
averaging.
"The following definitions apply to this Section 6.10:
"(a) 'Eligible Rollover Distribution' means any
distribution to an Employee of all or any portion
of his Account Balance excluding any distribution
which is one of a series of substantially equal
periodic payments made for the life (or life
expectancy) of the employee or the joint lives (or
joint life expectancy) of the employee and the
employee's designated beneficiary, or for a period
of 10 years or more, or which is a required
distribution under Code 401(a)(9).
"(b) 'Eligible Retirement Plan' means any of the
following:
"(1) An individual retirement account as
described in Code 408(a).
"(2) An individual retirement annuity described
in Code 408(b).
"(3) An employees' trust described in Code 401
(a) which is exempt from Federal income
taxation under Code 501(a).
"(4) An annuity plan described in Code 403(a).
"The Participant who wants a transfer contemplated
by this 6.10 shall provide evidence and assurances to
the Committee that the transferee plan is an Eligible
Retirement Plan. The Committee may develop
administrative procedures and rules to administer this
Section 6.10 to the extent such procedures and rules
are not inconsistent with Code 402(f) and the
regulations related thereto. The Committee may use,
but is not required to use, any model notices developed
by the Internal Revenue Service with respect to the
Notice to Participants required by this Section."
ARTICLE V
Section 10.8 is added to the Plan, effective March 1, 1992,
to read as follows:
"10.8 Tulsa Former Union Employees. Notwithstanding
Section 4.2, each Tulsa Former Union Employee shall receive
an additional Employer contribution equal to 25 per hour
worked between March 1, 1992 and March 21, 1992
(inclusive)."
ARTICLE VI
Section 10.9 is added to the Plan, effective July 15, 1992,
to read as follows:
"10.9 Special Rules for Gate City Employees.
"(a) Effective July 27, 1992, Employees of Gate
City Steel Corporation ("Gate City") are
eligible to participate in the Plan, subject
to its terms and conditions. The provisions
of this Section 10.9 shall apply to Gate City
Employees, notwithstanding any other
provisions of the Plan to the contrary.
"(b) The Gate City Steel Corporation Retirement
Plan ("Retirement Plan") was terminated
effective July 15, 1992. Certain surplus
assets of the Retirement Plan were
transferred to this Plan ("Retirement Plan
Surplus"). The Retirement Plan Surplus shall
be maintained in a separate account and shall
share, pro rata, in Plan earnings and losses,
until allocated to Participants. The
Retirement Plan Surplus shall be used to
provide benefits to Gate City Eligible
Employees. Gate City shall determine, each
period, the amount of Retirement Plan Surplus
to be used to provide benefits for Gate City
Eligible Employees. The Retirement Plan
Surplus used to provide benefits each period
shall be allocated to Gate City Employees in
accordance with Section 4.2. If for any
period of allocation, such allocation would
result in an Employer match of greater than
two dollars for one dollar of an Employee's
Matched Pre-Tax Deposit, the remaining amount
of Retirement Plan Surplus to be allocated
for that period shall be allocated to the
Gate City Eligible Employees, pro rata, based
upon the Gate City Eligible Employees' Pay.
"(c) Each Gate City Employee may elect to have his
interests in the Retirement Plan and the Gate
City Steel Corporation Savings Plan ("Gate
City Savings Plan") transferred to this Plan
regardless of whether such Employee is
eligible or actually participates in this
Plan. Notwithstanding any other provisions
of the Plan, such transferred amounts shall
be fully vested and nonforfeitable.
"(d) With respect to Gate City Employees who are
covered by a collective bargaining agreement,
the Employer shall match the Matched Pre-Tax
Deposits up to 3% of a Participant's Pay at a
rate of 25 per dollar. The remaining
Matched Pre-Tax Deposits of a Participant
shall be matched at a rate of 50 per dollar.
The contributions described in this sub-
section 10.9(d) shall be in lieu of Employer
contributions described in subsection
4.2(b)."
ARTICLE VII
In all other respects, the Plan is hereby confirmed.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
THIRD AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below:
ARTICLE I
Section 12:14 is added to the Plan to read, as follows:
"12:14 Spin-Off. Effective November 1, 1993, the
interests of Administrative Employees ("Transferred
Participants") in the Valmont Employee Retirement Savings Plan
for Valmont Electric ("Valmont Electric Plan") and the Valmont
Electric Pension Plan ("Pension Plan") shall be transferred into
VERSP. The following provisions shall apply with respect to the
transferred interests from the Valmont Electric Plan and the
Pension Plan, notwithstanding any provisions of the VERSP plan
document to the contrary:
(a) The value of the interest of each Transferred
Participant in VERSP immediately after the merger shall
be equal to the value of the sum of the interests of
the Transferred Participant in the Valmont Electric
Plan and the Pension Plan immediately preceding the
merger.
(b) The vested percentage for the Transferred Participants
in VERSP shall not be less than such vested percentage
in the Valmont Electric Plan immediately before the
merger; provided, however, Transferred Participant's
interest with respect to the Pension Plan shall be
nonforfeitable.
(c) The Years of Service earned by the Transferred
Participants in the Valmont Electric Plan shall be
counted for purposes of counting service under VERSP.
For purposes of this Section, Administrative Employees means
Employees who are Eligible Employees whose employment is not
governed by the terms of a collective bargaining agreement
between Employee representatives and the Employer under which
participation in the Valmont Electric Plan or the Pension Plan
(as appropriate) is provided."
IN WITNESS WHEREOF, this Amendment has been executed,
effective as set forth herein.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
THIRD AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below.
ARTICLE I
Section 1.9 is amended, effective July 27, 1992, to read as
follows:
"1.9 'Eligible Employee' means any full-time,
regular Employee who has satisfied the provisions of
Section 3.1. Employees at the Valmont Industries,
Inc., Tulsa, Oklahoma facility, who, up to February 28,
1992, were covered by a collective bargaining agreement
("Tulsa Former Union Employees") shall be Eligible
Employees effective April 1, 1992, regardless of their
Years of Service. An Employee whose conditions of
employment are subject to the terms of a collective
bargaining agreement shall not be an Eligible Employee
unless such collective bargaining agreement provides to
the contrary. Notwithstanding the preceding, effective
July 27, 1992, Employees at the Birmingham, Alabama
Plant ("Birmingham Employees") shall be Eligible
Employees even if their conditions of employment are
subject to the terms of a collective bargaining
agreement (or is expected to be subject to such a
collective bargaining agreement). The Birmingham
Employees shall participate in the Plan and on the same
terms and conditions as Gate City Employees who are
covered by a collective bargaining agreement, e.g., the
Birmingham Employees shall be subject to the
contribution levels set forth in Section 10.9(d) of the
Plan.
"A full-time, regular Employee is an Employee whom
the Employer has designated as full-time, regular.
"Eligible Employee shall not include any Employee
employed by Valmont Electric."
ARTICLE II
Section 6.10 is amended, effective January 1, 1993, to read
as follows:
"6.10 'Transfer to Other Qualified Plans'
(a) This Section applies to distributions made on
or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would
otherwise limit a distributee's election under
this Section, a distributee may elect, at the time
and in the manner prescribed by the plan
administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a
direct rollover.
(b) Definitions.
(i) Eligible rollover distribution: An eligible
rollover distribution is any distribution of all
or any portion of the balance to the credit of the
distributee, except that an eligible rollover
distribution does not include: any distribution
that is one of a series of substantially equal
periodic payments (not less frequently than
annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint
life expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and
the portion of any distribution that is not
includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(ii) Eligible retirement plan: An eligible
retirement plan is an individual retirement
account described in section 408(a) of the Code,
an individual retirement annuity described in
section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a
qualified trust described in section 401(a) of the
Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an
eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an
individual retirement account or individual
retirement annuity.
(iii) Distributee: A distributee includes an
Employee or former Employee. In addition, the
Employee's or former Employee's surviving spouse
and the Employee's or former Employee's spouse or
former spouse who is the alternate payee under a
qualified domestic relations order, as defined in
section 414(p) of the Code, are distributees with
regard to the interest of the spouse or former
spouse.
(iv) Direct rollover: A direct rollover is a
payment by the Plan to the eligible retirement
plan specified by the distributee."
ARTICLE III
In all other respects, the Plan is hereby confirmed.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
FOURTH AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below:
ARTICLE I
Section 1.23 is amended to read, as follows:
"1.23 "Pay" means the total compensation paid or accrued by
the Employer with respect to the Participant, including
overtime, bonuses, the taxable portion of any exercised
employee stock option of the Employer and payments
under any incentive plan of the Employer. "Pay" shall
exclude Employer contributions to the VERSP Restoration
Plan (but not the Employee contribution), severance
pay, mortgage differential, EVAC earnings/accrued,
foreign hardship, housing allowance, relocation
allowance and expatriate allowances; only the first
$200,000 (or larger amount as adjusted pursuant to the
Code) shall be taken into account.
In addition to the other applicable limitations set
forth in the Plan, and notwithstanding any other
provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual
compensation of each Employee taken into account under
the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation
limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with
Section 401(a)(17)(B) of the Code. The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which
compensation is determined (determination period)
beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of
months in the determination period, and the denominator
of which is 12.
For Plan Years beginning on or after January 1, 1994,
any reference in this Plan to the limitation under
Section 401(a)(17) of the Code shall mean the OBRA '93
annual compensation limit set forth in this provision.
If compensation for any prior determination period is
taken into account in determining an Employee's
benefits accruing in the current Plan Year, the
compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in
effect for that prior determination period. For this
purpose, for determination periods beginning before the
first day of the first Plan Year beginning on or after
January 1, 1994, the OBRA '93 annual compensation limit
is $150,000."
ARTICLE II
Section 12.15 is added to the Plan to read, as follows:
"12.15 Good-All Employees. On January 2, 1994, Good-All
Electric ("Good-All") was sold to the Corrpro Companies, Inc.
("Corrpro"). The interests in the Plan of Participants who were
employed by Good-All immediately before the Sale Date ("Good-All
Employees") shall be 100% vested and nonforfeitable.
The Plan assets and liabilities with respect to Good-All
Employees who were employed by Corrpro or its affiliates
immediately following the Sale Date shall be transferred to the
Corrpro Companies, Inc. Trust National City Bank, Cleveland as
soon as practicable following the Sale Date."
ARTICLE III
In all other respects, the Plan is hereby confirmed.
IN WITNESS WHEREOF, this Amendment has been executed,
effective as set forth herein.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
FIFTH AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below:
ARTICLE I
Section 12.15 is added to the Plan to read, as follows:
"12.15 Merger and Transfer. Effective April 30, 1994,
the Valmont Employee Retirement Savings Plan for Valmont Electric
("Valmont Electric Plan") shall be merged into VERSP and the
assets and liabilities of the Valmont Electric Pension Plan
("Pension Plan") shall be transferred into VERSP. The following
provisions shall apply with respect to the transferred interests
from the Valmont Electric Plan and the Pension Plan,
notwithstanding any provisions of the VERSP plan document to the
contrary:
(a) The value in VERSP of the interest of each affected
Participant immediately after the merger shall be equal
to the value of the sum of the interests of the
affected Participant in the Valmont Electric Plan and
the Pension Plan immediately preceding the merger.
(b) The vested percentage for the affected Participants in
VERSP shall not be less than such vested percentage in
the Valmont Electric Plan and the Pension Plan
immediately before the merger.
(c) The Years of Service earned by the affected
Participants in the Valmont Electric Plan or the
Pension Plan (whichever is greater) shall be counted
for purposes of counting service under VERSP."
IN WITNESS WHEREOF, this Amendment has been executed,
effective as set forth herein.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
TRUSTEE:
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
BY: /s/ Douglas E. Krause
__________________________
Douglas E. Krause
TITLE: Assistant Vice President
SIXTH AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below:
ARTICLE I
Effective January 1, 1995, Section 3.1 is amended to read,
as follows:
"3.1 Conditions of Eligibility. Any Eligible Employee who
has completed one Year of Service shall be eligible to
participate as of the first day of the month next following the
anniversary of the date of hire. Notwithstanding the preceding,
an Employee who was a Participant on January 1, 1995 shall be
eligible to continue to participate in the Plan as of such date
and any Eligible Employee hired on or before December 1, 1994
shall be eligible to participate as of January 1, 1995."
ARTICLE II
Effective January 1, 1995, Section 4.1(e) is amended to
read, as follows:
"(e) A Participant may change the rate of his deposit,
and his designation under subsection 4.1(a), at any time,
but not retroactively. Such change and designation shall be
made in the form and the manner prescribed by the Committee.
The change shall be effective as soon as reasonably
practical following receipt of the change. A Participant
shall not be permitted to change the rate of his deposits
and his designation more than four times during any Plan
Year."
ARTICLE III
Effective October 1, 1994, Section 5.1 is amended to read,
as follows:
"5.1 Investment Funds.
(a) The monies contributed to the Plan shall be
turned over to the Trustee. The Trustee shall cause
the Trust Fund to consist of the following categories
of funds:
(i) Equity Fund;
(ii) Stable Return Fund; and
(iii) Balanced Fund.
(b) The Equity Fund, except for amounts
temporarily held pending investment and amounts held
for disbursements, shall be invested primarily in
common stock.
(c) The Stable Fund shall be invested in
guaranteed investment contracts and fixed income
investments.
(d) The Balanced Fund shall be a combination of
fixed and equity investments.
(e) The actual investment funds shall be
determined by the Committee ("Investment Funds"). The
Committee shall select funds that it reasonably
believes will be the categories of funds described
above. The Committee can select more than one fund to
meet the categories of funds described above and may
select funds which do not fall within the categories
described above. The selection shall be reflected by
either written action of the Committee or in written
minutes of a Committee meeting. The Committee may
change the specific funds from time to time at its
discretion."
ARTICLE IV
Effective October 1, 1994, Section 5.2 is amended to read,
as follows:
"5.2 Participant Investment and Elections.
(a) Until January 1, 1995, the following shall apply:
(i) All contributions hereunder and the
Participant's Rollover Account shall be
invested, as elected by the Participant,
under one of the following methods:
a. Entirely in the Equity Fund;
b. Entirely in the Stable Return Fund;
c. Entirely in the Balanced Fund; or
d. Divided among the three funds in 25%
increments.
(ii) Twice per calendar year, any investment
election may be changed. With respect to
contributions, the change will be effective
the first pay period in the first calendar
quarter beginning at least thirty days after
the Employer is notified of the change in
election. Existing balance transfers shall
be made as of the first calendar quarter
which occurs at least thirty days after the
Participant's election. Existing balance
transfers may only be made in amounts of
$1,000 or more, or in 25% increments."
(b) After December 31, 1994, the following shall
apply:
(i) Each Participant's Account shall be invested
in the Investment Funds according to the
Participant's elections and the plan
documents. The Participant's investment
elections shall be made in accordance with
the procedures and limitations developed from
time to time by the Committee.
(ii) A Participant may change his or her
investment elections as to past contributions
up to, but not more than, four times per Plan
Year. Also, a Participant may change the
investment direction of future contributions
up to, but not more than, four times per Plan
Year."
ARTICLE V
Effective January 1, 1995, Section 5.3(b) is amended to
read, as follows:
"(b) As of each Valuation Date, the Trustee shall
certify to the Administrator the aggregate fair market
value of the Trust Fund and of each fund. As of each
calendar quarter, the Committee shall allocate the
Employer Contributions and Employee deposits received
by the Trustee since the last calendar quarter. In
addition, the Committee shall cause the Participant's
Accounts (and subdivisions of such accounts) to be
decreased by any amounts withdrawn or distributed from
such Accounts since the last calendar quarter (with any
partial withdrawal charged first against the
Participant's account balance as of the end of the last
calendar quarter). Finally, as of each calendar
quarter, the Administrator shall allocate the Trust
investment income, gain or loss (realized or
unrealized) by each fund since the last Valuation Date,
pro rata based upon each Participant's account balance
as of the immediately preceding calendar quarter.
Notwithstanding the preceding, to the extent reasonably
practicable, a Participant's Account shall be valued on
a daily basis."
ARTICLE VI
Effective October 1, 1994, Section 6.5(a)(ii) is amended to
read, as follows:
"(ii) Payment in twenty-four to one hundred eighty
monthly installments. Such installments
shall be credited with full earnings."
ARTICLE VII
Effective January 1, 1995, Sections 6.5(b) and 6.5(c) are
amended to read, as follows:
"(b) A Participant who separates from service
prior to his Early Retirement Date and his Normal
Retirement Age shall have his account distributed to
him if the value of his total Vested interest in the
Plan is $3,500 or less. If such Participant's Vested
interest exceeds $3,500, the Participant may elect to
defer receipt of his account until he attains age 65.
If the Participant does not elect, in writing, within
one year of termination to receive his account or the
Participant elects to defer his account, the account
will not be distributed until the earliest of the
Participant's death, attaining of age 65, or Total and
Permanent Disability.
(c) A Participant who separates from service, or
dies while employed by the Employer, after he attains
his Early Retirement Date or age 65, or after he has
become Totally and Permanently Disabled, may elect (or
his beneficiary may elect in the event of death) to
have his interest in the Plan retained by the Plan
until age 69 (or the Participant would have attained
age 69 in the event of his death). Such deferred
amounts shall be paid (or commence to be paid) as soon
as practicable after the date the Participant attains
age 69 (or the Participant would have attained age 69
in the event of his death). Prior to age 69, all or a
portion of such deferred amounts may be withdrawn four
times each Plan Year. Upon attaining age 69, any
amounts not withdrawn shall be distributed according to
Section 6.5(a)."
ARTICLE VIII
Effective January 1, 1995, Section 6.8(a) is amended to
read, as follows:
"(a) A Participant may, without penalty, withdraw
part or all of his deposits which are not Pre-Tax
Deposits. Such withdrawal shall be allowed as soon as
reasonably practicable following receipt of the
withdrawal request. A withdrawal under this Section
6.8(a) shall only be allowed four times per Plan Year.
Any withdrawn deposits shall include an allocation of
earnings related to the deposits as required by the
Code."
ARTICLE IX
Effective October 1, 1994, Section 7.2 is amended to read,
as follows:
"7.2 Investment Powers and Duties of the Trustee. The
Trustee shall have all the powers, to the extent not inconsistent
with the provisions of the Plan, set forth in the trust agreement
between the Employer and Putnam Fiduciary Trust Company, dated
October 1, 1994 ("Trust Agreement")."
ARTICLE X
Effective October 1, 1994, Section 7.6 is added to the Plan
to read, as follows:
"7.6 Trustee. Notwithstanding the first page of the Plan
document, effective October 1, 1994, Norwest Bank Minnesota
National Association is removed as Trustee and Putnam Fiduciary
Trust Company is named as Successor Trustee. Effective October
1, 1994, Putnam Fiduciary Trust Company shall have all the
powers, duties and rights of Trustee hereunder and references to
"Trustee" hereunder shall refer to Putnam Fiduciary Trust
Company. By execution of this Amendment below, Putnam Fiduciary
Trust Company acknowledges its acceptance and appointment as
Trustee."
IN WITNESS WHEREOF, this Amendment has been executed,
effective as set forth herein.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
SEVENTH AMENDMENT TO THE
VALMONT EMPLOYEE RETIREMENT SAVINGS
PLAN AND TRUST
The Valmont Employee Retirement Savings Plan and Trust
("VERSP") is amended as set forth below:
ARTICLE I
Effective January 1, 1995, Section 5.1 is amended to read,
as follows:
"5.1 Investment Funds.
(a) The monies contributed to the Plan shall be
turned over to the Trustee. The Trustee shall cause
the Trust Fund to consist of the following categories
of funds:
(i) Equity Fund;
(ii) Stable Return Fund;
(iii) Balanced Fund; and
(iv) Valmont Stock Fund.
(b) The Equity Fund, except for amounts
temporarily held pending investment and amounts held
for disbursements, shall be invested primarily in
common stock.
(c) The Stable Fund shall be invested in
guaranteed investment contracts and fixed income
investments.
(d) The Balanced Fund shall be a combination of
fixed and equity investments.
(e) The Valmont Stock Fund, except for amounts
temporarily held pending investment and amounts held
for disbursements, shall be invested primarily in
common stock of the Employer ("Employer Stock"). The
provisions of the trust agreement entered into with
respect to the Plan shall control with respect to the
acquisition, disposition and voting of shares of
Employer Stock in the Valmont Stock Fund.
(f) The actual investment funds shall be
determined by the Committee ("Investment Funds"). The
Committee shall select funds that it reasonably
believes will be the categories of funds described
above. The Committee can select more than one fund to
meet the categories of funds described above and may
select funds which do not fall within the categories
described above. The selection shall be reflected by
either written action of the Committee or in written
minutes of a Committee meeting. The Committee may
change the specific funds from time to time at its
discretion."
IN WITNESS WHEREOF, this Amendment has been executed,
effective as set forth herein.
EMPLOYER:
VALMONT INDUSTRIES, INC.
BY: /s/ Tommy L. Whalen
__________________________
Tommy L. Whalen
TITLE: Vice President of
Human Resources
EXHIBIT 23
Consent of KPMG Peat Marwick LLC
ACCOUNTANTS' CONSENT
To the Board of Directors
Valmont Industries, Inc.
We consent to incorporation by reference in this Registration
Statement on Form S-8 of Valmont Industries, Inc. of our reports
dated February 18, 1994 relating to the consolidated balance
sheets of Valmont Industries, Inc. and subsidiaries as of
December 25, 1993 and December 26, 1992 and the related
consolidated statements of operations, shareholders' equity and
cash flows and related schedules for each of the years in the
three-year period ended December 25, 1993 which reports appear in
or are incorporated by reference in the December 25, 1993 Annual
Report on Form 10-K of Valmont Industries, Inc.
Our report refers to the Company's adoption of Financial
Accounting Standards No. 109, Accounting for Income Taxes, in
fiscal 1993.
/s/ KPMG PEAT MARWICK LLP
_____________________
KPMG PEAT MARWICK LLP
Omaha, Nebraska
December 27, 1994
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Robert B. Daugherty
_______________________________
Robert B. Daugherty, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Charles M. Harper
_______________________________
Charles M. Harper, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Allen F. Jacobson
_______________________________
Allen F. Jacobson, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Lloyd P. Johnson
_______________________________
Lloyd P. Johnson, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ John E. Jones
___________________________
John E. Jones, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Thomas F. Madison
_______________________________
Thomas F. Madison, Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Walter Scott, Jr.
_______________________________
Walter Scott, Jr., Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
Director of Valmont Industries, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Mogens C. Bay his
true and lawful attorney-in-fact and agent, with full power to
act for him and in his name, place and stead, in any and all
capacities, to do any and all acts and things and execute any and
all instruments which said attorney and agent may deem necessary
or desirable to enable the Company to comply with the Securities
Act of 1933, as amended, and any rules regulations and
requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration on Form S-8 under
said Act of shares of common stock of this corporation, which may
be offered for sale or sold under any and all employee benefit
plans of this Corporation qualified under Section 401 of the
Internal Revenue Code, together with interests in such employee
benefit plans, including specifically, but without limiting the
generality of the foregoing, power and authority to sign the name
of the Company and the name of the undersigned Director to the
registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed
as part of or in connection with said registration statement or
amendments thereto; and the undersigned hereby ratifies and
confirms all that said attorney and agent shall do or cause to be
done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
power of attorney this 21st day of December, 1994.
/s/ Robert G. Wallace
_______________________________
Robert G. Wallace, Director
