AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 2000
REGISTRATION NO. ___-___
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
METTLER-TOLEDO INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3668641
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identification
organization) Number)
IM LANGACHER, P.O. BOX MT-100
CH 8606 GREIFENSEE
SWITZERLAND
(Address of principal executive offices)
METTLER TOLEDO RETIREMENT SAVINGS PLAN
(Full title of the plan)
WILLIAM P. DONNELLY
METTLER-TOLEDO INTERNATIONAL INC.
IM LANGACHER, P.O. BOX MT-100
CH 8606 GREIFENSEE
SWITZERLAND
011 411 944 2211
(Name, address, and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT TO MAXIMUM MAXIMUM
BE OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES REGISTERED PRICE PER OFFERING REGISTRATION
TO BE REGISTERED (1) (1) (2) SHARE (3) PRICE FEE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 1,000,000 shares $36.9375 $36,937,500 $9,751.50
value $.01 per share
- ---------------------------------------------------------------------------------------
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this registration statement covers
an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan described herein.
(2) Includes such additional number of shares as may be required in the
event of a stock split, stock dividends or similar transaction in
accordance with Rule 416(a) of the Securities Act.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act based upon the average
of the high and low prices of the Registrant's common stock, par value
$.01 per share, as reported by the New York Stock Exchange on
February 25, 2000.
</FN>
</TABLE>
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to 1,000,000 shares of
common stock of Mettler-Toledo International Inc., par value $.01 per share
(the "Common Stock"), which may be offered under the Mettler Toledo
Retirement Savings Plan (the "Plan"), and an indeterminate amount of
interests to be offered pursuant to the Plan.
PART I
The documents containing information specified by Part I of this
Registration Statement will be sent or given to participants in the Plan as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act. Such documents are not
required to be filed with the SEC but constitute (along with the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
References to "the Company" shall mean Mettler-Toledo International
Inc., a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the termination of the offering:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed with the SEC on March 18, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999 filed with the SEC on November 15, 1999;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 filed with the SEC on August 16, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 filed with the SEC on May 7, 1999;
(e) The Company's Current Report on Form 8-K filed with the SEC on
March 17, 1999; and
(f) The description of the Common Stock, which is registered under
Section 12 of the Exchange Act, contained in the Registration
Statement on Form 8-A filed with the SEC on December 16, 1997,
which incorporates by reference the description of the Common
Stock contained in the Registration Statement on Form S-1 (No.
333-35597) (originally filed on September 15, 1997), as amended,
including any amendment or report filed for the purpose of
updating such description.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company, as a Delaware corporation, is empowered by Section 145 of
the General Corporation Law of the State of Delaware (the "DGCL"), subject
to the procedures and limitations stated therein, to indemnify any person
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with any threatened, pending or completed action, suit or proceeding in
which such person is made or threatened to be made a party by reason of his
being or having been a director, officer, employee or agent of the Company
or his serving at the request of the Company as a director, officer,
employee or agent of another company or other entity. The statute provides
that indemnification pursuant to its provisions is not exclusive of other
rights of indemnification to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise. The Company's Amended By-Laws provide for indemnification by the
Company of its directors and officers to the full extent authorized by the
DGCL. Pursuant to Section 145 of the DGCL, the Company has purchased
insurance on behalf of its present and former directors and officers
against liabilities asserted against or incurred by them in such capacity
or arising out of their status as such.
Pursuant to specific authority granted by Section 102 of the DGCL, the
Company's Amended and Restated Certificate of Incorporation contains the
following provision regarding indemnification of directors:
"To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be
amended, a Director of the Corporation shall not be liable
to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director."
The Amended By-laws contain the following provision regarding
indemnification of directors and officers:
"The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a
party to an action, suit or proceeding, whether criminal,
civil administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or is or was
serving, at the request of the Corporation, as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise."
The Company has entered into agreements to provide indemnification for
its directors and certain officers in addition to the indemnification
provided for in the Company's Amended and Restated Certificate of
Incorporation and Amended By-Laws. These agreements, among other things,
indemnify the directors, to the fullest extent provided by Delaware law,
for certain expenses (including attorneys' fees), losses, claims,
liabilities, judgments, fines and settlement amounts incurred by such
indemnitee in any action or proceeding, including any action by or in the
right of the Company, on account of services as a director or officer of
any affiliate of the Company, or as a director or officer of any other
company or enterprise that the indemnitee provides services to at the
request of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1
and incorporated by reference herein).
4.2 Amended and Restated Certificate of Incorporation of the
Company (Filed as Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1997 and incorporated by reference herein).
4.3 Amended By-Laws of the Company (Filed as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the period
ended December 31, 1998 and incorporated by reference
herein).
4.4* Mettler Toledo Retirement Savings Plan.
23.1* Consent of KPMG Fides Peat, Independent Auditors.
24.1 Power of Attorney (included on the signature page
included in this Part II).
- ----------------------
* filed herewith
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendments thereto to the Internal Revenue Service in a timely
manner and has made all changes required by the IRS in order to qualify the
Plan under Section 401 of the Internal Revenue Code.
Item 9. Undertakings
The Company 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;
(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; and
(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 the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in such post-effective amendment 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 therein, 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the SEC 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
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, the Company
certifies that it has reasonable grounds to believe that it meets all of
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 New York, State of New York, on
February 3, 2000.
Mettler-Toledo International Inc.
By: /s/ William P. Donnelly
-------------------------------
William P. Donnelly
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Mettler-Toledo
International Inc., a Delaware corporation, hereby constitute and appoint
Robert F. Spoerry, William P. Donnelly and James T. Bellerjeau, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement and any additional registration statements pursuant to
Instruction E to Form S-8 and any and all documents in connection
therewith, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, and hereby ratifies, approves
and confirms all that his said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert F. Spoerry Chairman of the Board,
- ------------------------ President and Chief February 3, 2000
Robert F. Spoerry Executive Officer
/s/ William P. Donnelly Chief Financial Officer February 3, 2000
- ------------------------
William P. Donnelly
/s/ Phillip Caldwell Director February 3, 2000
- ------------------------
Phillip Caldwell
/s/ Reginald H. Jones Director February 3, 2000
- ------------------------
Reginald H. Jones
/s/ John D. Macomber Director February 3, 2000
- ------------------------
John D. Macomber
/s/ George M. Milne Director February 3, 2000
- ------------------------
George M. Milne
/s/ Laurence Z.Y. Moh Director February 3, 2000
- ------------------------
Laurence Z.Y. Moh
/s/ Thomas P. Salice Director February 3, 2000
- ------------------------
Thomas P. Salice
PLAN SIGNATURE
Pursuant to the requirements of the Securities Act, the administrator
of the Plan has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Columbus, State of Ohio, on this 3rd day of February, 2000.
METTLER TOLEDO RETIREMENT SAVINGS PLAN
By: /s/ Lukas Braunschweiler
---------------------------------------
Name: Lukas Braunschweiler
Title: President, Mettler-Toledo Inc.
<PAGE>
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1
and incorporated by reference herein).
4.2 Amended and Restated Certificate of Incorporation of the
Company (Filed as Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1997 and incorporated by reference herein).
4.3 Amended By-Laws of the Company (Filed as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the period
ended December 31, 1998 and incorporated by reference
herein).
4.4* Mettler Toledo Retirement Savings Plan.
23.1* Consent of KPMG Fides Peat, Independent Auditors.
24.1 Power of Attorney (included on the signature page
included in this Part II).
- -------------------------
* filed herewith
Exhibit 4.4
METTLER TOLEDO
RETIREMENT SAVINGS PLAN
AMENDED AND RESTATED
EFFECTIVE AS OF JANUARY 1, 2000
(EXCEPT AS OTHERWISE PROVIDED HEREIN)
<PAGE>
FOREWORD
PURPOSE
Effective as of October 1, 1988, Toledo Scale Corporation, a Delaware
corporation, established the Toledo Scale Corporation Savings and
Investment Plan (the "Plan") for the benefit of eligible employees.
Effective January 1, 1992, the Plan was renamed the Mettler-Toledo, Inc.
Savings and Investment Plan, to reflect a change in the name of Toledo
Scale Corporation to Mettler-Toledo, Inc. (the "Company"). Effective as of
July 1, 1994, the Mettler Instrument Corporation Savings and Investment
Plan was merged into the Plan, the Plan was amended and restated, and the
Plan was renamed the "Mettler Toledo Retirement Savings Plan". Effective as
of October 1, 1999, the Safeline, Inc. 401(k) Plan was merged into the
Plan. The purpose of the Plan is to encourage eligible employees of
authorized divisions or departments of the Company or of any authorized
company affiliated with the Company to provide additional financial
security and to supplement retirement income by savings on a regular long
term basis.
BACKGROUND
As of January 1, 1981 Reliance Electric Company, a corporation organized
and existing under the laws of the State of Delaware ("Reliance Electric"),
amended and restated the Reliance Electric Company Savings and Investment
Plan (the "Prior Reliance Electric Plan") to continue to provide eligible
employees additional financial security and to supplement retirement income
by savings on a regular and long term basis.
As of October 1, 1983 Reliance Electric amended and restated the Prior
Reliance Electric Plan. Such amended and restated plan is referred to
herein as the "Reliance Electric Plan".
The Company, then a wholly-owned subsidiary of Reliance Electric, and
Reliance Electric determined that:
1) Effective as of October 1, 1988, the Plan should be established
to cover eligible employees of the Company in lieu of having such
employees continue to participate in the Reliance Electric Plan;
2) All assets and liabilities of the Reliance Electric Plan which
were allocable to eligible employees of the Company would be
transferred to the Plan and the trust established in conjunction
therewith; and
3) As of the inception of the Plan and the transfer thereto of the
aforementioned assets and liabilities of the Reliance Electric
Plan, the provisions of the Plan would be the same, in all
material respects, as those of the Reliance Electric Plan.
The Company has subsequently amended the Plan from time to time.
This amendment and restatement of the Plan shall constitute an amendment,
restatement and continuation of the Plan and of the Safeline 401(k) Plan.
Except as the text may specifically provide otherwise, the terms and
provisions of the Plan as hereinafter set forth and as it hereafter may be
amended from time to time, establish the rights and obligations with
respect to Participants (as hereinafter defined) employed on and after
January 1, 2000 and to transactions under the Plan on and after such date.
Unless explicitly provided otherwise, the provisions of this amendment and
restatement with stated effective dates prior to January 1, 2000 shall be
deemed to amend the corresponding provisions, if any, of the Plan and of
the Safeline 401(k) Plan as in effect before this amendment and restatement
and all amendments thereto as of such dates. Events occurring before the
applicable effective date of any provision of this amendment and
restatement shall be governed by the applicable provision of the Plan or
the Safeline 401(k) Plan, whichever applicable, in effect on the date of
the event.
The adoption of the Plan in its entirety is intended to comply with the
provisions of Sections 401(a) of the Internal Revenue Code of 1986 and
applicable regulations thereunder.
<PAGE>
METTLER TOLEDO
SAVINGS AND INVESTMENT PLAN
CONTENTS
--------
ARTICLE I Definitions.................................................1
ARTICLE II Eligibility and Participation..............................10
ARTICLE III Basic Salary Reduction Contributions.......................13
ARTICLE IV Company Contributions......................................20
ARTICLE V Valuation of Accounts......................................28
ARTICLE VI Vesting of Accounts........................................29
ARTICLE VII Investment of Accounts.....................................31
ARTICLE VIII Withdrawals During Employment..............................36
ARTICLE IX Distribution of Benefits...................................41
ARTICLE X Administration of the Plan.................................48
ARTICLE XI Operation of the Trust Fund................................53
ARTICLE XII Adoption, Amendment, Termination and Merger................54
ARTICLE XIII Miscellaneous..............................................56
ARTICLE XIV Participation in Plan By Affiliates........................58
ARTICLE XV Loans......................................................60
ARTICLE XVI Determination of Top-Heavy Status..........................63
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
<PAGE>
ARTICLE I
DEFINITIONS
-----------
As used herein, unless otherwise defined or required by the context, the
following words and phrases shall have the meanings indicated. Some of the
words and phrases used in the Plan are not defined in this Article I, but
for convenience are defined as they are introduced into the text.
1.1 "Account" means a Participant's Basic Employee Contribution Account,
Basic Salary Reduction Contribution Account, Company Matching
Contribution Account, After-Tax Contribution Account, Qualified
Contribution Account, Rollover Account, or any subaccount thereof, as
the context requires.
1.2 "Administrative Committee" means the committee constituted to
administer the Plan in accordance with Section 10.2.
1.3 "After-Tax Contribution Account" means the separate Account maintained
for a Participant to record his share of the Trust Fund attributable
to after-tax contributions made on his behalf under the Reliance
Electric Plan.
1.4 "Appropriate Form" means the form or forms prescribed by the
Administrative Committee for a particular purpose.
1.5 "Basic Employee Contribution" means a contribution made by a
Participant as a condition of participation in the Prior Reliance
Electric Plan, as provided in Section 3.02 of the Prior Reliance
Electric Plan.
1.6 "Basic Employee Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust Fund
attributable to Basic Employee Contributions made on his behalf.
1.7 "Basic Salary Reduction Contribution" means a contribution made by an
Employer pursuant to an election by the Participant to reduce the cash
compensation otherwise currently payable to him by an equivalent
amount, in accordance with the provisions of Section 3.1, and such
amounts contributed by an Employer to the Reliance Electric Plan under
Section 3.01 thereof.
1.8 "Basic Salary Reduction Contribution Account" means the separate
Account maintained for a Participant to record his share of the Trust
Fund attributable to Basic Salary Reduction Contributions made on his
behalf.
1.9 "Beneficiary" means the person or persons so designated in accordance
with Section 2.4 to receive benefits payable under the Plan as a
result of the Participant's death.
1.10 "Board" or "Board of Directors" means the Board of Directors of the
Company.
1.11 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.12 "Common Stock" means the common stock of Mettler-Toledo International
Inc. which is a qualifying employer security within the meaning of
Section 407(d)(5) of ERISA.
1.13 "Company" means Mettler-Toledo, Inc., a Delaware corporation, as now
constituted or as may be constituted hereafter, or any person, firm,
corporation or partnership which may succeed to its business and which
adopts the Plan.
1.14 "Company Matching Contribution" means an Employer contribution made to
the Trust Fund pursuant to Section 4.1.
1.15 "Company Matching Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust Fund
attributable to Company Matching Contributions made on his behalf.
1.16 "Compensation" means the (a) the nondeferred remuneration of an
Employee for services rendered to the Group, inclusive of Basic Salary
Reduction Contributions, regularly scheduled paid bonuses, sales
commissions, overtime, and incentive earnings, exclusive of, shift
differential and the Group's cost for any employee benefit plan (which
cost is not included in the gross income of the Employee), including
the Plan, except as provided in this Section, and (b) in the case of
an Eligible Employee described in Section 1.20(ii), an amount
determined by the Administrative Committee, using as a guideline to be
uniformly and consistently applied, that nondeferred remuneration
which would be considered as his basic rate of compensation if his
services were performed in a similar position in the United States for
the Company, but in no event shall the "Compensation", as determined
by the Administrative Committee, exceed the nondeferred remuneration
actually received by such an Eligible Employee. Effective for each
Plan Year beginning on and after January 1, 1989, in no event shall
the amount of Compensation taken into account under the Plan exceed
the adjusted annual limitation permitted under Section 401(a)(17) of
the Code for such Plan Year. Such adjusted annual limitation shall be,
for each Plan Year beginning on and after January 1, 1989 and prior to
January 1, 1994, $200,000 as adjusted for such year in the same manner
as under Section 415(d) of the Code and, for each Plan Year beginning
on and after January 1, 1994, $150,000 as adjusted for such year as
provided under Section 401(a)(17)(B) of the Code.
In determining the Compensation of an Eligible Employee for purposes
of the foregoing annual limitation as applicable solely to Plan Years
beginning before January 1, 1997, the rules aggregating certain family
members (as set forth in Section 414(q) of the Code) shall apply,
except that in applying such rules, the term "family" shall include
only the spouse of the Employee and any lineal descendent of the
Employee who has not attained age 19 before the end of the calendar
year. If, as a result of these family aggregation rules, the adjusted
annual limitation is exceeded, then the limitation shall be prorated
among the family members in proportion to each individual's
Compensation as determined under this paragraph without regard to the
adjusted annual limitations.
1.17 "Disability" means the termination of service of a Participant with
the Employer due to a physical or mental disability which will
permanently disable such Participant from performing the customary
duties of his regular job with the Employer. Such permanent disability
is to be determined by a licensed physician provided by or acceptable
to the Administrative Committee.
1.18 "Early Retirement Date" means the date of a Participant's termination
of service, provided it occurs on or after his 55th birthday, but
prior to his Normal Retirement Date, and after his completion of 10
1-year Periods of Service.
1.19 "Effective Date" means October 1, 1988. The effective date of this
restatement is January 1, 2000, unless otherwise provided.
1.20 "Eligible Employee" means each Employee of any Employer, excluding (i)
any Employee included in a unit of employees represented by a
recognized bargaining agent and covered by a collective bargaining
agreement in which retirement benefits were the subject of good faith
bargaining unless such agreement specifically provides for coverage
under the Plan, and (ii) any Employee of an Employer which is a
"foreign subsidiary" (as described in Section 406(a) of the Code and
to which an agreement entered into under Section 3121(1) of the Code
applies) or a "domestic subsidiary" (described in Section 407(a) of
the Code) and who is not a citizen of the United States, other than a
person employed by a subsidiary authorized to participate in the Plan
by the Administrative Committee, and (iii) any Employee classified by
an Employer as a co-op student, and (iv) any Employee of an Excluded
Entity, while so employed.
For purposes of Sections 3.4, 4.3 and 4.4, the term "Eligible
Employee" means an Eligible Employee (as otherwise defined in this
Section 1.20) of an Employer who, at any time during the Plan Year in
question has satisfied the eligibility requirements set forth in
Section 2.1, regardless of whether such individual has elected to
become a Participant in the Plan.
Notwithstanding any provision of the Plan to the contrary, any
individual who an Employer determines to be an independent contractor,
leased employee (including a Leased Employee), leased owner, leased
manager, shared employee or person working under a similar
classification shall not become an Eligible Employee hereunder,
regardless of whether any such individual is ultimately determined to
be a common law employee, unless and until the Company shall otherwise
determine. Any Employee shall be considered an Eligible Employee only
during such period in which he satisfies the requirements defined
above.
1.21 "Employee" means any person performing services for the Company, or
any other member of the Group, as a common law employee.
1.22 "Employer" means any trade or business in which the Company has a
direct or indirect ownership interest, or has a 50 percent direct or
indirect ownership interest in the Company and which has adopted the
Plan in accordance with Article XIV. As the context requires, the term
"Employer" may mean any of the Employers or all of them, and may
include the Company in addition to other Employers.
1.23 "Employment Commencement Date" means the date on which the Employee
first performs an Hour of Service.
1.24 "Enrollment Date" means, for periods prior to January 1, 2000, the
first day of any calendar quarter and, for periods on and after
January 1, 2000, the first day of any calendar month and such other
date or dates as the Administrative Committee shall specify.
1.25 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.26 "Excluded Entity" means any division of the Company, or any other
corporation (or division of such a corporation) subsidiary to or
affiliated with the Company, which qualifies as a member of the Group
but which is not expressly authorized by the Administrative Committee
to participate in the Plan.
1.27 "Group" shall mean the Company and any other company which is related
to the Company as a member of a controlled group of corporations in
accordance with Section 414(b) of the Code or as a trade or business
under common control in accordance with Section 414(c) of the Code,
any organization which is part of an affiliated service group in
accordance with Section 414(m) of the Code, or any entity required to
be aggregated with the Company in accordance with Section 414(o) of
the Code and the regulations thereunder. For the purposes under the
Plan of determining whether or not a person is an Employee and the
period of employment of such person, each such other company shall be
included in the definition of "Group" only for such period or periods
during which such other company is so a member of a controlled group,
under common control, an affiliated service group or otherwise
required to be aggregated. For purposes of applying the annual
contributions limits imposed by Section 415 of the Code, the
definition of "control" for this purpose shall be modified as required
by Section 415(h) of the Code.
1.28 "Highly Compensated Employee" means, for a given Plan Year beginning
on or after January 1, 1997, any Employee who is a 5 percent owner (as
defined in Section 416(i)(1) of the Code) with respect to a member of
the Group during the Plan Year or the preceding Plan Year or who both
received Section 414(s) compensation (as defined in Section 3.4(c)
hereof) during the preceding Plan Year in excess of $80,000 and was a
member of the "top-paid group" (as defined in Section 414(q)(3) of the
Code) during such Plan Year. For purposes of this Section 1.28, the
$80,000 amount is to be indexed at the same time and in the same
manner as other adjustments under Section 415(d) of the Code.
1.29 "Hour of Service" means an hour for which an Employee is directly or
indirectly paid or entitled to payment by an Employer for the
performance of services.
1.30 "Interactive Electronic Communication" means a communication between a
Participant or Beneficiary and the person or entity designated by the
Administrative Committee to perform recordkeeping and other
administrative services on behalf of the Plan pursuant to a system
maintained by such person or entity and communicated to each
Participant and Beneficiary whereby each such individual may make
elections and exercise options as described herein with respect to all
or a portion of his Account through the use of such system and a
personal identification number. If a Participant or Beneficiary (i)
consents to participate in Interactive Electronic Communication
procedures adopted by the Administrative Committee and (ii)
acknowledges that actions taken by him through the use of his personal
identification number pursuant to the Interactive Electronic
Communication procedure constitute his signature for purposes of
initiating transactions such as Investment Fund changes, the
Participant or Beneficiary, as the case may be, will be deemed to have
given his written consent and authorization to any such action
resulting from the use of the Interactive Electronic Communication
system by the Participant or Beneficiary.
1.31 "Investment Fund" means each of the separate investment options which
the Administrative Committee, in its sole discretion and pursuant to
uniform and nondiscriminatory rules, may make available under the Plan
for the investment of Plan contributions and Accounts.
1.32 "Leased Employee" means any person (other than an Employee of an
Employer) who pursuant to an agreement between the Employer and any
other person ("leasing organization") has performed services for the
Employer (or for the Employer and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one year and, for periods
before January 1, 1997, such services are of a type historically
performed by employees in the business field of the Employer or, for
periods on and after January 1, 1997, such services are performed
under primary direction or control by the recipient. Except as
provided below, any person satisfying the foregoing criteria shall be
treated as an Employee. Contributions or benefits provided a Leased
Employee by the leasing organization which are attributable to
services performed for the Employer shall be treated as provided by
the Employer.
Notwithstanding the foregoing, a Leased Employee shall not be
considered an Employee of an Employer if: (i) such Leased Employee is
covered by a money purchase pension plan providing: (1) a
nonintegrated employer contribution rate of at least 10 percent of
compensation, (2) immediate participation, and (3) full and immediate
vesting; and (ii) Leased Employees do not constitute more than 20
percent of the Employer's non-Highly Compensated Employee workforce.
1.33 "Mettler Toledo Stock Fund" means the Investment Fund described in
Section 7.3.
1.34 "Normal Retirement Age" means the attainment of age 65 by a
Participant.
1.35 "Normal Retirement Date" means the first day of the month coincident
with or next following a Participant's 65th birthday.
1.36 "Notice" means, unless otherwise specifically provided herein, (i)
written Notice on an appropriate form provided by the Administrative
Committee that is, in the discretion of the Administrative Committee,
properly completed and executed by the party giving such Notice and
which is delivered by hand or by mail to the Administrative Committee
or to such party designated by the terms of the Plan or by the
Administrative Committee to receive the Notice, or (ii) Notice by
Interactive Electronic Communication to the person or entity
designated by the Administrative Committee to perform recordkeeping
and other administrative services on behalf of the Plan. The form of
Notice satisfactory in any given circumstance under the Plan shall be
determined by the Administrative Committee, in its discretion, and
shall be applied uniformly to all Participants and to all
Beneficiaries. Notice to any party as provided herein shall be deemed
to be given when it is actually received (either physically or by
Interactive Electronic Communication, as the case may be) by the party
to whom such Notice is given.
1.37 "Participant" means an Eligible Employee who has become a participant
in the Plan in accordance with Article II. Each Participant shall
continue to be such after he ceases to be an Eligible Employee until
his Accounts have been completely distributed.
1.38 "Period of Service" means that period of time commencing on an
Employee's Employment Commencement Date or Reemployment Commencement
Date, whichever is applicable, and ending on the date of his Severance
from Service. Notwithstanding the foregoing, however, if an Employee
severs from service with an Employer as a result of quit, discharge,
or retirement and then returns to service within 12 months of such
event, such period shall be counted as part of such Employee's Period
of Service. For purposes of determining an Employee's Period of
Service, all non-successive Periods of Service shall be aggregated;
less than one 1-year Periods of Service shall be aggregated on the
basis that 12 months of service or 365 days of service equal a 1-year
Period of Service. A Period of Service also shall include such period
of service in the armed forces of the United States as shall be
required to be recognized under applicable federal law with respect to
military service.
1.39 "Period of Severance" means the period of time commencing on an
Employee's Severance from Service and ending on his Reemployment
Commencement Date.
1.40 "Plan" means the Mettler Toledo Retirement Savings Plan, as set forth
in this document, including all appendices hereto, as the same may be
amended from time to time. For purposes of Section 401(a)(27) of the
Code and Section 407(d)(3) of ERISA, the Plan is a profit sharing
plan.
1.41 "Plan Year" means the 12-month period commencing on any January 1.
1.42 "Prior Reliance Electric Plan" means the Reliance Electric Company
Savings and Investment Plan, as amended and restated effective as of
January 1, 1981.
1.43 "Qualified Contribution" means an Employer contribution made to the
Trust Fund pursuant to Section 4.5.
1.44 "Qualified Contribution Account" means the separate Account maintained
for a Participant to record his share of the Trust Fund attributable
to Qualified Contributions made on his behalf.
1.45 "Reliance Electric Plan" means the Reliance Electric Company Savings
and Investment Plan, as amended and restated effective as of October
1, 1983.
1.46 "Reemployment Commencement Date" means the first date on which an
Employee completes an Hour of Service following a Period of Severance.
1.47 "Rollover Contribution" means a contribution made by a Participant or
Eligible Employee to the Trust Fund pursuant to Section 3.7.
1.48 "Rollover Contribution Account" means the separate Account maintained
for a Participant or Eligible Employee to record his share of the
Trust Fund attributable to his Rollover Contribution.
1.49 "Severance from Service" means the earlier of: (i) the date on which
an Employee resigns, retires, dies or is discharged, or (ii) a period
of twelve (12) months from the first date the Employee remains absent
from employment (with or without pay) with the Company or any other
Employer for any reason other than resignation, retirement, death or
discharge, such as vacation, holiday, sickness, disability, leave of
absence or layoff.
The date of the Severance from Service for a Participant who is absent
from employment by reason of parental leave shall be the second
anniversary of the first day of such absence, or, if later, the date
the parental leave ceased. The period between the first and second
anniversaries of the first date of absence for parental leave shall be
treated as neither a Period of Service nor a Period of Severance. For
purposes of this Section 1.49, parental leave means an Employee's
absence from work on account of the Employee's pregnancy, the birth of
the Employee's child, the placement of a child with the Employee in
connection with the adoption of that child by the Employee, or for
purposes of caring for that child for a period beginning immediately
following that birth or placement.
An absence will not be considered by reason of parental leave unless
the Employee provides the Administrative Committee with information
within 10 working days demonstrating that the absence is for one of
the reasons described in the preceding sentence. At the end of such
absence, the Employee must provide the Administrative Committee or its
representative with a record of the number of days of such absence.
Nothing in this Plan shall require the Employer to grant a paid leave
of absence to any Employee.
1.50 "Trustee" means the individual(s) and/or entity(ies) appointed from
time to time by the Board to administer the Trust Fund in accordance
with Section 11.1.
1.51 "Trust Agreement" means the agreement entered into between the Company
and the Trustee, as provided for in Section 11.1, as the same may be
amended from time to time.
1.52 "Trust Fund" means the trust fund established in accordance with
Section 11.1 from which benefits provided under this Plan will be
paid.
1.53 "Valuation Date" means each day the New York Stock Exchange is open
for business.
1.54 "Vested Interest" means that portion of an Account in which an
individual has a fully vested and nonforfeitable right, as provided in
Article VI.
1.55 "Year of Vesting Service" means a 1-year Period of Service, whether or
not such Period of Service was completed consecutively; provided,
however, that a "Year of Vesting Service" shall not include:
(a) any portion of a Participant's Period of Service or employment by
an Excluded Entity prior to March 1, 1978;
(b) prior to July 1, 1980, any portion of a Participant's Period of
Service with respect to which the Participant did not make Basic
Employee Contributions under the Prior Reliance Electric Plan;
(c) any Year of Vesting Service ignored under Section 6.1;
and, further provided, however, that a "Year of Vesting Service" shall
include:
(d) employment by an Excluded Entity on March 1, 1978 and thereafter
of a person who, on or after that date, either ceases to be (i)
an Employee of an Employer and becomes employed by an Excluded
Entity, or (ii) employed by an Excluded Entity and becomes an
Employee of an Employer, except that if on or after March 1, 1978
an Employer or Excluded Entity is for the first time included
within the definition of "Employer" or "Group", the
Administrative Committee shall determine, in a uniform
nondiscriminatory manner, what portion, if any, of service prior
to inclusion within such definition shall be included under this
paragraph (d).
The use of the masculine pronoun shall include the feminine and the
singular shall include the plural.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
-----------------------------
2.1 Eligible Requirements:
----------------------
(a) Eligibility Requirements Prior to January 1, 2000. Each
individual who was considered a Participant under the terms of
the Plan as of December 31, 1999 shall be considered a
Participant hereunder as of January 1, 2000 provided such
individual satisfies the terms of Section 1.37 as of January 1,
2000. Except as otherwise provided in an Appendix hereto, each
other Employee shall be entitled to become an active Participant
in the Plan as of the first day of the calendar year quarter
coincident with or next following the date he:
(i) becomes an Eligible Employee; and
(ii) completes a 1-year Period of Service; and
(iii) elects to participate in accordance with Section 2.2.
Each Employee who satisfies the requirements of this Section
2.1(a) shall be notified by his Employer of his eligibility to
participate, as and when it occurs.
(b) Eligibility Requirements On and After January 1, 2000. Except as
otherwise provided in an Appendix hereto, each Employee who has
not satisfied the requirements set forth in Section 2.1(a) as of
January 1, 2000 shall be entitled to become an active Participant
in the Plan as of January 1, 2000 or the first day of any
subsequent calendar month that follows the date he:
(i) becomes an Eligible Employee; and
(ii) elects to participate in accordance with Section 2.2;
provided, however, if the Employee is classified as a temporary
employee by his Employer, such Employee shall also complete a
1-year Period of Service while so employed before becoming
eligible to participate in the Plan.
Each Employee who satisfies the requirements of this Section
2.1(b) shall be notified by his Employer of his eligibility to
participate, as and when it occurs.
(c) Except as specifically provided for herein, a Participant's
active participation in the Plan (and the right of an Eligible
Employee to participate in the Plan) shall cease and terminate,
if and when he incurs a Period of Severance. However, in the
event such Participant (or such Eligible Employee) subsequently
returns to employment as an Eligible Employee, he shall again
have the right to become an active Participant as of his
Reemployment Commencement Date, upon the filing of an Appropriate
Form with the Administrative Committee.
2.2 Completion of Appropriate Form:
-------------------------------
An Eligible Employee may become a Participant as of any Enrollment
Date following his satisfaction of the eligibility requirements set
forth in Section 2.1, provided he remains an Eligible Employee as of
the Enrollment Date. Such Employee may elect to become a Participant
by completing and returning the Appropriate Form to the Administrative
Committee within 30 days (or such other period as the Administrative
Committee may prescribe) prior to that Enrollment Date.
If an Eligible Employee fails to complete and return the Appropriate
Form to the Administrative Committee before the Enrollment Date
following his eligibility to participate pursuant to Section 2.1, he
shall be deemed to have elected to have no Basic Salary Reduction
Contributions made on his behalf and shall not be entitled to Company
Matching Contributions. Such Eligible Employee may subsequently elect
to participate as provided in Section 2.3 as of the Enrollment Date
next following the date of his election.
2.3 Elections upon Becoming a Participant:
--------------------------------------
The Eligible Employee, in completing the Appropriate Form specified in
Section 2.2, (i) may authorize his Employer to reduce his current cash
compensation by the amount of his Basic Salary Reduction Contributions
pursuant to Section 3.1, and (ii) shall make an investment election
from among those options made available as provided in Section 7.1.
Any such payroll authorization or investment election shall remain in
effect until changed by Notice given to the Administrative Committee
in the manner provided under Sections 3.3 and 7.2, respectively.
2.4 Beneficiary Designation:
------------------------
Each Participant shall designate a Beneficiary on the Appropriate Form
provided by the Administrative Committee. The designated Beneficiary
may be one or more individuals or an estate, trust or organization
(other than a corporation); however, if the Participant is married at
the time of his death, his surviving spouse shall automatically be his
sole Beneficiary unless such spouse had consented on an Appropriate
Form to a designation of a different Beneficiary (by name) or to any
subsequent change in a Beneficiary (by name, unless the consent of
such spouse expressly permits designations by the Participant without
any requirement for further consent by such spouse, provided such
spouse acknowledges his or her right to limit any such consent to a
specific Beneficiary and such spouse states that he or she voluntarily
elects to relinquish such right). Such consent must be witnessed by a
notary public or a plan representative and must contain an
acknowledgment by such spouse of the effect of the designation. If
more than one individual or trust is named, the Participant shall
indicate the shares and/or precedence of each individual or trust so
named. Any Beneficiary so designated may be changed by the Participant
at any time (subject to his or her current spouse's consent, if
applicable) by signing and filing the Appropriate Form with the
Administrative Committee.
In the event that no Beneficiary had been designated or that no
designated Beneficiary survives the Participant, the following
Beneficiaries (if then living) shall be deemed to have been designated
in the following priority: (1) spouse, (2) children, including adopted
children, in equal shares, per stirpes, and (3) those who would take
under the intestate laws of the jurisdiction in which the Participant
was domiciled at the time of his death.
2.5 Transfers to or from Non-Covered Status:
----------------------------------------
In the case of a Participant who ceases to be actively employed (due
to layoff, authorized leave of absence or otherwise), but remains an
Eligible Employee who has not yet incurred a Severance from Service,
such Participant shall continue to be treated as an active Participant
for all purposes of the Plan, except that no Basic Salary Reduction
Contributions may be made during such period(s) of absence unless such
Participant receives nondeferred remuneration for such period(s).
If a Participant ceases to qualify as an Eligible Employee but has not
yet incurred a Period of Severance (because he has transferred to
employment with a member of the Group that has not adopted the Plan,
or otherwise), he shall become an inactive Participant, and no
contributions under the Plan shall be made by the Participant, or on
his behalf, until he again becomes an Eligible Employee.
<PAGE>
ARTICLE III
BASIC SALARY REDUCTION CONTRIBUTIONS
------------------------------------
3.1 Basic Salary Reduction Contributions:
-------------------------------------
Each Participant who is an Eligible Employee may elect to have his
Employer make Basic Salary Reduction Contributions to the Plan on his
behalf to be credited to his Basic Salary Reduction Contribution
Account, in which case the cash compensation otherwise payable by the
Employer to the Participant shall be reduced by an amount equal to the
Basic Salary Reduction Contributions so made. The amount of Basic
Salary Reduction Contributions shall be from 1 percent through 16
percent (in whole percentages), as the Participant shall designate.
The Administrative Committee may from time to time specify other
percentages. In no event shall the aggregate of Basic Salary Reduction
Contributions (and such other "elective deferrals", as defined in
Section 402(g)(3) of the Code and the regulations thereunder) made on
a Participant's behalf with respect to any calendar year exceed the
dollar limit as in effect with respect to such year in accordance with
Sections 402(g)(1) and 402(g)(5) of the Code and Treasury Regulation
Section 1.402(g)-1(d)(1).
3.2 Voluntary Suspension:
---------------------
A Participant may voluntarily suspend any contributions made pursuant
to this Article III effective as of the first day of any month
provided Notice is given to the Administrative Committee on the
Appropriate Form at such time and in such manner as determined by the
Administrative Committee and communicated to Participants.
A Participant who has suspended contributions may elect to resume
contributions made pursuant to this Article III as of the first day of
any month by giving Notice to the Administrative Committee on the
Appropriate Form at such time and in such manner as determined by the
Administrative Committee and communicated to Participants. A
suspension of any contributions made pursuant to this Article III also
may be made at such times as are necessary to comply with the
provisions of Article VIII.
3.3 Change in Contribution Rates:
-----------------------------
A Participant may elect to increase or decrease the amount of Basic
Salary Reduction Contributions, within the limits specified in Section
3.1, effective as of the first day of any month provided Notice is
given to the Administrative Committee on the Appropriate Form at such
time and in such manner as determined by the Administrative Committee
and communicated to Participants. Contribution rate changes also may
be made at such times as are necessary to comply with the provisions
of Section 3.4, Section 4.2, Section 4.3 or Section 10.9.
3.4 Limitations on Basic Salary Reduction Contributions:
---------------------------------------------------
(a) Notwithstanding the foregoing provisions of this Article III, the
Administrative Committee shall limit the amount of Basic Salary
Reduction Contributions made on behalf of each Employee who is a
Highly Compensated Employee for each Plan Year to the extent
necessary to ensure that either of the following tests is
satisfied:
(i) the "Actual Deferral Percentage" (as hereinafter defined)
for the group of Eligible Employees, who are Highly
Compensated Employees is not more than the Actual Deferral
Percentage of all other Eligible Employees multiplied by
1.25; or
(ii) the excess of the Actual Deferral Percentage for the group
of Eligible Employees, who are Highly Compensated Employees
over that of all other Eligible Employees is not more than 2
percentage points, and the Actual Deferral Percentage for
the group of Eligible Employees who are Highly Compensated
Employees is not more than the Actual Deferral Percentage of
all other Eligible Employees multiplied by 2.0.
(b) For purposes of this Section 3.4, the term "Actual Deferral
Percentage" shall mean, for any specified group of Eligible
Employees, the average of such Employees' Deferral Percentages
(as defined below).
(c) For purposes of this Section 3.4, the term "Deferral Percentage"
shall mean, for any Eligible Employee, the ratio of:
(i) the aggregate of the Basic Salary Reduction Contributions
which, in accordance with the rules set forth in Treasury
Regulation Section 1.401(k)-1(b)(4), are taken into account
with respect to such Plan Year; to
(ii) such Employee's Section 414(s) compensation for such Plan
Year. For this purpose, Section 414(s) compensation shall
mean W-2 compensation as described in Treasury Regulation
Sections 1.414(s)-1(c)(2) and 1.415-2(d)(11), and shall also
include all amounts currently not included in the Employee's
gross income by reason of Section 125 and 402(e)(3) of the
Code. In the case of an Employee who begins, resumes, or
ceases to be eligible to elect to have Basic Salary
Reduction Contributions made on his behalf during a Plan
Year, the amount of Section 414(s) compensation included in
the Actual Deferral Percentage test is the amount of Section
414(s) compensation received by the Employee during the
entire Plan Year.
(d) The Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
have before-tax contributions made on his behalf under 2 or more
arrangements described in Section 40l(k) of the Code that are
maintained by the Company, or other Employer, shall be determined
as if such before-tax contributions were made under a single
arrangement. Notwithstanding the foregoing, certain plans shall
be treated as separate if mandatorily disaggregated under
Treasury Regulations.
If the Plan is permissibly aggregated or is required to be
aggregated with other plans having the same plan year, as
provided under Treasury Regulation Section 1.401(k)-1(b)(3) for
purposes of determining whether or not such plans satisfy
Sections 401(k), 401(a)(4), and 410(b) of the Code, then the
provisions of this Section 3.4 shall be applied by determining
the Actual Deferral Percentage of Employees who are eligible to
participate in the Plan as if all such plans were a single plan.
(e) For Plan Years beginning before January 1, 1997, in determining
the Deferral Percentage for a Plan Year for a Highly Compensated
Employee described in Section 414(q)(6)(A) of the Code, Basic
Salary Reduction Contributions and Section 414(s) compensation of
such Participant shall, to the extent required under Treasury
Regulation Section 1.401(k)-1(g)(1)(ii)(C), be aggregated with
the Basic Salary Reduction Contributions and Section 414(s)
compensation of any individual who is a family member (as set
forth in Section 414(q) of the Code). The Deferral Percentage
obtained by such aggregation shall be combined with the Deferral
Percentages of the Highly Compensated Employees who are
Participants in determining the Actual Deferral Percentage for
such group. Any Participant or family member whose Deferral
Percentage is so aggregated shall not have his Deferral
Percentage separately taken into account with respect to any
group of Employees in determining the Actual Deferral Percentage
for such group.
(f) In the event the Administrative Committee determines prior to any
payroll period that the amount of Basic Salary Reduction
Contributions elected to be made thereafter is likely to cause
the limitation prescribed in this Section 3.4 to be exceeded, the
Administrative Committee, in its discretion, may reduce the
amount of Basic Salary Reduction Contributions allowed to be made
on behalf of Participants who are Highly Compensated Employees
(and/or such other Participants as the Administrative Committee
may prescribe) to a rate determined by the Administrative
Committee (including a rate of 0 percent if the Administrative
Committee so determines). Except as is hereinafter provided, the
Participants to whom such reduction is applicable and the amount
of such reduction shall be determined pursuant to such uniform
and nondiscriminatory rules as the Administrative Committee shall
prescribe.
(g) Notwithstanding the foregoing, with respect to any Plan Year in
which Basic Salary Reduction Contributions made on behalf of
Participants who are Highly Compensated Employees exceed the
applicable limit set forth in Section 3.4(a), the Administrative
Committee may reduce, to the extent necessary to comply with the
limitations prescribed in this Section 3.4, the amount of Basic
Salary Reduction Contributions made on behalf of the Participants
who are Highly Compensated Employees (by reducing such
contributions in the order of Deferral Percentages beginning with
the highest or, for Plan Years beginning on and after January 1,
1997, in the order of Base Salary Reduction Contribution amounts
beginning with the largest), and distribute such excess Basic
Salary Reduction Contributions (along with income attributable to
such excess Basic Salary Reduction Contributions, determined in
accordance with Section 3.4(h)) to the affected Participants who
are Highly Compensated Employees as soon as practicable after the
end of such Plan Year, and in all events prior to the end of the
next following Plan Year.
If, by application of the provisions of the preceding paragraph,
excess Basic Salary Reduction Contributions are required to be
distributed to a Participant and 1 or more of his family members
(as set forth in Section 414(q) of the Code) whose Deferral
Percentages are required to be aggregated in accordance with
Section 3.4(e), the amount of the excess Basic Salary Reduction
Contributions (and income allocable thereto) to be distributed to
each such individual shall be determined by multiplying such
excess Basic Salary Reduction Contributions by a fraction, the
numerator of which is each such individual's Basic Salary
Reduction Contributions for the Plan Year, and the denominator of
which is the aggregate Basic Salary Reduction Contributions
contributed on behalf of the Participant and his family member(s)
for the Plan Year.
(h) Income on a Participant's excess Basic Salary Reduction
Contributions for the Plan Year in which such excess occurs and
for any period thereafter prior to the distribution thereof shall
be determined in the manner provided for in Article V.
(i) Notwithstanding any distributions pursuant to the provisions of
this Section 3.4, excess Basic Salary Reduction Contributions
shall be treated as Annual Additions for purposes of Section 4.2.
(j) Distributions pursuant to this Section 3.4 shall be made
proportionately from the Investment Funds with respect to the
Participant's Account or Accounts from which distribution is
made.
(k) In the event that an Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the Plan,
such Qualified Contribution, to the extent specified, shall be
treated as a Basic Salary Reduction Contribution solely for
purposes of this Section 3.4.
(l) The Administrative Committee may, in its sole discretion, elect
to use any combination of the methods described in this Section
3.4 to satisfy the limitations contained herein; provided,
however, that such combination of methods shall be applied in a
uniform and nondiscriminatory manner.
(m) The Administrative Committee also shall take all appropriate
steps to meet the aggregate limitation test contained in Section
4.4.
3.5 Distributions of Excess Deferrals:
----------------------------------
(a) Notwithstanding any other provision of the Plan, Excess Deferrals
(as hereinafter defined), plus any income and minus any loss
allocable thereto for both the calendar year and the "gap period"
between the end of the calendar year and the date the
distribution is made (determined in the same manner as the method
set forth in Section 3.4(h)), shall be distributed to
Participants who claim such allocable Excess Deferrals, such
distribution to occur no later than April 15 of the calendar year
following the calendar year in which the excess occurred.
(b) For purposes of this Section 3.5, "Excess Deferrals" shall mean
the amount of a Participant's Basic Salary Reduction
Contributions (and other "elective deferrals" within the meaning
of Section 402(g)(3) of the Code) for a calendar year that the
Participant allocates to this Plan pursuant to the claim
procedure set forth in Section 3.5(c) hereof.
(c) A Participant may make a claim for the distribution of Excess
Deferrals pursuant to the terms and conditions of this Section
3.5(c). Such Participant's claim shall be in writing; shall be
submitted to the Administrative Committee no later than March 1
of the calendar year following the calendar year of the Excess
Deferrals; shall specify the amount of the Participant's Excess
Deferrals for the preceding calendar year; and shall be
accompanied by (i) the Participant's written statement that if
such amounts are not distributed, such Excess Deferrals, when
added to other "elective deferrals" within the meaning of Section
402(g)(3) of the Code, exceed the limit imposed on the
Participant in accordance with the applicable provisions of the
Code for the year in which the deferral occurred, and (ii) such
documentation as the Administrative Committee, in its sole
discretion, shall require to substantiate the Participant's
written statement. The Administrative Committee may, on a uniform
and nondiscriminatory basis, automatically deem the Participant
to have made a claim for a distribution of Excess Deferrals if
such excess arises by taking into account only those elective
deferrals made to this Plan and any other plans of an Employer.
(d) The Excess Deferrals distributed to a Participant with respect to
a calendar year shall be adjusted for income and, if there is a
loss allocable to the Excess Deferrals, shall in no event exceed
the lesser of the Participant's Basic Salary Reduction
Contributions Account under the Plan or the Participant's Basic
Salary Reduction Contributions for the year.
(e) Excess Deferrals shall be treated as annual additions under the
Plan, unless such amounts are distributed no later than the first
April 15th following the close of the Participant's taxable year
in which such excess occurred.
3.6 Coordination of Excess Amounts under Sections 401(k) and 402(g)
of the Code:
---------------------------------------------------------------
(a) The amount of excess Basic Salary Reduction Contributions to be
distributed under Section 3.4 with respect to a Participant for
the Plan Year shall be reduced by any Excess Deferrals previously
distributed to such Participant under Section 3.5 for the
Participant's taxable year ending with or within such Plan Year.
(b) The amount of Excess Deferrals that may be distributed under
Section 3.5 with respect to a Participant for a taxable year
shall be reduced by any excess Basic Salary Reduction
Contributions previously distributed to such Participant for the
Plan Year beginning with or within such taxable year.
3.7 Rollover Contributions
----------------------
(a) Under such rules and procedures as the Administrative Committee
may establish, any Eligible Employee may contribute to the Plan
in cash (or any other property acceptable to the Administrative
Committee and the Trustee) all or a portion of the amount
received from an Eligible Retirement Plan (within the meaning of
Section 9.11) provided such amount qualifies as an Eligible
Rollover Distribution (within the meaning of Section 9.11). Such
amount must be in the form of a direct rollover (within the
meaning of Section 9.11). Before accepting any rollover
contribution from an Eligible Employee, the Administrative
Committee shall determine to its satisfaction that such
contribution does not contain amounts from sources other than
those provided by this Section 3.7. In making such determination,
the Administrative Committee may require the Eligible Employee to
provide such evidence as may reasonably be necessary to establish
that the amounts to be rolled-over meet the requirements of this
Section.
(b) Any rollover contribution made pursuant to the provisions of this
Section 3.7 shall be deposited into a separate account for such
Eligible Employee (his "Rollover Account") to which shall be
credited the investment earnings and losses attributable thereto.
An Eligible Employee shall be 100% vested in his Rollover Account
at all times. Notwithstanding any provision of Section 7.2 of the
Plan to the contrary:
(i) an Eligible Employee electing a rollover shall specify, at
or prior to the time the rollover contribution is made, the
manner in which the amounts rolled over shall be invested in
each Investment Fund offered under the Plan; such investment
election shall specify, in 5% increments from 0% to 100%,
the percentage of the Eligible Employee's rollover
contribution to be invested in each Investment Fund;
(ii) prior to the date on which he becomes a Participant
hereunder, an Eligible Employee who has made a rollover
contribution shall have the opportunity to change the manner
in which the Rollover Account is invested; such opportunity
shall be equivalent to that available to a Participant with
respect to the Accounts maintained on such Participant's
behalf.
(c) An Eligible Employee who makes a rollover contribution, but which
is not otherwise eligible for membership in accordance with
Section 2.1 or Appendix A, shall not be entitled to make
contributions under Article III, or share any Employer
contribution allocated in accordance with Article IV or Article
XVI.
(d) The Administrative Committee may promulgate specific rules and
regulations governing all aspects of this Section.
<PAGE>
ARTICLE IV
COMPANY CONTRIBUTIONS
---------------------
4.1 Amount of Company Contributions:
--------------------------------
(a) Except as otherwise provided in an Appendix hereto, as of each
pay period each Employer shall make Company Matching
Contributions to the Plan on behalf of each Participant who is an
Eligible Employee of such Employer, in an amount which, when
added to forfeitures, if any, equals 50 percent of the
Participant's Basic Salary Reduction Contributions for such pay
period that are not in excess of six percent of the Participant's
Compensation for such pay period. Company Matching Contributions
shall be made in cash.
(b) For any Plan Year, an Employer may contribute such additional
amounts as it shall determine. Such additional matching
contributions shall be allocated to Participants who are Eligible
Employees of such Employer in the same proportion that the Basic
Salary Reduction Contributions of each such Participant for such
Plan Year bears to the aggregate Basic Salary Reduction
Contributions of all such Participants for such Plan Year, taking
into consideration only that portion of each such Participant's
Basic Salary Reduction Contributions which does not exceed six
percent of such Participant's Compensation for each payroll
period during such Plan Year.
4.2 Limitation on Annual Additions:
-------------------------------
Notwithstanding anything herein to the contrary, in no event shall the
Annual Addition (as hereinafter defined) with respect to any
Participant in any Plan Year exceed the lesser of (i) 25 percent of
the Participant's IRC 415 compensation (as described in Section
415(c)(3) of the Code), or (ii) $30,000, or such greater amount as is
permissible under Section 415(c)(1)(A), subject to any adjustment
under Section 415(d) of the Code.
For purposes of this Section 4.2, with respect to each Plan Year, the
term "Annual Addition" with respect to any Participant means the sum
of:
(i) Basic Salary Reduction Contributions made in accordance with
Section 3.1;
(ii) Company Matching Contributions made in accordance with Section
4.1;
(iii) Qualified Contributions made in accordance with Section 4.5;
(iv) Forfeitures, if any;
(v) Employee after-tax contributions to a tax-qualified plan
sponsored by any member of the Group; and
(vi) Amounts described in Code Sections 415(l)(1) and 419A(d)(2).
If a Participant is also participating in another tax-qualified
defined contribution plan maintained by any member of the Group, the
otherwise applicable limitation on Annual Additions under this Plan
shall be reduced by the amount of annual additions (within the meaning
of Section 415(c)(2) of the Code) under any such other defined
contribution plan.
With respect to any Plan Year beginning before January 1, 2000, if a
Participant in this Plan is a participant in any qualified defined
benefit plan maintained by any member of the Group, the overall
limitation of Section 415(e) of the Code shall be complied with by
limiting the amount of Annual Additions to all defined contribution
plans maintained by any member of the Group, including this Plan, to
such person.
If the limitations applicable to any Participant in accordance with
this Section 4.2 would be exceeded, the contributions made by or on
behalf of a Participant under the Plan shall be reduced in the
following order, but only to the extent necessary to meet the
limitations: (i) after-tax contributions made to any tax-qualified
plan sponsored by a member of the Group, (ii) Basic Salary Reduction
Contributions to the extent not matched by Company Matching
Contributions, (iii) Basic Salary Reduction Contributions to the
extent matched by Company Matching Contributions, (iv) Company
Matching Contributions made pursuant to Section 4.1, and (v) Qualified
Contributions made pursuant to Section 4.5.
In the event that, notwithstanding the foregoing provisions of this
Section 4.2, the limitations with respect to Annual Additions
prescribed hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of an error in estimating
Compensation, the allocation of forfeitures, if any, or a reasonable
error in determining the amount of Basic Salary Reduction
Contributions:
(i) The after-tax contribution and Basic Salary Reduction
Contribution portions of such excess shall be returned to the
Participant, along with any income attributable thereto; and
(ii) The Company Matching Contribution portion shall be held in a
suspense account and shall be used to reduce Company Matching
Contributions for all Participants in the Plan Year, and all
succeeding years, as necessary.
4.3 Limitation on Company Matching Contributions:
---------------------------------------------
(a) Notwithstanding the foregoing provisions of Article III and this
Article IV, the Administrative Committee shall limit the amount
of Company Matching Contributions made on behalf of each Highly
Compensated Employee who is eligible to participate in the Plan
for each Plan Year, to the extent necessary to ensure that either
of the following tests is satisfied:
(i) the "Actual Contribution Percentage" (as hereinafter
defined) for the group of Eligible Employees who are Highly
Compensated Employees, is not more than the Actual
Contribution Percentage of all other Eligible Employees
multiplied by 1.25; or
(ii) the excess of the Actual Contribution Percentage for the
group of Eligible Employees who are Highly Compensated
Employees, over that of all other Eligible Employees is not
more than 2 percentage points, and the Actual Contribution
Percentage for the group of Eligible Employees who are
Highly Compensated Employees is not more than the Actual
Contribution Percentage of all other Eligible Employees
multiplied by 2.0.
(b) For purposes of this Section 4.3, the term "Actual Contribution
Percentage" shall mean, for any specified group of Eligible
Employees, the average of such Employees' Contribution
Percentages (as defined below).
(c) For purposes of this Section 4.3, the term "Contribution
Percentage" shall mean for any Eligible Employee, the ratio of:
(i) the Company Matching Contributions which, in accordance with
the rules set forth in Treasury Regulation Section
1.401(m)-1(b)(4), are taken into account with respect to
such Plan Year; to
(ii) such Employee's Section 414(s) compensation for such Plan
Year. For this purpose, Section 414(s) compensation shall
mean W-2 compensation as described in Treasury Regulation
Sections 1.414(s)-1(c)(2) and 1.415-2(d)(11), and shall also
include all amounts currently not included in the Employee's
gross income by reason of Sections 125 and 402(e)(3) of the
Code. In the case of an Employee who begins, resumes, or
ceases to be eligible to have Company Matching Contributions
made on his behalf during a Plan Year, the amount of Section
414(s) compensation included in the Actual Contribution
Percentage test is the amount of Section 414(s) compensation
received by the Employee during the entire Plan Year.
(d) The Contribution Percentage for a Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
make after-tax contributions, or to have matching employer
contributions (within the meaning of Section 40l(m)(4)(A) of the
Code) made on his behalf under 2 or more plans described in
Section 40l(a) of the Code that are maintained by the Company, or
other member of the Group, shall be determined as if the total of
such after-tax contributions and matching employer contributions
were made under a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under Treasury Regulations.
If the Plan is permissibly aggregated or is required to be
aggregated with other plans having the same plan year, as
provided under Treasury Regulation Section 1.401(m)-1(b)(3) for
purposes of determining whether or not such plans satisfy
Sections 401(m), 401(a)(4), and 410(b) of the Code, then the
provisions of this Section 4.3 shall be applied by determining
the Actual Contribution Percentage of Employees who are eligible
to participate in the Plan as if all such plans were a single
plan.
(e) For Plan Years beginning before January 1, 1997, in determining
the Contribution Percentage of a Participant who is a Highly
Compensated Employee, Company Matching Contributions and Section
414(s) compensation of such Participant shall, to the extent
required under Treasury Regulation Section
1.401(m)-1(f)(1)(ii)(C), reflect the Company Matching
Contributions made by and on behalf of, and the Section 414(s)
compensation of, any individual who is a family member (as set
forth in Section 414(q) of the Code). The Contribution Percentage
obtained by such aggregation shall be combined with the
Contribution Percentages of the applicable group of Highly
Compensated Employees in determining the Actual Contribution
Percentage for such group. Any Participant or family member whose
Contribution Percentage is so aggregated shall not have his
Contribution Percentage separately taken into account with
respect to any group of Employees in determining the Actual
Contribution Percentage for such group.
(f) In the event the Administrative Committee determines prior to any
payroll period that the amount of Company Matching Contributions
to be made thereafter is likely to cause the limitation
prescribed in this Section 4.3 to be exceeded, the Administrative
Committee, in its discretion, may reduce the amount of such
contributions allowed to be made by or on behalf of Participants
who are Highly Compensated Employees (and/or such other
Participants as the Administrative Committee may prescribe) to a
rate determined by the Administrative Committee (including a rate
of 0 percent if the Administrative Committee so determines).
Except as is hereinafter provided, the Participants to whom such
reduction is applicable and the amount of such reduction shall be
determined pursuant to such uniform and nondiscriminatory rules
as the Administrative Committee shall prescribe.
(g) Notwithstanding the foregoing, with respect to any Plan Year in
which Company Matching Contributions made on behalf of
Participants who are Highly Compensated Employees exceed the
applicable limit set forth in Section 4.3(a), the Administrative
Committee may reduce, to the extent necessary to comply with the
limitations prescribed in this Section 4.3, the amount of Company
Matching Contributions made on behalf of the Participants who are
Highly Compensated Employees (by reducing such Company Matching
Contributions, for Plan Years beginning before January 1, 1997,
in the order of the Contribution Percentages beginning with the
highest or, for Plan Years beginning on and after January 1,
1997, in the order of Company Matching Contribution amounts
beginning with the largest), and distribute such excess Company
Matching Contributions, to the extent then vested, (along with
income attributable to such vested excess contributions, as
determined pursuant to Section 4.3(h)) to the affected
Participants who are Highly Compensated Employees as soon as
practicable after the end of such Plan Year, and in all events
prior to the end of the next following Plan Year. The amount of
excess Company Matching Contributions that are not vested shall
be forfeited, and shall be held in a suspense account and used to
reduce the Employer's future Company Matching Contributions.
If, by application of the provisions of the preceding paragraph,
excess Company Matching Contributions are to be distributed to a
Participant and one or more of his family members (as set forth
in Section 414(q) of the Code) whose Contribution Percentages are
required to be aggregated in accordance with Section 4.3(e), the
amount of the excess Company Matching Contributions (and income
allocable thereto) to be distributed to each such individual
shall be determined by multiplying such excess Company Matching
Contributions by a fraction, the numerator of which is each such
individual's Company Matching Contributions for the Plan Year,
and the denominator of which is the Company Matching
Contributions contributed by or on behalf of the Participant and
the family member(s) for the Plan Year.
(h) Income on excess Company Matching Contributions for the Plan Year
in which such excess occurs and for any period thereafter prior
to the distribution thereof shall be determined in the manner
provided for in Article V.
(i) Notwithstanding any distributions pursuant to the foregoing
provisions, excess Company Matching Contributions shall be
treated as Annual Additions for purposes of Section 4.2.
(j) Distributions pursuant to this Section 4.3 shall be made
proportionately from the Investment Funds with respect to the
Participant's Account or Accounts from which distribution is
made.
(k) In the event that the Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the Plan,
any such Qualified Contribution, to the extent specified, shall
be treated as a Company Matching Contribution solely for purposes
of this Section 4.3.
(l) In determining whether the requirements of this Section 4.3 are
satisfied, the Administrative Committee may in its discretion, in
accordance with regulations, take into account Participants'
Basic Salary Reduction Contributions made to the Plan pursuant to
Section 3.1; provided that such contributions are not taken into
account in order to satisfy the requirements of Section 3.4.
(m) The Administrative Committee may, in its sole discretion, elect
to use any combination of the methods described in this Section
4.3 to satisfy the limitations contained herein; provided,
however, that such combination of methods shall be applied in a
uniform and nondiscriminatory manner.
(n) The Administrative Committee shall also take all appropriate
steps to meet the aggregate limitation test contained in Section
4.4.
4.4 Aggregate Limitation:
---------------------
Any other provision of the Plan to the contrary notwithstanding, the
provisions of this Section 4.4 shall apply if the conditions of both
(a) and (b) below are satisfied:
(a) the sum of (i) the "Actual Deferral Percentage" (as defined in
Section 3.4) for the group of Eligible Employees who are Highly
Compensated Employees and (ii) the "Actual Contribution
Percentage" (as defined in Section 4.3) for such group of Highly
Compensated Employees exceeds the "Aggregate Limit" (as
hereinafter defined); and
(b) both (i) the Actual Deferral Percentage for the group of Eligible
Employees who are Highly Compensated Employees exceeds 125
percent of the Actual Deferral Percentage of all other Eligible
Employees and (ii) the Actual Contribution Percentage of such
group of Highly Compensated Employees exceeds 125 percent of the
Actual Contribution Percentage of all such other Employees.
The term "Aggregate Limit" means the greater of the sum of (i)
and (ii) below or the sum of (iii) and (iv) below:
(i) 125 percent of the greater of (1) the Actual Deferral
Percentage of the group of Eligible Employees who are not
Highly Compensated Employees, or (2) the Actual Contribution
Percentage of the group of Eligible Employees who are not
Highly Compensated Employees, and
(ii) 2 plus the lesser of (i)(1) or (i)(2) above (but in no event
more than 200 percent of the lesser of (i)(1) or (i)(2)
above).
(iii)125 percent of the lesser of (1) the Actual Deferral
Percentage of the group of Eligible Employees who are not
Highly Compensated Employees, or (2) the Actual Contribution
Percentage of the group of Eligible Employees who are not
Highly Compensated Employees, and
(iv) 2 plus the greater of (iii)(1) or (iii)(2) above (but in no
event more than 200 percent of the greater of (iii)(1) or
(iii)(2) above).
(c) If the Actual Deferral Percentage and/or Actual Contribution
Percentage for the group of Eligible Employees who are Highly
Compensated Employees, determined after any corrective
distribution of excess amounts in accordance with the provisions
of Sections 3.4 and 4.3 have been effectuated, exceeds an amount
which would cause the limits set forth in the foregoing
provisions of this Section 4.4 to be exceeded, first the amount
of Basic Salary Reduction Contributions and then the amount of
Company Matching Contributions shall be reduced, in the same
manner and at the same time as such contributions are reduced in
accordance with Sections 3.4 and 4.3, but only to the extent
necessary to bring the Plan into compliance with the applicable
limits set forth in this Section 4.4.
(d) In determining whether the requirements of this Section 4.4 are
satisfied, the Administrative Committee may in its discretion, in
accordance with regulations, take into account Participants'
Basic Salary Reduction Contributions made to the Plan pursuant to
Section 3.1; provided that such contributions are not taken into
account in order to satisfy the requirements of Section 3.4.
4.5 Qualified Contributions:
------------------------
An Employer may, in its sole discretion, make a Qualified Contribution
in order to satisfy the requirements of Section 3.4 or 4.3. A
Qualified Contribution is a contribution that (i) is made by the
Employer that may be aggregated with other contributions in accordance
with Sections 3.4 and 4.3; (ii) is nonforfeitable at all times; (iii)
may not be distributed to a Participant or any Beneficiary until the
earliest date provided for in Section 401(k)(2)(B) of the Code
(determined without regard to subsection (i)(IV) of such Section) and
(iv) complies with the requirements of Treasury Regulation Section
1.401(k)-1(b)(5).
A Qualified Contribution may take the form of a qualified matching
contribution (as defined in Treasury Regulation Section
1.401(k)-1(g)(13)(i)), or a qualified nonelective contribution (as
defined in Treasury Regulation Section 1.401(k)-1(g)(13)(ii)). The
Employer shall specify the form of the Qualified Contribution, and the
Participants to whom such contribution is to be allocated.
4.6 Return of Contributions:
------------------------
Notwithstanding any provision of the Plan to the contrary, a
contribution (or part thereof) made to the Plan by an Employer shall
be returned to that Employer if:
(a) the contribution is made by reason of mistake of fact; or
(b) the contribution is not currently deductible under Section 404 of
the Code;
provided that such return of contribution is made within one year
after the mistaken payment of the contribution or the disallowance of
the tax deduction, as the case may be.
<PAGE>
ARTICLE V
VALUATION OF ACCOUNTS
---------------------
5.1 Maintenance of Accounts:
------------------------
The Administrative Committee shall separately maintain on behalf of
each Participant, where applicable, and shall separately account for
on a reasonable and consistent basis, a Basic Employee Contribution
Account, Basic Salary Reduction Contribution Account, Company Matching
Contribution Account, Qualified Contribution Account, Rollover
Account, and Supplemental Employee Contribution Account.
5.2 Valuation:
----------
As of each Valuation Date, the Administrative Committee shall cause to
be adjusted the Basic Employee Contribution Account, Basic Salary
Reduction Contribution Account, Company Matching Contribution Account,
Qualified Contribution Account, Rollover Account, and Supplemental
Employee Contribution Account for each Participant on whose behalf any
such Account is maintained to reflect his share of contributions
(including for this purpose contributions made after such Valuation
Date but credited as of such Valuation Date), withdrawals,
distributions, income, expenses payable from the Trust Fund (and
allocable to the Investment Funds in which the Participant's Accounts
are invested) and any increase or decrease in the value of such
Investment Funds since the preceding Valuation Date. The fair market
value on the Valuation Date is to be used for this purpose, and the
respective Accounts of Participants are to be adjusted in accordance
with the valuation.
The Administrative Committee reserves the right to change from time to
time the procedures used in valuing any one or more of the Accounts or
crediting and debiting any one or more of the Accounts if it
determines, after due deliberation and upon the advise of counsel
and/or the current recordkeeper, that such action is justified in that
it results in a more accurate reflection of the fair market value of
the Accounts. In the event of a conflict between the provisions of
Article V and such new administrative procedures, the new
administrative procedures shall prevail.
5.3 Valuation of Funds:
-------------------
The Administrative Committee shall determine the fair market value of
each Investment Fund as of the end of each Plan Year, and as soon as
practicable thereafter shall deliver or mail to each Participant or
Beneficiary a statement setting forth the fair market value of his
Account in each Investment Fund.
<PAGE>
ARTICLE VI
VESTING OF ACCOUNTS
-------------------
6.1 Vesting:
--------
A Participant shall always be 100 percent vested in the value of his
After-Tax Contribution Account, Basic Employee Contribution Account,
Basic Salary Reduction Contribution Account, Qualified Contribution
Account, and Rollover Account. Except as otherwise provided in an
Appendix hereto, a Participant shall be vested in his Company Matching
Contribution Account in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED INTEREST
------------------------ ---------------
Less than 3 years 0 percent
3 years or more 100 percent
Notwithstanding any other provision of Article VI, Employees
participating in the Plan shall become fully vested in Company
Matching Contributions credited to their Accounts at:
(a) Normal Retirement Age;
(b) Early Retirement Date;
(c) the time they incur a Disability;
(d) death;
(e) termination of the Plan; or
(f) termination of employment due to the closing or divestment
(including the closing of a plant or facility) of an Employer
(but only with respect to Eligible Employees of such Employer).
Notwithstanding the foregoing, if a Participant who is not fully
vested has a 1-year Period of Severance and is subsequently rehired by
an Employer, his Years of Vesting Service shall be computed by adding
(i) his Years of Vesting Service earned prior to his Reemployment
Commencement Date to (ii) his Years of Vesting Service that he accrues
subsequent to his Reemployment Commencement Date, provided that the
Participant's Period of Severance is shorter than the greater of (i) 5
years, or (ii) the aggregate number of Years of Vesting Service earned
prior to his termination date. If the Participant's Period of
Severance equals or is longer than the greater of (i) 5 years, or (ii)
the aggregate number of Years of Vesting Service earned prior to his
termination date, his Years of Vesting Service earned prior to his
initial date of termination shall be ignored for all purposes.
6.2 Treatment of Forfeitures:
-------------------------
In the event that a Participant terminates employment and is less than
100 percent vested in all Accounts, forfeitures of his non-vested
interest in the Company Matching Contributions Account shall be used
by the Employer to reduce future Company Matching Contributions.
Amounts shall be forfeited on the earlier of the date of the
distribution of his Vested Interest, or upon the fifth anniversary of
the Participant's Severance from Service.
6.3 Reinstatement of Accounts:
--------------------------
If a former Participant whose termination of employment resulted in a
forfeiture pursuant to Section 6.2 is re-employed by an Employer or
any member of the Group, the Participant may elect (upon giving 30
days' advance notice or such other period as may be prescribed by the
Administrative Committee) to repay the Trustee, in cash, the full
amount distributed to the Participant in accordance with Article IX
and such repayment shall be allocated to the Participant's Account. In
such event, the amount of the forfeiture (unadjusted by any gains or
losses) shall be restored and credited as of the Reemployment
Commencement Date to the Participant's Account in such manner as the
Administrative Committee shall deem appropriate pursuant to such
uniform and nondiscriminatory rules as it shall from time to time
prescribe.
If a distribution is a result of a termination of employment, the time
for repayment may not end before the earlier of 5 years after the
first Reemployment Commencement Date or the close of the first period
of 5 consecutive 1-year Periods of Severance commencing after the
distribution.
The amount of Company Matching Contributions, if any, which are
restored will be derived first from amounts forfeited and not yet
applied to reduce future Company Matching Contributions, and second,
if such amounts are not sufficient to make a full restoration, the
Employer shall make an additional contribution in the amount necessary
to complete the restoration. Years of Vesting Service completed with
respect to such restored amount shall also be restored.
<PAGE>
ARTICLE VII
INVESTMENT OF ACCOUNTS
----------------------
7.1 Investment of Accounts:
-----------------------
All contributions made to the Plan by or on behalf of a Participant
shall be invested in such Investment Fund or Funds which the
Administrative Committee, in its discretion, shall make available to
Participants, Beneficiaries and Eligible Employees. The Administrative
Committee may, at any time add to, subtract from, or replace
Investment Funds then being offered. The Administrative Committee
shall endeavor to provide Participants with the opportunity to obtain
sufficient information to make informed decisions regarding all
available Investment Funds.
A portion of an Investment Fund may be invested in short term
securities issued or guaranteed by the United States of America or any
agency or instrumentality thereof or any other investments of a short
term nature, including corporate obligations or participations therein
and through the medium of any common, collective or commingled trust
fund maintained by the Trustee which is invested principally in
property of the kind specified in this paragraph. A portion of an
Investment Fund may be maintained in cash.
7.2 Investment Elections:
---------------------
(a) When an Eligible Employee completes and returns the Appropriate
Form to become a Participant, he shall give Notice regarding the
investment of contributions made on his behalf under the Plan.
The Notice shall specify, in 5% increments from 0% to 100%, the
percentage of all future Basic Salary Reduction Contributions,
Company Matching Contributions, and Qualified Contributions (in
accordance with a single election to be applied uniformly to all
types of contributions) to be invested in each Investment Fund
which is then made available under the Plan.
A Participant may change the investment elections made under this
Section 7.2(a) at any time by giving Notice to the Administrative
Committee or its designee within such time and in accordance with
such means as are designated by the Administrative Committee and
communicated to Participants and Eligible Employees. Such Notice
of change shall be subject to the procedural specifications set
forth above (and, if applicable, subject to the limitations set
forth in Section 7.3) and, except as may otherwise be provided in
the Trust Agreement, shall be effective with respect to
contributions received by the Trustee (or otherwise deposited
into the Trust Fund) as of the Valuation Date on which the Notice
is received or as of the next following Valuation Date, in
accordance with procedures established by the Administrative
Committee, and communicated to Participants and Eligible
Employees.
(b) Each Participant and Beneficiary shall have the opportunity to
change the manner in which the Accounts maintained on his behalf
under the Plan is invested. Such opportunity shall be exercised
by giving Notice to the Administrative Committee or its designee
within such time and in accordance with such means as are
designated by the Administrative Committee and communicated to
Participants, Eligible Employees and affected Beneficiaries.
Subject to any minimum dollar limitation which may be established
by the Administrative Committee from time to time, such Notice
shall specify, in a whole dollar amount or in 1% increments from
0% to 100%, the dollar amount, or percentage of the total Account
maintained on behalf of the Participant or Beneficiary which is
to be invested in each Investment Fund then made available.
Except as may otherwise be set forth in the Trust Agreement, such
Notice shall be effective as of the Valuation Date on which the
Notice is received by the Trustee or as of the next following
Valuation Date, in accordance with procedures established by the
Administrative Committee and communicated to Participants,
Eligible Employees and affected Beneficiaries. Notwithstanding
any provision of this Section 7.2(b) to the contrary, (i) the
election hereunder shall be subject to any contractual
limitations imposed on the direct transfer of assets between
given Investment Funds and (ii) in no event shall a Participant
or Beneficiary be permitted to effect a change in the investment
of his total Account to the extent that the investment change
would contradict any limitation then in effect on transfers into
or out of the Mettler Toledo Stock Fund that has been established
by the Administrative Committee, in its discretion, and
communicated to Participants and Beneficiaries.
(c) Any investment elections or changes in elections under this
Section 7.2 may be limited or delayed by the Administrative
Committee or Trustee, if, in the judgment of such party, giving
immediate effect to such elections would adversely affect the
Account balances of a significant number of Participants.
(d) In the event a Participant's or Beneficiary's investment election
is incomplete, the Participant or Beneficiary will be assumed to
have chosen to invest in such default fund as is set forth in the
Trust Agreement, or otherwise determined by the Administrative
Committee.
(e) Any investment election under the foregoing provisions of this
Section 7.2 shall remain in effect until changed by another
election under this Section.
(f) Each Participant, Eligible Employee and Beneficiary is solely
responsible for the selection of his investment option. The
Trustee, the Administration Committee, the Company, the Employer,
and the directors, officers, supervisors and other employees of
the Company and the Employer are not empowered to advise a
Participant, Eligible Employee or Beneficiary as to the manner in
which any portion of his Account shall be invested. The fact that
an investment option is available under the Plan shall not be
construed as a recommendation for investment in that investment
option.
7.3 Mettler Toledo Stock Fund:
--------------------------
The provisions of this Section shall become applicable to the extent
to which Participants' and Beneficiaries' Accounts under the Plan are
invested in the Mettler Toledo Stock Fund.
(a) The Administrative Committee shall make available under the Plan
an investment fund which shall consist exclusively of Common
Stock; provided, however, that in the discretion of the Trustee,
within guidelines set by the Administrative Committee, a portion
of such fund may be held in short-term interest-bearing
investments or cash pending purchase of Common Stock and to
provide sufficient liquidity for exchanges out of the fund,
withdrawals and loans. Such Investment Fund shall be referred to
as the "Mettler Toledo Stock Fund". Subject to any limitation on
contributions and/or transfers into or out of the Mettler Toledo
Stock Fund that the Administrative Committee may, in its
discretion, establish, a Participant or Beneficiary shall be
permitted to invest contributions made to the Plan on his behalf
and existing Accounts maintained under the Plan on his behalf in
the Mettler Toledo Stock Fund in accordance with the provisions
of Sections 7.2. Unless otherwise limited under the terms of the
Trust Agreement, the Trustee may, in its discretion, purchase or
sell Common Stock on the open market or by privately-negotiated
transaction; provided however, that any such purchase or sale
shall be made only in exchange for fair market value as
determined by the Trustee and, provided further, that no
commission shall be charged to or paid by the Plan with respect
to any purchase or sale of Common Stock between the Plan and a
party in interest (as defined in Section 3(14) of ERISA). Any
distributions, dividends or other income received by the Trustee
with respect to the Mettler Toledo Stock Fund shall be reinvested
by the Trustee in the Mettler Toledo Stock Fund. The
Administrative Committee shall provide, at such time and in such
manner as it shall determine in its discretion, whether share or
unit accounting be performed with respect to the Mettler Toledo
Stock Fund.
(b) The restrictions contained in this Section 7.3(b) shall apply to
that portion of the Accounts maintained on behalf of Participants
or Beneficiaries which are invested in the Mettler Toledo Stock
Fund and, if and to the extent necessary, any election made by a
Participant or Beneficiary under the Plan shall be deemed
modified to be consistent with this Section 7.3(b).
Notwithstanding the provisions of Section 7.2, and Articles VIII
and XV:
(i) No Participant or Beneficiary shall, on the basis of
material nonpublic information with respect to the Company
or its affiliates, make an election permitted by that
Section or those Articles if (1) such election would result
in an exchange into or out of, loans from, withdrawals from,
or an increase or decrease in the amount of contributions to
the Mettler Toledo Stock Fund, and (2) the transaction
resulting from such election is prohibited by Rule 10b-5.
(ii) No officer shall make an election permitted by that Section
or those Articles if such election would result in a
transaction involving the Mettler Toledo Stock Fund which is
not an exempt transaction pursuant to Rule 16b-3.
For purposes of this Section 7.3(b), the terms "Rule 10b-5" and
"Rule 16b-3" shall mean the rules, as amended, having those
designations promulgated by the United States Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, and the terms "affiliate" and "officer" shall
have the meanings set forth in Rule 12b-2 and Rule 16a-1(f),
respectively, both as so promulgated and amended.
7.4 Voting of Common Stock:
-----------------------
(a) Each Participant, Eligible Employee or Beneficiary who has an
Account maintained on his behalf with an investment in the
Mettler Toledo Stock Fund shall have the following powers and
responsibilities:
(i) Prior to each annual or special meeting of the shareholders
of Mettler-Toledo International Inc. ("MTI"), MTI shall
cause to be sent to each person described in Section 7.4(a),
a copy of the proxy solicitation material for such meeting,
together with a form requesting confidential voting
instructions for the voting of the Common Stock held in the
Mettler Toledo Stock Fund in proportion to the number of
units of the Mettler Toledo Stock Fund held by such a
person's Accounts or, if applicable, the number of full
shares of Common Stock credited under the Mettler Toledo
Stock Fund to such a person's Accounts. Upon receipt of such
a person's instructions, the Trustee shall then vote in
person, or by proxy, such Common Stock as so instructed.
(ii) MTI shall cause the Trustee to furnish, as soon as
practicable after receipt by the Trustee, to each person
described in Section 7.4(a), notice of any tender or
exchange offer for, or a request or invitation for tenders
or exchanges of, Common Stock made to the Trustee. The
Trustee shall request from each such person instructions as
to the tendering or exchanging of Common Stock held in the
Mettler Toledo Stock Fund in proportion to the number of
units of the Mettler Toledo Stock Fund held by such a
person's Accounts or, if applicable, the number of full
shares of Common Stock credited under the Mettler Toledo
Stock Fund to such a person's Accounts. Within the time
specified by the notice of any tender or exchange offer for,
or request or invitation for tenders or exchanges of, Common
Stock, the Trustee shall tender or exchange such Common
Stock as to which the Trustee has received instructions to
tender or exchange from the persons described in Section
7.4(a).
(iii)Instructions received from the persons described in Section
7.4(a) by the Trustee regarding the voting, tendering, or
exchanging of Common Stock held in the Mettler Toledo Stock
Fund shall be held in strictest confidence and shall not be
divulged to any other person, including directors, officers
or employees of MTI and of the Company, except as otherwise
required by law, regulation or lawful process.
(b) The Trustee shall, in its discretion, vote Common Stock for which
the Trustee does not receive affirmative direction and shall, in
its discretion, determine whether to tender or exchange Common
Stock with respect to which the Trustee does not receive any
affirmative direction.
7.5 Voting of Shares in Residual Exxon Stock Fund:
----------------------------------------------
Before an annual or special meeting of its shareholders, Exxon
Corporation shall furnish, to each Participant who is participating in
the Investment Fund primarily invested in stock of the Exxon
Corporation ("Exxon Stock Fund") at such time, a proxy form with
related material and a request that the proxy be signed and returned.
Upon receipt of the signed proxy, the shares credited to the
Participant's Account in the Exxon Stock Fund shall be voted in the
manner directed. Any shares as to which no proxy is received may be
voted by the Trustee in its discretion.
<PAGE>
ARTICLE VIII
WITHDRAWALS DURING EMPLOYMENT
-----------------------------
8.1 Basic Withdrawals:
------------------
Subject to subsections (c), (d) and (e) below, a Participant may, by
filing the Appropriate Form with the Administrative Committee, elect
to withdraw amounts during employment in accordance with the following
order of withdrawal options; provided, however, that any Participant
electing a withdrawal from the options below shall be required to
exhaust all withdrawal possibilities under the options preceding the
withdrawal option elected:
(a) A Participant employed by an Employer who has attained age 59-1/2
may withdraw all or any portion of his Account in which he has a
Vested Interest.
(b) A Participant employed by an Employer who has not yet attained
age 59-1/2 may withdraw from his Accounts according to the
following schedule:
(i) On and after July 1, 1994, such a Participant who has made a
rollover contribution in accordance with Section 3.7 hereof
may withdraw all or any portion of his Rollover Account;
(ii) All or any portion of the employee after-tax contributions
made to the Prior Reliance Electric Plan or its predecessors
prior to October 1, 1983 (excluding earnings thereon);
(iii)All or any portion of the Participant's Basic Employee
Contribution Account and After-Tax Contribution Account;
(iv) All or any portion of the Participant's Company Matching
Contribution Account, provided that if such Participant has
participated in the Plan for less than five years such
amount shall not include Company Matching Contributions made
to the Plan within 24 months prior to the effective date of
the withdrawal;
(v) For Participants who suffer a Hardship (as defined in
Section 8.2), such portion of the Participant's Basic Salary
Reduction Contribution Account (excluding earnings credited
to such Account after December 31, 1988) as is permitted to
be withdrawn pursuant to Section 8.2.
(c) Withdrawals of a Vested Interest shall be made from the
Investment Funds maintained under the Plan in such order of
priority as the Administrative Committee, pursuant to a uniform
and nondiscriminatory policy, such direct.
(d) Withdrawals shall be effective as of the first day of the next
calendar year quarter provided the Appropriate Form has been
filed with the Administrative Committee at least thirty (30) days
prior to such quarterly date. Partial withdrawals from any of the
above categories may be made only in multiples of $100.
(e) For periods on and after July 1, 1994 and before January 1, 2000,
a Participant who withdraws any portion of his vested Accounts
under Section 8.1(b)(i) through (iv) above shall be suspended
from receiving an allocation of Company Matching Contributions
for a period of six months following the effective date of such
withdrawal. For periods on and after January 1, 2000, such
suspension of Company Matching Contribution allocations shall
apply only to a Participant who withdraws any portion of his
vested Account under Section 8.1(b)(iv). Except as provided in
the two preceding sentences and in Section 8.2(b) below, a
Participant exercising the withdrawal provisions of this Section
8.1 shall not have his participation in the Plan restricted on
account of such withdrawal.
8.2 Hardship Withdrawals:
---------------------
For purposes of this Plan, the term "Hardship" means a circumstance
resulting from an immediate and heavy financial need of the
Participant. The Administrative Committee shall not allow a Hardship
distribution to be made to a Participant unless the requirements of
subsections (a) and (b) below are satisfied:
(a) The Participant may incur a Hardship arising from one of the
following expenses:
(i) Medical expenses described in Section 213(d) of the Code
previously incurred by the Participant, the Participant's
spouse or dependents (as defined in Section 152 of the Code)
or necessary for these persons to obtain medical care
described in Section 213(d) of the Code;
(ii) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage payments
thereon);
(iii)The cost of tuition and related educational fees for the
next 12 months of post-secondary education for the
Participant, the Participant's spouse, children, or
dependents; or
(iv) The amount needed to prevent the eviction of the Participant
from his principal residence or foreclosure of a mortgage on
his principal residence.
(b) The distribution by reason of Hardship:
(i) May not be more than the amount of the Participant's
immediate and heavy financial need, provided, however, that
such need may include amounts necessary to pay income taxes
and penalties reasonably anticipated to result from the
distribution;
(ii) May not be made unless the Participant has obtained all
distributions, other than hardship distributions, and all
non-taxable loans that are currently available under all
qualified and nonqualified plans of all members of the
Group;
(iii)May not be made unless the Participant is suspended from
having Basic Salary Reduction Contributions and Company
Matching Contributions made on his behalf to the Plan (and
he is suspended from making employee contributions and
elective contributions to all other qualified and
nonqualified plans of deferred compensation, inclusive of
stock option, stock purchase, and similar plans maintained
by an Employer, excluding mandatory employee contributions
to a defined benefit plan or health or welfare benefit
plans) for the twelve month period beginning on the
effective date of the Hardship withdrawal pursuant to this
Section 8.2; and
(iv) Will result in a limitation on the amount of Basic Salary
Reduction Contributions which may be made on a Participant's
behalf under the Plan (and all other plans maintained by a
member of the Group) for the taxable year following the
taxable year of the Hardship distribution, with such
limitation being equal to the Code Section 402(g) limit for
such following taxable year less the amount of such
Participant's Basic Salary Reduction Contributions for the
taxable year of the Hardship distribution.
After the 12-month period of suspension under (b)(iii) above
ceases, the Participant may resume contributions hereunder by
completing and returning the Appropriate Form in accordance with
Section 2.2.
The determination of the existence of a Hardship and the determination
of the amount required to be distributed to meet the need created by
the Hardship shall be made by the Administrative Committee pursuant to
uniform and nondiscriminatory rules, consistent with the requirements
of the Code and applicable regulations. The Administrative Committee
may require documentation from the Participant for this purpose. The
Administrative Committee shall reasonably rely on the documentation
submitted by the Participant, unless the Administrative Committee has
actual knowledge to the contrary.
The Company may, by amendment, change the conditions necessary to
obtain a Hardship withdrawal, or may modify or discontinue the
Hardship withdrawal provisions of this Plan, to the extent permitted
by applicable law or regulation.
8.3 Payment of Withdrawals:
-----------------------
Any amounts withdrawn under Sections 8.1 and 8.2 shall be paid to a
Participant in a lump sum in cash, as soon as practicable after the
Valuation Date as of which the withdrawal election is effective;
provided, however, that with respect to withdrawals made on or after
February 1, 2000, the withdrawal may be in the form of cash or, to the
extent all or a portion of the Participant's applicable Accounts are
invested in the Mettler Toledo Stock Fund, such amount shall be paid,
at the Participant's election, in either (i) whole units of Common
Stock (with fractional units being distributed in cash), (ii) cash, or
(iii) a combination of Common Stock and cash.
8.4 Values:
-------
All withdrawals under Sections 8.1 and 8.2 shall be based on the
values of Accounts as of the applicable Valuation Date referred to in
Section 8.1 and 8.2.
Notwithstanding the foregoing, the Administrative Committee may
require a valuation as of the Valuation Date following the date the
request for a withdrawal was received in the event that it determines
that, due to a decline in the market value of all Participants'
Accounts, it would be in the best interest of Participants and
Beneficiaries to use the later Valuation Date. The preceding sentence
shall not apply unless the Administrative Committee determines a fixed
period within which all withdrawal requests will be valued as of such
later Valuation Date, and announces such decision, and such period, to
all Participants.
<PAGE>
ARTICLE IX
DISTRIBUTION OF BENEFITS
------------------------
9.1 Amount of Distribution:
-----------------------
Upon a Participant's retirement, death, Disability, or other
termination of employment with the Company or any other Employer, the
Participant or his Beneficiary, as the case may be, shall be entitled
to a distribution of the Vested Interest in his Accounts, subject to
the following provisions of this Article IX. Notwithstanding anything
in this Section 9.1 to the contrary, Section 2.5 applies to a
Participant who ceases to meet the definition of an Eligible Employee
but continues to be in the employ of an Employer or other member of
the Group.
9.2 Payment of Distribution:
------------------------
(a) As soon as practicable upon his termination of employment for any
reason (including Disability or an Early Retirement Date) or the
occurrence of his Normal Retirement Date, a Participant shall be
eligible to elect payment of his Vested Interest. Payment shall
be made in a single lump sum distribution equal to the value of
his Vested Interest; provided, however, that effective January 1,
2000 and subject to the involuntary distribution provision of
Section 9.2(c), the Participant may elect payment of his Vested
Interest in the form of substantially equal periodic installments
over a period not in excess of his life expectancy.
Notwithstanding the foregoing, any person who has satisfied the
service requirements for Early Retirement, but terminates
employment prior to attaining the age requirements set forth
therein shall nevertheless be entitled upon satisfaction of such
age requirements, to receive distribution of his Plan benefit in
the same manner as those persons who satisfy both the age and
service requirements for an Early Retirement benefit hereunder.
(b) The value of the Vested Interest in a Participant's Accounts
shall be determined as of the Valuation Date that authorized
distribution directions are received by the Trustee from the
Administrative Committee or its delegate. Such Valuation Date
shall follow the "Election Period" (as hereinafter defined);
provided, however, that a Participant or Beneficiary may
affirmatively elect an immediate account distribution determined
as of a Valuation Date which falls within the Election Period and
on which authorized distribution directions are received by the
Trustee from the Administrative Committee or its delegate. For
purposes hereof, the "Election Period" shall mean the 30-day
period commencing on the date on which the Administrative
Committee or its delegate provides the Participant or Beneficiary
with information regarding Plan distributions, including the
Participant's or Beneficiary's rights with respect to a
distribution in the form of a direct rollover and, if the Vested
Interest is in excess of the $5,000 threshold (or $3,500
threshold, if applicable) described in subsection (c) below and
the Participant has not attained age 70-1/2, the right of the
Participant to defer receipt of the distribution.
(c) If a Participant's Vested Interest as of the applicable Valuation
Date is not in excess of $5,000 ($3,500 for periods prior to
January 1, 2000) nor was, at the time of any prior distribution
date, in excess of such figure, distribution of such Vested
Interest shall be made as soon as practicable thereafter in a
lump sum in cash.
(d) A Participant who terminated employment and whose Vested Interest
may not be paid out under the preceding sentence must elect to
either have an immediate distribution of his Vested Interest or
to defer said distribution. If a Participant elects to defer said
distribution, the election may remain in effect until the date
stated in Section 9.6 (or as late as April 1 following the year
the individual attains age 70-1/2, if the Participant so elects);
provided, however, that subject to uniform administrative
procedures adopted by the Administrative Committee, such
Participant shall have the opportunity to elect an immediate
distribution of his Vested Interest as of any Valuation Date
after such election is made. If a Participant dies while in
deferred status, the Account will be distributed to the
Participant's Beneficiary in accordance with Section 9.8.
(e) All distributions shall be made in cash; provided, however, that
to the extent all or a portion of a Participant's Vested Interest
is invested in the Mettler Toledo Stock Fund, such amount shall
be paid, at the election of the Participant, in either (i) whole
units of Common Stock (with fractional units being distributed in
cash), (ii) cash, or (iii) a combination of Common Stock and
cash. In the event distribution is made in the absence of a
Participant's distribution election, that portion of an Account
that is invested in the Mettler Toledo Stock Fund at the time of
distribution shall be paid in cash.
(f) A Participant who terminates employment shall be given an
Appropriate Form, which must be filled out and returned to the
Company within 60 days after the termination. Failure to return
the form within 60 days after the Participant's termination will
result in his distribution being automatically deferred until the
effective date of a Participant's election to receive an
immediate distribution as described herein.
9.3 Deferred Accounts:
------------------
In any case in which a Participant has terminated employment but
distribution of his Accounts has not yet occurred, such Accounts shall
be retained and administered under the Plan until such Accounts are
distributed. Except as may otherwise be required by applicable law,
the Administrative Committee may establish and change from time to
time rules and restrictions applicable to the administration of any
Accounts held on behalf of any such Participants (which rules and
restrictions may differ from those generally applicable to active
Participants), and the Administrative Committee may assess against the
Accounts of any such Participant any reasonable costs of administering
the same. Notwithstanding the foregoing, in no event will such a
Participant be allowed to make withdrawals in accordance with Article
VIII from such Accounts which have been deferred.
9.4 Distribution Requirements Applicable to Basic Salary
Reduction Contributions:
----------------------------------------------------
Basic Salary Reduction Contributions and the income allocable thereto
shall in no event be distributed to a Participant or Beneficiary, as
the case may be, before the earlier of such Participant's retirement,
death, Disability, termination of employment, or before the occurrence
of one of the following events:
(a) Termination of the Plan without the establishment or maintenance
of a successor plan within the meaning of Treasury Regulation
Section 1.401(k)-1(d)(3).
(b) The disposition by an Employer to an unrelated corporation of
substantially all of the assets (within the meaning of Section
409(d)(2) of the Code) used in a trade or business of such
Employer if the Employer continues to maintain the Plan after the
disposition and such unrelated corporation that purchases the
assets does not maintain the Plan after the disposition, but
distribution may only be made with respect to Employees who
continue employment with the corporation acquiring such assets.
(c) The disposition by an Employer to an unrelated entity of such
Employer's interest in a subsidiary (within the meaning of
Section 409(d)(3) of the Code) if the Employer continues to
maintain the Plan and such unrelated entity that purchases the
subsidiary does not maintain the Plan after the disposition, but
distribution may only be made with respect to Employees who
continue employment with such subsidiary.
(d) The attainment by the Participant of age 59-1/2.
(e) The Participant's Hardship, as described in Section 8.2 of the
Plan.
With respect to a distribution to a Participant on account of an event
described in Sections 9.4(a), (b), or (c) above, such distribution
shall be paid in the form of a lump sum.
9.5 Alienation of Benefits:
-----------------------
Except as otherwise provided by law, no benefit, interest, or payment
under the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge,
whether voluntary or involuntary, and no attempt to so anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same
shall be valid nor shall any such benefit, interest, or payment be in
any way liable for or subject to the debts, contracts, liabilities,
engagements or torts of the person entitled to such benefit, interest,
or payment or subject to attachment, garnishment, levy, execution or
other legal or equitable process.
Notwithstanding the foregoing, the creation, assignment or recognition
of a right to any benefit payable with respect to a Participant
pursuant to a "qualified domestic relations order" (as defined in
Section 414(p) of the Code) shall not be treated as an assignment or
alienation prohibited by this Section 9.5. Any other provision of the
Plan to the contrary notwithstanding, if a qualified domestic
relations order requires the distribution of all or part of a
Participant's benefits under the Plan, the establishment or
acknowledgment of the alternate payee's right to benefits under the
Plan in accordance with the terms of such qualified domestic relations
order shall in all events be applied in a manner consistent with the
terms of the Plan. Notwithstanding the foregoing, in no event shall
the recognition of an alternate payee's rights in accordance with this
Section 9.5 be deemed to include the right to make a withdrawal
pursuant to the provisions of Article VIII or to receive any benefits
in the form of a partial payment.
Any Accounts maintained on behalf of an alternate payee in accordance
with this Section 9.5 shall in all events be invested in such
Investment Fund as the Administrative Committee may from time to time
specify.
Any other provision of the Plan to the contrary notwithstanding, the
Administrative Committee is authorized, pursuant to such uniform and
nondiscriminatory rules as it shall establish which shall be
consistent with applicable law and the terms of the applicable
qualified domestic relations order, to cash out benefits to which
alternate payees may be entitled prior to the date such benefits would
otherwise become payable in accordance with the applicable provisions
of the Plan.
9.6 Latest Commencement of Benefits:
--------------------------------
Unless a Participant otherwise elects, a Participant's benefits under
the Plan shall begin not later than the 60th day after the close of
the Plan Year in which the latest of the following events occur: (a)
the Participant attains age 65; (b) the 10th anniversary of the date
the Participant's participation in the Plan commences; (c) the
Participant's employment with the Company or any Employer is
terminated.
9.7 Mandatory Commencement of Benefits:
-----------------------------------
Subject to Proposed Treasury Regulation Section 1.401(a)(9)-1,
(a) a Participant who attains age 70-1/2 after December 31, 1987, or
who is a 5 percent owner (as defined in Section 416(i) of the
Code) at any time after the attainment of age 66-1/2, shall begin
to receive the value of his Accounts no later than the April 1 of
the calendar year following the calendar year in which such
Participant attains age 70-1/2. However, a Participant who
attained age 70-1/2 in 1988, is not a 5 percent owner, and who
had not retired by January 1, 1989, will be treated as having
attained age 70-1/2 on January 1, 1989 with April 1, 1990 being
the Participant's required beginning date;
(b) a Participant who attained age 70-1/2 prior to January 1, 1988
and who is not a 5 percent owner at any time after the attainment
of age 66-1/2, shall begin to receive the value of his Accounts
no later than the April 1 of the calendar year following the
later of (i) the calendar year in which the Participant attains
age 70-1/2, or (ii) his termination of employment with the
Company and any other Employer; and
(c) a Participant who attained age 70-1/2 prior to January 1, 1988,
and who becomes a 5 percent owner after the attainment of age
70-1/2, but prior to termination of employment, shall begin to
receive the value of his Accounts no later than the April 1 of
the calendar year following the calendar year in which such
Participant becomes a 5 percent owner.
Any payments under this Plan shall be adjusted to meet the
requirements of Section 401(a)(9) of the Code and the regulations
thereunder. Payments commencing on account of this Section 9.7 shall
be made in the form of a lump sum or, at the election of the
Participant and effective on and after January 1, 1997, in the form of
substantially equal installments over a designated period, not to
exceed the Participant's life expectancy as of the date payments
commence.
Notwithstanding any provision of the Plan to the contrary,
distributions made under this Section 9.7 shall be deemed to satisfy
any distribution options provided for in the Plan that are
inconsistent with Section 401(a)(9) of the Code. In addition, any
distribution required under the incidental death benefit rule of
Section 401(a)(9)(G) of the Code shall be treated as a distribution
required under this Section.
9.8 Death Benefits:
---------------
(a) If a Participant shall die before complete distribution of his
Vested Interest, the undistributed balance of such Vested
Interest shall be distributed to his Beneficiary.
(b) Before August 1, 1992, each Participant shall have the right from
time to time to file with the Administrative Committee:
(i) a designation of Beneficiary to receive death benefits, and
(ii) a direction to the Administrative Committee that the death
benefits are to be distributed to his Beneficiary in:
(A) a lump sum distribution, or
(B) in approximately equal annual installments over more
than one year but not more than 5 years.
(c) On and after August 1, 1992, and prior to July 1, 1994, each
Participant shall have the right from time to time to file with
the Administrative Committee a designation of Beneficiary to
receive death benefits. Upon the death of the Participant, the
Beneficiary may give a direction to the Administrative Committee
that the death benefits are to be distributed to him in:
(i) a lump sum distribution, or
(ii) in approximately equal annual installments over more than
one year but not more than 5 years.
(d) On or after July 1, 1994, each Participant shall have the right
from time to time to file with the Administrative Committee a
designation of Beneficiary to receive death benefits. Upon the
death of the Participant, the remaining balance of the
Participant's Vested Interest shall be distributed to his
Beneficiary in a lump sum. Such lump sum must be paid within five
years after the date of the Participant's death.
9.9 Distributions Upon Plan Termination or other Events:
----------------------------------------------------
Upon termination of the Plan, complete discontinuance of contributions
by Employers, or closing or divestment of any Employer (but only with
respect to Eligible Employees of such Employer), Vested Interests of
Participants shall be distributed at the time and in the manner as may
be decided on by the Administrative Committee upon rules that will be
uniformly and nondiscriminatorily applied.
9.10 Identity and Competence of Payees:
----------------------------------
If the Administrative Committee receives evidence satisfactory to it
that a person entitled to receive any benefit under the Plan is
physically or mentally incompetent to receive such benefit and to give
a valid release therefor, or is a minor, and that another person or an
institution is then maintaining or has custody of such person, unless
claim shall have been made therefor by a duly appointed guardian,
committee or other legal representative, the Administrative Committee
may authorize payment of such benefit to such other person or
institution and the release of such other person or institution shall
be a valid and complete discharge for the payment of such benefit.
Every person becoming entitled to any benefits under the Plan shall
furnish the Administrative Committee with such information as it may
require, including, but not limited to, proof of age relating to
himself and any person nominated as a Beneficiary.
9.11 Direct Rollover of Eligible Rollover Distribution:
--------------------------------------------------
Notwithstanding any provision of the Plan to the contrary a
Distributee may elect, subject to provisions adopted by the
Administrative Committee which shall be consistent with income tax
regulations, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover to such plan. For purposes of this
Section:
(a) The term "Distributee" shall mean an Employee or former Employee.
In addition, such an individual's surviving Spouse or such an
individual's spouse or former spouse who is an alternate payee
within the meaning of Section 414(p)(8) of the Code are
Distributees with respect to the interest of the spouse or former
spouse.
(b) The term "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the credit
of the Distributee other than: any distribution that is one of a
series of substantially equal periodic payments made for the life
(or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and his 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; for periods on and after January 1, 1999,
that portion of a Hardship withdrawal that is attributable to
Basic Salary Reduction Contributions; and the portion of any
distribution that is not includible in gross income.
(c) The term "Eligible Retirement Plan" shall mean an individual
retirement account or annuity, as described in Code Sections
408(a) and 408(b), respectively, 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 that Distributee's
Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to a surviving spouse, an
"Eligible Retirement Plan" is an individual retirement account or
annuity.
(d) The term "Direct Rollover" shall mean a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
<PAGE>
ARTICLE X
ADMINISTRATION OF THE PLAN
--------------------------
10.1 Plan Administrator:
-------------------
The Company shall be the "plan administrator" of the Plan within the
meaning of ERISA. Administration of the Plan shall be the
responsibility of the Company except to the extent that:
(a) Administrative responsibilities have been delegated to the
Administrative Committee in accordance with this Article X; and
(b) Authority to hold the Trust Fund of the Plan has been delegated
to the Trustee and authority to direct the investment and
reinvestment of the Trust Fund has been delegated to the
Administrative Committee; and
(c) Authority to act for the Company has otherwise been reserved to
the Board of Directors.
The Company shall be the "named fiduciary" for purposes of ERISA;
provided, however, that Participants and Beneficiaries with Accounts
maintained on their behalf under the Plan shall be considered "named
fiduciaries" solely to the extent of those fiduciary duties and
responsibilities which are directly related to the exercise of voting
rights with respect to Plan interests invested in the Mettler Toledo
Stock Fund (and not to other aspects of Plan operation and/or
administration).
10.2 Appointment of the Administrative Committee:
--------------------------------------------
The Administrative Committee shall consist of not less than three
persons appointed from time to time by the Board of Directors. The
members of the Administrative Committee shall serve at the pleasure of
the Board of Directors without compensation and without bond or other
security at the pleasure of such Board. Any member of the
Administrative Committee may resign by delivering his written
resignation to the Board of Directors.
The members of the Administrative Committee may appoint from their
number such committees with such powers as they shall determine; may
authorize one or more of their number or any agent to execute or
deliver any instrument or make any payment on behalf of the
Administrative Committee; and may retain counsel, employ agents and
obtain clerical, medical, actuarial and accounting services as the
Administrative Committee may require or deem advisable from time to
time. The Administrative Committee shall hold meetings upon notice, at
such place or places, and at such time or times as it may from time to
time determine.
A majority of the members of the Administrative Committee then in
office shall constitute a quorum for the transaction of business at
any meeting of the Administrative Committee. All action by the
Administrative Committee shall be taken at a meeting of the
Administrative Committee. The vote of a majority of the members
present at the time of the vote, if a quorum is present at such time,
shall be the act of the Administrative Committee. Any action required
or permitted to be taken at any meeting of the Administrative
Committee may be taken without a meeting, if a majority of the members
of the Administrative Committee consent thereto in writing.
Members of the Administrative Committee may be reimbursed for expenses
properly and actually incurred in the performance of their duties.
10.3 Powers of the Administrative Committee:
---------------------------------------
The Administrative Committee shall have sole and absolute discretion
to interpret and apply the provisions of the Plan to determine the
rights and status of Eligible Employees, Participants and all others
under the Plan, to decide disputes arising under the Plan, and to make
any determinations and findings of fact with respect to benefits
payable hereunder and the persons entitled thereto as may be required
for any purpose under the Plan. Without limiting the generality of the
above, the Administrative Committee is hereby granted the following
authority which it shall discharge in its sole and absolute discretion
in accordance with Plan provisions as interpreted by the
Administrative Committee:
(a) To make all determinations of fact relating to the eligibility of
any Employee to become a Participant, to make Basic Salary
Reduction Contributions, to receive allocations of Company
Matching Contributions and to receive distributions from the
Plan.
(b) To authorize the Trustee to make payment of benefits from the
Trust Fund to Participants and Beneficiaries entitled to such
benefits under the Plan and to establish procedures governing the
manner in which such authorizations will be made.
(c) To develop procedures for the establishment and verification of
service and Compensation of Participants, and, after affording
Participants and the Employer an opportunity to make objection
with respect thereto, to establish such facts conclusively from
time to time in advance of retirement.
(d) To obtain from the Employer, Participants and Beneficiaries such
information as shall be necessary for the proper administration
of the Plan.
(e) To establish rules and procedures relating to the administration
of the Plan and the transaction of its business and to enforce
the rules and procedures in the manner in which it sees fit.
(f) To retain counsel, employ agents and provide for such clerical,
accounting and consulting services as may be necessary or
appropriate in connection with the administration of the Plan.
(g) To perform all reporting and disclosure requirements imposed upon
the Plan by ERISA, the Code, the Securities Act of 1933, as
amended, the Securities and Exchange Act of 1934, as amended, or
any other lawful authority.
(h) To ensure that procedures are established which are sufficient to
safeguard the confidentiality of information relating to the
purchase, holding, and sale of Common Stock held in the Mettler
Toledo Stock Fund and the exercise of voting, tender, and similar
rights with respect to Common Stock held in the Mettler Toledo
Stock Fund and to ensure that such procedures are being followed.
(i) To appoint and remove an independent fiduciary for the purpose of
carrying-out activities relating to any situations which the
Administrative Committee determines involves an unreasonable
potential for undue Employer influence with regard to the direct
or indirect exercise of shareholder rights with respect to Common
Stock holdings in the Mettler Toledo Stock Fund.
(j) To take such steps as it, in its discretion, considers necessary
or appropriate to remedy any inequity under the Plan that results
from incorrect information received or communicated or as the
consequence of administrative error.
(k) To correct any defect, reconcile any inconsistency or supply any
omission under the Plan.
(l) To allocate among its members or, except as provided otherwise
herein, to delegate to other persons all or a portion of its
powers and duties as it sees fit.
(m) To exercise such other authority and responsibility as is
specifically assigned to it under the terms of the Plan and to
perform any other acts necessary to the performance of its powers
and duties.
All powers of the Administrative Committee shall be exercised in a
uniform manner consistent with all provisions of the Plan unless the
power is being exercised in order to correct or reconcile provisions
which are inconsistent. All decisions of the Administrative Committee,
including those regarding the facts of any case, the interpretation of
any provision of the Plan or its application to any case, and as to
any other interpretative matter or other determination or question
under the Plan shall be final and binding upon the Employer, Eligible
Employees, Participants, Beneficiaries and all other persons, subject
to the provisions of Section 10.5. Any action taken by the
Administrative Committee with respect to the rights or benefits of any
person under the Plan shall be revocable by the Administrative
Committee as to payments or distributions from the Trust Fund not
theretofore made pursuant to such action; and appropriate adjustments
may be made in future payments or distributions to a Participant or
Beneficiary to offset any excess payment or make up for any
underpayment previously made to such Participant or Beneficiary from
the Trust Fund. No ruling or decision of the Administrative Committee
in any one case shall create a basis for an adjustment in any other
case prior to the date of written filing of each specific claim.
10.04 Individual Accounts:
--------------------
The Administrative Committee shall maintain, or cause to be
maintained, records showing the individual balances in each Account
maintained on behalf of Participants and other persons under the Plan.
However, maintenance of those records and Accounts shall not require
any segregation of the funds of the Plan.
10.05 Claim Procedures:
-----------------
For purposes of the Plan, a claim for benefit is a written application
for benefit filed on an Appropriate Form with the Administrative
Committee. In the event that any Participant or other payee claims to
be entitled to a benefit under the Plan, and the Administrative
Committee determines that such claim should be denied in whole or in
part, the Administrative Committee shall, in writing, notify such
claimant within 90 days of receipt of such claim that his claim has
been denied, setting forth the specific reasons for such denial. Such
notification shall be written in a manner reasonably expected to be
understood by such Participant or other payee and shall set forth the
pertinent sections of the Plan relied on, and where appropriate, an
explanation of how the claimant can obtain review of such denial.
Within 90 days after the mailing or delivery by the Administrative
Committee of such notice, such claimant may request, by mailing or
delivery of written notice to the Administrative Committee, a review
and/or hearing by the Administrative Committee of the decision denying
the claim. If the claimant fails to request such a review and/or
hearing within such 90 day period, it shall be conclusively determined
for all purposes of this Plan that the denial of such claim by the
Administrative Committee is correct. If such claimant requests a
hearing within such 90 day period, the Administrative Committee shall
designate a time (which time shall be not less than 7 nor more than 60
days from the date of such claimant's notice to the Administrative
Committee) and a place for such hearing, and shall promptly notify
such claimant of such time and place. If only a review is requested,
the Participant or other payee shall have 30 days after filing a
request for review to submit additional written material in support of
the claim. After such review and/or hearing, the Administrative
Committee shall determine whether such denial of the claim was correct
and shall notify such claimant in writing of its determination. If
such determination is favorable to the claimant, it shall be binding
and conclusive. If such determination is adverse to such claimant, it
shall be binding and conclusive unless the claimant notifies the
Administrative Committee within 90 days after the mailing or delivery
to him by the Administrative Committee of its determination that he
intends to institute legal proceedings challenging the determination
of the Administrative Committee, and actually institutes such legal
proceeding within 180 days after such mailing or delivery.
10.6 Appointment of Accountant:
--------------------------
The Company shall engage a "qualified public accountant" to prepare
such audited financial statements of the operation of the Plan as
shall be required by ERISA.
10.7 Indemnification of Certain Persons:
-----------------------------------
The Company shall indemnify and hold harmless all present and future
fiduciaries of the Plan, including the Administrative Committee and
Trustee, from any and all liability imposed, whether individually or
jointly, under ERISA and under any similar legislation, with respect
to any action or omission as a fiduciary of the Plan, unless such
persons have knowingly participated in, or have knowingly undertaken
to conceal an act or omission knowing that such act or omission was a
breach of their fiduciary duty.
10.8 Special Withdrawal Period:
--------------------------
The Administrative Committee may, once a year, suspend the
requirements of Section 8.1 of the Plan to provide for a "special
withdrawal period" which shall be subject to the limitations of the
Plan and/or permit an additional increase or decrease in the
contribution rate as stated in Section 3.3 of the Plan.
10.9 Plan Expenses:
--------------
All reasonable expenses, taxes and fees of the Plan, the
Administrative Committee and the Trustee incurred in the
administration of the Plan and Trust Fund shall be paid from the Trust
Fund; provided, however that the obligation of the Trust Fund to pay
such expenses, taxes and fees shall cease to exist to the extent that
the same are paid, at the discretion of the Company, by the Employers.
<PAGE>
ARTICLE XI
OPERATION OF THE TRUST FUND
---------------------------
11.1 Trust Fund; Trustee:
--------------------
(a) All the funds of the Plan shall be held by a Trustee or Trustees
appointed from time to time by the Board of Directors, in trust
under a Trust Agreement adopted, or as amended, by such Board for
use in providing the benefits of the Plan and paying its
reasonable expenses not paid directly by any Employer; and no
part of the corpus or income of the Trust Fund shall be used for,
or diverted to, purposes other than for the exclusive benefit of
Participants or their beneficiaries under the Plan and for the
payment of the reasonable expense of the Plan, prior to the
satisfaction of all liabilities with respect to them, provided
that any forfeitures arising from termination of service or for
other reasons shall be used to reduce Employer contributions
otherwise payable, in accordance with Article VI. No person shall
have any interest in or right to any part of the earnings of the
Trust Fund or any rights in, or to, or under the Trust Fund or
any part of the assets thereof, except as and to the extent
expressly provided in the Plan and in the Trust Agreement.
(b) The Trustee or Trustees also shall conform to procedures
established by the Administrative Committee for disbursal of
funds of the Plan. The Trustee or Trustees shall not be liable
for any act performed while subject to directions of the
Administrative Committee made in accordance with the terms of the
Plan.
11.2 Appointment of Investment Manager:
----------------------------------
The Board of Directors may, in its discretion, appoint one or more
investment managers (within the meaning of Section 3(38) of ERISA) to
manage all or part of the assets of the Plan, including the power to
acquire and dispose of said assets, as the Board shall designate. In
that event, authority over and responsibility for the management of
the assets so designated shall be the sole responsibility of that
investment manager.
<PAGE>
ARTICLE XII
ADOPTION, AMENDMENT, TERMINATION AND MERGER
-------------------------------------------
12.1 Adoption of the Plan:
---------------------
The adoption of this Plan, and of any amendments thereof adopted
subsequently, shall be conditioned on qualification of the Plan under
Section 401(a) of the Code.
12.2 Right to Amend:
---------------
This Plan may be wholly or partially amended or otherwise modified at
any time by written instrument executed by the President or a Vice
President of the Company, provided, however, that:
(a) No amendment or modification may be made, at any time prior to
the satisfaction of all liabilities under the Plan with respect
to Participants and their beneficiaries and with respect to the
expenses of the Plan, which would permit any part of the corpus
or income of the Trust Fund to be used for or diverted to
purposes other than for the exclusive benefit of such persons
under the Plan and for the payment of the expenses of the Plan;
(b) No amendment or modification shall have any retroactive effect so
as to deprive any person of any benefit already accrued, except
that any amendment may be made retroactive which is necessary to
bring the Plan into conformity with governmental regulations in
order to qualify the Plan for tax purposes and meet the
requirements of ERISA; and
(c) No amendment or modification may be made which shall increase the
duties or liabilities of the Trustee, the Administrative
Committee or of any Employer without the written consent of the
party so affected.
12.3 Termination or Discontinuance of Contributions:
-----------------------------------------------
(a) The Plan may be terminated at any time by the Board of Directors
by written notice to the Employers, to the Administrative
Committee and to the Trustee at the time acting hereunder, but
only upon condition that such action is taken as shall render it
impossible for any part of the corpus or income of the Trust Fund
to be used for or diverted to purposes other than for the
exclusive benefit of the Participants and their Beneficiaries
under the Plan and for the payment of the administrative costs of
the Plan.
(b) If the Plan is terminated under Section 12.3(a) above or in the
event the Plan is deemed to be partially terminated with respect
to one or more groups of Eligible Employees, written notice of
such determination shall be given to the Employers, to the
Administrative Committee and to the Trustee at the time acting
hereunder, the Trust Fund shall be revalued as if the termination
date were the Valuation Date, and the current value of the
Account of each affected Participant who is then an Eligible
Employee shall become nonforfeitable, and shall be distributed in
accordance with Article IX to the extent permissible under
applicable law and regulations.
(c) If the Plan is terminated by the Board of Directors but the Board
of Directors determines that the Trust Fund shall be continued
pursuant to its terms and the provisions of this Section, no
further contributions shall be made by either Participants or any
Employer, but the Trust Fund shall be administered as though the
Plan were otherwise in full force and effect. If the Trust Fund
is subsequently terminated, the provisions of Section 12.3(b)
above shall then apply.
(d) In addition to the right to amend or terminate the Plan, any
Employer may at any time, by resolution of its board of
directors, discontinue any or all contributions under the Plan.
Unless additional action is taken by the Employer in connection
with a discontinuance of contributions to the Plan, it shall be
deemed that Section 12.3(c) is applicable.
12.4 Merger, Consolidation or Transfer:
----------------------------------
The Company may merge or consolidate the Plan with, transfer assets
and liabilities of the Plan to, or receive a transfer of assets and
liabilities from, any other plan without the consent of any other
Employer or other person if such merger, consolidation or transfer is
effectuated in accordance with applicable law and such other plan
meets the requirements of Sections 401(a) and 501(a) of the Code. No
merger or consolidation with, or transfer of assets or liabilities to,
any other plan, shall be made unless the benefit each Participant in
this Plan would receive if the Plan were terminated immediately after
such merger or consolidation, or transfer of assets and liabilities,
would be at least as great as the benefit he would have received had
the Plan terminated immediately before such merger, consolidation or
transfer.
<PAGE>
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 Uniform Administration:
-----------------------
Whenever, in the administration of the Plan, any action is required by
an Employer or the Administrative Committee, including, but not by way
of limitation, action with respect to eligibility or classification of
employees, contributions or benefits, such action shall be uniform in
nature as applied to all persons similarly situated and no such action
shall be taken which will discriminate in favor of Participants who
are Highly Compensated Employees.
13.2 Payments from Trust Fund:
-------------------------
The benefits under the Plan shall be payable solely from the Trust
Fund and each Participant, Beneficiary or other person who shall claim
the right to any payment under the Plan shall be entitled to look only
to the Trust Fund for such payment. No liability for the payment of
benefits or any other payments under the Plan shall be imposed upon
the Administrative Committee, the Company, any Employer, or the
officers, directors or stockholders of the Company.
Except as expressly provided in the Plan, no Participant, Beneficiary
or other person entitled to benefits may withdraw or receive any
monies from the Trust Fund.
13.3 Plan Not a Contract of Employment:
----------------------------------
Nothing herein contained shall be deemed to give any Eligible Employee
or Participant the right to be retained in the employ of an Employer
or to interfere with the right of the Employer to discharge any
Eligible Employee or Participant at any time.
13.4 Applicable Law:
---------------
Except to the extent governed by Federal law, the Plan shall be
administered and interpreted in accordance with the laws of the State
of Ohio.
13.5 Unclaimed Amounts:
------------------
It shall be the sole duty and responsibility of a Participant or
Beneficiary to keep the Administrative Committee apprised of his
whereabouts and of his most current mailing address. If any benefit to
be paid under the Plan is unclaimed, within such time period as the
Administrative Committee shall prescribe, it shall be forfeited and
applied to reduce Company Matching Contributions in accordance with
Section 4.1; provided, however, that such forfeiture shall be
reinstated if a claim is made by the Participant or Beneficiary for
the forfeited benefit.
13.6 Severability:
-------------
If any provisions of this Plan is held to be invalid or unenforceable,
such determination shall not affect the other provisions of this Plan.
In such event, this Plan shall be construed and enforced as if such
provisions had not been included herein.
13.7 Employer Records:
-----------------
The records of a Participant's Employer shall be presumed to be
conclusive of the facts concerning his employment or non-employment,
Periods of Service, Periods of Severance and Compensation unless shown
beyond a reasonable doubt to be incorrect.
13.8 Application of Plan Provisions:
-------------------------------
This Plan shall be binding on all Participants and Beneficiaries and
upon heirs, executors, administrators, successors, and assigns of all
persons having an interest herein. The provisions of the Plan in no
event shall be considered as giving any such person any legal or
equitable right against the Company or any Employer, any of its
officers, Employees, directors, or shareholders, or against the
Trustee, except such rights as are specifically provided for in the
Plan or hereafter created in accordance with the terms of the Plan.
13.9 IRC 414(u) Compliance Provision:
--------------------------------
Notwithstanding any provision of the Plan to the contrary,
contributions, benefits and service credit with respect to qualified
military service shall be provided in accordance with Section 414(u)
of the Code.
<PAGE>
ARTICLE XIV
PARTICIPATION IN PLAN BY AFFILIATES
-----------------------------------
14.1 Participation by Affiliate:
---------------------------
Any parent, subsidiary or affiliate of the Company, for itself or any
of its divisions, may, with the written consent of the Board of
Directors of the Company, become a party to this Plan by adopting the
Plan for some or all of its employees and by executing the Trust
Agreement with the consent of the Trustee, if required under such
Trust Agreement; provided, however, that the Company has a 50 percent
direct or indirect ownership interest in, or is directly or indirectly
50 percent owned by, such parent, affiliate or subsidiary. Upon the
filing with the Trustee of a certified copy of the resolutions or
other documents evidencing the adoption of this Plan and the notice to
the Company, and upon the execution of the Trust Agreement by such
parent, subsidiary or affiliate, and the consent of the Trustee if
required under such Trust Agreement, it shall thereupon be included in
the Plan as an Employer, and shall be bound by all the terms thereof
as they relate to its employees. Any contributions provided for in the
Plan and made by such Employer shall become a part of the Trust Fund
and shall be held by the Trustee subject to the terms and provisions
of the Trust Agreement.
14.2 Withdrawal by Affiliate:
------------------------
In the event that an organization which has become an Employer shall
cease to be a 50 percent parent, subsidiary or affiliate of the
Company, such organization shall forthwith be deemed to have withdrawn
from the Plan and the Trust Agreement. Also, any 1 or more of the
Employers may voluntarily withdraw from the Plan by giving 6 months'
notice in writing of intention to withdraw to the Board of Directors
of the Company and the Administrative Committee (unless a shorter
notice shall be agreed to by the Board of Directors of the Company and
the Administrative Committee). The Company may, with the consent of
the Board of Directors withdraw from the Plan at any time, and the
Board of Directors may in its discretion at any time withdraw the
authorization of any subsidiary or any Employer to participate in the
Plan.
In any of these circumstances the affected Employees shall cease to be
Participants under the Plan, and the Administrative Committee shall
arrange for the withdrawal or segregation of such Employees' share of
the assets of the Plan, as determined by a valuation as of the date of
the event. The Administrative Committee shall have the full discretion
as to the nature of the funds to be withdrawn or segregated, and its
valuation thereof for that purpose shall be conclusive. Unless a
savings and investment plan substantially similar in form to the Plan
or such other form as may be approved by the Internal Revenue Service
under Section 401(a) of the Code is continued by a successor
corporation for its Employees, the Plan shall be deemed to have
terminated with respect to such Employees and such segregated assets
shall be fully vested to them in accordance with the provisions of
Section 12.3. The Administrative Committee shall arrange for the
disposition of such assets through transfers to a successor trust, as
assignment of all or a portion of the rights under any insurance
contract or by any other means it shall determine.
14.3 Special Rule for Corporate Reorganizations:
-------------------------------------------
In the event the Company acquires control of any organization by
purchase of assets or stock, merger, amalgamation, consolidation or
any other similar event, or in the event control of the Company should
be acquired by some other organization by such means, the Board of
Directors, or the Administrative Committee, or any officer of the
Company who has been delegated appropriate authority by the Board of
Directors, may authorize such other organization to participate in the
Plan upon agreement that contributions shall be made as required under
the Plan, and shall determine to what extent, if any, credit for
employment with such other organization shall be granted as to the
employees of such other organization for the purpose of determining
eligibility and vesting rights hereunder.
<PAGE>
ARTICLE XV
LOANS
-----
15.1 Availability:
-------------
The Administrative Committee is authorized to establish and maintain a
Participant loan program and may authorize loans from the Plan to
Participants in such amounts and pursuant to such terms and procedures
as the Administrative Committee determines in its sole discretion are
appropriate, provided that such loans are available to any
creditworthy Participant who is an Employee, excluding Participants on
leave of absence or lay-off, temporary or part-time Employees and
terminated Participants, on a uniform and nondiscriminatory basis.
Loans shall be permitted for any purpose.
15.2 Terms and Procedures:
---------------------
All loans shall be granted in accordance with the following terms and
procedures:
(a) The amount of any loan to a Participant shall not exceed the
lesser of: (1) $50,000 reduced by the excess of the highest
outstanding loan balance of the Participant's loans outstanding
during the immediately prior 12-month period (ending the day
before the new loan is granted) over the outstanding balance of
all loans to the Participant on the date the new loan is made; or
(2) 50 percent of the Participant's Vested Interest. All loans
shall be for a minimum amount of $1,000.
(b) All loans shall be subject to the approval of the Administrative
Committee or its agent.
(c) An application for a loan by a Participant shall be made on an
Appropriate Form sent to the Administrative Committee or its
agent, whose action thereon shall be final.
(d) The period of repayment for any loan shall be arrived at by
mutual agreement between the Administrative Committee or its
agent and the borrower, but all loans shall become due and
payable upon termination of employment and the period in no event
shall exceed 5 years.
(e) Each loan shall bear a reasonable rate of interest to be
determined by the Administrative Committee to be comparable to
commercial lending rates on bank loans secured by certificates of
deposit in the area at the time the loan is made. The interest
rate on any new loan that is granted shall be redetermined from
time to time pursuant to such uniform and nondiscriminatory rules
as the Administrative Committee shall prescribe. Each loan shall
be secured by the present and future balance in the Participant's
account, or by such other security as the Administrative
Committee may deem to be adequate.
(f) Each loan shall be treated as a separate investment of the funds
credited to such Participant's Accounts. Loans shall be made from
the Investment Funds maintained under the Plan in such order of
priority as the Administrative Committee, pursuant to a uniform
and nondiscriminatory policy, shall direct. Payments by a
Participant on any such loan shall be credited to such
Participant's account in the various Investment Funds in the same
proportions as the Participant's current investment option
election at the time loan payments are made.
(g) No distribution shall be made to any Participant or former
Participant or to a Beneficiary of any such Participant unless
and until all unpaid loans to such Participant or former
Participant, including accrued interest thereon, have been paid.
In the event of termination of employment, any distribution of
Account balances shall be reduced by and applied to repay the
amount of any outstanding plan loans and accrued interest
thereon.
(h) A Participant may not have more than one loan outstanding at any
time.
(i) Repayment of loans shall be by payroll deduction, or other
approved method, on a level amortization basis, except that a
Participant may repay the outstanding principal balance of his
loan at any time after one year.
(j) In the event a Participant defaults on a Plan loan, the entire
unpaid balance of the loan shall become due and payable
immediately. A Participant will default on a loan if any of the
following events occur:
(i) the termination of the Participant's employment with an
Employer for any reason (including death);
(ii) failure of the Participant to make any payment of principal
or interest on the loan on or before the date such payment
is due;
(iii)failure of the Participant to perform or observe any of his
covenants, duties or agreements under the promissory note
executed by the Participant with respect to the loan;
(iv) receipt by the Plan of opinion of counsel to the effect that
(A) the Plan will, or could, lose its status as a qualified
plan under Code section 401(a) unless the loan is repaid or
(B) the loan violates, or may violate, any provision of the
ERISA;
(v) any portion of the Participant's account that is not in
excess of the amount that has been pledged as security for
the loan becomes payable from the Plan to the Participant,
to any Beneficiary of the Participant, or to any "alternate
payee" of the Participant pursuant to any qualified domestic
relations order (as defined in Code section 414(p)); or
(vi) the Participant makes an assignment for the benefit of
creditors, files a petition in bankruptcy, is adjudicated
insolvent or bankrupt, or becomes a subject of any wage
earner plan under the federal Bankruptcy Code or under any
applicable state insolvency law, or there is commenced
against the Participant any bankruptcy, insolvency, or other
similar proceeding which remains undismissed for a period of
60 days (or the Participant by an act indicates his consent
to, approval of, or acquiescence in any such proceeding).
In the event a default on a Participant loan occurs and the
Participant does not pay the entire unpaid balance of the loan
(with accrued unpaid interest) within 5 business days after the
date the default occurs, the Participant's Vested Interest under
the Plan that has been pledged as security for repayment of the
Plan loan shall be applied immediately, to the extent required,
to pay the entire unpaid balance of the loan (and all accrued
unpaid interest thereon). Notwithstanding the foregoing, no
portion of the Participant's account consisting of, or
attributable to, the Participant's elective deferrals (as defined
in Code section 402(g)) shall be actually distributed for
purposes of eliminating the default before the date the
Participant terminates employment with the Employer, or if
earlier, attains age 59-1/2.
Failure by the Administrative Committee to strictly enforce Plan
rights with respect to a default on a Plan loan shall not
constitute a waiver of such rights.
<PAGE>
ARTICLE XVI
DETERMINATION OF TOP-HEAVY STATUS
---------------------------------
16.1 General:
--------
Notwithstanding any other provisions of the Plan to the contrary, for
any Plan Year in which the Plan is a Top-Heavy Plan or Super Top-Heavy
Plan, the provisions of this Article shall apply, but only to the
extent required by Section 416 of the Code.
16.2 Top-Heavy Plan:
---------------
This Plan shall be Top-Heavy and an Aggregation Group shall be a
Top-Heavy Group if, as of the Determination Date for such Plan Year,
the sum of the Cumulative Accrued Benefits and Cumulative Accounts of
Key Employees for the Plan Year exceeds 60 percent of the aggregate of
all the Cumulative Accounts and Cumulative Accrued Benefits.
(a) If the Plan is not included in a Required Aggregation Group with
other plans, then it shall be Top-Heavy only if (i) when
considered by itself it is a Top-Heavy Plan and (ii) it is not
included in a Permissive Aggregation Group that is not a
Top-Heavy Group.
(b) If the Plan is included in a Required Aggregation Group with
other plans, it shall be Top-Heavy only if the Required
Aggregation Group, including any permissively aggregated plans,
is Top-Heavy.
16.3 Super Top-Heavy Plan:
---------------------
This Plan shall be a Super Top-Heavy Plan if it would be a Top-Heavy
Plan under Section 16.2, by substituting 90 percent for 60 percent.
16.4 Cumulative Accrued Benefits and Cumulative Accounts:
----------------------------------------------------
The determination of the Cumulative Accrued Benefits and Cumulative
Accounts under the Plan shall be made in accordance with Treasury
Regulation Section 1.416-1 T-24 and 25.
16.5 Definitions:
------------
(a) "Aggregation Group" means either a Required Aggregation Group or
a Permissive Aggregation Group.
(b) "Determination Date" means with respect to any Plan Year, the
last day of the preceding Plan Year, or in the case of the first
Plan Year of any plan, the last day of such Plan Year, or such
other date as permitted by the Secretary of the Treasury or his
delegate.
(c) "Key Employee" means any employee or former employee (and the
beneficiaries of such employee) who at any time during the
determination period was an officer of the Company if such
individual's annual compensation exceeds 50 percent of the dollar
limitation under Section 415(b)(1)(A) of the Code, an owner (or
considered an owner under Section 318 of the Code) of 1 of the 10
largest interests in the Company if such individual's
compensation exceeds 100 percent of the dollar limitation under
Section 415(c)(1)(A) of the Code, a 5-percent owner of the
Company, or a 1-percent owner of the Company who has an annual
compensation of more than $150,000. The determination period is
the Plan Year containing the Determination Date or the four
preceding Plan Years. For purposes of this subparagraph, no more
than 50 Employees (or if lesser, the greater of 3 or 10 percent
of the Employees) shall be treated as officers.
(d) "Non-Key Employee" means those individuals who are not Key
Employees and includes former Key Employees.
(e) "Permissive Aggregation Group" means a Required Aggregation Group
plus any other plans selected by the Company provided that all
such plans when considered together satisfy the requirements of
Section 401(a)(4) and 410 of the Code.
(f) "Required Aggregation Group" means a plan maintained by the
Company in which a Key Employee is a participant or which enables
any plan in which a Key Employee is a participant to meet the
requirements of Section 401(a)(4) of the Code or Section 410 of
the Code. The Required Aggregation Group shall include any plan
which would, but for the fact it terminated, be included in the
terms of this definition.
16.6 Vesting:
--------
For each Plan Year in which the Plan is Top-Heavy or Super Top-Heavy,
the minimum vesting requirements of Section 416(b) of the Code shall
be satisfied by use of the following schedule:
Years of Vesting Service Vested Percentage
------------------------ -----------------
Less than 3 years 0 percent
3 years or more 100 percent
16.7 Compensation:
-------------
For each Plan Year Compensation shall not exceed the limitation in
effect under Section 1.16 for such year.
16.8 Minimum Contributions:
----------------------
For each Plan Year in which the Plan is Top-Heavy or Super Top-Heavy,
minimum Company Contributions for a Participant who is a Non-Key
Employee shall be required to be made on behalf of each Participant
who is employed by the Company on the last day of the Plan Year. The
amount of minimum contribution shall be the lesser of the following
percentages of IRC 415 compensation (as defined in Section 4.2 for
purposes of Annual Additions):
(a) Three percent, or
(b) The highest percentage at which Company Contributions or
forfeitures are made under the Plan for the Plan Year on behalf
of any Key Employee.
For purposes of this Section 16.8(b), all defined contribution plans
included in a Required Aggregation Group shall be treated as one plan.
In the case of a Participant under this Plan who also participates in
a defined benefit pension plan of a member of the Group which contains
provisions intended to comply with Section 416 of the Code in the
event such plan becomes a Top-Heavy plan, the provisions of this
Section 16.8(a) shall be inapplicable to the extent such defined
benefit pension plan provides for a defined benefit minimum pension
benefit in accordance with Section 416(c)(1) of the Code.
16.9 Defined Benefit and Defined Contribution Plan Fractions:
--------------------------------------------------------
In order to comply with the requirements of Section 416(h) of the
Code, in the case of a Participant who is or has also participated in
a defined benefit plan of the Company or any member of the Group in
any Plan Year in which the Plan is Top-Heavy, there shall be imposed
under this Plan the following limitation in addition to any limitation
which may be imposed as described in Section 4.2. In any such year
beginning before January 1, 2000, for purposes of satisfying the
aggregate limit on contributions and benefits imposed by Section
415(e) of the Code, benefits payable from this Plan shall, except as
hereinafter described, be reduced so as to comply with a limit
determined in accordance with Section 415(e) of the Code, but with the
number "1.0" substituted for the number "1.25" in the "defined benefit
plan fraction" (as defined in Section 415(e)(3) of the Code).
Notwithstanding the foregoing, if the application of the additional
limitation set forth in this Section 16.9 would result in the
reduction of accrued benefits of any Participant under this Plan, such
additional limitation shall not become operative, so long as (1) no
additional contributions by Group members, forfeitures or voluntary
nondeductible contributions are allocated to such Participant's
accounts under any defined contribution plan maintained by the Company
including this Plan and (2) no additional benefits accrue to such
Participant under any defined benefit plan maintained by the Company.
16.10 Method of Determining Accrued Benefit:
--------------------------------------
Solely for the purpose of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a part
is Top-Heavy, the accrued benefit of a Participant other than a Key
Employee shall be determined under (1) the method, if any, that
uniformly applies for the accrual purposes under all plans maintained
by the Company or any other Group member, or (2) if there is no such
method, as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Section
411(b)(1)(C) of the Code.
16.11 Change in Statute Automatically Incorporated:
---------------------------------------------
In the event that Congress should provide by statute, or the Treasury
Department should provide by regulation or ruling, that the
limitations provided in this Article XVI are no longer necessary for
the Plan to meet the requirements of Section 401 of the Code or other
applicable law then in effect, such limitations shall become void and
shall no longer apply, without the necessity of further amendment to
the Plan.
Adopted by Mettler-Toledo, Inc., this ____ day of __________, ____.
By:
----------------------------------
Title:
----------------------------
<PAGE>
APPENDIX A
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
METTLER INSTRUMENT CORPORATION
A.1 Purpose and Construction:
-------------------------
The purpose of this Appendix A is to evidence special provisions
applicable to certain employees of Mettler Instrument Corporation
("MICo") affected by the merger of the MICo Plan into the Plan,
effective July 1, 1994. The provisions of this Appendix A shall apply
to the individuals as specified herein. To the extent the provisions
of the Plan, as applicable to these individuals, are inconsistent with
the provisions of this Appendix A, the provisions of Appendix A shall
govern. Words and phrases used herein with initial capital letters
which are defined in Article I of the Plan are used herein as so
defined.
A.2 Eligibility of Certain MICo Employees:
--------------------------------------
Notwithstanding Section 2.1(a) of the Plan, any employee hired by MICo
prior to July 1, 1994 and who is an Eligible Employee as of July 1,
1994, shall be eligible to become an active Participant in the Plan as
of July 1, 1994. Such an Employee may become a Participant on such
date or as of the first day of any month thereafter by complying with
the provisions of Section 2.2 of the Plan. Any MICo Employee hired on
or after July 1, 1994 shall be eligible to participate in the Plan in
accordance with Section 2.1(a) hereof.
A.3 Pre-Merger Date Service of MICo Employees:
------------------------------------------
The period of employment of an employee of MICo prior to July 1, 1994
which shall be recognized as Period(s) of Service and Year(s) of
Vesting Service hereunder as of July 1, 1994 shall be determined under
Sections 1.36 and 1.51 respectively, treating MICo for such purpose as
having been an Employer hereunder for all relevant periods; provided,
however, that in no event shall such determination result in Periods
of Service or Years of Vesting Service which are less than that
Service accumulated under the MICo Plan as of June 30, 1994.
A.4 Vesting of Certain Participants in MICo Plan:
---------------------------------------------
Notwithstanding the provisions of Section 6.1, the Accounts of an
individual who, as of July 1, 1994, is both an Employee of MICo and a
Participant in the Plan shall be 100% nonforfeitable at all times. All
Eligible Employees of MICo other than those described in the preceding
sentence shall become vested in Company Matching Contributions made on
his behalf on and after July 1, 1994 in accordance with the provisions
of Section 6.1, reflecting for this purpose, the provisions of Section
A.3 above. In no event shall this Section A.4 alter a Participant's
vested percentage in his Account attributable to employer
contributions made under the MICo Plan prior to July 1, 1994 and
earnings on such contributions.
<PAGE>
APPENDIX B
BONUS DEFERRALS
B.1 Purpose and Construction:
-------------------------
The purpose of this Appendix B is to evidence special provisions
applicable to certain Employees who are provided herein with the
opportunity to defer all or part of specified bonuses which they may
otherwise receive from the Employers. The provisions of this Appendix
B shall apply to the Employees described herein and shall be effective
for Plan Years beginning on and after January 1, 1996. To the extent
the provisions of the Plan, as applicable to these Employees, are
inconsistent with the provisions of this Appendix B, the provisions of
Appendix B shall govern. Words and phrases used herein with initial
capital letters which are defined in Article I of the Plan are used
herein as so defined.
B.2 Eligibility:
------------
(a) Notwithstanding Sections 2.1 and 3.1 of the Plan, an Employee who
satisfies the criteria specified in this Section B.2 with respect
to a given Plan Year shall be eligible to defer a specified
portion (as described in Section B.3) of a given Bonus Amount (as
hereinafter defined) applicable to such Plan Year by filing an
Appropriate Form on or before the Bonus Deferral Election Date
specified in this Section B.2. With respect to any given
Employee, "Bonus Amount" shall mean the annual bonus that may be
payable for any given year beginning on and after January 1, 1996
under the Employer's Performance Dividend Plan.
(b) An Employee shall be eligible to defer a Bonus Amount with
respect to a given Plan Year if:
(i) the Employee is expected to be an Eligible Employee as of
the January 1 of the Plan Year in which the Bonus Amount is
otherwise payable;
(ii) the Administrative Committee, in its discretion, elects to
treat Bonus Amounts applicable to the given Plan Year as
eligible for deferral under the Plan; and
(iii)the Employee is not a Highly Compensated Employee as of the
Bonus Deferral Election Date (as hereinafter defined);
provided, however, that an election to defer a Bonus Amount shall
only be given effect if the Employee is in fact an Eligible
Employee as of the date the Bonus Amount is otherwise payable.
For purposes hereof, the "Bonus Deferral Election Date" with
respect to any given Bonus Amount shall be the December 1 of the
calendar year immediately preceding the calendar year in which
the Bonus Amount is otherwise payable. No Participant may suspend
or otherwise change the deferral of any Bonus Amount following
the expiration of 30 days from the Bonus Deferral Election Date.
B.3 Bonus Amount Deferrals:
-----------------------
Subject to the limitations of Sections 3.4 and 3.5 of the Plan, that
portion of a Bonus Amount that may be deferred by an Eligible Employee
who satisfies the criteria specified in Section B.2 shall be from 0
percent to 100 percent of such Bonus Amount, in multiples of 25
percent. The Bonus Amount which an Eligible Employee elects to defer
shall be credited to the Employee's Basic Salary Reduction Account and
a corresponding reduction shall be made in the Bonus Amount otherwise
payable to the Eligible Employee in cash. The election with respect to
the deferral of a Bonus Amount for any given year shall not apply to
any subsequent year. Except as provided under Section B.5, any Bonus
Amount deferred hereunder shall be invested in accordance with the
elections in effect under Section 7.2 of the Plan at the time of
deferral.
B.4 Treatment of Bonus Amount Deferrals:
------------------------------------
Notwithstanding any provision of the Plan to the contrary:
(a) In no event shall Company Matching Contributions be made with
respect to any deferral of a Bonus Amount;
(b) A Participant who is ineligible to make Basic Salary Reduction
Contributions under Section 2.5 of the Plan shall likewise be
ineligible to make a deferral of any Bonus Amount; and
(c) The limitations on Basic Salary Reduction Contributions and the
provisions pertaining to Basic Salary Reduction Contributions in
the following Plan sections shall be equally applicable to
deferrals of Bonus Amounts as follows:
(i) Section 3.4: deferrals of Bonus Amounts shall be treated as
Basic Salary Reduction Contributions for the Plan Year in
which the Bonus Amounts are otherwise payable;
(ii) Section 4.2: deferrals of Bonus Amounts shall be included in
"Annual Additions" for the Plan Year in which the Bonus
Amounts are otherwise payable and shall be treated as Basic
Salary Reduction Contributions for purposes of the
corrective mechanisms described;
(iii)Section 4.3(l): deferrals of Bonus Amounts may be treated
as Basic Salary Reduction Contributions for the Plan Year in
which the Bonus Amounts are otherwise payable in the
discretion of the Administrative Committee;
(iv) Section 8.2(b)(iii) and (iv): deferrals of Bonus Amounts
shall be treated as Basic Salary Reduction Contributions for
the Plan Year in which the Bonus Amounts are otherwise
payable for purposes of the limitations described;
(v) Section 9.4: deferrals of Bonus Amounts shall be treated as
Basic Salary Reduction Contributions for purposes of the
limitations described.
B.5 New Participants:
-----------------
In the event an Eligible Employee first becomes a Participant in
connection with his election to defer a Bonus Amount, such Employee,
in completing the Appropriate Form specified in Section B.2, shall
make an investment election from among those options then available
under Section 7.1 and shall designate a Beneficiary on the Appropriate
Form provided by the Administrative Committee. Such election and
designation may be changed in accordance with the applicable
provisions of the Plan, treating, to the extent necessary under Plan
Section 7.2, the deferral of a Bonus Amount as a Basic Salary
Reduction Contribution.
<PAGE>
APPENDIX C
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
ASI APPLIED SYSTEMS, INC.
C.1 Purpose and Construction:
-------------------------
The purpose of this Appendix C is to evidence special provisions
applicable to ASI Employees. To the extent the provisions of the Plan,
as applicable to these individuals, are inconsistent with the
provisions of this Appendix C, the provisions of Appendix C shall
govern.
C.2 Definitions:
------------
(a) "ASI" means ASI Applied Systems, Inc., a wholly-owned subsidiary
of the Company formed in connection with the acquisition of
certain assets of Former ASI.
(b) "ASI Employee" means any Employee in the employ of ASI, including
a Former ASI Employee.
(c) "ASI Plan" means the ASI Employees' Profit Sharing Plan & Trust,
and any successor thereto, in effect as of a given date
hereunder.
(d) "Employer Profit Sharing Contribution" means a contribution
which, in the discretion of the Board, may be made to the Plan on
behalf of certain ASI Employees with respect to any given Plan
Year. Any Employer Profit Sharing Contribution shall be allocated
as provided in Section C.7 of this Appendix.
(e) "Employer Profit Sharing Contribution Account" means the separate
Account maintained for a Participant who is an ASI Employee to
record his share of the Trust Fund attributable to Employer
Profit Sharing Contributions made on his behalf.
(f) "Former ASI" means ASI Applied Systems, LLC as said entity was in
effect prior to the date as of which the Company acquired assets
relating to said entity's reaction monitoring operations.
(g) "Former ASI Employee" means any employee of Former ASI who became
an Employee of ASI in connection with the Company's acquisition
of assets relating to Former ASI's reaction monitoring
operations.
C.3 Eligibility of ASI Employees:
-----------------------------
Notwithstanding Section 2.1(a) of the Plan, any ASI Employee employed
by ASI as of May 31, 1999 and who is an Eligible Employee as of June
1, 1999, shall become a Participant in the Plan and shall be eligible
to commence Basic Salary Reduction Contributions in accordance with
Section C.6 below.
Any ASI Employee with an Employment Commencement Date on or after June
1, 1999 shall become a Participant as of the first day of the calendar
year quarter coincident with or next following the latest of (i) the
date on which he becomes an ASI Employee, (ii) the date on which he
becomes an Eligible Employee, and (iii) the date on which he completes
a 1-year Period of Service. Such an ASI Employee shall be eligible to
commence Basic Salary Reduction Contributions as of any Enrollment
Date on or following such date of participation.
C.4 Pre-Merger Date Service of ASI Employees:
-----------------------------------------
A Former ASI Employee's Period of Service shall include periods of
service with ASI and Former ASI in addition to periods of service with
Spectra-Tech, Inc. and Spectra-Tech Applied Systems, Inc. as provided
for in the ASI Plan.
C.5 Vesting of Certain Participants in ASI Plan:
--------------------------------------------
Notwithstanding the provisions of Section 6.1, the Accounts of an
individual who, as of May 31, 1999, is an ASI Employee shall be 100%
nonforfeitable at all times. Any ASI Employee with an Employment
Commencement Date on or after June 1, 1999 shall become vested in the
Employer Profit Sharing Contribution Account maintained on his behalf
in accordance with the provisions of Section 6.1 of the Plan.
C.6 Basic Salary Reduction Contribution:
------------------------------------
Any ASI Employee in the employ of ASI as of May 31, 1999, and who is
an Eligible Employee as of June 1, 1999, may commence Basic Salary
Reduction Contributions as soon as administratively practicable
following June 1, 1999, or as of any Enrollment Date thereafter, by
satisfying the procedural requirements set forth in Article II of the
Plan. Notwithstanding the percentage limitations set forth in Section
3.1 of the Plan (but subject to such other restrictions contained in
Article III thereof), such an ASI Employee may elect Basic Salary
Reduction Contributions in an amount from 1 percent through 25 percent
(in whole percentages) of Compensation otherwise payable for pay
periods ending after his Basic Salary Reduction Contribution election
is first effective and before January 1, 2000.
Effective for Plan Years beginning on and after January 1, 2000, each
ASI Employee shall be eligible to designate Basic Salary Reduction
Contributions in accordance with Article III of the Plan.
C.7 Employer Profit Sharing Contributions:
--------------------------------------
As of any given Plan Year, the Board may decide whether to make an
Employer Profit Sharing Contribution on behalf of eligible ASI
Employees participating in the Plan. To be eligible for an allocation
of any Employer Profit Sharing Contribution made for a given Plan
Year, the ASI Employee must be an Eligible Employee, must earn at
least 1,000 Hours of Service during such Plan Year, and must be
employed as of the last day of such Plan Year. The Employer Profit
Sharing Contribution shall be allocated to eligible ASI Employee
Participants in the ratio that each such eligible Participant's
Compensation for the given Plan Year bears to the total Compensation
of all such eligible Participants for the given Plan Year.
The following shall also be applicable to Employer Profit Sharing
Contributions:
(a) An Employer Profit Sharing Contribution Account shall be
maintained on behalf of each eligible ASI Employee Participant;
(b) Investment direction of the Employer Profit Sharing Contribution
Account maintained on behalf of a Participant shall be
implemented in accordance with Article VII of the Plan; and
(c) The forfeiture provisions in Section 6.2 of the Plan shall also
apply to nonvested Employer Profit Sharing Contribution Accounts.
C.8 Company Matching Contributions Not Applicable:
----------------------------------------------
ASI Employees participating in the Plan shall not be eligible to
participate in the Company Matching Contribution provisions of Article
IV of the Plan.
C.9 Transfer of Accounts of Former ASI Employees:
---------------------------------------------
Effective as of July 1, 1999, or as soon thereafter as is
administratively practicable, accounts maintained under the ASI Plan
on behalf of Former ASI Employees shall be transferred from the ASI
Plan to the Plan. Records of such transferred accounts shall be kept
in such manner as the Administrative Committee shall determine,
provided that all protected benefits, rights and features appurtenant
to such transferred accounts shall be preserved under the Plan to the
extent preservation is required under Section 411(d)(6) of the Code.
<PAGE>
APPENDIX D
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
SAFELINE, INC.
D.1 Purpose and Construction:
-------------------------
The purpose of this Appendix D is to evidence special provisions
applicable to employees of Safeline, Inc. ("Safeline") who were
participants in the Safeline, Inc. 401(k) Plan ("Safeline Plan") as of
October 1, 1999, the effective date of the merger of the Safeline Plan
into the Plan. Except as otherwise provided in this Appendix D, the
provisions of the Plan other than this Appendix D shall apply to
employees of Safeline on and after October 1, 1999. To the extent the
provisions of the Plan, as applicable to these individuals, are
inconsistent with the provisions of this Appendix D, the provisions of
Appendix D shall govern.
D.2 Pre-Merger Date Service of Safeline Employees:
----------------------------------------------
The period(s) of employment of an employee of Safeline prior to
October 1, 1999 which shall be recognized as Period(s) of Service and
Year(s) of Vesting Service hereunder as of October 1, 1999 shall be
determined under Sections 1.38 and 1.55 respectively, treating
Safeline for such purpose as having been an Employer hereunder for all
relevant periods; provided, however, that in no event shall such
determination result in Periods of Service or Years of Vesting Service
which are less than the service accumulated under the Safeline Plan as
of October 1, 1999.
D.3 Vesting of Safeline Plan Participant:
-------------------------------------
Notwithstanding the provisions of Section 6.1, the Accounts of an
individual who, as of September 30, 1999, was both an Employee and a
participant in the Safeline Plan shall become 100% vested and
nonforfeitable, without regard to Periods of Service, upon such
individual's attainment of age 55, provided such individual is then an
Employee.
D.4 Distribution Option Applicable to Safeline Plan Participant:
------------------------------------------------------------
Notwithstanding the provisions of Section 9.2 and effective October 1,
1999, a Participant who had also been a participant in the Safeline
Plan and whose Vested Interest, at the time payment of such Vested
Interest is to commence, is in excess of $3,500 ($5,000 for periods on
and after January 1, 2000), may elect to receive payment of his vested
Accounts in the form of periodic installments (over a period not to
exceed the Participant's life expectancy) made at intervals not longer
than one year. A Participant's election of such form of payment shall
be made in accordance with the procedures set forth in Article IX.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Mettler-Toledo International Inc.:
We consent to the use of our reports incorporated herein by reference
included in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed with the SEC on March 18, 1999.
/s/ KPMG Fides Peat
Zurich, Switzerland
February 28, 2000
