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Registration No.___________
As filed with the Securities and Exchange Commission on April 4, 1996
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BUTLER MANUFACTURING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 48-0188420
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
BMA Tower, Penn Valley Park (P.O. Box 419917), Kansas City, Missouri 64141-0917
(816) 968-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
EMPLOYEE SAVINGS TRUSTS
John H. Calvert, Esq.
Lathrop & Gage L.C.
2345 Grand Avenue, Suite 2600
Kansas City, MO 64108
(816) 472-3220
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Richard O. Ballentine
Vice President, General Counsel and Secretary
Butler Manufacturing Company
BMA Tower, Penn Valley Park
(P.O. Box 419917)
Kansas City, Missouri 64141-0917
(816) 968-3206
CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum
Title of Each Maximum Aggregate
Class of Securities Amount to be Offering Price Offering Amount of
to be Registered Registered(1) Per Unit(2) Price(2) Registration Fee
- -------------------------------------------------------------------------------
Common Stock,
no par value............300,000 $33.25 $9,975,000 $3,440
(1) Pursuant to Rule 416 under the Securities Act of 1933 (the "Act"), this
Registration Statement covers, in addition to the shares of Common
Stock stated above, interests in the three Employee Savings Trusts
("Plans") that constitute separate securities of an indeterminant
amount and an indeterminate number of shares of Common Stock which by
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reason of certain events such as stock splits, may become subject to
the Plans.
(2) Pursuant to Rule 457(c) and (h) under the Act, the proposed maximum
offering price per share and the proposed maximum aggregate offering
price are estimated solely for purposes of calculating the registration
fee, do not take into account plan interests being registered, and are
based upon the average of the high and low prices of the Common Stock
of the Registrant as reported by the National Association of Securities
Dealers,
Inc. Automated Quotation System ("NASDAQ") on April, 1996.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference
This Registration Statement covers the offering of Common Stock of
Butler Manufacturing Company (the "Company" or "Registrant") under three 401(k)
Plans sponsored by the Company (the "Plans"): the BUTLER EMPLOYEE SAVINGS TRUST,
the GALESBURG HOURLY EMPLOYEE SAVINGS TRUST, and the BIRMINGHAM HOURLY EMPLOYEE
SAVINGS TRUST, as well as interests in each of the Plans. The Company hereby
incorporates by reference the following documents:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995 (An annual report on Form 11-K has not been filed and is not being
filed concurrently herewith on behalf of the Plans since the Plans have not
previously been subject to the reporting requirements of Section 15(d) and
because the 401-K provisions of the Plans that permit the use of employee
contributions for the purchase of the Company's Common Stock, which in effect
constitute separate plans and which necessitates the registration of interests
in the plan, have not been in existence for at least 90 days prior to the filing
of this Registration Statement (See Eastman Kodak Company no action letter
publicly available February 6, 1984);
2. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities and Exchange Act of 1934 since the end of the fiscal
year covered by the Annual Report referred to above;
3. The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated September 23, 1988, as amended
by Amendment No. 1 on Form 8, dated October 27, 1988 and Amendment No. 2 on
Form 8, dated June 27, 1990; and
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
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Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any director or officer against
expenses (including attorney's 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 proceedings, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the corporation, by reason of the fact that he 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, or other enterprise, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action, if such
person had no reasonable cause to believe his conduct was unlawful. The statute
also provides that (1) a corporation may indemnify any such person against
expenses actually and reasonably incurred by him in connection with any such
action by or in the right of the corporation if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification is to be made with respect to
any matter as to which he has been adjudged liable unless authorized by the
court; (2) a corporation shall indemnify any such person against expenses
actually and reasonably incurred in defense of any such action (whether or not
by or in the right of the corporation) if such person has been successful in
defense of the action; and (3) a corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
another corporation or other enterprise against any liability asserted against
such person incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would otherwise have the
power to indemnify such person against such liability.
Pursuant to the DGCL the Company's Certificate of Incorporation
provides that each person who is involved in any threatened, pending or
completed action, suit or proceeding by reason of the fact that the person is an
officer or director of the Company or of a Company subsidiary or enterprise
(including an employee benefit plan as a plan fiduciary) or who, while an
officer or director of the Company, was serving at the request of the Company as
an officer or director of another enterprise, shall be indemnified by the
Corporation to the fullest extent authorized by the DGCL; provided, that the
Company is not required to provide indemnity with respect to any claim made
against the director or officer (i) for an accounting of profits made from the
purchase or sale by the officer or director of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange Act of 1934 or
(ii) for amounts paid in settlement of a claim without the consent of the
Company.
The indemnification provisions in the Company's Certificate of
Incorporation also entitle an officer or director to obtain payment of expenses
incurred by him in defending against a proceeding in advance of the outcome if
he undertakes in writing to repay such amounts if it shall ultimately be
determined that he is not entitled to indemnity.
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Under a director's and officer's liability insurance policy purchased
by the Company, the insurer is generally obligated to pay, subject to certain
limits, deductibles, exceptions and exclusions, on behalf of officers and
directors of the Company claims made against such directors and officers for
losses (as defined) caused by any negligent act, any error, any omission or any
breach of duty while acting in their capacities as directors or officers of the
Company, any of its subsidiaries or as members of the Administrative Committee
of the Plan or any matter claimed against them solely by reason of their holding
such offices. Under the policy the insurer is also obligated to pay on behalf of
the Company such claims made against the Company's directors and officers which
the Company may be required or permitted to pay as indemnities due the directors
or officers for such losses.
Under the Plan the Company has agreed to indemnify and save harmless
the members of the Administrative Committee from and against any and all loss
resulting from liability to which the Committee members may be subjected by
reason of any act or conduct (except willful misconduct or gross negligence) in
their official capacities in the administration of the Plan. The members of the
Committee consist of directors and officers of the Company.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
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Item 8. Exhibits
(a) Exhibits are listed on the Exhibit Index to this Registration
Statement.
(b) The Registrant will submit the Plans, as amended to the Internal
Revenue Service in a timely manner for a determination that the Plans are
qualified under Section 401 of the Internal Revenue Code, and will make all
changes required by the IRS in order to qualify the Plans.
Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10 (a) (3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or Form S-8 and the
<PAGE>
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
R-3
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, the Registrant
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 Kansas City, State of Missouri, on this 1st day of
April, 1996.
BUTLER MANUFACTURING COMPANY
s/Robert H. West
By _______________________________
Robert H. West
Chairman of the Board
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard O. Ballentine and John
Huey, and each of them, his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and re-substitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
s/Robert H. West
___________________________ Chairman of the Board Principal April 1, 1996
Robert H. West Executive Officer and Director)
s/John H. Holland
___________________________ Vice President - Finance April 1, 1996
John J. Holland (Principal Financial Officer),
s/John T. Cole
__________________________ Controller (Principal April 1, 1996
John T. Cole Accounting Officer)
___________________________ Director _____________, 1996
Harold G. Bernthal
___________________________ Director ______________, 1996
Robert E. Cook
___________________________ Director ______________, 1996
Alan M. Hallene
s/C.L. William Haw
___________________________ Director April 1, 1996
C.L. William Haw
s/George E. Powell
___________________________ Director April 1, 1996
George E. Powell
s/Donald H. Pratt
___________________________ Director April 1, 1996
Donald H. Pratt
s/Robert J. Reintjes
___________________________ Director April 1, 1996
Robert J. Reintjes, Sr.
___________________________ Director ______________, 1996
Judith A. Rogala
R-4
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Pursuant to the requirements of the Securities Act of 1933, the
Chairman of the Administrative Committee of each of the Plans have duly caused
this registration statement to be signed on the behalf of each Plan by the
undersigned, thereunto duly authorized, in the City of Kansas City, State of
Missouri, on this 1st day of April, 1996.
BUTLER EMPLOYEE SAVINGS TRUST
s/Robert H. West
By___________________________
Robert H. West, Chairman of the
Administrative Committee
BIRMINGHAM HOURLY EMPLOYEE SAVINGS TRUST
s/Robert H. West
By___________________________
Robert H. West, Chairman of the
Administrative Committee
GALESBURG HOURLY EMPLOYEE SAVINGS TRUST
s/Robert H. West
By___________________________
Robert H. West, Chairman of the
Administrative Committee
R-5
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EXHIBIT 99
EXHIBIT INDEX
Exhibit
Number Description
4(a) Copy of restated BUTLER EMPLOYEE SAVINGS TRUST (Non Union
Employees), dated as of April 1, 1996.
4(b) Copy of restated BIRMINGHAM HOURLY EMPLOYEE SAVINGS TRUST
(Birmingham Plant), dated as of April 1, 1996.
4(c) Copy of restated GALESBURG HOURLY EMPLOYEE SAVINGS TRUST
(Galesburg Plant), dated as of April 1, 1996.
4(d) Restated Master Trust Agreement between Butler Manufacturing
Company and Fidelity Management Trust Company, dated as of
April 1, 1996.
5 Opinion of Lathrop & Gage L.C. concerning the legality of the
securities being registered.
23(a) Consent of Lathrop & Gage L.C. (incorporated by reference to
Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24(a) Powers of Attorney executed by all officers and directors of
Registrant who have signed the Registration Statement
(incorporated by reference to the signature pages of the
Registration Statement).
R-6
<PAGE>
EXHIBIT 4(a)
BUTLER EMPLOYEE SAVINGS TRUST
(BEST)
PLAN DOCUMENT
AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1996
THIS DOCUMENT IS BASED ON THE PLAN ADOPTED MARCH 1, 1987
AND INCLUDES THE
FIRST AMENDMENT DATED AS OF JANUARY 30, 1989, THE
SECOND AMENDMENT DATED AS OF SEPTEMBER 20, 1989, AND
AMENDMENTS INCORPORATED IN THE RESTATED PLAN AS OF
JANUARY 1, 1989, AUGUST 1, 1994, AND APRIL 1, 1996
BUTLER EMPLOYEE SAVINGS TRUST (BEST)
<PAGE>
INTRODUCTION
Effective as of March 1, 1987, Butler Manufacturing Company, a Delaware
corporation (hereinafter referred to as the "Company"), adopted the Butler
Employee Savings Trust (BEST) (hereinafter referred to as the "Plan"). As a
result of legislation and Treasury Regulations,
amendments to the Plan were required effective January 1, 1989 and January 1,
1993. The Plan is hereby further amended and restated, effective April 1, 1996,
primarily for the purpose of providing the Company's Common Stock as an
investment option.
The purpose of this Plan is to provide additional incentive and retirement
security for eligible employees by allowing them to make salary reduction
contributions that are tax-deferred and which may be matched by contributions
made by the Company out of its net profits.
It is intended that this Plan shall be approved and qualified by the Internal
Revenue Service as satisfying the pertinent requirements of the Internal Revenue
Code of 1986 as amended (the "Code") with respect to employee plans and trusts
so that (1) the Participants' salary redirection contributions under the Plan
shall be tax deferred; (2) the Company may deduct for Federal income tax
purposes its contributions to the Trust Fund (including the Participants' Salary
Redirection Contributions); (3) the Company contributions so made and the income
of the Trust Fund shall not be subject to Federal income tax to the Participants
until received; and (4) the income of the Trust Fund shall be exempt from
Federal income tax.
It is also intended that this Plan and Trust shall satisfy the pertinent
requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"),
as amended, and the Plan and Trust shall be interpreted, wherever possible, to
comply with the terms of ERISA.
<PAGE>
BUTLER EMPLOYEE SAVINGS TRUST (BEST)
TABLE OF CONTENTS
ARTICLE/SECTION TITLES/SECTION HEADINGS PAGE
I DEFINITIONS I-1
1.01 Accounting Year I-1
1.02 Accounts I-1
1.03 Administrative Committee I-1
1.04 Affiliate I-1
1.05 Age I-1
1.06 Beneficiary I-1
1.07 Board of Directors I-1
1.08 Break in Service I-2
1.09 Company I-2
1.10 Compensation I-2
1.11 Company Matching Account I-2
1.12 Company Matching Contributions I-3
1.13 Early Retirement Age I-3
1.14 Effective Date I-3
1.15 Employee I-3
1.16 Employee Salary Redirection
Contributions I-3
1.17 Employee Salary Redirection
Contribution Account I-3
1.18 Entry Date I-3
1.19 Fiduciary I-3
1.20 Hour of Service I-3
1.21 Net Profits I-5
1.22 Nondiscrimination Compensation I-5
1.23 Normal Retirement Age I-5
1.24 Participant I-5
1.25 Plan I-5
1.26 Rollover Account I-5
1.27 Spouse I-6
1.28 Total and Permanent Disability I-6
1.29 Trust I-6
P-1
1.30 Trust Agreement I-6
1.31 Trustee I-6
1.32 Trust Fund I-6
1.33 Valuation Date I-6
1.34 Non-Gender Clause I-7
II PARTICIPATION IN THE PLAN II-1
2.01 Eligibility to Participate II-1
2.02 Election to Participate II-1
2.03 Change in Employment Classification
From An Eligible Employee II-1
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2.04 Change in Employment Classification
To An Eligible Employee II-2
2.05 Plan and Trust Binding II-2
III CONTRIBUTIONS III-1
3.01 Employee Contributions III-1
3.02 Company Matching Contributions III-1
3.03 Maximum Deductible Contributions III-2
3.04 Limitations on Contributions III-2
3.05 Corrective Adjustments III-4
3.06 Combined Plans Limit III-4
3.07 Mathematical Nondiscrimination
Test for Employee Salary
Redirection Contributions III-5
3.08 Mathematical Nondiscrimination
Test for Employee Regular and
Employer Matching Contributions;
Disposition of Excess Amounts III-7
3.09 Aggregation of Nondiscrimination
Tests III-9
3.10 Rollover Contributions;
Plan-to-Plan Transfers III-9
IV ACCOUNTS OF PARTICIPANTS IV-1
4.01 Trust Fund Valuation IV-1
4.02 (Reserved for future use) IV-1
4.03 Investment Funds IV-1
4.04 Trustee's and Administrative
Committee's Determinations
Binding IV-1
4.05 Investment of Accounts IV-2
4.06 Benefit Statements IV-7
P-2
V DISTRIBUTIONS UNDER THE PLAN V-1
5.01 Valuation of Accounts for
Distribution V-1
5.02 Amount of Distributions/
Distributable Events V-1
5.03 Timing of Distributions V-1
5.04 Forms of Distributions V-1
5.05 In-Service Withdrawals by
Participants V-2
5.06 Qualified Domestic Relations
Orders V-3
5.07 Loans to Participants V-3
5.08 Direct Rollover of Eligible
Rollover Distributions V-5
VI ADMINISTRATION VI-1
6.01 Allocation of Responsibility
Among Fiduciaries for Plan and
Trust Administration VI-1
<PAGE>
6.02 Administrative Committee VI-1
6.03 Administrative Committee's
Powers and Duties VI-2
6.04 Claims Procedure VI-3
6.05 Non-Discrimination VI-4
6.06 Trustee May Request Instructions VI-4
6.07 Legal Counsel VI-4
6.08 Payment of Advisors VI-4
6.09 Indemnification VI-4
VII THE TRUST FUND AND THE TRUSTEE VII-1
7.01 Trust Agreement VII-1
7.02 Investment of Trust Fund VII-1
7.03 Non-Reversion; Exclusive Benefit
Clause VII-1
7.04 Removal of Trustee VII-1
7.05 Powers of Trustee VII-1
7.06 Trust Agreement Part of Plan VII-1
7.07 Trustee's Settlement of Accounts VII-1
VIII AMENDMENT AND TERMINATION VIII-1
8.01 Amendment VIII-1
8.02 Termination VIII-1
P-3
8.03 Distribution of Accounts Upon
Plan Termination VIII-1
IX TOP-HEAVY PROVISIONS IX-1
9.01 Application IX-1
9.02 Special Minimum Benefit IX-1
9.03 Special Combined Plans Limit IX-1
9.04 Key Employee Defined IX-1
9.05 Aggregation Group of Plans
Defined IX-2
X MISCELLANEOUS PROVISIONS X-1
10.01 Plan Merger, Consolidation or
Transfer of Assets X-1
10.02 Spendthrift Clause X-1
10.03 Plan Voluntary X-1
10.04 Reservation of Right to Suspend or
Discontinue Contributions X-1
10.05 Non-Guarantee of Employment X-1
10.06 Governing Law X-1
10.07 Facility of Payment X-1
10.08 Severability Clause X-2
10.09 Successor Companies X-2
10.10 Text of Plan Document Controls X-2
P-4
<PAGE>
SIGNATURES
This instrument is executed in _____________________ counterparts,
each of which shall be deemed to be the original. This is copy
- --------------------.
<PAGE>
ARTICLE I
DEFINITIONS
The following terms, as used in this Plan, shall have the meaning specified in
this Article I, unless a different meaning is clearly required by the context in
which they are used:
Section 1.01. The term "Accounting Year" shall mean a twelve (12) month period
beginning on each January 1 and ending on the following December 31.
Section 1.02. The term "Accounts" shall mean a Participant's
Employee Salary Redirection Contribution Account, Company Matching Account, and,
if applicable, Rollover Account.
Section 1.03. The terms "Administrative Committee" or "Committee" shall mean the
Administrative Committee as provided for in Article VI hereof.
Section 1.04. The term "Affiliate" shall mean any corporation or unincorporated
trade or business which is a member, as is the Company, of the same controlled
group of corporations, the same group of trades or businesses under common
control, or the same affiliated service group (within the meaning of Code
Sections 414(b), 414(c) or 414(m), respectively).
Section 1.05. The term "Age" shall mean the age, in years, of a Participant as
of the last anniversary of his date of birth.
Section 1.06. The term "Beneficiary" shall mean the Spouse of the
Participant, or, in the event that either
(a) the Participant has no Spouse at his death, or
(b) his surviving Spouse has agreed, in writing, witnessed
by a Plan representative or notary public, to the
designation of another Beneficiary,
the person or persons (including a trust) designated by the Participant in the
latest written notice to the Administrative Committee on a form approved by the
Committee. If any non-spouse Beneficiary so designated predeceases the
Participant and the Participant has no Spouse at his death and has not
designated another Beneficiary, his estate shall be his Beneficiary. The
Participant shall have the right to change his Beneficiary from time to time in
the manner herein above described.
Any Beneficiary designation made in accordance with the above, shall be
automatically revoked on the marriage or remarriage of the Participant.
Section 1.07. The term "Board of Directors" shall mean the Board of
Directors of the
I-1
<PAGE>
Company.
Section 1.08. The term "Break in Service" shall mean a Plan Year or first twelve
(12) months of employment during which an Employee or former Employee has not
been credited with more than five hundred (500) Hours of Service. However, in
accordance with Code Section 410(a)(5)(E) and 411 (a)(6)(E), an Employee shall
not incur a Break in Service in the first Accounting Year that he is not
credited with more than five hundred (500) Hours of Service because of an
absence from work which begins on or after April 1, 1986, due to the
(a) pregnancy of the Employee;
(b) birth of a child of the Employee;
(c) placement of a child for adoption with the Employee;
or
(d) care by the Employee of a child immediately following
such a birth or placement.
To avoid incurring a Break in Service, an Employee, at the request of the
Committee, shall establish that the absence was due to one of the reasons
described above and the number of days for which there was such an absence.
Section 1.09. The term "Company" shall mean Butler Manufacturing Company and any
Affiliate which adopts this Plan with the consent of the Board of Directors, and
subject to the provisions of Article X, any corporation or other entity into
which a Company shall be merged or consolidated or to which all or substantially
all of its assets may be transferred.
Section 1.10. The term "Compensation" shall mean the Participant's total cash
compensation (as reported on Treasury department Form W- 2) paid by the Company
during any pay period, including overtime and bonuses, as well as any Employee
Salary Redirection Contributions to this Plan or a Code Section 125 Plan and
payments from an executive incentive plan, but excluding extraordinary items of
compensation, such as imputed income from group term life insurance, taxable
perquisites and taxable moving allowances. No annual earnings in excess of one
hundred fifty thousand dollars ($150,000) shall be counted as "Compensation" for
purposes of this Plan. Such $150,000 cap shall be adjusted for cost of living
increases in the manner described in Code Section 401 (a)(17).
Compensation for U. S. citizens employed in a foreign country on assignment by
the Company shall exclude foreign service premiums, hardship allowances, housing
allowances, goods and services allowances, or any other payment designed to
compensate such individuals solely for their change in geographic location.
Section 1.11. The term "Company Matching Account" shall mean the account
established on behalf of a Participant to which shall be credited the amount of
any Company Matching Contributions allocated to the Participant pursuant to
Section 3.02, and this account's
proportionate share of any net investment gains, determined in
accordance with Section 4.01
I-2
<PAGE>
hereof. From said account its proportionate share of any net investment losses,
as determined in accordance with Section 4.01 hereof, and any benefit payments
or withdrawals shall be deducted. The Participant's interest in his Company
Matching Contribution Account shall be fully vested and nonforfeitable.
Section 1.12. The term "Company Matching Contributions" shall mean the matching
contributions the Company may make as provided in Section 3.02 hereof.
Section 1.13. The term "Early Retirement Age" shall mean Age fifty- five (55).
Section 1.14. The term "Effective Date" shall mean March 1, 1987.
Section 1.15. The term "Employee" shall mean each "core" employee of the Company
who is employed in the United States including U. S. citizens employed in a
foreign country on assignment by the Company but excluding (i) any employee who
is included in a unit covered by a bargaining agreement between the Company and
collective bargaining representatives, unless such collective bargaining
agreement provides for coverage hereunder, (ii) any employee who is not a United
States citizen and who is employed primarily outside the United States, (iii)
any "leased employee" as defined in Code Section 414(n)(2), and (iv) any
employee group designated in writing by the Company as non-participating. A
"core" employee is as defined by the Company.
Section 1.16. The term "Employee Salary Redirection Contributions" shall mean
the contributions made by a Participant pursuant to Section 3.01 hereof which
are considered "elective deferrals" as described in Code Section 402(g)(3).
Section 1.17. The term "Employee Salary Redirection Contribution Account" shall
mean the account established on behalf of a Participant to which shall be
credited (i) the amount of his contributions pursuant to Section 3.01 hereof,
and (ii) the account's proportionate share of any net investment gains,
determined in accordance with Section 4.01 hereof. From said account, its
proportionate share of any net investment losses, determined in accordance with
Section 4.01 hereof, and any benefit payments or withdrawals shall be deducted.
The Participant's interest in his Employee Salary Redirection Contribution
Account shall be fully vested and nonforfeitable.
Section 1.18. The term "Entry Date" shall mean the first day of each calendar
quarter (i.e., the first day of January, April, July or October). A special
entry date of August 1, 1994 was established in recognition of expanded
investment choices and increased level of Employee Salary Redirection
Contributions implemented on that date.
Section 1.19. The term "Fiduciary" shall have the same meaning as contained in
the definition in ERISA Section 3(21)(A) and, whenever applicable, shall include
the Trustee.
Section 1.20. The term "Hour of Service" shall mean each hour for which an
Employee is directly or indirectly compensated or entitled to compensation by
the Company:
I-3
(a) for the performance
of duties for the Company;
(b) for other reasons not requiring the performance of duties
such as vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or a paid
<PAGE>
leave of absence; and
(c) as a result of a back pay award (irrespective of
mitigation of damages), which is either awarded or agreed
to by the Company. The same Hours of Service shall not be
credited both under this subsection (c) and under either
of subsection (a) or subsection (b) above.
Hours of Service for the performance of duties shall be credited to the Employee
for the computation period in which the duties were performed; Hours of Service
for reasons other than the performance of duties shall be credited to the
Employee for the computation period or periods for which payment is made; Hours
of Service resulting from a back pay award or agreement shall be credited to the
Employee for the computation period or periods to which the award or agreement
pertains.
The number of Hours of Service to be credited under subsection (a) above shall
be the actual number of Hours of Service for which such Employee is paid or
entitled to payment for the performance of duties. In the case of payments made
or due an Employee pursuant to subsection (b) or subsection (c) with respect of
the periods described in subsection (b) during which no duties were performed,
if such payments are calculated on the basis of "units of time" (such as hours,
days, weeks or months), the number of Hours of Service to be credited to the
Employee shall be the number of regularly scheduled working hours included in
such units of time, or if the Employee has no regularly scheduled working hours,
the number of Hours of Service to be credited shall be based on an eight (8)
hour day and/or forty (40) hour week. If such payments relating to periods
during which no duties were performed are not based on "units of time", the
Hours of Service to be credited to the Employee shall be calculated in
accordance with the U.S. Department of Labor regulations which can be found at
29 CFR 2530.200b-2(b) and (c) or any successor regulations.
Notwithstanding the foregoing, the crediting of Hours of Service pursuant to the
provisions of subsections (b) and (c) above shall be subject to the following
limitations:
(i) except as otherwise provided in this Section with respect to
certain authorized leaves of absence, no more than five hundred
(500) Hours of Service shall be credited to an Employee on
account of any single continuous period during which the
Employee performs no duties;
(ii) no Hours of Service shall be credited to an Employee with
respect to hours for which the Employee is paid or entitled to
payment if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable workers'
compensation, or unemployment compensation or disability
insurance laws; and
I-4
(iii) no Hours of Service shall be credited for a payment to an
Employee which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee.
In addition to the Hours of Service to be credited in accordance with the
provisions above, an Employee shall be credited with Hours of Service at the
rate of eight (8) hours per day, subject to a maximum of forty (40) hours per
week, for the following periods during which the Employee is not directly or
<PAGE>
indirectly paid, or entitled to payment by the Company:
(a) any leave of absence for military service in the Armed
Forces of the United States during which the employee's
reemployment rights are guaranteed by federal law,
provided the Employee applies for reemployment with the
Company after his separation from military service
within the time required by such law.
(b) all or any portion of any other leave of absence which
is granted for a reason for which Hours of Service will
be credited, all as determined by the Administrative
Committee on the basis of a uniform policy applied
without discrimination.
Section 1.21. The term "Net Profits" shall mean the consolidated current and
accumulated net profits of the Company, if any, calculated in accordance with
generally accepted accounting principles before (i) federal and state income
taxes and (ii) contributions to the Plan.
Section 1.22. Effective for Accounting Years beginning on or after March 1,
1987, the term "Nondiscrimination Compensation" shall mean the Employee's total
earnings while eligible to participate in the Plan as reported on federal income
tax Form W-2 for the Accounting Year less amounts received from any qualified or
previously qualified plan of the Company, and shall include all amounts not
currently includible in the Employee's gross income by reason of the application
of Code Sections 125 or 402(g).
Section 1.23. The term "Normal Retirement Age" shall mean Age sixty-five (65).
Section 1.24. The term "Participant" shall mean an Employee who has met the
requirements of Article II for participation hereunder.
Section 1.25. The term "Plan" shall mean the Butler Employee Savings Trust
(BEST) as originally adopted effective as of March 1, 1987 and as amended from
time to time thereafter.
Section 1.26. The term "Rollover Account" shall mean an account established on
behalf of an Employee to which shall be credited (i) the value of any amounts
transferred from another qualified plan or rolled over into this Plan pursuant
to Section 3.10 hereof and (ii) the Employee's proportionate share attributable
to this account of the net gain (if any) of the Trust Fund determined in
accordance with Section 4.01 hereof. From said account the Employee's
I-5
proportionate share, attributable to this account, of the net losses (if any) of
the Trust Fund as determined in accordance with Section 4.01 hereof and any
benefit payments shall be deducted. The Participant's interest in his Rollover
Account shall be fully vested and nonforfeitable.
Section 1.27. The term "Spouse" shall mean the legally married husband or wife
of a Participant at the earlier of the Participant's date of death or the date
benefits are payable to the Participant under the Plan. To the extent required
by a "qualified domestic relations order," as such term is defined in Code
Section 414(p), the term Spouse shall include the former husband or wife of the
Participant.
<PAGE>
Section 1.28. The term "Total and Permanent Disability" or "Totally and
Permanently Disabled" shall mean a physical or mental condition which totally
and permanently prevents a Participant from engaging in any occupation or
employment for remuneration or profit, except for the purpose of rehabilitation
not incompatible with a finding of total and permanent disability. The
determination as to whether a Participant is Totally and Permanently Disabled
shall be made solely on evidence that the Participant is (or will be following
the requisite waiting period) eligible for disability benefits under the Social
Security Act in effect at the date of disability. Total and Permanent Disability
shall exclude disability arising from:
(a) chronic or excessive use of intoxicants, drugs or
narcotics;
(b) intentionally self-inflicted injury or intentionally
self-induced sickness;
(c) a proven felonious act or enterprise on the part of
the Participant; or
(d) military service where the Participant is eligible to
receive a government sponsored military disability
pension.
Section 1.29. The term "Trust" shall mean the trust created under the Trust
Agreement to fund the Plan.
Section 1.30. The term "Trust Agreement" shall mean the agreement entered into
between the Company and the Trustee, including all amendments to such Trust
Agreement from time to time.
Section 1.31. The term "Trustee" shall mean the Trustee named in the Trust
Agreement, its successors and assigns or any successor Trustee named pursuant to
the Trust Agreement.
Section 1.32. The term "Trust Fund" shall mean all cash, securities and any
other property held by the Trustee pursuant to the terms of the Trust Agreement,
together with any income therefrom.
Section 1.33. The term "Valuation Date" shall mean December 31 of each
Accounting Year and also may mean any date on which the New York Stock Exchange
is open, as of which dates the Trust Fund may be valued at fair market value.
The Administrative Committee may from time to time establish such Valuation
Dates as it deems desirable.
I-6
Section 1.34. "Non-Gender Clause" Any words herein used in the masculine shall
be read and construed in the feminine where they would so apply. Words in the
singular shall be read and construed as though used in the plural in all cases
where they would so apply.
I-7
<PAGE>
ARTICLE II
PARTICIPATION IN THE PLAN
Section 2.01 - Eligibility to Participate. Each active Employee of the Company
shall be eligible to participate in this Plan upon satisfying the requirements
set forth in this Section 2.01.
Section 2.01(a) - Initial Participation. An Employee of the Company
shall be eligible to participate in this Plan and make Employee Salary
Redirection Contributions in accordance with Section 3.01 hereof as of
the Entry Date coinciding with or immediately following such Employee's
employment commencement
date.
Section 2.01 (b) - Participation upon Reemployment of a Former
Employee. A terminated Participant who resumes employment with the
Company shall be eligible to reenter the Plan on his reemployment date.
A terminated Employee who was not a Participant and who resumes his
employment with the Company shall be eligible to become a Participant
in this Plan on the Entry Date coincident with or next following his
date of reemployment (counting his prior service).
Section 2.02 - Election to Participate. Each eligible Employee shall be
furnished a summary of the Plan and an enrollment form. If the Employee elects
to participate, he must complete the enrollment form and file it with the
Committee. The Employee shall indicate on such form the rate of contribution he
elects to make and his choice of investment funds pursuant to Section 4.03, and
may designate a Beneficiary (with the written consent of his Spouse, if any,
witnessed by a Plan representative or notary
public, if a nonspouse Beneficiary is named), to whom benefits should be paid in
the event of his death.
An eligible Employee who elects not to participate when first eligible may begin
participation as of any later Entry Date upon the submission of his completed
enrollment form at least fifteen (15) days prior to the Entry Date.
Section 2.03 - Change in Employment Classification From An Eligible Employee. A
Participant who ceases to be an Employee of the Company for the purpose of this
Plan while remaining an employee of the Company shall become a limited
Participant as of the date of the change of his employment status.
As a limited Participant he shall not be entitled to make contributions
hereunder or to share in any Employer contributions until he changes his
employment status so he again qualifies as an Employee. Such a limited
Participant shall, however, be entitled to share in Employer Matching
Contributions made for the Accounting Year in which he transferred employment
but only in proportion to the eligible Employee contributions made by the
Participant for such Accounting
II-1
Year. On each Valuation Date such limited Participant's Accounts
shall be adjusted in accordance with Section 4.01.
<PAGE>
Section 2.04 - Change in Employment Classification To An Eligible Employee. An
employee of the Company or Affiliate (including a limited Participant under
Section 2.03) who becomes an Employee for the purpose of this Plan shall be
eligible to become a Participant on the Entry Date coincident with or
immediately following the date of his change in employment classification.
Section 2.05 - Plan and Trust Binding. Upon becoming a Participant, a
Participant shall be bound then and thereafter by the terms of this Plan and of
the Trust, including all amendments thereto.
II-2
<PAGE>
ARTICLE III
CONTRIBUTIONS
Section 3.01 - Employee Contributions. Each Employee who becomes a Participant
in this Plan shall specify on his enrollment form the rate of Employee Salary
Redirection Contributions he wishes to make, by payroll deduction, as set forth
in this Section 3.01. Such contributions shall be transmitted to the Trustee as
soon as reasonably practicable after the end of each month, but in no event
shall Employee Salary Redirection Contributions for an Accounting Year be
transmitted later than thirty (30) days after the end of such Accounting Year.
Section 3.01(a) - Employee Salary Redirection Contributions. A
Participant's Employee Salary Redirection Contributions shall not be
less than one percent (1%) nor more than fifteen percent (15%) of his
Compensation, in one percent (1%)
increments.
Section 3.01(b) - Change of Contributions. A Participant may, by filing
a written notice with the Administrative Committee, elect to change the
rate of his Employee Salary Redirection Contributions, effective as of
the next following January 1, April 1, July 1, or October 1. Such
written notice shall be filed with the Committee not less than fifteen
(15) working days prior to the date it is to be effective.
Section 3.01(c) - Suspension of Contributions. A Participant may, by
filing a written notice with the Administrative Committee, elect to
suspend his contributions. Such suspension shall be effective as of the
next following January 1, April 1, July 1; or October 1 provided it is
received fifteen (15) days prior to the first day of such quarter. A
Participant may resume making Employee Salary Redirection Contributions
as of the first day of any succeeding calendar quarter by filing a
written notice with the Committee not less than fifteen (15) working
days prior to the effective date of such resumption.
Section 3.02 - Company Matching Contributions. The Company may make
contributions out of its Net Profits as set forth in this Section 3.02. As soon
as reasonably practicable after the end of each Accounting Year, the Board of
Directors may authorize a matching contribution out of the Company's Net Profits
equal to twenty-five percent (25%) of each Participant's Employee Salary
Redirection Contribution of up to six percent (6%) of his annual Compensation so
that the total matching contribution for a Participant shall in no event exceed
one and one-half percent (1.5%) of the Participant's Compensation. Such Company
Matching Contributions shall be credited to the Participant's Company Matching
Account and shall be paid to the Trustee and shall be vested one hundred percent
(100%) immediately. Company Matching Contributions, if any, shall be made only
on behalf of Participants who are Employees (including Employees who are on a
leave of absence or temporary lay off as determined by the Administrative
Committee) as of the last day of the Accounting Year and on behalf of
Participants who terminate employment during the Accounting Year for reasons of
retirement, disability or death. Note, however, that no Company Matching
Contributions will be made in connection with
III-1
Employee Salary Redirection Contributions in excess of the Code Section 402(g)
limit as updated by Code Section 415(d).
<PAGE>
Section 3.03 - Maximum Deductible Contributions. The contributions of the
Company computed in accordance with the provisions of Sections 3.01 and 3.02
above shall be subject to the following limitations:
(i) in no event shall the Company be obligated to make a
contribution for an Accounting Year in excess of the maximum
amount deductible under Code Section 404(a)(3)(A), or any
statute or rule of similar import; and
(ii) if the Company makes a contribution to the Trust Fund due
to: (a) a mistake of fact, or (b) a mistake in determining
the maximum amount deductible, then the Company may
withdraw from the Trust Fund the amount attributable to
such mistaken contribution or disallowed deduction
provided such amount is withdrawn within one (1) year of
the mistaken contribution or disallowed deduction
whichever is applicable. If the Company does not choose to
withdraw any such amount, it shall be applied to reduce
the Company's contribution for the next Accounting Year
for which the Company makes a contribution hereunder.
Section 3.04 - Limitations on Contributions.
Section 3.04(a). Notwithstanding any provision of the Plan to the
contrary, in no event shall a Participant's Employee Salary Redirection
Contributions (when combined with any other elective deferrals made by
the Participant, as defined under Code Section 402(g)(3)), exceed in an
Accounting Year nine thousand five hundred dollars ($9,500) in 1996 (or
such other amount in subsequent years which shall result from
adjustments
under Code Section 415(d)). The Company will monitor each Participant's
Salary Redirection Contributions throughout the year and will, as
necessary, compel a Participant to reduce their Salary Redirection
Contributions if the applicable annual dollar limit will be exceeded.
If it is determined that the Participant has exceeded the limit set
forth in this Section 3.04(a) for an Accounting Year, the excess amount
and any income allocable to such excess amount shall be distributed to
the Participant no later than the end of the Accounting Year following
the Accounting Year in which such excess contribution was made. The
return of Employee Salary Redirection Contributions and income shall be
accomplished by a proportionate reduction of the affected Participants'
investments in the investment funds designated in Section 4.03 as of
the Valuation Date preceding the distribution. A distribution shall be
made during the same Accounting Year in which the excess Employee
Salary Redirection Contributions were made, only if (i) the Participant
and the Plan designate the distribution as a distribution of an excess
deferral, and (ii) the distribution is made after the date on which the
Plan received the excess deferral. Whether or not distributed, excess
Employee Salary Redirection Contributions shall continue to be
considered as Employee Salary Redirection Contributions for purposes of
determining the average deferral percentage under Section
III-2
3.07 and "annual additions" for purposes of the limitations
described in Section 3.04(b).
Section 3.04(b). Notwithstanding any provisions contained herein to the
contrary, except for transfers to a Rollover Account, the total annual
addition to any Participant's Accounts in this Plan and any other
<PAGE>
defined contribution plan of the Company and its Affiliates for any
Accounting Year shall not exceed the lesser of (i) thirty thousand
dollars ($30,000) or the specific dollar amount set forth in Code
Section 415(c)(1)(A) as such amount may hereafter be adjusted pursuant
to Code Section 415(d)(1)(B), or (ii) twenty-five percent (25%) of the
Participant's annual compensation (as hereinafter defined) for such
Accounting Year.
For this purpose, a Participant's compensation shall include his earned
income, wages, salaries, fees for professional services, commissions
paid to salesmen, compensation based on a percentage of profits,
bonuses and other amounts received for personal services actually
rendered in the course of employment with the Company and its
Affiliates and excluding the following:
(i) Any Company contributions to a plan of deferred compensation to
the extent contributions are not included in gross income of the
Participant for the taxable year in which contributed, or on
behalf of an Employee to a "simplified employee pension plan" to
the extent such contributions are deductible under Code Section
219(b)(7), and any distributions from a plan of deferred
compensation
whether or not includable in the gross income of the
Participant when distributed;
(ii) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an
Employee becomes freely transferable or is no longer subject to
a substantial risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iv) Other amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to the extent
that the premiums are not includable in the gross income of the
Employee).
The term "annual addition" shall mean the total additions in the
Accounting Year to the Participant's Accounts in this Plan and any
other defined contribution plan of the Company or its Affiliates
attributable to:
(i) employer contributions;
(ii) employee contributions;
III-3
(iii) forfeitures; and
(iv) any post-retirement medical benefits or individual medical
accounts maintained under any defined benefit plans of the
Company or its Affiliates pursuant to Code Sections 419A(d)(3)
and 415(1)(2), which are treated as "annual additions" for
purposes of Code Section 415.
Section 3.05 - Corrective Adjustments. In the event that as of any Valuation
<PAGE>
Date corrective adjustments in the "annual addition" to any Participant's
Account are required pursuant to Section 3.04(b), such adjustments shall be made
by:
(i) a reduction in the Participant's Company Matching
Account in this Plan; and
(ii) then, by a reduction in the Participant's Employee
Salary Redirection Contribution Account.
Section 3.06 - Combined Plans Limit. If a Participant is a participant in a
defined benefit plan maintained by the Company, the sum of his defined benefit
plan fraction and his defined contribution plan fraction for any limitation year
may not exceed 1.0.
For purposes of this Section 3.06, the term "defined contribution plan fraction"
shall mean a fraction the numerator of which is the sum of all of the annual
additions to (a) the Participant's
Accounts under this Plan and (b) the Participant's accounts under any other
defined contribution plans which may be maintained by the Company as of the
close of the Accounting Year and the denominator of which is the sum of the
lesser of the following amounts determined for such Accounting Year and for each
prior Accounting Year of his employment by the Company:
(i) the product of 1.25 multiplied by the dollar limitation
calculated pursuant to Section 3.04(b) for such Accounting
Year; or
(ii) the product of 1.4 multiplied by the percentage
limitation calculated pursuant to Section 3.04(b) for such
Accounting Year.
For purposes of this Section 3.06, the term, "defined benefit plan fraction"
shall mean a fraction the numerator of which is the Participant's projected
annual benefit (as defined in the said defined benefit plan) determined as of
the close of the Accounting Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation
under Code Section 415(b)(1)(A) for such Accounting Year;
or
(ii) the product of 1.4 multiplied by the percentage limitation which
may be taken into account pursuant to Code Section 415(b)(1)(A)
for such Accounting Year.
III-4
The limitation on aggregate benefits from a defined benefit plan and a defined
contribution plan set forth in this Section 3.06 shall be complied with by a
reduction (if necessary) in the Participant's benefits under the defined benefit
plan in accordance with the provisions of such plan and his benefits hereunder
shall not be affected by such aggregate limitation.
Section 3.07 - Mathematical Nondiscrimination Test for Employee Salary
Redirection Contributions Notwithstanding any of the provisions of this Plan to
the contrary, in each Accounting Year beginning on or after January 1, 1987, the
Participant's Employee Salary Redirection Contributions shall be subject to the
mathematical nondiscrimination test set forth in Code Section 401(k): that is,
the "average deferral percentage" of the eligible highly compensated Employees
<PAGE>
for each Accounting Year shall not exceed the average deferral percentage of the
non-highly compensated Employees by more than the limit determined in accordance
with the following table, counting for this purpose each Employee Salary
Redirection Contribution (including zero (0) Employee Salary Redirection
Contributions in the case of any nonparticipating eligible Employee):
If the average The average deferral
deferral percentage percentage (ADP) of
(ADP) of the non-highly the highly compensated
compensated Employee is Employees can be
_______________________ ______________________
Less than two percent (2%) Up to the ADP of the eligible
non-highly compensated
Employees multiplied by 2.0
(the "alternative test").
Two percent (2%) but not Up to the ADP of the
more than eight percent eligible non-
(8%) highly compensated Employees
plus two percent (2%) (the
"alternative test").
Eight percent (8%) or more Up to the ADP of the eligible
non-highly compensated
Employees multiplied by 1.25
(the "general test").
"Average deferral percentage" as used herein shall mean the average of the
ratios (calculated separately for each eligible Employee) of (i) the amount of
Employee Salary Redirection Contributions actually paid over to the Trust Fund
on behalf of each such Employee for such Accounting Year and (ii) the Employee's
Nondiscrimination Compensation for such Accounting Year. During each Accounting
Year the Company shall monitor the average deferral percentages of the
non-highly compensated Employees and of the highly compensated Employees for
such Accounting Year. If it appears at any time within an Accounting Year that
the mathematical nondiscrimination test may not be satisfied, the Company may
suspend or decrease
III-5
the rate of Employee Salary Redirection Contributions of highly compensated
Employees (beginning with the highly compensated Employee with the highest
average deferral percentage) for the remainder of the Accounting Year. If, after
the end of the Accounting Year it is determined that the mathematical
nondiscrimination test has not been satisfied, the Company shall direct the
Trustee to return the amount of the affected Participants' Employee Salary
Redirection Contributions for such Accounting Year that will cause the
mathematical nondiscrimination test to be satisfied, with the income allocable
to such Participants' Employee Salary Redirection Contributions calculated in
accordance with the regulations under Code Section 401(k). In addition, any
Company Matching Contributions determined to be attributable to Participant
Employee Salary Redirection Contributions returned pursuant to this Section,
together with any income allocable to the Company Matching Contributions
<PAGE>
calculated in accordance with regulations under Code Section 401(m), shall be
distributed to the affected Participants. The return of Employee Salary
Redirection Contributions and any income and the distribution of Company
Matching Contributions and any income shall occur before the end of the
Accounting Year following the Accounting Year in which the Plan failed to
satisfy the mathematical nondiscrimination test. The return of Employee Salary
Redirection Contributions and Company Matching Contributions and
any income thereon shall be accomplished by a proportionate reduction of each
affected Participant's investments in the investment Funds designated in Section
4.03 as of the end of the applicable Accounting Year in question.
For purposes of this Section and Section 3.08, the term "highly compensated"
Employee for an Accounting Year includes an Employee who:
a. was a five percent (5%) or greater owner of the
Company (as defined in Code Section 416(i)) in the
current or preceding Accounting Year,
b. was in the top twenty percent (20%) of all employees of
the Company and any Affiliates ranked by compensation and
received more than sixty-six thousand dollars ($66,000)
(as such amount may be adjusted hereafter by the Secretary
of the Treasury as authorized by the Code) in compensation
in the current or preceding Accounting Year,
c. received more than one hundred thousand dollars
($100,000) (as such amount may be adjusted hereafter
by the Secretary of the Treasury as authorized by the
Code) in compensation in the current or preceding
Accounting Year, or
d. was an officer of the Company or an Affiliate in the
current or preceding Accounting Year and received
compensation of more than fifty percent (50%) of the
Code Section 415(b)(1)(A) defined benefit dollar limit
($60,000 in 1996), but not to include more than fifty
(50) individuals or if less, the greater of three (3)
employees or ten percent (10%) of all employees of the
Company and Affiliates.
For purposes of determining who is a "highly compensated Employee," the term
"compensation" shall have the same meaning as specified in Section 3.04(b), but
shall include any Employee
III-6
Salary Redirection Contributions to this Plan or amounts excludable from an
Employee's gross income by application of Code Section 125.
Notwithstanding the foregoing, an Employee should not be considered a highly
compensated Employee for an Accounting year unless he satisfied the definition
set forth in (a), (b), (c) or (d) in the preceding Accounting Year, satisfies
the definition set forth in (a) in the current Accounting Year, or satisfies the
definition set forth in (c) or (d) and is one of the one hundred (100) highest
paid Employees of the Company and Affiliates in the current Accounting Year
ranked by compensation.
If a Participant in the Plan is a family member of another Participant in the
<PAGE>
Plan who is (i) a five percent (5%) owner of the Company, or (ii) one (1) of the
top ten (10) highest paid employees
of the Company, the Compensation paid to and contributions made on behalf of
such family member shall be deemed to have been made on behalf of such five
percent (5%) owner or other highly compensated Employee.
Any former employee shall be treated as a highly compensated Employee if such
Employee was a highly compensated Employee when he (i) terminated employment, or
(ii) attained Age fifty-five (55). In addition, an Employee who worked only a de
minimis amount of service may be considered a highly compensated Employee.
For purposes of this Section, the term "non-highly compensated" Employee for an
Accounting Year includes any Employee eligible to participate in this Plan who
is not "highly compensated" as defined above.
Notwithstanding any provision of this Section or Section 3.08 to the contrary,
the Committee, in its discretion, may determine which Employees are highly
compensated Employees for an Accounting Year in accordance with the "calendar
year election" or, if applicable, the "simplified method" or "transitional rule"
as described in Code Section 414(g) and regulations thereunder.
Section 3.08 - Mathematical Nondiscrimination Test for Company Matching
Contributions: Disposition of Excess Amounts. Notwithstanding any other
provisions of this Plan to the contrary, in each Accounting Year, beginning on
or after January 1, 1987, the Company Matching Contributions made to the Plan
shall be subject to the mathematical nondiscrimination test set forth in Code
Section 401(m)(2)(A): that is, the average contribution percentage of the
eligible highly compensated Employees in each Accounting Year shall not exceed
the average contribution percentage of the eligible non- highly compensated
Employees for such Accounting Year by more than the limit determined in
accordance with the following table, counting for this purpose Company Matching
Contributions (including zero (0) Company Matching Contributions in the case of
any nonparticipating eligible Employee):
III-7
If the average The average contribution
contribution percentage percentage (ACP) of the
(ACP) of the non-highly highly compensated
compensated Employees is Employees can be
________________________ __________________________
Less than two percent (2%) Up to the ACP of the eligible
non-highly compensated Employees
multiplied by 2.0 (the
"alternative test").
Two percent (2%) but not more Up to the ACP of the eligible
than eight percent (8%) non -highly compensated Employees
plus two percent(2%) (the
"alternative test").
Eight percent (8%) or more Up to the ACP of the eligible
non-highly compensated Employees
multiplied by 1.25 (the "general
test").
For Accounting Years beginning on or after January 1, 1989, the "alternative
test" described above may only be used to meet one of the mathematical
<PAGE>
nondiscrimination tests described in Section 3.07 and 3.08 for the same
Accounting Year. To the extent the "alternative test" cannot be used, the
"general test" will be applied in the manner described in regulations under Code
Section 401(m).
The term "average contribution percentage" as used herein shall mean the average
of the ratios (calculated separately for each eligible Employee) of (i) the sum
of the Company Matching Contributions paid over to the Trust Fund on behalf of
the Employee for such Accounting Year and (ii) the Employee's Nondiscrimination
Compensation for such year.
During each Accounting Year, the Company shall monitor the average contribution
percentages of the eligible highly compensated Employees and the eligible
non-highly compensated Employees for such Accounting Year and may make
prospective adjustments in the Company Matching Contributions, if any, of the
eligible highly compensated Employees (beginning with the highly compensated
Employee with the highest average contribution percentage) as may be necessary
to meet the average contribution test herein. Further, the Committee shall have
the discretion to declare a special contribution to the Plan allocable only to
the Company Matching Contribution Accounts of the participating non-highly
compensated Employees, in the ratio that each such Participant's
Nondiscrimination Compensation for the Accounting Year bears to the total
Nondiscrimination Compensation of all such Participants for the Accounting Year.
If, after the end of the Accounting Year, it is determined that the average
contribution percentage test herein has not been satisfied, the Company shall
direct the Trustee to distribute the amount of Company Matching Contributions
for such Accounting Year which will cause the average contribution percentage
test to be satisfied, with the income, if any, allocable to such Company
Matching Contributions calculated in accordance with regulations under Code
Section 401(m). Company Matching Contributions returned in accordance with this
III-8
Section shall be returned no later than the close of the Accounting Year
following the Accounting Year for which the Plan failed to satisfy the average
contribution thereto and shall be accomplished by a proportionate reduction of
each affected Participant's investments in the investment funds designated in
Section 4.03 as of the Valuation Date preceding such distributions.
Section 3.09 - Aggregation of Nondiscrimination Tests. The tests
described in Sections 3.07 and 3.08 herein may not be performed on
a combined basis for Employee Salary Redirection Contributions and
Company Matching Contributions for any Accounting Year beginning on or after
January 1, 1989.
Section 3.10 - Rollover Contributions; Plan-to-Plan Transfers. In addition to
Employee Salary Redirection Contributions under Section 3.01 and Company
Matching Contributions under Section 3.02, an Employee may make contributions to
the Plan due to a rollover of his interests from other qualified plans meeting
the requirements
set forth in the following paragraphs.
An Employee of the Company who would otherwise be eligible to participate in
this Plan except that such Employee has been employed before an Entry Date and
who has had distributed to him his entire vested interest in a plan which meets
the requirements of Code Section 401(a) as a result of (i) termination of
employment, (ii) plan termination, (iii) disability, or (iv) on or after he has
attained age fifty-nine and one-half (591/2) may, in accordance with procedures
approved by the Administrative Committee, contribute part or all of the taxable
<PAGE>
portion of the distribution received from such other plan to the Trust Fund for
this Plan, provided the following conditions are satisfied:
(i) such contribution occurs on or before the sixtieth (60th)
day following his receipt of the distribution from the
other plan;
(ii) the distribution received from the
other plan is a "qualified rollover distribution" within
the meaning of Code Section 402(a)(5)(D)(i); and
(iii) the amount contributed is not more than the distribution he
received from the other plan less the amount, if any, considered
to be an employee after-tax contribution in accordance with Code
Section 402(e)(4)(D)(i).
An Employee of the Company, regardless of whether he is otherwise eligible to
participate in the Plan and in accordance with procedures approved by the
Administrative Committee, may also authorize the plan-to-plan transfer of his
entire interest in any other retirement plan that is qualified under Code
Section 401(a) to the Trust Fund for the Plan, provided such transferred amount
is permitted by such other plan and meets with the other provisions of this
Section 3.10.
Notwithstanding the above provisions of this Section 3.10 to the contrary, any
plan-to-plan transfer hereunder shall only be permitted if such amount
transferred to the Plan is not a direct or indirect transfer from a transferor
plan that is (a) a defined benefit plan, (b) a defined contribution plan subject
to Code Section 412, or (c) a defined contribution plan that is subject
III-9
to Code Sections 401(a)(11) and Section 417 with respect to the
Participant.
The Administrative Committee shall develop such procedures, and may require such
information from the Employee desiring to make such a contribution or transfer,
as it deems necessary or desirable to determine that the proposed contribution
or plan-to-plan transfer will meet the requirements of this Section 3.10. Upon
approval by the Administrative Committee, the amount contributed shall be
deposited in the Trust Fund and shall be credited to the Employee's Rollover
Account. Upon such a contribution or transfer by an Employee who is not yet a
Participant hereunder, his Rollover Account shall represent his sole interest in
the Plan until he becomes a Participant.
If an Employee makes a contribution or plan-to-plan transfer as provided in this
Section 3.10, a Rollover Account shall be established for him hereunder equal to
the amount contributed to the Trust. Such Account shall be fully vested and
nonforfeitable at all times. The Employee's Rollover Account shall be invested
at the direction of the Participant pursuant to Section 4.03 as a part of the
Trust Fund and shall share in gains and losses in accordance with the terms of
Section 4.01 hereof.
If a Participant is subsequently employed by another employer which has a
retirement plan that is qualified under Code Section 401(a), the Administrative
Committee may, at the request of the Participant, direct the plan-to-plan
transfer of the Participant's Plan benefits directly to the trustee of the
qualified plan of the Participant's new employer if the following conditions are
met:
<PAGE>
(i) the trustee of the other qualified plan is permitted to
accept the transfer of benefits from the Plan;
(ii) the Participant's transferred assets will be maintained in a
separate account (or separate accounts if needed to clearly
identify contributions and earnings thereon attributable to
employee contributions); and
(iii) the Participant's transferred assets
shall not be forfeitable or reduce in any way the
obligation of the new employer.
Amounts transferred from the Plan shall be deducted from the Employee's affected
Accounts under the Plan.
III-10
ARTICLE IV
ACCOUNTS OF PARTICIPANTS
Section 4.01 - Trust Fund Valuation. As of the market close on each Valuation
Date, the Trustee shall determine the fair market value of the Trust Fund and
the Administrative Committee shall cause the fair market value of the Accounts
to be determined. The value of a Participant's Account, as of any Valuation
Date, shall be determined by the number of shares in each investment fund (each
"Fund") held by the Trust allocated to such Participant's Account(s) (including
any Participant loans), multiplied by the per share net asset value for each
Fund as of the market close on such Valuation Date.
Section 4.02. - (Reserved for future use)
Section 4.03 - Investment Funds. The Trustee shall have no responsibility for
the selection of investment options within the Trust Fund and shall not render
investment advice to any person in connection with the selection of such
options. The Administrative Committee shall direct the Trustee as to the
investment options in which Participants may invest, subject to the following
limitations. The Administrative Committee shall select a range of investment
options which shall include the Butler Company Stock Fund as described at
Section 4.05(b) hereof, and which may include (i) mutual funds managed by the
investment companies advised by Fidelity Management & Research Company, (ii) a
pool of investment contracts or similar fixed income instruments provided in an
investment portfolio advised by Fidelity Management & Research Company, and
(iii) mutual funds or other investment funds managed or offered by advisors
unrelated to Fidelity.
The Company may from time to time, at its discretion, change, delete or add
investment options available within the Trust Fund; provided that until further
amendment of the Plan, the Plan shall continue to provide the Butler Stock Fund
as an investment option. Income from and proceeds of sales of investments in
each Fund shall be reinvested in the same Fund. Brokerage commissions, transfer
taxes and other charges and expenses in connection with the purchase and sale of
securities held in a Fund may be charged to the respective Fund as determined by
the Administrative Committee. Any income or other taxes payable with respect to
each Fund shall be charged to such Fund. The Trustee may hold amounts in cash or
short-term marketable securities for each Fund as it may deem appropriate. The
Trustee, on written direction from the Committee, shall be authorized to provide
amounts required for loans made pursuant to Section 5.07 from any Fund.
Section 4.04 - Trustee's and Administrative Committee's Determinations Binding.
<PAGE>
In determining the value of the Trust Fund and each Participant's Accounts, the
Trustee and the Committee shall exercise their best judgment and all such
determinations (in the absence of bad faith) shall be binding upon all
Participants and their beneficiaries. All allocations shall be
IV-1
deemed to have been made as of the appropriate Valuation Date regardless of when
the allocations are actually made.
Section 4.05 - Investment of Accounts. All Accounts shall be invested as
hereinafter provided.
Section 4.05(a) - Direction by Participants. When an Employee becomes a
Participant in the Plan, he becomes responsible for directing the
investment of the contributions to his Accounts in one percent (1%)
increments (or as nearly as possible) among the Funds.
Any investment direction made by a Participant will continue in effect
until changed by the Participant. A Participant may change his
investment direction at any time pursuant to procedures established by
the Administrative Committee. The change in investment direction may
apply to future contributions, to amounts already invested or to both.
The terms and conditions of making and changing investment elections
shall also be subject to any requirements imposed by the financial
institution or other entity which establishes the Funds.
Directions with respect to investments among the Funds and changes
therein may be made by Participants by the use of the telephone
exchange system maintained for such purpose by the Trustee or its agent
or in such other manner, if any, as the Administrative Committee may
determine from time to time. Such investments (or exchanges among
investment options) normally shall be made on the same business day
that the agent of the Trustee receives a proper direction and monies,
if received before 4:00 p.m. Eastern time; if received after 4:00 p.m.
Eastern time, the investments normally shall be made the following
business day. In the event that the agent of the Trustee fails to
receive a proper direction, or if a Participant fails to make an
investment election, the assets shall be invested in the Fidelity Money
Market Trust: Retirement Money Market (hereafter, the "Money Market
Portfolio") until the agent of the Trustee receives a proper direction.
The net sales price or purchase price of units in a Fund shall be as
determined on the basis of the value of a unit as of the market close
on the Valuation Date on which the transaction occurs.
In addition, contributions the Trustee receives from the Company on
other than a Valuation Date shall be invested in the securities of the
Money Market Portfolio until the following Valuation Date. Withdrawals
(other than those made to accomplish the exchanges) shall be made
within ten (10) days of receipt by the agent of the Trustee of a proper
direction to withdraw. If any assets allocable to Participant Accounts
hereunder are received by the agent of the current Trustee from a
predecessor trustee, such investments shall be invested in the Money
Market Portfolio until a full reconciliation of such assets has been
received from such predecessor trustee, at which time such assets shall
then be invested pursuant to proper directions received from a
Participant, or as directed by the Administrative Committee.
<PAGE> IV-2
It is the intention of the parties to comply with the requirements of
Section 404(c) of ERISA and to enable and require Participants to
exercise independent control over assets in their Accounts. Neither the
Company, the Administrative Committee, nor the Trustee shall have any
responsibility for any loss in connection with Participant's selection
of an investment option.
Section 4.05(b) - Butler Common Stock Fund. One of the investment
options under the Plan, referenced in Section 4.03 hereof, shall be the
Butler Common Stock Fund ("Butler Stock Fund"), which shall consist of
shares of the Common Stock of Butler Manufacturing Company ("Company
Stock") and cash (the "Cash Portion") invested in short-term liquid
investments maintained by the Trustee necessary to satisfy the Butler
Stock Fund's cash needs for Participants' requests for transfers to
other Funds, distributions or withdrawals, or held temporarily pending
investment in Company Stock.
Each Participant's proportional interest in the Butler Stock Fund shall
be measured in units of participation, rather than shares of Company
Stock. This method of accounting is referred to as "unitization". Each
unit of the Butler Stock Fund represents a proportionate interest in
all of the assets of the Butler Stock Fund, which includes shares of
Company Stock and short term investments. A Net Asset Value ("NAV") per
unit will be determined on each Valuation Date for each unit
outstanding of the Butler Stock Fund.
Purchases and sales of Company Stock shall be made on the open market
as soon as practicable after the Trustee's receipt from the Company
and/or the Plan Participants, as applicable, in good order all
information and documentation necessary to accurately effect such
purchases and sales, subject to market conditions and applicable laws
and regulations. Purchases and sales of Company Stock also may be made
from or to the Company or third parties who are "parties in interest"
as defined in Section 3(14) of ERISA, provided (i) the Company or
Administrative Committee so requests, (ii) the purchase or sale is for
adequate consideration (within the meaning of Section 3(18) of ERISA)
and (iii) no commission is charged.
Notwithstanding the foregoing, neither the Company nor any affiliate of
the Company (other than with respect to directions by an affiliate with
respect to that affiliate's account only) may exercise any direct or
indirect control or influence over the times when, or the prices at
which, the Trustee, or any broker selected by the Trustee, may purchase
Company Stock for the Butler Stock Fund, the number of shares of such
stock to be purchased, the manner in which such stock is to be
purchased, or the selection of a broker or dealer (other than the
Trustee) through which purchases may be executed; it being understood
that the Company shall not be deemed to have such control or influence
solely because it revises not more than once in any three month period
the basis for determining the amount of its contributions to the Plan
or
the basis for determining the frequency of its allocations to the Plan.
For purposes of this paragraph only, "affiliate," means a person that
directly, or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with, the Company.
IV-3
Notwithstanding any other provision of this Plan or of the Trust, the
<PAGE>
provisions of this Section shall govern the voting and tendering of
Company Stock. The Company, after consultation with the Trustee, shall
provide and pay for all printing, mailing, tabulation and other costs
associated with the voting and tendering of Company Stock.
(i) Voting
(a) Upon the filing of definitive proxy solicitation
materials with the Securities and Exchange Commission,
the Company shall cause a copy of all such materials to
be sent to the Trustee. Based on these materials, the
Trustee shall prepare a voting instruction form. At the
time of mailing of notice of each annual or special
stockholders' meeting of the Company, the Company shall
cause a copy of the notice and all proxy solicitation
materials to be sent to each Participant, together with
the foregoing voting instruction form to be returned to
the Trustee or its designee. The form shall show the
number of full and fractional shares of Company Stock
attributable to the Participant's interest in the
Butler Stock Fund. The Company shall provide the
Trustee with a copy of any materials provided to the
Participants and shall certify to the Trustee that the
materials have been mailed or otherwise sent to
Participants.
(b) Each Participant with an interest in the Butler
Stock Fund shall have the right to direct the Trustee
as to the manner in which the Trustee is to vote that
number of shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund.
Directions from a Participant to the Trustee concerning
the voting of Company Stock shall be communicated in
writing, or by mailgram or similar means. These
directions shall be held in confidence by the Trustee
and shall not be divulged to the Company, or to any
director, officer or employee of the Company or any
affiliated company. Upon its receipt of the directions,
the Trustee shall vote the shares of Company Stock as
directed by the Participant. Shares of Company Stock
attributable to a Participant's interest in the Butler
Stock Fund for which the Trustee has received no
directions from the Participant shall be voted by the
Trustee in proportion to all those shares for which
direction has been received by Trustee.
(ii) Tender Offers
(a) Upon commencement of a public tender offer or
exchange offer for shares of Company Stock ("Tender
Offer"), the Company shall notify each Participant with
an interest in the Butler Stock Fund of the Tender
Offer and shall utilize its best efforts to timely
distribute or cause to be distributed to such
Participants the same information that is distributed
to holders of Company Stock in connection with the
Tender Offer, and, after consulting with the Trustee,
shall provide and pay for a means by which such
IV-4
<PAGE>
Participants may direct the Trustee whether or not to
tender the Company Stock attributable to the
Participant's interest in the Butler Stock Fund. The
Company shall provide the Trustee with a copy of any
materials provided to such Participants and shall
certify to the Trustee that the materials have been
mailed or otherwise sent to such Participants.
(b) Each Participant shall have the right to direct the
Trustee to tender or not to tender some or all of the
shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund.
Directions from a Participant to the Trustee concerning
the tender of Company Stock shall be communicated in
writing, or by mailgram or such similar means as is
agreed upon by the Trustee and the Company under the
preceding paragraph. These directions shall be held in
confidence by the Trustee and shall not be divulged to
the Company, or to any officer or employee thereof, or
any other person except to the extent that the
consequences of such directions are reflected in
reports regularly communicated to any such persons in
the ordinary course of the performance of the Trustee's
services hereunder. The Trustee shall tender or not
tender shares of Company Stock as directed by the
Participant. The Trustee shall not tender shares of
Company Stock attributable to a Participant's interest
in the Butler Stock Fund for which it has received no
directions from the Participant.
(c) A Participant who has
directed the Trustee to tender some or all of the
shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund may,
at any time prior to the date permited under the
Tender Offer for the revocation or withdrawal of
tenders (the "Withdrawal Date"), direct the Trustee
to revoke or withdraw some or all of the tendered
shares, and the Trustee shall withdraw the directed
number of shares from the Tender Offer or otherwise
revoke the same prior to the Withdrawal Date. A
Participant shall not be limited as to the number of
directions to tender or to withdraw or revoke a tender
that the Participant may give to the Trustee.
(d) A direction by a Participant to the Trustee to
tender shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund shall
not be considered a written election under the Plan by
the Participant to withdraw, or have distributed, any
or all of the Participant's interest in the Plan, which
may be withdrawn pursuant to the provisions of the
Plan. The Trustee shall credit to each Account of the
Participant from which the tendered shares were deemed
to have been taken the proceeds received by the Trustee
in exchange for the shares of Company Stock tendered in
connection with that Account. Pending receipt of
directions from the Participant, as provided in the
Plan, as to which of the remaining investment options
<PAGE>
the proceeds should be invested in, the Trustee shall
invest the proceeds in the securities of the Money
Market Portfolio.
IV-5
(iii) Shares Credited
For all purposes of this Section, the number of shares
of Company Stock deemed "attributable" to a
Participant's interest in the Butler Stock Fund shall
be determined by the Trustee as of the last preceding
Valuation Date.
(iv) General
With respect to all rights other than the right to
vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Company
Stock attributable to a Participant's interest in the
Butler Stock Fund, the Trustee shall follow the
directions of the Participant and, if no such
directions are received, the Trustee shall not act. The
Trustee shall have no duty to solicit directions from
Participants but shall pass on to Participants notices,
offers, proxy materials and other information furnished
to the Trustee; provided that the Trustee shall have no
duty to pass on such information to the extent that the
Company has certified to the Trustee that such
information has previously been furnished to
Participants.
(v) Conversion
All provisions in this Section 4.05(b) shall also apply
to any securities received as a result of a conversion
of Company Stock.
Section 4.05(c). - (Reserved for future use)
Section 4.05(d) - Rollover Accounts. If permitted by the Administrative
Committee, a Participant who has a rollover Account as set forth in
Section 3.10 may invest such Account in one percent (1%) increments in
the Funds. The initial allocation of his Rollover Account among the
Funds may be independent of his investment choices for prospective
Employee Salary Redirection Contributions.
Section 4.05(e) - Loan Accounts. Loans for investment purposes shall be
treated as an individual loan investment of the Participant making the
loan. Loans will be charged first to the Participant's Employee Salary
Redirection Contribution Account, next to his Company Matching Account
and then to his Rollover Account if applicable. Repayment of loans
shall be credited to the Participant's Accounts from which they were
charged but first to his Rollover Account if applicable, next to his
Company Matching Account and then to his Employee Salary Redirection
Contribution Account. In the last Account to be used for satisfying the
loan amount, amounts will be taken from each Fund in said Account, pro
rata in proportion to the value of each such Fund on the Valuation Date
as of which the loan is made. Loan repayments shall be credited to the
investment Fund(s)
<PAGE>
IV-6
within the applicable Account(s) in the same percentage as has been
elected for the Participant's future contributions. Interest payments
will be credited on a prorata basis using the outstanding principal
balance in each Account.
Section 4.06 - Benefit Statements. As soon as reasonably practicable after the
end of each calendar quarter of each Accounting Year, the Administrative
Committee shall advise each Participant of the value of his Accounts as of those
dates.
IV-7
ARTICLE V
DISTRIBUTIONS UNDER THE PLAN
Section 5.01 - Valuation of Accounts for Distribution. When a Participant's
Accounts become distributable pursuant to Section 5.02 hereof, such Accounts,
less any disbursements made from such Accounts, shall be valued, normally as of
the market close on the first Valuation Date immediately preceding the
distribution.
Section 5.02 - Amount of Distributions/Distributable Events. If a Participant
(i) retires on or after attaining Early Retirement Age or Normal Retirement Age,
(ii) becomes Totally and Permanently Disabled, (iii) dies, or (iv) terminates
employment for any other reason, the full value of his Accounts shall become
distributable to him, or, in the case of his death, shall become distributable
to his Beneficiary, valued as of the Valuation Date set forth in Section 5.01
hereof.
Section 5.03 - Timing of Distributions. Any benefits that become distributable
under this Article V shall commence as soon as reasonably practicable after the
applicable event in Section 5.02 hereof, but normally no later than sixty (60)
days thereafter. If the distributable amount cannot be ascertained and
distribution commenced within sixty (60) days following the applicable event in
Section 5.02 hereof, it shall be payable as soon as reasonably practicable
thereafter. In no event shall a Participant's benefits be paid or commence later
than the first day of April of the calendar year immediately following the date
he reaches Age seventy and one-half (70 1/2) even if he is still employed;
provided, however, the benefits of a Participant who is not a 5% owner of the
Company and who attained age seventy and one-half (70 1/2) prior to January 1,
1988 shall not be required to be paid or commence prior to April 1 of the
calendar year immediately following the year in which he retires. In addition,
any death benefit that becomes payable under this Plan shall commence (or
otherwise be paid) within one (1) year after it becomes distributable hereunder.
Notwithstanding any provision of this Article V, the Participant must consent in
writing to a distribution of his benefits if: (i) the present value of the
Participant's nonforfeitable Accounts exceeds $3,500 and (ii) the Committee
directs the Trustee to make distribution to the Participant prior to his
attaining the later of Normal Retirement Age or Age 62.
Section 5.04 - Form of Distributions. Distributions of any benefits under the
Plan attributable to the Participant's Employee Salary Redirection Contribution
<PAGE>
Account, Company Matching Contribution Account and Rollover Account, if any,
shall be in the form of a lump sum distribution in cash or in kind, as elected
by the Participant. If a Participant has elected under Section 4.05 to invest in
the Butler Common Stock Fund, the Participanat may request a distribution in the
form of shares of Butler Common Stock equal to the number of whole shares of
Common Stock attributable to such Participant's interest in the Butler Stock
Fund on the Valuation Date as of which the amount of the Participant's
distribution is determined, with the value of any balance of such interest to be
distributed in cash.
V-1
Section 5.05 - In-Service Withdrawals by Participants. A Participant may, while
employed by the Company, withdraw amounts from his Rollover Account, Company
Matching Account (provided Company Matching Contributions are not aggregated
with Employee Salary Redirection Contributions in satisfying the mathematical
nondiscrimination tests of Sections 3.03 and 3.04) and/or Employee Salary
Redirection Contribution Account, provided the withdrawal is approved by the
Administrative Committee and otherwise satisfies the terms and conditions of
this Section 5.05. Hardship withdrawal distributions shall be made only in cash.
Section 5.05(a). With respect to his Rollover Account, a Participant may
request a hardship withdrawal of the entire value of such Account,
including any investment earnings in the Account.
Section 5.05(b). With respect to the Employee Salary Redirection
Contribution Account, a Participant may request a hardship withdrawal up
to the value of his Employee Salary Redirection Contributions in such
Account, excluding
accumulated investment earnings thereon.
Section 5.05(c). Provided Company Matching Contributions are not
aggregated with Employee Salary Redirection Contributions for purposes of
satisfying the mathematical nondiscrimination tests of Sections 3.03 and
3.04 herein, a Participant may request a hardship withdrawal up to the
value of the Company Matching Contributions in such Account, excluding
any accumulated investment earnings thereon.
Section 5.05(d). For purposes of this Section 5.05, "financial hardship"
shall mean an immediate and heavy financial need of the Participant,
which cannot be satisfied from other reasonably available resources, for
reasons of:
(i) medical expenses incurred by the
Participant, his spouse or his dependents;
(ii) the payment of tuition and related
educational fees for the next twelve months of post-
secondary education for the Participant, his spouse or his
dependents;
(iii) the purchase of a principal residence
of the Participant (not including mortgage payments); or,
(iv) the need to prevent eviction of the
Participant from his principal residence or foreclosure on
the mortgage of such principal residence.
<PAGE>
A hardship withdrawal shall be deemed necessary to satisfy an immediate
and heavy financial need of a Participant if all of the following
requirements are satisfied:
(i) The distribution is not in
excess of the amount of the immediate and heavy financial
need of the Participant. The amount of an immediate and
heavy financial need may
V-2
include any amounts necessary to pay Federal, state, or local
income taxes or penalties reasonably anticipated to result from
the distribution.
(ii) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable (at the time of the
loan) loans currently available under all plans maintained by the
Company.
(iii) The Plan and all other plans maintained by the Company limit the
Participant's elective contributions for the next taxable year to
the applicable limit under Code Section 402(g) for that year minus
the Participant's elective contributions for the year of hardship
distribution.
(iv) The Participant is prohibited,
under the terms of the Plan or an otherwise legally
enforceable agreement, from making elective contributions
and employee contributions to the Plan and all other plans
maintained by the Company for at least twelve (12) months
after receipt of the hardship distribution. For this
purpose, the phrase "all other plans maintained by the
Company" means all qualified and nonqualified plans of
deferred compensation maintained by the Company. The
phrase includes a stock option, stock purchase, or similar
plan, or a cash or deferred arrangement that is part of a
cafeteria plan within the meaning of Code Section 125
(excluding contributions to a health and welfare plan under
Code Section 125).
However, a hardship withdrawal can be obtained for the above outlined
reasons if a Participant represents in writing to the Committee that the
financial hardship cannot be relieved through (i) insurance, (ii)
reasonable liquidation of the Participant's assets, (iii) ceasing of
Employee contributions, or (iv) borrowing from this Plan or other plans
maintained by the Company from commercial lenders on reasonable terms.
A hardship withdrawal (i) may not be less than five hundred dollars
($500); and (ii) may not exceed the amount necessary to meet the
financial hardship. Hardship withdrawals shall be made first from a
Participant's Salary Redirection Contribution Account and thereafter from
the Participant's Rollover Account and thereafter from his Company
Matching Account. Such withdrawals shall be accomplished by a
proportionate reduction from such investment Fund(s) which may apply to
such Accounts. In no event shall a hardship withdrawal exceed the sum of
the Participant's Rollover Account, if any, plus the amount of the
Participant's Employee Salary Redirection Contributions and Company
Matching Contributions.
<PAGE>
Section 5.06 - Qualified Domestic Relations Orders. Notwithstanding any
provisions herein to the contrary, the Plan and Trustee shall comply with the
provisions of a "qualified domestic relations order" as defined in Code Section
414(p).
Section 5.07 - Loans to Participants. Subject to thirty (30) days
notice and upon proper application of a Participant in such form as
the Administrative Committee may specify, the Administrative
Committee will direct the Trustee to make a loan to the
Participant. The
V-3
application, and the resulting loan, must meet the terms and conditions
specified by the Administrative Committee and in the following provisions of
this Section 5.07.
Section 5.07(a). A loan shall not be made that exceeds the lesser of
fifty thousand dollars ($50,000) reduced by the highest outstanding loan
balance during the twelve (12) month period ending on the date the loan
application is received by the Administrative Committee, but not in any
case more than fifty percent (50%) of the total of the Participant's
Salary Redirection Contribution Account, Company Matching Account and
Rollover Account, if any, determined as of the Valuation Date coincident
with or immediately preceding the date the loan application is received
by the Administrative Committee, less any distributions from such
Accounts since such Valuation Date, plus any Employee Redirection
Contributions and Company Matching Contributions since that Valuation
Date.
Section 5.07(b). No loan may be for an amount of less than one thousand
dollars ($1,000). A Participant may have no more than one loan
outstanding from the Plan at any one time, and may not apply for a loan
while he has a loan outstanding.
Section 5.07(c). The term of repayment for the loan shall be that
determined by the Participant, but shall not be less than twelve (12)
months nor exceed the maximum term established by normal rules adopted by
the Administrative Committee. Except for a loan for the purchase of a
primary residence, the Committee's formal rules shall not allow a term in
excess of sixty (60) months for any loan. Such formal rules shall be
reduced to writing and shall be made available, upon request and free of
charge, to any Participant.
Section 5.07(d). The Participant shall authorize the Company to deduct
approximately equal monthly payments of principal and interest from his
Compensation in such an amount as would permit the loan to be fully
amortized over its term. The Company shall transfer such payroll
deductions to the Trustee as soon as reasonably practicable. If a
Participant is not receiving Compensation during a period of time, he
shall remit the monthly payments that would otherwise be deducted from
his Compensation directly to the Trustee.
Section 5.07(e). A Participant may prepay, at any time, any portion or
all of the then outstanding principal balance of his loan, together with
interest, without premium or penalty.
Section 5.07(f). The loan shall be made against the assignment of the
Participant's Employee Salary Redirection Contribution, Company Matching
Contributions, and Rollover Accounts, and shall be evidenced by the
Participant's promissory note for the amount of such loan, including
<PAGE>
interest, payable to the order of the Trustee; provided, however, with
respect to any loan granted or renewed after October 18, 1989, no more
than (i) fifty percent (50%) of the present value of a Participant's
vested Accounts or (ii) the amount of principal and interest owed from
time to time, may be considered by the Plan as security for the
outstanding balance of all Plan loans made to that Participant,
determined immediately after the origination of each Participant loan
secured in whole or in part by that Participant's vested Accounts.
V-4
Section 5.07(g). The loan shall bear a reasonable rate of interest set by
the Administrative Committee in accordance with uniform procedures
consistently applied in a manner that does not discriminate in favor of
officers or highly compensated Participants.
Section 5.07(h). The terms of the promissory note for said loan shall
provide that, if the Participant defaults on the loan by not making
payments when due, and if the entire balance due, including interest, is
not paid by the Participant within thirty (30) days following the
default, the Trustee, upon a direction from the Committee, shall execute
upon the security of the Participant's Company Matching Contribution
Account (unless said Account has been utilized to satisfy the
nondiscrimination tests described in Section 3.07) and his Rollover
Account in satisfaction of the unpaid debt. If such execution upon the
Participant's Company Matching Contribution Account (if available) and
Rollover Account, if any, is insufficient to satisfy the unpaid debt, the
Trustee shall delay execution upon the Participant's Employee Salary
Redirection Contribution Account until such time as the Participant
becomes entitled to a distribution therefrom, at which time the Trustee
shall execute upon such Account to the extent necessary to repay the
debt.
Section 5.07(i). No distribution under this Article V shall be made to
any Participant, former Participant, or Beneficiary unless and until all
unpaid loans, including accrued interest, have been repaid (which may be
offset from any benefit payment distributions hereunder).
Section 5.07(j). As of the date of this restatement of the Plan, loans
may be made only for the following purposes: (i) purchase, repair, or
renovation of primary residence, (ii) college tuition, (iii) severe,
unreimbursed medical expense, or (iv) a consumer purchase. In granting or
refusing any request
for a loan hereunder, the Committee shall apply uniform standards
consistently in a manner that does not discriminate in favor of officers,
or highly-compensated Participants.
Section 5.07(k). A period of at least thirty (30) days must elapse
between repayment of a loan and the creation of another loan to the same
Participant.
Section 5.08 - Direct Rollover of Eligible Rollover Distributions. For
distributions made after December 31, 1992, a Participant may elect, at
the time and in the manner prescribed by the Committee, to have any
portion of such Participant's eligible rollover distribution paid
directly to an eligible retirement plan specified by the Participant in a
direct rollover designation. For purposes of this Section 5.08, a
Participant includes a Participant's surviving spouse and the
<PAGE>
Participant's spouse or former spouse who is an alternate payee under a
qualified domestic relations order.
The following definitions apply to this Section 5.08:
V-5
Section 5.08(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of a Participant's
Account Balances, except an eligible rollover distribution does not
include: any distribution which is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the Participant or the joint lives (or joint life
expectancies) of the Participant and the Participant's designated
Beneficiary, or for a specified period of ten years or more; any
distribution to the extent required under Code Section 401(a)(9); and the
portion of any distribution which is not included in gross income.
Section 5.08(b) Eligible Retirement Plan. An eligible retirement plan is
an individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a) or a qualified trust
described in Code Section 401(a), which accepts the Participant's
eligible rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual retirement
annuity.
Section 5.08(c)Direct Rollover. A direct rollover is a payment
by the Plan to the eligible retirement plan specified by the
distributee.
<PAGE>
V-6
ARTICLE VI
ADMINISTRATION
Section 6.01 - Allocation of Responsibility Among Fiduciaries for Plan and Trust
Administration. The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan
or the Trust as follows:
(a) The Company shall have the sole responsibility for making the
contributions specified in Article III. The Company shall have
the sole authority to appoint and remove the Trustee and to
amend or terminate, in whole or in part, this Plan or the Trust.
For purposes of ERISA, the Company shall be deemed to be the
Plan Administrator.
(b) The Administrative Committee shall have the sole responsibility
for the administration of this Plan, which responsibility is
specifically described in this Plan and the Trust Agreement. The
Administrative Committee may appoint one or more employees of
the Company to have the responsibility of implementing such
administration of the Plan as the Administrative Committee shall
direct.
(c) The Trustee shall have the sole responsibility for the
administration of the Trust and the management of the assets
held under the Trust, as directed by the Participants and the
Administrative Committee and as specifically provided in the
Trust Agreement.
(d) A Fiduciary may rely upon any direction, information or
action of another Fiduciary as being proper under this
Plan or the Trust, and is not required under this Plan or
the Trust to inquire into the propriety of any such
direction, information or action. It is intended under
this Plan and the Trust that each Fiduciary shall be
responsible for the proper exercise of his or its own
powers, duties, responsibilities and obligations under
this Plan and the Trust and shall not be responsible for
any act or failure to act of another Fiduciary. No
Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value. Any party
may serve in more than one (1) fiduciary capacity with
respect to the Plan or Trust.
Section 6.02 - Administrative Committee. The general administration of the Plan
and the responsibility for carrying out the provisions hereof shall be placed in
<PAGE>
a committee of one (1) or more members, each of whom shall be appointed by the
Chairman of the Board of Directors and serve at the pleasure of the Chairman.
Any member of the Administrative Committee may resign by notice in writing filed
with the Chairman of the Board of Directors of the Company, such resignation to
become effective no earlier than the date of such written notice.
VI-1
All customary and reasonable expenses of the Administrative Committee may be
paid by the Company or charged against the Trust Fund as the Company elects.
Members of the Administrative Committee shall not receive compensation with
respect to their services for the Administrative Committee. The Administrative
Committee shall hold meetings upon notice, at such place or places, and at such
time or times, as they may determine. A majority of the members of the
Administrative Committee at the time in office shall constitute a quorum for the
transaction of business. All resolutions or actions taken by the Administrative
Committee at a meeting shall be by vote of the majority of the Administrative
Committee present. Action by the Administrative Committee may be taken without a
formal meeting by the written authorization of all of the members thereof.
The Administrative Committee shall exercise its powers hereunder in a uniform
and nondiscriminatory manner, but in the exercise of its discretion. An
Administrative Committee member shall be disqualified from acting upon any
matter affecting only himself.
Section 6.03 - Administrative Committee's Powers and Duties. The Administrative
Committee shall have such powers and duties as may be necessary to discharge its
functions hereunder, in its sole and exclusive discretion, including but not
limited to, the following:
(a) to construe and interpret the Plan, to decide all
questions of eligibility and determine the amount,
manner and time of payment of any benefits hereunder,
(b) to formulate uniform rules and regulations wherever, in
the opinion of the Administrative Committee, such rules
and regulations are required by the terms of the Plan or
would facilitate the operation of the Plan;
(c) to make a determination as to the right of any person
to a benefit;
(d) to obtain from the Company and from Employees such
information as shall be necessary for the proper
administration of the Plan, to fully rely upon such
information and, when appropriate, to furnish such
information promptly to the Trustee or other persons
entitled thereto;
(e) to prepare and distribute, in such manner as the
Administrative Committee determines to be appropriate,
information explaining the Plan;
(f) to furnish the Company, upon request, such reports
with respect to the administration of the Plan as are
reasonable and appropriate;
(g) to establish and maintain such accounts in the name of
the Company and of each Participant as are necessary;
<PAGE>
(h) to instruct the Trustee with respect to the payment
of benefits hereunder;
VI-2
(i) to provide for any required bonding of fiduciaries and
other persons who may from time to time handle Plan
assets;
(j) to authorize one or more of its members, or any agent,
to make any payment on behalf of the Administrative
Committee (including instructions to the Trustee as to
the application or disbursement of the Trust Fund) and
to appoint agents and clerks, and such professional
services, including legal, accounting and actuarial,
as may be required in carrying out the provisions of
the Plan;
(k) to keep all such books of accounts, record and other
data as may be necessary for the proper administration
of the Plan; and
(l) to select as investment options under the Plan, at least
three diversified Funds with materially different risk and
return characteristics advised by qualified investment
managers; provided, that the Butler Common Stock Fund
shall remain an additional option until the Plan is
amended to eliminate the same as an option.
Notwithstanding the foregoing, the Administrative Committee shall
have no authority to direct the investment, reinvestment, or
exercise of any voting or other stock rights withrespect to any
assets of the Trust allocated to any Fund maintained by the Trust.
Section 6.04 - Claims Procedure. Subject to the limitations of the Plan and of
the Trust Agreement, the Administrative Committee shall from time to time
establish rules for the administration of the Plan and the transaction of its
business. Without limiting the generality of the above, it is specifically
provided that the Administrative Committee shall set forth in writing, available
for inspection by any interested party, the procedures to be followed in
presenting claims for benefits under the Plan. The Administrative Committee
shall rely on the records of the Company, as certified to it, with respect to
any and all factual matters dealing with the employment of an Employee or
Participant. In case of any factual dispute hereunder, the Administrative
Committee shall resolve such dispute giving due weight to all evidence available
to it. The Administrative Committee shall interpret the Plan and shall determine
all questions arising in the administration, interpretation and application of
the Plan. All such determinations shall be final, conclusive and binding except
to the extent that they are appealed under the following claims procedure. In
the event that the claim of any person to all or any part of any payment or
benefit under this Plan shall be denied, the Administrative Committee shall
provide to the claimant, normally within sixty (60) days after receipt of such
claim, a written notice setting forth:
(i) the specific reason or reasons for the denial;
(ii) specific references to the pertinent Plan provisions on
which the denial is based;
<PAGE>
VI-3
(iii) a description of any additional
material or information necessary for the claimant to
perfect the claim and an explanation as to why such
material or information is necessary; and
(iv) an explanation of the Plan's claim
procedure.
Within sixty (60) days after receipt of the above material, the claimant shall
have a reasonable opportunity to appeal the claim denial to the Administrative
Committee for a full and fair review. The claimant or his duly authorized
representative:
(i) may request a review upon written notice to the
Administrative Committee;
(ii) may review pertinent documents;
and
(iii) may submit issues and comments in
writing.
A decision by the Administrative Committee shall be made not later than sixty
(60) days after receipt of a request for review, unless special circumstances
require an extension of time for processing, in which event a decision shall be
rendered as soon as practicable, but in no event later than one hundred twenty
(120) days after such receipt. The Administrative Committee's decision on review
shall be written and include specific reasons for the decision, with specific
references to the pertinent Plan provisions on which the decision is based.
Section 6.05 Non-Discrimination. The Administrative Committee shall not take any
action or direct the Trustee to take any action with respect to any of the
benefits provided hereunder or otherwise in pursuance of the powers conferred
herein upon the Administrative Committee which would be discriminatory in favor
of Participants or Employees who are officers, or highly-compensated employees
as defined by Code Section 401(a)(4) or which would result in the application of
different rules to substantially similar sets of facts.
Section 6.06 - Trustee May Request Instructions. The Trustee may request
instructions in writing from the Administrative Committee and may rely and act
thereon.
Section 6.07 - Legal Counsel. The Administrative Committee may consult with
legal counsel (who may also be legal counsel to the Company) concerning any
question which may arise with reference to its duties under this Plan and the
opinion of such legal counsel shall be full and complete protection with respect
to any action taken or suffered by the Administrative Committee hereunder in
good faith and in accordance with the opinion of such legal counsel.
Section 6.08 - Payment of Advisors. The compensation of any legal counsel,
accountants, consultants and other agents and any other expenses incurred by the
Administrative Committee in the administration of the Plan and Trust may be paid
by the Company or charged against the Trust Fund as the Company elects.
VI-4
Section 6.09 - Indemnification. In addition to indemnity provided to officers
<PAGE>
and directors of the Company pursuant to the Certificate of Incorporation of the
Company, or any statute, bylaw or contract, the Company agrees to indemnify and
save harmless the members of the Administrative Committee, and each of them,
and any person to whom the Committee may specifically delegate its
duties or responsibilities
hereunder (a "delegee"), from and against any and all loss resulting from
any liability to which the Administrative Committee, or any members of the
Committee (or delegee), may be subjected by reason of any act
or conduct (except willful misconduct or gross negligence) in their official
capacities in the administration of this Plan, including all legal and other
expenses reasonably incurred in their defense, in the case the Company fails to
provide such defense. Any such legal or other expenses not
otherwise provided by the Company shall be advanced as incurred prior to any
outcome upon a written undertaking to reimburse the same should a court
determine that the indemnified person is not entitled to such indemnity. The
indemnification provisions of this Section 6.09 shall not relieve any
Committee member (or delegee) from any liability the member or other person
may have under the ERISA for breach of fiduciary duty.
VI-5
<PAGE>
ARTICLE VII
THE TRUST FUND AND THE TRUSTEE
Section 7.01 - Trust Agreement. The Company has entered into a Trust Agreement
with the Trustee to hold the funds set aside pursuant to this Plan. The Trust
Agreement may include a provision for participation in a joint, master or
associated trust fund or
pooled separate account for the purpose of pooling investment
experience.
Section 7.02 - Investment of Trust Fund. The Trustee shall have all the powers
and duties granted herein subject to the limitations in the Trust Agreement with
respect to the investment of the Trust Fund and the Trustee shall keep separate
records reflecting the investment earnings (or losses), receipts, disbursements,
purchases, sales and list of holdings of such assets.
Section 7.03 - Non-Reversion: Exclusive Benefit Clause. The Trust Fund shall be
received, held in Trust and disbursed by the Trustee in accordance with the
provisions of the Trust Agreement and this Plan. Except as provided in Sections
3.03(ii) and 3.05 hereof, no part of the Trust Fund shall be used for or
diverted to purposes other than for the exclusive benefit of Participants or
their Beneficiaries under this Plan. No person shall have any interest in, or
right to, the Trust Fund or any part thereof, except as specifically provided
for in this Plan or the Trust Agreement. Notwithstanding the above, nothing in
this Section 7.03 nor the Plan shall preclude the Trustee from complying with a
"qualified domestic relations order" as defined in Code Section 414(p).
Section 7.04 - Removal of Trustee. The Company may remove the Trustee at any
time upon the notice required by the terms of the Trust Agreement and, upon such
removal or resignation, the Company, through a duly authorized officer, shall
appoint a successor trustee.
Section 7.05 - Powers of Trustee. The Trustee shall have such powers to hold,
invest, reinvest, control and disburse the funds as shall be set forth in the
Trust Agreement or this Plan.
Section 7.06 - Trust Agreement Part of Plan. The Trust Agreement and any joint,
master or associated trust fund or pooled separate account shall be deemed to
form a part of the Plan and the rights of Participants or others under this Plan
shall be subject to the provisions of the Trust Agreement and any joint, master
or associated trust fund or pooled separate account.
Section 7.07 - Trustee's Settlement of Accounts. The Trust Agreement may contain
provisions granting authority to the Company to settle the accounts of the
Trustee on behalf of all persons having or claiming interest in the Trust Fund.
VII-1
<PAGE>
ARTICLE VIII
AMENDMENT AND TERMINATION
Section 8.01 - Amendment. The Company, through a duly authorized officer, hereby
reserves the right, at any time, to modify or amend, in whole or in part, any or
all of the provisions of the Plan, including specifically the right to make any
such amendment effective retroactively, if necessary, to bring the Plan into
conformity with any governmental regulations which must be complied with so that
the Plan and Trust Fund shall continue to qualify under Code Sections 401(a) and
401(k). No modification or amendment shall make it possible for the Trust assets
to be used for or diverted to purposes other than the exclusive benefit of
Participants and their Beneficiaries, except as provided in Sections 3.03(ii)
and 3.05 hereof.
Section 8.02 - Termination. The Company, through a duly authorized officer, may
terminate or partially terminate this Plan at any time.
Section 8.03 - Distribution of Accounts Upon Plan Termination. If the Company
terminates the Plan or partially terminates the Plan, the Administrative
Committee shall compute the value of the Accounts of the affected Participants
which shall be fully vested and nonforfeitable. The Accounts of each such
Participant shall be distributed in the manner otherwise provided in Section
5.04 hereof as soon as administratively feasible or unless the Company, in its
discretion, and if permitted under the Internal Revenue Code and the regulations
thereunder, directs the Accounts of the affected Participants continue to be
held in the Trust Fund to be distributed upon each Participant's retirement,
death, disability or termination of employment.
VIII-1
<PAGE>
ARTICLE IX
TOP-HEAVY PROVISIONS
Section 9.01 - Application. The provisions of this Article IX shall only be
applicable if the Plan becomes "top-heavy" (as defined in Code Section 416(g))
aggregating this Plan and any other plans maintained by the Company, including
those plans which may have terminated, which are part of an "aggregation group
of plans" (as hereinafter defined). Generally this Plan would be "top-heavy" if
sixty percent (60%) or more of the aggregate present value of the accrued
benefits of Participants in the "aggregation group of plans" maintained by the
Company as of any "determination date" (as defined in Code Section 416(g)(4),
i.e., each December 31 beginning as of December 31, 1986), are attributable to
"key employees" (as defined in Code Section 416(i)(1)). For this purpose,
benefit payments to "key employees" during the Accounting Year (ending with such
determination date) or for any of the four (4) immediately preceding Accounting
Years shall be taken into consideration, but Rollover contributions and the
Accounts of former key employees shall not be taken into consideration. The
present value of accrued benefits in the Company's defined benefit plan shall be
determined on the basis of actuarial assumptions then being used in such plan to
comply with Code Section 401(a)(25). The benefits of an Employee who has not
performed services for the Company at any time during the 5-year period ending
on the determination date for top- heaviness are disregarded in determining
whether the Plan is top-heavy. If the Plan becomes "top-heavy" as of any
determination date, then effective in the next succeeding Accounting Year, the
provisions of this Article IX shall apply.
Section 9.02 - Special Minimum Benefit. If this Plan becomes "top-heavy," for
each year the Plan is top-heavy the Company shall make a minimum annual
contribution for each Employee of the Company who is employed on the last day of
the Accounting Year and who is not a "key employee," to the extent not already
provided by the Company through another qualified plan maintained by such
Company in which the Employee is a Participant, in an amount equal to the lesser
of three percent (3%) of his "compensation" or the highest percentage of
"compensation" contributed on behalf of a key employee. For purposes of this
Section 9.02, "compensation" shall have the same meaning as in Section 1.10
hereof. Such non-key employee shall receive this contribution regardless of his
level of compensation.
Section 9.03 - Special Combined Plans Limit. Notwithstanding the provisions of
Section 3.08 hereof to the contrary, the denominators of the defined benefit
plan fraction and defined contribution plan fraction shall, if this Plan becomes
"top-heavy," be amended by the product of 1.0 rather than 1.25 of the applicable
dollar limits. If an Employee who is not a "key employee" participating in this
Plan also participates in a defined benefit plan the Company maintains, such an
Employee's guaranteed minimum contribution under this Plan shall equal five
percent (5%) of his "compensation", irrespective of the minimum contribution
provided in Section 9.02.
Section 9.04 Key Employee Defined. The term "key employee" shall have the same
meaning as is specified in Code Section 416(i)(1), to wit:
IX-1
<PAGE>
(i) certain officers of the Company (but not more than fifty (50)
officers or, if less, the greater of three (3) officers or ten
percent (10%) of all employees);
(ii) the ten (10) employees with the largest equity interest in the
Company whose total annual compensation in the applicable
Accounting Year was one hundred percent (100%) or more of the
maximum annual additions to a defined contribution plan for such
year under Code Section 415(c)(1)(A);
(iii) any Participant with a five percent
(5%) equity interest in the Company;
(iv) any Participant with a one percent (1%) equity interest in the
Company whose total annual compensation in the applicable
Accounting Year is one hundred fifty thousand dollars ($150,000)
or more; or
(v) any Employee earning more than 150% of the Code Section
415 defined contribution limit.
In determining "equity interest," the attribution rules set forth in Code
Section 318 shall be taken into consideration. The term "key employee" as of any
determination date shall be applied to any Participant, former Participant or
vested terminated Participant (or his Spouse or Beneficiary) who was a "key
employee" during the Accounting Year (ending with such determination date) or in
any of the four (4) immediately preceding Accounting Years. The term "officer,"
for this purpose, shall only include any officer of the Company whose total cash
compensation for the applicable Accounting Year was at least one hundred fifty
percent (150%) or more of the maximum annual additions to a defined contribution
plan for such year under Code Section 415(c)(1)(A).
Any Employee who is not a "key employee" shall be a "non-key employee." "Non-key
employees" include employees who are former "key employees."
Section 9.05 - Aggregation Group of Plans Defined. The term "aggregation group
of plans" shall have the same meaning as is specified in Code Section 416(g)(1),
including for this purpose both required and permissive "aggregation groups of
plans, i.e. (i) each qualified retirement plan maintained by the Company in
which a "key employee" is a Participant, (part of a "required aggregation group
of plans") and/or (ii) each other qualified retirement plan maintained by the
Company which enables any other plan of such Company to meet the requirements of
Code Sections 401(a) or Section 410, and/or (iii) any other qualified retirement
plan maintained by the Company (part of a "required aggregation group of plans")
provided such other plan would continue to meet the requirements of CodeSections
401(a)(4) and 410 if this Plan and any plans included in (i) and (ii) hereof are
also taken into account (part of a "permissive aggregation group of plans").
IX-2
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 - Plan Merger, Consolidation or Transfer of Assets. In the case of
any merger, consolidation, or transfer of assets or liabilities to any other
plan, such plan shall provide that each Participant would, if the plan
terminated immediately after the merger consolidation or transfer, receive a
benefit which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer if
the Plan had then terminated.
Section 10.02 - Spendthrift Clause. Except as otherwise provided in Section 5.06
and 5.07, none of the benefits under the Plan are subject to the claims of
creditors of Participants or their Beneficiaries nor are they subject to
attachment, garnishment or any other legal process. Neither a Participant nor
his Beneficiary may assign, sell, borrow on or otherwise encumber his beneficial
interest in the Plan and Trust Fund, nor shall any such benefits be in any
manner liable for or subject to the deeds, contracts, liabilities, engagements
or torts of any Participant or Beneficiary. Notwithstanding the above, nothing
in this Section 10.02 nor the Plan shall preclude the Administrative Committee
or the Trustee from complying with a "qualified domestic relations order" as
defined in Code Section 414(p).
Section 10.03 Plan Voluntary. Although it is the intention of the Company that
this Plan shall be continued and contributions made regularly, this Plan is
entirely voluntary on the part of the Company and the continuance of the Plan
and any payments hereunder are not assumed as a contractual obligation of the
Company.
Section 10.04 - Reservation of Right to Suspend or Discontinue Contributions.
The Company specifically reserves the right in its sole and uncontrolled
discretion and by its official and authorized acts to modify, suspend (in whole
or in part) at any time or from time to time and for any period or periods or to
discontinue at any time their contributions under this Plan.
Section 10.05 - Non-Guarantee of Employment. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the right to be retained in
the service of the Company or to interfere with the right of the Company to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon such individual as a Participant in the Plan.
Section 10.06 - Governing Law. This Plan shall be construed in accordance with
the laws of the State of Missouri, except where such laws are superseded by
ERISA, as amended or the Internal Revenue Code, in which case ERISA or the Code,
as the case may be, shall control.
Section 10.07 - Facility of Payment. In making any distribution to or for the
benefit of any minor or incompetent Participant or Beneficiary, the
Administrative Committee, in its sole, absolute and uncontrolled discretion may,
but need not, order the Trustee to make such
X-1
distribution to a legal or natural guardian of such minor or incompetent and any
such guardian shall have full authority and discretion to expend such
distribution for the use and benefit of such minor or incompetent and the
<PAGE>
receipt of such guardian shall be a complete discharge to the Trustee without
any responsibility on its part or on the part of the Administrative Committee to
see to the application thereof.
Section 10.08 - Severability Clause. In the event any provisions of this Plan
document shall be held illegal or invalid for any reasons, the illegality or
invalidity shall not affect the remaining provisions of this Plan document,
which shall be fully severable and this Plan document shall be construed and
enforced as if the illegal or invalid provision had never been inserted herein.
Section 10.09 - Successor Companies. In the event of a merger or consolidation
of the Company or transfer of all or substantially all of its assets to any
other corporation, partnership or association, provision may be made by such
successor corporation, partnership or association, at its election, for the
continuance of this agreement and the retirement plan created hereunder by such
successor entity. Such successor shall, upon its election to continue the Plan,
be substituted in place of such Company by an instrument duly authorizing such
substitution and duly executed by the Company and its successor. Upon notice of
such substitution accompanied by a certified copy of the resolutions of the
governing Board of Directors of such Company and its successor, authorizing such
substitution and delivered to the Trustee, the Trustee and all Participants
hereunder shall be authorized to recognize such successor in the place of such
former Company.
Section 10.10 - Text of Plan Document Controls. Titles of Articles in this Plan
are inserted for convenience of reference only and in the event of any conflict,
the text of this instrument, rather than such titles, shall control.
X-2
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Plan to be executed
this 4th day of April, 1996, to be effective as of April 1, 1996.
Attest: (SEAL) BUTLER MANUFACTURING COMPANY,
a Delaware corporation
s/Richard O. Ballentine s/John W. Huey
___________________________ By ___________________________
Secretary Title: Vice President, Administration
X-3
<PAGE>
BIRMINGHAM HOURLY EMPLOYEE SAVINGS TRUST
PLAN DOCUMENT
AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1996
THIS DOCUMENT IS BASED ON THE PLAN ADOPTED SEPTEMBER 1, 1993
AND INCLUDES AMENDMENTS INCORPORATED IN THE RESTATED PLAN
AS OF AUGUST 1, 1994, AND APRIL 1, 1996
<PAGE>
BIRMINGHAM HOURLY EMPLOYEE SAVINGS TRUST
INTRODUCTION
Effective as of September 1, 1993, Butler Manufacturing Company, a Delaware
corporation (hereinafter referred to as the "Company"), adopted the Birmingham
Hourly Employee Savings Trust (hereinafter referred to as the "Plan") which was
amended as of August 1, 1994. The Plan is hereby further amended and restated,
effective April 1, 1996, primarily for the purpose of providing the Company's
Common Stock as an investment option.
The purpose of this Plan is to provide additional retirement security for
eligible employees by allowing them to make wage reduction contributions that
are tax-deferred.
It is intended that this Plan shall be approved and qualified by the Internal
Revenue Service as satisfying the pertinent requirements of the Internal Revenue
Code of 1986 as amended (the "Code") with respect to employee plans and trusts
so that (1) the Participants' wage redirection contributions under the Plan
shall be tax deferred; (2) the Company may deduct for Federal income tax
purposes the Participants' Wage Redirection Contributions); (3) the Company
contributions so made and the income of the Trust Fund shall not be subject to
Federal income tax to the Participants until received; and (4) the income of the
Trust Fund shall be exempt from Federal income tax.
It is also intended that this Plan and Trust shall satisfy the pertinent
requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"),
as amended, and the Plan and Trust shall be interpreted, wherever possible, to
comply with the terms of ERISA.
<PAGE>
BIRMINGHAM HOURLY EMPLOYEE SAVINGS TRUST
TABLE OF CONTENTS
ARTICLE/SECTION TITLES/SECTION HEADINGS PAGE
I DEFINITIONS I-1
1.01 Accounting Year I-1
1.02 Accounts I-1
1.03 Administrative Committee I-1
1.04 Affiliate I-1
1.05 Age I-1
1.06 Beneficiary I-1
1.07 Board of Directors I-1
1.08 Break in Service I-2
1.09 Company I-2
1.10 Compensation I-2
1.11 (Not used) I-2
1.12 (Not used) I-2
1.13 Early Retirement Age I-3
1.14 Effective Date I-3
1.15 Employee I-3
1.16 Employee Wage Redirection
Contributions I-3
1.17 Employee Wage Redirection
Contribution Account I-3
1.18 Entry Date I-3
1.19 Fiduciary I-3
1.20 Hour of Service I-3
1.21 (Not used) I-5
1.22 Nondiscrimination Compensation I-5
1.23 Normal Retirement Age I-5
1.24 Participant I-5
1.25 Plan I-5
1.26 Rollover Account I-5
1.27 Spouse I-5
1.28 Total and Permanent Disability I-5
1.29 Trust I-6
P-1
1.30 Trust Agreement I-6
1.31 Trustee I-6
1.32 Trust Fund I-6
1.33 Valuation Date I-6
1.34 Non-Gender Clause I-6
II PARTICIPATION IN THE PLAN II-1
2.01 Eligibility to Participate II-1
2.02 Election to Participate II-1
2.03 Change in Employment Classification
From An Eligible Employee II-1
<PAGE>
2.04 Change in Employment Classification
To An Eligible Employee II-2
2.05 Plan and Trust Binding II-2
III CONTRIBUTIONS III-1
3.01 Employee Contributions III-1
3.02 (Not used) III-1
3.03 Maximum Deductible Contributions III-1
3.04 Limitations on Contributions III-2
3.05 Corrective Adjustments III-3
3.06 Combined Plans Limit III-3
3.07 Mathematical Nondiscrimination
Test for Employee Salary
Redirection Contributions III-4
3.08 (Not used) III-6
3.09 (Not used) III-6
3.10 Rollover Contributions;
Plan-to-Plan Transfers III-6
IV ACCOUNTS OF PARTICIPANTS IV-1
4.01 Trust Fund Valuation IV-1
4.02 (Not used) IV-1
4.03 Investment Funds IV-1
4.04 Trustee's and Administrative
Committee's Determinations Binding IV-1
4.05 Investment of Accounts IV-2
4.06 Benefit Statements IV-7
P-2
V DISTRIBUTIONS UNDER THE PLAN V-1
5.01 Valuation of Accounts for
Distribution V-1
5.02 Amount of Distributions/
Distributable Events V-1
5.03 Timing of Distributions V-1
5.04 Forms of Distributions V-1
5.05 In-Service Withdrawals by
Participants V-1
5.06 Qualified Domestic Relations
Orders V-3
5.07 Loans to Participants V-3
5.08 Direct Rollover of Eligible
Rollover Distributions V-5
VI ADMINISTRATION VI-1
6.01 Allocation of Responsibility
Among Fiduciaries for Plan and
Trust Administration VI-1
6.02 Administrative Committee VI-1
6.03 Administrative Committee's
Powers and Duties VI-2
6.04 Claims Procedure VI-3
<PAGE>
6.05 Non-Discrimination VI-4
6.06 Trustee May Request Instructions VI-4
6.07 Legal Counsel VI-4
6.08 Payment of Advisors VI-4
6.09 Indemnification VI-5
VII THE TRUST FUND AND THE TRUSTEE VII-1
7.01 Trust Agreement VII-1
7.02 Investment of Trust Fund VII-1
7.03 Non-Reversion; Exclusive Benefit
Clause VII-1
7.04 Removal of Trustee VII-1
7.05 Powers of Trustee VII-1
7.06 Trust Agreement Part of Plan VII-1
7.07 Trustee's Settlement of Accounts VII-1
VIII AMENDMENT AND TERMINATION VIII-1
8.01 Amendment VIII-1
8.02 Termination VIII-1
8.03 Distribution of Accounts Upon
Plan Termination VIII-1
P-3
IX (NOT USED) IX-1
X MISCELLANEOUS PROVISIONS X-1
10.01 Plan Merger, Consolidation
or Transfer of Assets X-1
10.02 Spendthrift Clause X-1
10.03 Plan Voluntary X-1
10.04 (Not used) X-1
10.05 Non-Guarantee of Employment X-1
10.06 Governing Law X-1
10.07 Facility of Payment X-1
10.08 Severability Clause X-2
10.09 Successor Companies X-2
10.10 Text of Plan Document Controls X-2
P-4
SIGNATURES
This instrument is executed in _____________________ counterparts, each of which
shall be deemed to be the original. This is copy ____________________.
<PAGE>
ARTICLE I
DEFINITIONS
The following terms, as used in this Plan, shall have the meaning specified in
this Article I, unless a different meaning is clearly required by the context in
which they are used:
Section 1.01. The term "Accounting Year" shall mean a twelve (12) month period
beginning on each January 1 and ending on the following December 31.
Section 1.02. The term "Accounts" shall mean a Participant's Employee Wage
Redirection Contribution Account and, if applicable, Rollover Account.
Section 1.03. The terms "Administrative Committee" or "Committee" shall mean the
Administrative Committee as provided for in Article VI hereof.
Section 1.04. The term "Affiliate" shall mean any corporation or unincorporated
trade or business which is a member, as is the Company, of the same controlled
group of corporations, the same group of trades or businesses under common
control, or the same affiliated service group (within the meaning of Code
Sections 414(b), 414(c) or 414(m), respectively).
Section 1.05. The term "Age" shall mean the age, in years, of a Participant as
of the last anniversary of his date of birth.
Section 1.06. The term "Beneficiary" shall mean the Spouse of the Participant,
or, in the event that either
(a) the Participant has no Spouse at his death, or
(b) his surviving Spouse has agreed, in writing, witnessed by a Plan
representative or notary public, to the designation of another
Beneficiary,
the person or persons (including a trust) designated by the Participant in the
latest written notice to the Administrative Committee on a form approved by the
Committee. If any non-spouse Beneficiary so designated predeceases the
Participant and the Participant has no Spouse at his death and has not
designated another Beneficiary, his estate shall be his Beneficiary. The
Participant shall have the right to change his Beneficiary from time to time in
the manner herein above described.
Any Beneficiary designation made in accordance with the above, shall be
automatically revoked on the marriage or remarriage of the Participant.
Section 1.07. The term "Board of Directors" shall mean the Board of Directors of
the Company.
I-1
Section 1.08. The term "Break in Service" shall mean a Plan Year or first twelve
(12) months of employment during which an Employee or former Employee has not
been credited with more than five hundred (500) Hours of Service. However, in
accordance with Code Section 410(a)(5)(E) and 411 (a)(6)(E), an Employee shall
not incur a Break in Service in the first Accounting Year that he is not
credited with more than five hundred (500) Hours of Service because of an
absence from work, due to the
<PAGE>
(a) pregnancy of the Employee;
(b) birth of a child of the Employee;
(c) placement of a child for adoption with the Employee; or
(d) care by the Employee of a child immediately following such a birth
or placement.
To avoid incurring a Break in Service, an Employee, at the request of the
Committee, shall establish that the absence was due to one of the reasons
described above and the number of days for which there was such an absence.
Section 1.09. The term "Company" shall mean Butler Manufacturing Company and any
Affiliate which adopts this Plan with the consent of the Board of Directors, and
subject to the provisions of Article X, any corporation or other entity into
which a Company shall be merged or consolidated or to which all or substantially
all of its assets may be transferred.
Section 1.10. The term "Compensation" shall mean the Participant's total cash
compensation (as reported on Treasury department Form W-2) paid by the Company
during any pay period, including overtime and bonuses, as well as any Employee
Wage Redirection Contributions to this Plan or a Code Section 125 Plan and
payments from an executive incentive plan, but excluding extraordinary items of
compensation, such as imputed income from group term life insurance, taxable
perquisites and taxable moving allowances. No annual earnings in excess of one
hundred fifty thousand dollars ($150,000) shall be counted as "Compensation" for
purposes of this Plan. Such $150,000 cap shall be adjusted for cost of living
increases in the manner described in Code Section 401 (a)(17).
Compensation for U. S. citizens employed in a foreign country on assignment by
the Company shall exclude foreign service premiums, hardship allowances, housing
allowances, goods and services allowances, or any other payment designed to
compensate such individuals solely for their change in geographic location.
Section 1.11. (Not used)
Section 1.12. (Not used)
I-2
Section 1.13. The term "Early Retirement Age" shall mean Age fifty-five (55).
Section 1.14. The term "Effective Date" shall mean September 1, 1993.
Section 1.15. The term "Employee" shall mean each full-time Birmingham hourly
paid factory employee of the Company.
Section 1.16. The term "Employee Wage Redirection Contributions" shall mean the
contributions made by a Participant pursuant to Section 3.01 hereof which are
considered "elective deferrals" as described in Code Section 402(g)(3).
Section 1.17. The term "Employee Wage Redirection Contribution Account" shall
mean the account established on behalf of a Participant to which shall be
credited (i) the amount of his contributions pursuant to Section 3.01 hereof,
and (ii) the account's proportionate share of any net investment gains,
determined in accordance with Section 4.01 hereof. From said account, its
proportionate share of any net investment losses, determined in accordance with
Section 4.01 hereof, and any benefit payments or withdrawals shall be deducted.
<PAGE>
The Participant's interest in his Employee Wage Redirection Contribution Account
shall be fully vested and nonforfeitable.
Section 1.18. The term "Entry Date" shall mean the first day of each calendar
quarter (i.e., the first day of January, April, July or October). A special
entry date of August 1, 1994 was established in recognition of expanded
investment choices and increased level of Employee Wage Redirection
Contributions implemented on that date.
Section 1.19. The term "Fiduciary" shall have the same meaning as contained in
the definition in ERISA Section 3(21)(A) and, whenever applicable, shall include
the Trustee.
Section 1.20. The term "Hour of Service" shall mean each hour for which an
Employee is directly or indirectly compensated or entitled to compensation by
the Company:
(a) for the performance of duties for the Company;
(b) for other reasons not requiring the performance of duties such as
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or a paid leave of absence; and
(c) as a result of a back pay award (irrespective of mitigation of
damages), which is either awarded or agreed to by the Company. The
same Hours of Service shall not be credited both under this
subsection (c) and under either of subsection (a) or subsection (b)
above.
Hours of Service for the performance of duties shall be credited to the Employee
for the computation period in which the duties were performed; Hours of Service
for reasons other than the performance of duties shall be credited to the
Employee for the computation period or periods
I-3
for which payment is made; Hours of Service resulting from a back pay award or
agreement shall be credited to the Employee for the computation period or
periods to which the award or agreement pertains.
The number of Hours of Service to be credited under subsection (a) above shall
be the actual number of Hours of Service for which such Employee is paid
or entitled to payment for the performance of duties. In the case of
payments made or due an Employee pursuant to subsection (b) or subsection (c)
with respect of the periods described in subsection (b) during which no duties
were performed, if such payments are calculated on the basis of "units of time"
(such as hours, days, weeks or months), the number of Hours of Service to be
credited to the Employee shall be the number of regularly scheduled working
hours included in such units of time. If such payments relating to periods
during which no duties were performed are not based on "units of time", the
Hours of Service to be credited to the Employee shall be calculated in
accordance with the U.S. Department of Labor regulations which can be found at
29 CFR 2530.200b-2(b) and (c) or any successor regulations.
Notwithstanding the foregoing, the crediting of Hours of Service pursuant to the
provisions of subsections (b) and (c) above shall be subject to the following
limitations:
(i) except as otherwise provided in this Section with respect to
<PAGE>
certain authorized leaves of absence, no more than five hundred
(500) Hours of Service shall be credited to an Employee on account
of any single continuous period during which the Employee performs
no duties;
(ii) no Hours of Service shall be credited to an Employee with respect
to hours for which the Employee is paid or entitled to payment if
such payment is made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation, or
unemployment compensation or disability insurance laws; and
(iii) no Hours of Service shall be credited for a payment to an Employee
which solely reimburses an Employee for medical or medically
related expenses incurred by the Employee.
In addition to the Hours of Service to be credited in accordance with the
provisions above, an Employee shall be credited with Hours of Service at the
rate of eight (8) hours per day, subject to a maximum of forty (40) hours per
week, for the following periods during which the Employee is not directly or
indirectly paid, or entitled to payment by the Company:
(a) any leave of absence for military service in the Armed Forces of
the United States during which the employee's reemployment rights
are guaranteed by federal law, provided the Employee applies for
reemployment with the Company after his separation from military
service within the time required by such law.
I-4
(b) all or any portion of any other leave of absence which is granted
for a reason for which Hours of Service will be credited, all as
determined by the Administrative Committee on the basis of a
uniform policy applied without discrimination.
Section 1.21. (Not used)
Section 1.22. Effective for Accounting Years beginning on or after September 1,
1993, the term "Nondiscrimination Compensation" shall mean the Employee's total
earnings while eligible to participate in the Plan as reported on federal income
tax Form W-2 for the Accounting Year less amounts received from any qualified or
previously qualified plan of the Company, and shall include all amounts not
currently includible in the Employee's gross income by reason of the application
of Code Sections 125 or 402(g).
Section 1.23. The term "Normal Retirement Age" shall mean Age sixty-five (65).
Section 1.24. The term "Participant" shall mean an Employee who has met the
requirements of Article II for participation hereunder.
Section 1.25. The term "Plan" shall mean the Birmingham Hourly Employee Savings
Trust as originally adopted effective as of September 1, 1993 and as
amended from time to time thereafter.
Section 1.26. The term "Rollover Account" shall mean an account established on
behalf of an Employee to which shall be credited (i) the value of any amounts
transferred from another qualified plan or rolled over into this Plan pursuant
to Section 3.10 hereof and (ii) the Employee's proportionate share attributable
to this account of the net gain (if any) of the Trust Fund determined in
accordance with Section 4.01 hereof. From said account the Employee's
<PAGE>
proportionate share, attributable to this account, of the net losses (if any) of
the Trust Fund as determined in accordance with Section 4.01 hereof and any
benefit payments shall be deducted. The Participant's interest in his Rollover
Account shall be fully vested and nonforfeitable.
Section 1.27. The term "Spouse" shall mean the legally married husband or wife
of a Participant at the earlier of the Participant's date of death or the date
benefits are payable to the Participant under the Plan. To the extent required
by a "qualified domestic relations order," as such term is defined in Code
Section 414(p), the term Spouse shall include the former husband or wife of the
Participant.
Section 1.28. The term "Total and Permanent Disability" or "Totally and
Permanently Disabled" shall mean a physical or mental condition which totally
and permanently prevents a Participant from engaging in any occupation or
employment for remuneration or profit, except for the purpose of rehabilitation
not incompatible with a finding of total and permanent disability. The
determination as to whether a Participant is Totally and Permanently Disabled
shall be made solely on evidence that the Participant is (or will be following
the requisite waiting period) eligible
I-5
for disability benefits under the Social Security Act in effect at the date of
disability. Total and Permanent Disability shall exclude disability arising
from:
(a) chronic or excessive use of intoxicants, drugs or narcotics;
(b) intentionally self-inflicted injury or intentionally self-induced
sickness;
(c) a proven felonious act or enterprise on the part of the
Participant; or
(d) military service where the Participant is eligible to receive a
government sponsored military disability pension.
Section 1.29. The term "Trust" shall mean the trust created under the Trust
Agreement to fund the Plan.
Section 1.30. The term "Trust Agreement" shall mean the agreement entered into
between the Company and the Trustee, including all amendments to such Trust
Agreement from time to time.
Section 1.31. The term "Trustee" shall mean the Trustee named in the Trust
Agreement, its successors and assigns or any successor Trustee named pursuant to
the Trust Agreement.
Section 1.32. The term "Trust Fund" shall mean all cash, securities and any
other property held by the Trustee pursuant to the terms of the Trust Agreement,
together with any income therefrom.
Section 1.33. The term "Valuation Date" shall mean December 31 of each
Accounting Year and also may mean any date on which the New York Stock Exchange
is open, as of which dates the Trust Fund may be valued at fair market value.
The Administrative Committee may from time to time establish such Valuation
Dates as it deems desirable.
<PAGE>
Section 1.34. "Non-Gender Clause" Any words herein used in the masculine shall
be read and construed in the feminine where they would so apply. Words in the
singular shall be read and construed as though used in the plural in all cases
where they would so apply.
I-6
ARTICLE II
PARTICIPATION IN THE PLAN
Section 2.01 - Eligibility to Participate. Each active Employee of the Company
shall be eligible to participate in this Plan upon satisfying the requirements
set forth in this Section 2.01.
Section 2.01(a) - Initial Participation. An Employee of the Company shall
be eligible to participate in this Plan and make Employee Wage Redirection
Contributions in accordance with Section 3.01 hereof as of the Entry Date
coinciding with or immediately following such Employee's completion of six
(6) months of employment.
Section 2.01 (b) - Participation upon Reemployment of a Former Employee. A
terminated Participant who resumes employment with the Company shall be
eligible to reenter the Plan on his reemployment date.
A terminated Employee who was not a Participant and who resumes his
employment with the Company shall be eligible to become a Participant in
this Plan on the Entry Date coincident with or next following his date of
reemployment (counting his prior service).
Section 2.02 - Election to Participate. Each eligible Employee shall be
furnished a summary of the Plan and an enrollment form. If the Employee elects
to participate, he must complete the enrollment form and file it with the
Committee. The Employee shall indicate on such form the rate of contribution he
elects to make and his choice of investment funds pursuant to Section 4.03, and
may designate a Beneficiary (with the written consent of his Spouse, if any,
witnessed by a Plan representative or notary public, if a nonspouse Beneficiary
is named), to whom benefits should be paid in the event of his death.
An eligible Employee who elects not to participate when first eligible may begin
participation as of any later Entry Date upon the submission of his completed
enrollment form at least fifteen (15) days prior to the Entry Date.
Section 2.03 - Change in Employment Classification From An Eligible Employee. A
Participant who ceases to be an Employee of the Company for the purpose of this
Plan while remaining an employee of the Company shall become a limited
Participant as of the date of the change of his employment status.
As a limited Participant he shall not be entitled to make contributions
hereunder until he changes his employment status so he again qualifies as an
Employee. On each Valuation Date such limited Participant's Accounts shall be
adjusted in accordance with Section 4.01.
II-1
Section 2.04 - Change in Employment Classification To An Eligible Employee. An
employee of the Company or Affiliate (including a limited Participant under
Section 2.03) who becomes an Employee for the purpose of this Plan shall be
eligible to become a Participant on the Entry Date coincident with or
<PAGE>
immediately following the date of his change in employment classification.
Section 2.05 - Plan and Trust Binding. Upon becoming a Participant, a
Participant shall be bound then and thereafter by the terms of this Plan and of
the Trust, including all amendments thereto.
II-2
ARTICLE III
CONTRIBUTIONS
Section 3.01 - Employee Contributions. Each Employee who becomes a Participant
in this Plan shall specify on his enrollment form the rate of Employee Wage
Redirection Contributions he wishes to make, by payroll deduction, as set forth
in this Section 3.01. Such contributions shall be transmitted to the Trustee as
soon as reasonably practicable after the end of each month, but in no event
shall Employee Wage Redirection Contributions for an Accounting Year be
transmitted later than thirty (30) days after the end of such Accounting Year.
Section 3.01(a) - Employee Wage Redirection Contributions. A Participant's
Employee Wage Redirection Contributions shall not be less than one percent
(1%) nor more than fifteen percent (15%) of his Compensation, in one
percent (1%) increments.
Section 3.01(b) - Change of Contributions. A Participant may, by filing a
written notice with the Administrative Committee, elect to change the rate
of his Employee Wage Redirection Contributions, effective as of the next
following January 1, April 1, July 1, or October 1. Such written notice
shall be filed with the Committee not less than fifteen (15) working days
prior to the date it is to be effective.
Section 3.01(c) - Suspension of Contributions. A Participant may, by filing
a written notice with the Administrative Committee, elect to suspend his
contributions. Such suspension shall be effective as of the next following
January 1, April 1, July 1; or October 1 provided it is received fifteen
(15) days prior to the first day of such quarter. A Participant may resume
making Employee Wage Redirection Contributions as of the first day of any
succeeding calendar quarter by filing a written notice with the Committee
not less than fifteen (15) working days prior to the effective date of such
resumption.
Section 3.02 - (Not used)
Section 3.03 - Maximum Deductible Contributions. The contributions of the
Company computed in accordance with the provisions of Section 3.01 above shall
be subject to the following limitations:
(i) in no event shall the Company be obligated to make a contribution
for an Accounting Year in excess of the maximum amount deductible
under Code Section 404(a)(3)(A), or any statute or rule of similar
import; and
(ii) if the Company makes a contribution to the Trust Fund due to: (a) a
mistake of fact, or (b) a mistake in determining the maximum amount
deductible, then the Company may withdraw from the Trust Fund the
amount attributable to such mistaken contribution or disallowed
deduction provided such amount is withdrawn within one
<PAGE>
III-1
(1) year of the mistaken contribution or disallowed deduction
whichever is applicable. If the Company does not choose to withdraw
any such amount, it shall be applied to reduce the Company's
contribution for the next Accounting Year for which the Company
makes a contribution hereunder.
Section 3.04 - Limitations on Contributions.
Section 3.04(a). Notwithstanding any provision of the Plan to the contrary,
in no event shall a Participant's Employee Wage Redirection Contributions
(when combined with any other elective deferrals made by the Participant,
as defined under Code Section 402(g)(3)), exceed in an Accounting Year nine
thousand five hundred dollars ($9,500) in 1996 (or such other amount in
subsequent years which shall result from adjustments under Code Section
415(d)). The Company will monitor each Participant's Wage Redirection
Contributions throughout the year and will, as necessary, compel a
Participant to reduce their Wage Redirection Contributions if the
applicable annual dollar limit will be exceeded. If it is determined that
the Participant has exceeded the limit set forth in this Section 3.04(a)
for an Accounting Year, the excess amount and any income allocable to such
excess amount shall be distributed to the Participant no later than the end
of the Accounting Year following the Accounting Year in which such excess
contribution was made. The return of Employee Wage Redirection
Contributions and income shall be accomplished by a proportionate reduction
of the affected Participants' investments in the investment funds
designated in Section 4.03 as of the Valuation Date preceding the
distribution. A distribution shall be made during the same Accounting Year
in which the excess Employee Wage Redirection Contributions were made, only
if (i) the Participant and the Plan designate the distribution as a
distribution of an excess deferral, and (ii) the distribution is made after
the date on which the Plan received the excess deferral. Whether or not
distributed, excess Employee Wage Redirection Contributions shall continue
to be considered as Employee Wage Redirection Contributions for purposes of
determining the average deferral percentage under Section 3.07 and "annual
additions" for purposes of the limitations described in Section 3.04(b).
Section 3.04(b). Notwithstanding any provisions contained herein to the
contrary, except for transfers to a Rollover Account, the total annual
addition to any Participant's Accounts in this Plan and any other defined
contribution plan of the Company and its Affiliates for any Accounting Year
shall not exceed the lesser of (i) thirty thousand dollars ($30,000) or the
specific dollar amount set forth in Code Section 415(c)(1)(A) as such
amount may hereafter be adjusted pursuant to Code Section 415(d)(1)(B), or
(ii) twenty-five percent (25%) of the Participant's annual compensation (as
hereinafter defined) for such Accounting Year.
For this purpose, a Participant's compensation shall include his earned
income, wages, gain sharing payments, bonuses and other amounts received
for personal services actually rendered in the course of employment with
the Company and its Affiliates.
III-2
The term "annual addition" shall mean the total additions in the Accounting
Year to the Participant's Accounts in this Plan and any other defined
contribution plan of the Company or its Affiliates attributable to:
<PAGE>
(i) any employer contribution;
(ii) employee contributions;
(iii) forfeitures; and
(iv) any post-retirement medical benefits or individual medical accounts
maintained under any defined benefit plans of the Company or its
Affiliates pursuant to Code Sections 419A(d)(3) and 415(1)(2),
which are treated as "annual additions" for purposes of Code
Section 415.
Section 3.05 - Corrective Adjustments. In the event that as of any Valuation
Date corrective adjustments in the "annual addition" to any Participant's
Account are required pursuant to Section 3.04(b), such adjustments shall be made
by a reduction in the Participant's Employee Wage Redirection Contribution
Account.
Section 3.06 - Combined Plans Limit. If a Participant is a participant in a
defined benefit plan maintained by the Company, the sum of his defined benefit
plan fraction and his defined contribution plan fraction for any limitation year
may not exceed 1.0.
For purposes of this Section 3.06, the term "defined contribution plan fraction"
shall mean a fraction the numerator of which is the sum of all of the annual
additions to (a) the Participant's Accounts under this Plan and (b) the
Participant's accounts under any other defined contribution plans which may be
maintained by the Company as of the close of the Accounting Year and the
denominator of which is the sum of the lesser of the following amounts
determined for such Accounting Year and for each prior Accounting Year of his
employment by the Company:
(i) the product of 1.25 multiplied by the dollar limitation calculated
pursuant to Section 3.04(b) for such Accounting Year; or
(ii) the product of 1.4 multiplied by the percentage limitation
calculated pursuant to Section 3.04(b) for such Accounting Year.
For purposes of this Section 3.06, the term, "defined benefit plan fraction"
shall mean a fraction the numerator of which is the Participant's projected
annual benefit (as defined in the said defined benefit plan) determined as of
the close of the Accounting Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation under Code
Section 415(b)(1)(A) for such Accounting Year; or
III-3
(ii) the product of 1.4 multiplied by the percentage limitation which
may be taken into account pursuant to Code Section 415(b)(1)(A) for
such Accounting Year.
The limitation on aggregate benefits from a defined benefit plan and a defined
contribution plan set forth in this Section 3.06 shall be complied with by a
reduction (if necessary) in the Participant's benefits under the defined benefit
plan in accordance with the provisions of such plan and his benefits hereunder
shall not be affected by such aggregate limitation.
Section 3.07 - Mathematical Nondiscrimination Test for Employee Wage Redirection
<PAGE>
Contributions. Notwithstanding any of the provisions of this Plan to the
contrary, a Participant's Employee Wage Redirection Contributions shall be
subject to the mathematical nondiscrimination test set forth in Code Section
401(k): that is, the "average deferral percentage" of the eligible highly
compensated Employees for each Accounting Year shall not exceed the average
deferral percentage of the non-highly compensated Employees by more than the
limit determined in accordance with the following table, counting for this
purpose each Employee Wage Redirection Contribution (including zero (0) Employee
Wage Redirection Contributions in the case of any nonparticipating eligible
Employee):
If the average The average deferral
deferral percentage percentage (ADP) of
(ADP) of the non-highly the highly compensated
compensated Employee is Employees can be
----------------------- ----------------------
Less than two percent (2%) Up to the ADP of the eligible non-
highly compensated Employees
multiplied by 2.0 (the "alternative
test").
Two percent (2%) but not more Up to the ADP of the eligible non-
than eight percent (8%) highly compensated Employees
plus two percent (2%) (the
"alternative test").
Eight percent (8%) or more Up to the ADP of the eligible non-
highly compensated Employees
multiplied by 1.25 (the "general
test").
"Average deferral percentage" as used herein shall mean the average of the
ratios (calculated separately for each eligible Employee) of (i) the amount of
Employee Wage Redirection Contributions actually paid over to the Trust Fund on
behalf of each such Employee for such Accounting Year and (ii) the Employee's
Nondiscrimination Compensation for such Accounting Year. During each Accounting
Year the Company shall monitor the average deferral percentages
III-4
of the non-highly compensated Employees and of the highly compensated Employees
for such Accounting Year. If it appears at any time within an Accounting Year
that the mathematical nondiscrimination test may not be satisfied, the Company
may suspend or decrease the rate of Employee Wage Redirection Contributions of
highly compensated Employees (beginning with the highly compensated Employee
with the highest average deferral percentage) for the remainder of the
Accounting Year. If, after the end of the Accounting Year it is determined that
the mathematical nondiscrimination test has not been satisfied, the Company
shall direct the Trustee to return the amount of the affected Participants'
Employee Wage Redirection Contributions for such Accounting Year that will cause
the mathematical nondiscrimination test to be satisfied, with the income
allocable to such Participants' Employee Wage Redirection Contributions
calculated in accordance with the regulations under Code Section 401(k). The
return of Employee Wage Redirection Contributions and any income shall occur
before the end of the Accounting Year following the Accounting Year in which the
Plan failed to satisfy the mathematical nondiscrimination test. The return of
Employee Wage Redirection Contributions and any income thereon shall be
accomplished by a proportionate reduction of each affected Participant's
investments in the investment Funds designated in Section 4.03 as of the end of
<PAGE>
the applicable Accounting Year in question.
For purposes of this Section and Section 3.08, the term "highly compensated"
Employee for an Accounting Year includes an Employee who:
a. was a five percent (5%) or greater owner of the Company (as defined
in Code Section 416(i)) in the current or preceding Accounting Year,
b. was in the top twenty percent (20%) of all employees of the Company
and any Affiliates ranked by compensation and received more than
sixty-six thousand dollars ($66,000) (as such amount may be adjusted
hereafter by the Secretary of the Treasury as authorized by the
Code) in compensation in the current or preceding Accounting Year,
c. received more than one hundred thousand dollars ($100,000) (as such
amount may be adjusted hereafter by the Secretary of the Treasury as
authorized by the Code) in compensation in the current or preceding
Accounting Year, or
d. was an officer of the Company or an Affiliate in the current or
preceding Accounting Year and received compensation of more than
fifty percent (50%) of the Code Section 415(b)(1)(A) defined
benefit dollar limit ($60,000 in 1996), but not to include more
than fifty (50) individuals or if less, the greater of three (3)
employees or ten percent (10%) of all employees of the Company and
Affiliates.
For purposes of determining who is a "highly compensated Employee," the term
"compensation" shall have the same meaning as specified in Section 3.04(b), but
shall include any Employee Wage Redirection Contributions to this Plan or
amounts excludable from an Employee's gross income by application of Code
Section 125.
III-5
Notwithstanding the foregoing, an Employee should not be considered a highly
compensated Employee for an Accounting year unless he satisfied the definition
set forth in (a), (b), (c) or (d) in the preceding Accounting Year, satisfies
the definition set forth in (a) in the current Accounting Year, or satisfies the
definition set forth in (c) or (d) and is one of the one hundred (100) highest
paid Employees of the Company and Affiliates in the current Accounting Year
ranked by compensation.
If a Participant in the Plan is a family member of another Participant in the
Plan who is (i) a five percent (5%) owner of the Company, or (ii) one (1) of the
top ten (10) highest paid employees of the Company, the Compensation paid to and
contributions made on behalf of such family member shall be deemed to have been
made on behalf of such five percent (5%) owner or other highly compensated
Employee.
Any former employee shall be treated as a highly compensated Employee if such
Employee was a highly compensated Employee when he (i) terminated employment, or
(ii) attained Age fifty-five (55). In addition, an Employee who worked only a
de minimis amount of service may be considered a highly compensated Employee.
For purposes of this Section, the term "non-highly compensated" Employee for an
Accounting Year includes any Employee eligible to participate in this Plan who
is not "highly compensated" as defined above.
<PAGE>
Notwithstanding any provision of this Section or Section 3.08 to the
contrary, the Committee, in its discretion, may determine which Employees are
highly compensated Employees for an Accounting Year in accordance with the
"calendar year election" or, if applicable, the "simplified method" or
"transitional rule" as described in Code Section 414(g) and regulations
thereunder.
Section 3.08 - (Not used)
Section 3.09 - (Not used)
Section 3.10 - Rollover Contributions; Plan-to-Plan Transfers. In addition to
Employee Wage Redirection Contributions under Section 3.01, an Employee may make
contributions to the Plan due to a rollover of his interests from other
qualified plans meeting the requirements set forth in the following paragraphs.
An Employee of the Company who would otherwise be eligible to participate in
this Plan except that such Employee has been employed before an Entry Date and
who has had distributed to him his entire vested interest in a plan which meets
the requirements of Code Section 401(a) as a result of (i) termination of
employment, (ii) plan termination, (iii) disability, or (iv) on or after he has
attained age fifty-nine and one-half (591/2) may, in accordance with procedures
approved by the Administrative Committee, contribute part or all of the taxable
portion of the distribution received from such other plan to the Trust Fund for
this Plan, provided the following conditions are satisfied:
III-6
(i) such contribution occurs on or before the sixtieth (60th) day
following his receipt of the distribution from the other plan;
(ii) the distribution received from the other plan is a "qualified
rollover distribution" within the meaning of Code Section
402(a)(5)(D)(i); and
(iii) the amount contributed is not more than the distribution he
received from the other plan less the amount, if any, considered to
be an employee after-tax contribution in accordance with Code
Section 402(e)(4)(D)(i).
An Employee of the Company, regardless of whether he is otherwise eligible to
participate in the Plan and in accordance with procedures approved by the
Administrative Committee, may also authorize the plan-to-plan transfer of his
entire interest in any other retirement plan that is qualified under Code
Section 401(a) to the Trust Fund for the Plan, provided such transferred amount
is permitted by such other plan and meets with the other provisions of this
Section 3.10.
Notwithstanding the above provisions of this Section 3.10 to the contrary, any
plan-to-plan transfer hereunder shall only be permitted if such amount
transferred to the Plan is not a direct or indirect transfer from a transferor
plan that is (a) a defined benefit plan, (b) a defined contribution plan subject
to Code Section 412, or (c) a defined contribution plan that is subject to Code
Sections 401(a)(11) and Section 417 with respect to the Participant.
The Administrative Committee shall develop such procedures, and may require such
information from the Employee desiring to make such a contribution or transfer,
as it deems necessary or desirable to determine that the proposed contribution
or plan-to-plan transfer will meet the requirements of this Section 3.10. Upon
<PAGE>
approval by the Administrative Committee, the amount contributed shall be
deposited in the Trust Fund and shall be credited to the Employee's Rollover
Account. Upon such a contribution or transfer by an Employee who is not yet a
Participant hereunder, his Rollover Account shall represent his sole interest in
the Plan until he becomes a Participant.
If an Employee makes a contribution or plan-to-plan transfer as provided in this
Section 3.10, a Rollover Account shall be established for him hereunder equal to
the amount contributed to the Trust. Such Account shall be fully vested and
nonforfeitable at all times. The Employee's Rollover Account shall be invested
at the direction of the Participant pursuant to Section 4.03 as a part of the
Trust Fund and shall share in gains and losses in accordance with the terms of
Section 4.01 hereof.
If a Participant is subsequently employed by another employer which has a
retirement plan that is qualified under Code Section 401(a), the Administrative
Committee may, at the request of the Participant, direct the plan-to-plan
transfer of the Participant's Plan benefits directly to the trustee of the
qualified plan of the Participant's new employer if the following conditions are
met:
III-7
(i) the trustee of the other qualified plan is permitted to accept the
transfer of benefits from the Plan;
(ii) the Participant's transferred assets will be maintained in a
separate account (or separate accounts if needed to clearly
identify contributions and earnings thereon attributable to
employee contributions); and
(iii) the Participant's transferred assets shall not be forfeitable or
reduce in any way the obligation of the new employer.
Amounts transferred from the Plan shall be deducted from the Employee's affected
Accounts under the Plan.
III-8
ARTICLE IV
ACCOUNTS OF PARTICIPANTS
Section 4.01 - Trust Fund Valuation. As of the market close on each Valuation
Date, the Trustee shall determine the fair market value of the Trust Fund and
the Administrative Committee shall cause the fair market value of the Accounts
to be determined. The value of a Participant's Account, as of any Valuation
Date, shall be determined by the number of shares in each investment fund (each
"Fund") held by the Trust allocated to such Participant's Account(s) (including
any Participant loans), multiplied by the per share net asset value for each
Fund as of the market close on such Valuation Date.
Section 4.02. - (Not used)
Section 4.03 - Investment Funds. The Trustee shall have no responsibility for
the selection of investment options within the Trust Fund and shall not render
investment advice to any person in connection with the selection of such
options. The Administrative Committee shall direct the Trustee as to the
<PAGE>
investment options in which Participants may invest, subject to the following
limitations. The Administrative Committee shall select a range of investment
options which shall include the Butler Company Stock Fund as described at
Section 4.05(b) hereof, and which may include (i) mutual funds managed by the
investment companies advised by Fidelity Management & Research Company, (ii) a
pool of investment contracts or similar fixed income instruments provided in an
investment portfolio advised by Fidelity Management & Research Company, and
(iii) mutual funds or other investment funds managed or offered by advisors
unrelated to Fidelity.
The Company may from time to time, at its discretion, change, delete or add
investment options available within the Trust Fund; provided that until further
amendment of the Plan, the Plan shall continue to provide the Butler Stock Fund
as an investment option. Income from and proceeds of sales of investments in
each Fund shall be reinvested in the same Fund. Brokerage commissions, transfer
taxes and other charges and expenses in connection with the purchase and sale of
securities held in a Fund may be charged to the respective Fund as determined by
the Administrative Committee. Any income or other taxes payable with respect to
each Fund shall be charged to such Fund. The Trustee may hold amounts in cash
or short-term marketable securities for each Fund as it may deem appropriate.
The Trustee, on written direction from the Committee, shall be authorized to
provide amounts required for loans made pursuant to Section 5.07 from any Fund.
Section 4.04 - Trustee's and Administrative Committee's Determinations Binding.
In determining the value of the Trust Fund and each Participant's Accounts, the
Trustee and the Committee shall exercise their best judgment and all such
determinations (in the absence of bad faith) shall be binding upon all
Participants and their beneficiaries. All allocations shall be
IV-1
deemed to have been made as of the appropriate Valuation Date regardless of when
the allocations are actually made.
Section 4.05 - Investment of Accounts. All Accounts shall be invested as
hereinafter provided.
Section 4.05(a) - Direction by Participants. When an Employee becomes a
Participant in the Plan, he becomes responsible for directing the
investment of the contributions to his Accounts in one percent (1%)
increments (or as nearly as possible) among the Funds.
Any investment direction made by a Participant will continue in effect
until changed by the Participant. A Participant may change his investment
direction at any time pursuant to procedures established by the
Administrative Committee. The change in investment direction may apply to
future contributions, to amounts already invested or to both.
The terms and conditions of making and changing investment elections shall
also be subject to any requirements imposed by the financial institution or
other entity which establishes the Funds.
Directions with respect to investments among the Funds and changes therein
may be made by Participants by the use of the telephone exchange system
maintained for such purpose by the Trustee or its agent or in such other
manner, if any, as the Administrative Committee may determine from time to
time. Such investments (or exchanges among investment options) normally
shall be made on the same business day that the agent of the Trustee
receives a proper direction and monies, if received before 4:00 p.m.
<PAGE>
Eastern time; if received after 4:00 p.m. Eastern time, the investments
normally shall be made the following business day. In the event that the
agent of the Trustee fails to receive a proper direction, or if a
Participant fails to make an investment election, the assets shall be
invested in the Fidelity Money Market Trust: Retirement Money Market
(hereafter, the "Money Market Portfolio") until the agent of the Trustee
receives a proper direction. The net sales price or purchase price of
units in a Fund shall be as determined on the basis of the value of a unit
as of the market close on the Valuation Date on which the transaction
occurs.
In addition, contributions the Trustee receives from the Company on other
than a Valuation Date shall be invested in the securities of the Money
Market Portfolio until the following Valuation Date. Withdrawals (other
than those made to accomplish the exchanges) shall be made within ten (10)
days of receipt by the agent of the Trustee of a proper direction to
withdraw. If any assets allocable to Participant Accounts hereunder are
received by the agent of the current Trustee from a predecessor trustee,
such investments shall be invested in the Money Market Portfolio until a
full reconciliation of such assets has been received from such predecessor
trustee, at which time such assets shall then be invested pursuant to
proper directions received from a Participant, or as directed by the
Administrative Committee.
IV-2
It is the intention of the parties to comply with the requirements of
Section 404(c) of ERISA and to enable and require Participants to exercise
independent control over assets in their Accounts. Neither the Company,
the Administrative Committee, nor the Trustee shall have any responsibility
for any loss in connection with Participant's selection of an investment
option.
Section 4.05(b) - Butler Common Stock Fund. One of the investment options
under the Plan, referenced in Section 4.03 hereof, shall be the Butler
Common Stock Fund ("Butler Stock Fund"), which shall consist of shares of
the Common Stock of Butler Manufacturing Company ("Company Stock") and cash
(the "Cash Portion") invested in short-term liquid investments maintained
by the Trustee necessary to satisfy the Butler Stock Fund's cash needs for
Participants' requests for transfers to other Funds, distributions or
withdrawals, or held temporarily pending investment in Company Stock.
Each Participant's proportional interest in the Butler Stock Fund shall be
measured in units of participation, rather than shares of Company Stock.
This method of accounting is referred to as "unitization". Each unit of
the Butler Stock Fund represents a proportionate interest in all of the
assets of the Butler Stock Fund, which includes shares of Company Stock and
short term investments. A Net Asset Value ("NAV") per unit will be
determined on each Valuation Date for each unit outstanding of the Butler
Stock Fund.
Purchases and sales of Company Stock shall be made on the open market as
soon as practicable after the Trustee's receipt from the Company and/or the
Plan Participants, as applicable, in good order all information and
documentation necessary to accurately effect such purchases and sales,
subject to market conditions and applicable laws and regulations.
Purchases and sales of Company Stock also may be made from or to the
Company or third parties who are "parties in interest" as defined in
Section 3(14) of ERISA, provided (i) the Company or Administrative
<PAGE>
Committee so requests, (ii) the purchase or sale is for adequate
consideration (within the meaning of Section 3(18) of ERISA) and (iii) no
commission is charged.
Notwithstanding the foregoing, neither the Company nor any affiliate of the
Company (other than with respect to directions by an affiliate with respect
to that affiliate's account only) may exercise any direct or indirect
control or influence over the times when, or the prices at which, the
Trustee, or any broker selected by the Trustee, may purchase Company Stock
for the Butler Stock Fund, the number of shares of such stock to be
purchased, the manner in which such stock is to be purchased, or the
selection of a broker or dealer (other than the Trustee) through which
purchases may be executed; it being understood that the Company shall not
be deemed to have such control or influence solely because it revises not
more than once in any three month period the basis for determining the
amount of its contributions to the Plan or the basis for determining the
frequency of its allocations to the Plan. For purposes of this paragraph
only, "affiliate," means a person that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common
control with, the Company.
IV-3
Notwithstanding any other provision of this Plan or of the Trust, the
provisions of this Section shall govern the voting and tendering of Company
Stock. The Company, after consultation with the Trustee, shall provide and
pay for all printing, mailing, tabulation and other costs associated with
the voting and tendering of Company Stock.
(i) Voting
(a) Upon the filing of definitive proxy solicitation materials
with the Securities and Exchange Commission, the Company shall cause
a copy of all such materials to be sent to the Trustee. Based on
these materials, the Trustee shall prepare a voting instruction
form. At the time of mailing of notice of each annual or special
stockholders' meeting of the Company, the Company shall cause a copy
of the notice and all proxy solicitation materials to be sent to
each Participant, together with the foregoing voting instruction
form to be returned to the Trustee or its designee. The form shall
show the number of full and fractional shares of Company Stock
attributable to the Participant's interest in the Butler Stock Fund.
The Company shall provide the Trustee with a copy of any materials
provided to the Participants and shall certify to the Trustee that
the materials have been mailed or otherwise sent to Participants.
(b) Each Participant with an interest in the Butler Stock Fund
shall have the right to direct the Trustee as to the manner in which
the Trustee is to vote that number of shares of Company Stock
attributable to the Participant's interest in the Butler Stock Fund.
Directions from a Participant to the Trustee concerning the voting
of Company Stock shall be communicated in writing, or by mailgram or
similar means. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Company, or to any
director, officer or employee of the Company or any affiliated
company. Upon its receipt of the directions, the Trustee shall vote
the shares of Company Stock as directed by the Participant. Shares
of Company Stock attributable to a Participant's interest in the
Butler Stock Fund for which the Trustee has received no directions
<PAGE>
from the Participant shall be voted by the Trustee in proportion to
all those shares for which direction has been received by Trustee.
(ii) Tender Offers
(a) Upon commencement of a public tender offer or exchange offer
for shares of Company Stock ("Tender Offer"), the Company shall
notify each Participant with an interest in the Butler Stock Fund of
the Tender Offer and shall utilize its best efforts to timely
distribute or cause to be distributed to such Participants the same
information that is distributed to holders of Company Stock in
connection with the Tender Offer, and, after consulting with the
Trustee, shall provide and pay for a means by which
IV-4
such Participants may direct the Trustee whether or not to tender
the Company Stock attributable to the Participant's interest in the
Butler Stock Fund. The Company shall provide the Trustee with a
copy of any materials provided to such Participants and shall
certify to the Trustee that the materials have been mailed or
otherwise sent to such Participants.
(b) Each Participant shall have the right to direct the Trustee
to tender or not to tender some or all of the shares of Company
Stock attributable to the Participant's interest in the Butler Stock
Fund. Directions from a Participant to the Trustee concerning the
tender of Company Stock shall be communicated in writing, or by
mailgram or such similar means as is agreed upon by the Trustee and
the Company under the preceding paragraph. These directions shall
be held in confidence by the Trustee and shall not be divulged to
the Company, or to any officer or employee thereof, or any other
person except to the extent that the consequences of such directions
are reflected in reports regularly communicated to any such persons
in the ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of Company
Stock as directed by the Participant. The Trustee shall not tender
shares of Company Stock attributable to a Participant's interest in
the Butler Stock Fund for which it has received no directions from
the Participant.
(c) A Participant who has directed the Trustee to tender some or
all of the shares of Company Stock attributable to the Participant's
interest in the Butler Stock Fund may, at any time prior to the date
permited under the Tender Offer for the revocation or withdrawal of
tenders (the "Withdrawal Date"), direct the Trustee to revoke or
withdraw some or all of the tendered shares, and the Trustee shall
withdraw the directed number of shares from the Tender Offer or
otherwise revoke the same prior to the Withdrawal Date. A
Participant shall not be limited as to the number of directions to
tender or to withdraw or revoke a tender that the Participant may
give to the Trustee.
(d) A direction by a Participant to the Trustee to tender shares
of Company Stock attributable to the Participant's interest in the
Butler Stock Fund shall not be considered a written election under
the Plan by the Participant to withdraw, or have distributed, any or
all of the Participant's interest in the Plan, which may be
withdrawn pursuant to the provisions of the Plan. The Trustee shall
<PAGE>
credit to each Account of the Participant from which the tendered
shares were deemed to have been taken the proceeds received by the
Trustee in exchange for the shares of Company Stock tendered in
connection with that Account. Pending receipt of directions from
the Participant, as provided in the Plan, as to which of the
remaining investment options the proceeds should be invested in, the
Trustee shall invest the proceeds in the securities of the Money
Market Portfolio.
IV-5
(iii) Shares Credited
For all purposes of this Section, the number of shares of Company
Stock deemed "attributable" to a Participant's interest in the
Butler Stock Fund shall be determined by the Trustee as of the last
preceding Valuation Date.
(iv) General
With respect to all rights other than the right to vote, the right
to tender, and the right to withdraw shares previously tendered, in
the case of Company Stock attributable to a Participant's interest
in the Butler Stock Fund, the Trustee shall follow the directions of
the Participant and, if no such directions are received, the Trustee
shall not act. The Trustee shall have no duty to solicit directions
from Participants but shall pass on to Participants notices, offers,
proxy materials and other information furnished to the Trustee;
provided that the Trustee shall have no duty to pass on such
information to the extent that the Company has certified to the
Trustee that such information has previously been furnished to
Participants.
(v) Conversion
All provisions in this Section 4.05(b) shall also apply to any
securities received as a result of a conversion of Company Stock.
Section 4.05(c). - (Not used)
Section 4.05(d) - Rollover Accounts. If permitted by the Administrative
Committee, a Participant who has a rollover Account as set forth in Section
3.10 may invest such Account in one percent (1%) increments in the Funds.
The initial allocation of his Rollover Account among the Funds may be
independent of his investment choices for prospective Employee Wage
Redirection Contributions.
Section 4.05(e) - Loan Accounts. Loans for investment purposes shall be
treated as an individual loan investment of the Participant making the
loan. Loans will be charged first to the Participant's Employee Wage
Redirection Contribution Account and then to his Rollover Account if
applicable. Repayment of loans shall be credited to the Participant's
Accounts from which they were charged but first to his Rollover Account if
applicable and then to his Employee Wage Redirection Contribution Account.
In the last Account to be used for satisfying the loan amount, amounts will
be taken from each Fund in said Account, pro rata in proportion to the
value of each such Fund on the Valuation Date as of which the loan is made.
Loan repayments shall be credited to the investment Fund(s) within the
applicable Account(s) in the same percentage as has been elected for the
<PAGE>
Participant's future contributions. Interest payments will be credited on
a prorata basis using the outstanding principal balance in each Account.
IV-6
Section 4.06 - Benefit Statements. As soon as reasonably practicable after the
end of each calendar quarter of each Accounting Year, the Administrative
Committee shall advise each Participant of the value of his Accounts as of those
dates.
IV-7
ARTICLE V
DISTRIBUTIONS UNDER THE PLAN
Section 5.01 - Valuation of Accounts for Distribution. When a Participant's
Accounts become distributable pursuant to Section 5.02 hereof, such Accounts,
less any disbursements made from such Accounts, shall be valued, normally as of
the market close on the first Valuation Date immediately preceding the
distribution.
Section 5.02 - Amount of Distributions/Distributable Events. If a Participant
(i) retires on or after attaining Early Retirement Age or Normal Retirement Age,
(ii) becomes Totally and Permanently Disabled, (iii) dies, or (iv) terminates
employment for any other reason, the full value of his Accounts shall become
distributable to him, or, in the case of his death, shall become distributable
to his Beneficiary, valued as of the Valuation Date set forth in Section 5.01
hereof.
Section 5.03 - Timing of Distributions. Any benefits that become distributable
under this Article V shall commence as soon as reasonably practicable after the
applicable event in Section 5.02 hereof, but normally no later than sixty (60)
days thereafter. If the distributable amount cannot be ascertained and
distribution commenced within sixty (60) days following the applicable event in
Section 5.02 hereof, it shall be payable as soon as reasonably practicable
thereafter. In no event shall a Participant's benefits be paid or commence
later than the first day of April of the calendar year immediately following the
date he reaches Age seventy and one-half (70 1/2) even if he is still employed;
provided, however, the benefits of a Participant who is not a 5% owner of the
Company and who attained age seventy and one-half (70 1/2) prior to January 1,
1988 shall not be required to be paid or commence prior to April 1 of the
calendar year immediately following the year in which he retires. In addition,
any death benefit that becomes payable under this Plan shall commence (or
otherwise be paid) within one(1) year after it becomes distributable hereunder.
Notwithstanding any provision of this Article V, the Participant must consent in
writing to a distribution of his benefits if: (i) the present value of the
Participant's nonforfeitable Accounts exceeds $3,500 and (ii) the Committee
directs the Trustee to make distribution to the Participant prior to his
attaining the later of Normal Retirement Age or Age 62.
Section 5.04 - Form of Distributions. Distributions of any benefits under the
Plan attributable to the Participant's Employee Wage Redirection Contribution
Account and Rollover Account, if any, shall be in the form of a lump sum
distribution in cash or in kind, as elected by the Participant. If a
Participant has elected under Section 4.05 to invest in the Butler Common Stock
Fund, the Participanat may request a distribution in the form of shares of
Butler Common Stock equal to the number of whole shares of Common Stock
<PAGE>
attributable to such Participant's interest in the Butler Stock Fund on the
Valuation Date as of which the amount of the Participant's distribution is
determined, with the value of any balance of such interest to be distributed in
cash.
Section 5.05 - In-Service Withdrawals by Participants. A Participant may, while
employed by the Company, withdraw amounts from his Rollover Account, if any,
and/or Employee Wage
V-1
Redirection Contribution Account, provided the withdrawal is approved by the
Administrative Committee and otherwise satisfies the terms and conditions of
this Section 5.05. Hardship withdrawal distributions shall be made only in
cash.
Section 5.05(a). With respect to his Rollover Account, a Participant may
request a hardship withdrawal of the entire value of such Account,
including any investment earnings in the Account.
Section 5.05(b). With respect to the Employee Wage Redirection Contribution
Account, a Participant may request a hardship withdrawal up to the value of
his Employee Wage Redirection Contributions in such Account, excluding
accumulated investment earnings thereon.
Section 5.05(c). (Not used)
Section 5.05(d). For purposes of this Section 5.05, "financial hardship"
shall mean an immediate and heavy financial need of the Participant, which
cannot be satisfied from other reasonably available resources, for reasons
of:
(i) medical expenses incurred by the Participant, his spouse or his
dependents;
(ii) the payment of tuition and related educational fees for the next
twelve months of post-secondary education for the Participant, his
spouse or his dependents;
(iii) the purchase of a principal residence of the Participant (not
including mortgage payments); or,
(iv) the need to prevent eviction of the Participant from his principal
residence or foreclosure on the mortgage of such principal
residence.
A hardship withdrawal shall be deemed necessary to satisfy an immediate and
heavy financial need of a Participant if all of the following requirements
are satisfied:
(i) The distribution is not in excess of the amount of the immediate
and heavy financial need of the Participant. The amount of an
immediate and heavy financial need may include any amounts
necessary to pay Federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution.
(ii) The Participant has obtained all distributions, other than hardship
distributions, and all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the Company.
<PAGE>
(iii) The Plan and all other plans maintained by the Company limit the
Participant's elective contributions for the next taxable year to
the applicable limit under Code Section 402(g)
V-2
for that year minus the Participant's elective contributions for
the year of hardship distribution.
(iv) The Participant is prohibited, under the terms of the Plan or an
otherwise legally enforceable agreement, from making elective
contributions and employee contributions to the Plan and all other
plans maintained by the Company for at least twelve (12) months
after receipt of the hardship distribution. For this purpose, the
phrase "all other plans maintained by the Company" means all
qualified and nonqualified plans of deferred compensation
maintained by the Company. The phrase includes a stock option,
stock purchase, or similar plan, or a cash or deferred arrangement
that is part of a cafeteria plan within the meaning of Code Section
125 (excluding contributions to a health and welfare plan under
Code Section 125).
However, a hardship withdrawal can be obtained for the above outlined
reasons if a Participant represents in writing to the Committee that the
financial hardship cannot be relieved through (i) insurance, (ii)
reasonable liquidation of the Participant's assets, (iii) ceasing of
Employee contributions, or (iv) borrowing from this Plan or other plans
maintained by the Company from commercial lenders on reasonable terms.
A hardship withdrawal (i) may not be less than five hundred dollars ($500);
and (ii) may not exceed the amount necessary to meet the financial
hardship. Hardship withdrawals shall be made first from a Participant's
Wage Redirection Contribution Account and thereafter from the Participant's
Rollover Account. Such withdrawals shall be accomplished by a
proportionate reduction from such investment Fund(s) which may apply to
such Accounts. In no event shall a hardship withdrawal exceed the sum of
the Participant's Rollover Account, if any, plus the amount of the
Participant's Employee Wage Redirection Contributions.
Section 5.06 - Qualified Domestic Relations Orders. Notwithstanding any
provisions herein to the contrary, the Plan and Trustee shall comply with the
provisions of a "qualified domestic relations order" as defined in Code Section
414(p).
Section 5.07 - Loans to Participants. Subject to thirty (30) days notice and
upon proper application of a Participant in such form as the Administrative
Committee may specify, the Administrative Committee will direct the Trustee to
make a loan to the Participant. The application, and the resulting loan, must
meet the terms and conditions specified by the Administrative Committee and in
the following provisions of this Section 5.07.
Section 5.07(a). A loan shall not be made that exceeds the lesser of fifty
thousand dollars ($50,000) reduced by the highest outstanding loan balance
during the twelve (12) month period ending on the date the loan application
is received by the Administrative Committee, but not in any case more than
fifty percent (50%) of the total of the Participant's Wage Redirection
Contribution Account and Rollover Account, if any, determined as of the
Valuation Date coincident with or immediately preceding the date the loan
application
<PAGE>
V-3
is received by the Administrative Committee, less any distributions from
such Accounts since such Valuation Date, plus any Employee Redirection
Contributions since that Valuation Date.
Section 5.07(b). No loan may be for an amount of less than one thousand
dollars ($1,000). A Participant may have no more than one loan outstanding
from the Plan at any one time, and may not apply for a loan while he has a
loan outstanding.
Section 5.07(c). The term of repayment for the loan shall be that
determined by the Participant, but shall not be less than twelve (12)
months nor exceed the maximum term established by normal rules adopted by
the Administrative Committee. Except for a loan for the purchase of a
primary residence, the Committee's formal rules shall not allow a term in
excess of sixty (60) months for any loan. Such formal rules shall be
reduced to writing and shall be made available, upon request and free of
charge, to any Participant.
Section 5.07(d). The Participant shall authorize the Company to deduct
approximately equal monthly payments of principal and interest from his
Compensation in such an amount as would permit the loan to be fully
amortized over its term. The Company shall transfer such payroll
deductions to the Trustee as soon as reasonably practicable. If a
Participant is not receiving Compensation during a period of time, he shall
remit the monthly payments that would otherwise be deducted from his
Compensation directly to the Trustee.
Section 5.07(e). A Participant may prepay, at any time, any portion or all
of the then outstanding principal balance of his loan, together with
interest, without premium or penalty.
Section 5.07(f). The loan shall be made against the assignment of the
Participant's Employee Wage Redirection Contribution and Rollover Accounts,
and shall be evidenced by the Participant's promissory note for the amount
of such loan, including interest, payable to the order of the Trustee;
provided, however, no more than (i) fifty percent (50%) of the present
value of a Participant's vested Accounts or (ii) the amount of principal
and interest owed from time to time, may be considered by the Plan as
security for the outstanding balance of all Plan loans made to that
Participant, determined immediately after the origination of each
Participant loan secured in whole or in part by that Participant's vested
Accounts.
Section 5.07(g). The loan shall bear a reasonable rate of interest set by
the Administrative Committee in accordance with uniform procedures
consistently applied in a manner that does not discriminate in favor of
officers or highly compensated Participants.
Section 5.07(h). The terms of the promissory note for said loan shall
provide that, if the Participant defaults on the loan by not making
payments when due, and if the entire balance due, including interest, is
not paid by the Participant within thirty (30) days following the default,
the Trustee, upon a direction from the Committee, shall execute upon the
security of the Participant's Rollover Account in satisfaction of the
unpaid debt. If such execution upon the Participant's Rollover Account, if
any, is insufficient to satisfy the unpaid debt,
<PAGE>
V-4
the Trustee shall delay execution upon the Participant's Employee Wage
Redirection Contribution Account until such time as the Participant becomes
entitled to a distribution therefrom, at which time the Trustee shall
execute upon such Account to the extent necessary to repay the debt.
Section 5.07(i). No distribution under this Article V shall be made to any
Participant, former Participant, or Beneficiary unless and until all unpaid
loans, including accrued interest, have been repaid (which may be offset
from any benefit payment distributions hereunder).
Section 5.07(j). As of the date of this restatement of the Plan, loans may
be made only for the following purposes: (i) purchase, repair, or
renovation of primary residence, (ii) college tuition, (iii) severe,
unreimbursed medical expense, or (iv) a consumer purchase. In granting or
refusing any request for a loan hereunder, the Committee shall apply
uniform standards consistently in a manner that does not discriminate in
favor of officers, or highly-compensated Participants.
Section 5.07(k). A period of at least thirty (30) days must elapse between
repayment of a loan and the creation of another loan to the same
Participant.
Section 5.08 - Direct Rollover of Eligible Rollover Distributions. A
Participant may elect, at the time and in the manner prescribed by the
Committee, to have any portion of such Participant's eligible rollover
distribution paid directly to an eligible retirement plan specified by the
Participant in a direct rollover designation. For purposes of this Section
5.08, a Participant includes a Participant's surviving spouse and the
Participant's spouse or former spouse who is an alternate payee under a
qualified domestic relations order.
The following definitions apply to this Section 5.08:
Section 5.08(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of a Participant's
Account balances, except an eligible rollover distribution does not
include: any distribution which is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or
life expectancy) of the Participant or the joint lives (or joint life
expectancies) of the Participant and the Participant's designated
Beneficiary, or for a specified period of ten years or more; any
distribution to the extent required under Code Section 401(a)(9); and the
portion of any distribution which is not included in gross income.
Section 5.08(b) Eligible Retirement Plan. An eligible retirement plan is
an individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an annuity
plan described in Code Section 403(a) or a qualified trust described in
Code Section 401(a), which accepts the Participant's eligible rollover
distribution. However, in the case of an eligible rollover distribution to
the
V-5
surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
<PAGE>
Section 5.08(c)Direct Rollover. A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
V-6
ARTICLE VI
ADMINISTRATION
Section 6.01 - Allocation of Responsibility Among Fiduciaries for Plan and Trust
Administration. The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan
or the Trust as follows:
(a) The Company shall have the sole responsibility for making the
contributions specified in Article III. The Company shall have the
sole authority to appoint and remove the Trustee and to amend or
terminate, in whole or in part, this Plan or the Trust. For
purposes of ERISA, the Company shall be deemed to be the Plan
Administrator.
(b) The Administrative Committee shall have the sole responsibility for
the administration of this Plan, which responsibility is
specifically described in this Plan and the Trust Agreement. The
Administrative Committee may appoint one or more employees of the
Company to have the responsibility of implementing such
administration of the Plan as the Administrative Committee shall
direct.
(c) The Trustee shall have the sole responsibility for the
administration of the Trust and the management of the assets held
under the Trust, as directed by the Participants and the
Administrative Committee and as specifically provided in the Trust
Agreement.
(d) A Fiduciary may rely upon any direction, information or action of
another Fiduciary as being proper under this Plan or the Trust, and
is not required under this Plan or the Trust to inquire into the
propriety of any such direction, information or action. It is
intended under this Plan and the Trust that each Fiduciary shall be
responsible for the proper exercise of his or its own powers,
duties, responsibilities and obligations under this Plan and the
Trust and shall not be responsible for any act or failure to act of
another Fiduciary. No Fiduciary guarantees the Trust Fund in any
manner against investment loss or depreciation in asset value. Any
party may serve in more than one (1) fiduciary capacity with
respect to the Plan or Trust.
Section 6.02 - Administrative Committee. The general administration of the Plan
and the responsibility for carrying out the provisions hereof shall be placed in
a committee of one (1) or more members, each of whom shall be appointed by the
Chairman of the Board of Directors and serve at the pleasure of the Chairman.
Any member of the Administrative Committee may resign by notice in writing filed
with the Chairman of the Board of Directors of the Company, such resignation to
become effective no earlier than the date of such written notice.
VI-1
<PAGE>
All customary and reasonable expenses of the Administrative Committee may be
paid by the Company or charged against the Trust Fund as the Company elects.
Members of the Administrative Committee shall not receive compensation with
respect to their services for the Administrative Committee. The Administrative
Committee shall hold meetings upon notice, at such place or places, and at such
time or times, as they may determine. A majority of the members of the
Administrative Committee at the time in office shall constitute a quorum for the
transaction of business. All resolutions or actions taken by the Administrative
Committee at a meeting shall be by vote of the majority of the Administrative
Committee present. Action by the Administrative Committee may be taken without
a formal meeting by the written authorization of all of the members thereof.
The Administrative Committee shall exercise its powers hereunder in a uniform
and nondiscriminatory manner, but in the exercise of its discretion. An
Administrative Committee member shall be disqualified from acting upon any
matter affecting only himself.
Section 6.03 - Administrative Committee's Powers and Duties. The Administrative
Committee shall have such powers and duties as may be necessary to discharge its
functions hereunder, in its sole and exclusive discretion, including but not
limited to, the following:
(a) to construe and interpret the Plan, to decide all questions of
eligibility and determine the amount, manner and time of payment of
any benefits hereunder,
(b) to formulate uniform rules and regulations wherever, in the opinion
of the Administrative Committee, such rules and regulations are
required by the terms of the Plan or would facilitate the operation
of the Plan;
(c) to make a determination as to the right of any person to a benefit;
(d) to obtain from the Company and from Employees such information as
shall be necessary for the proper administration of the Plan, to
fully rely upon such information and, when appropriate, to furnish
such information promptly to the Trustee or other persons entitled
thereto;
(e) to prepare and distribute, in such manner as the Administrative
Committee determines to be appropriate, information explaining the
Plan;
(f) to furnish the Company, upon request, such reports with respect to
the administration of the Plan as are reasonable and appropriate;
(g) to establish and maintain such accounts in the name of the Company
and of each Participant as are necessary;
(h) to instruct the Trustee with respect to the payment of benefits
hereunder;
VI-2
(i) to provide for any required bonding of fiduciaries and other
persons who may from time to time handle Plan assets;
(j) to authorize one or more of its members, or any agent, to make any
payment on behalf of the Administrative Committee (including
<PAGE>
instructions to the Trustee as to the application or disbursement
of the Trust Fund) and to appoint agents and clerks, and such
professional services, including legal, accounting and actuarial,
as may be required in carrying out the provisions of the Plan;
(k) to keep all such books of accounts, record and other data as may be
necessary for the proper administration of the Plan; and
(l) to select as investment options under the Plan, at least three
diversified Funds with materially different risk and return
characteristics advised by qualified investment managers; provided,
that the Butler Common Stock Fund shall remain an additional option
until the Plan is amended to eliminate the same as an option.
Notwithstanding the foregoing, the Administrative Committee shall have no
authority to direct the investment, reinvestment, or exercise of any voting
or other stock rights with respect to any assets of the Trust allocated to
any Fund maintained by the Trust.
Section 6.04 - Claims Procedure. Subject to the limitations of the Plan and of
the Trust Agreement, the Administrative Committee shall from time to time
establish rules for the administration of the Plan and the transaction of its
business. Without limiting the generality of the above, it is specifically
provided that the Administrative Committee shall set forth in writing, available
for inspection by any interested party, the procedures to be followed in
presenting claims for benefits under the Plan. The Administrative Committee
shall rely on the records of the Company, as certified to it, with respect to
any and all factual matters dealing with the employment of an Employee or
Participant. In case of any factual dispute hereunder, the Administrative
Committee shall resolve such dispute giving due weight to all evidence available
to it. The Administrative Committee shall interpret the Plan and shall
determine all questions arising in the administration, interpretation and
application of the Plan. All such determinations shall be final, conclusive and
binding except to the extent that they are appealed under the following claims
procedure. In the event that the claim of any person to all or any part of any
payment or benefit under this Plan shall be denied, the Administrative Committee
shall provide to the claimant, normally within sixty (60) days after receipt of
such claim, a written notice setting forth:
(i) the specific reason or reasons for the denial;
(ii) specific references to the pertinent Plan provisions on which the
denial is based;
VI-3
(iii) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation as to why
such material or information is necessary; and
(iv) an explanation of the Plan's claim procedure.
Within sixty (60) days after receipt of the above material, the claimant shall
have a reasonable opportunity to appeal the claim denial to the Administrative
Committee for a full and fair review. The claimant or his duly authorized
representative:
(i) may request a review upon written notice to the Administrative
Committee;
<PAGE>
(ii) may review pertinent documents; and
(iii) may submit issues and comments in writing.
A decision by the Administrative Committee shall be made not later than sixty
(60) days after receipt of a request for review, unless special circumstances
require an extension of time for processing, in which event a decision shall be
rendered as soon as practicable, but in no event later than one hundred twenty
(120) days after such receipt. The Administrative Committee's decision on
review shall be written and include specific reasons for the decision, with
specific references to the pertinent Plan provisions on which the decision is
based.
Section 6.05 Non-Discrimination. The Administrative Committee shall not take any
action or direct the Trustee to take any action with respect to any of the
benefits provided hereunder or otherwise in pursuance of the powers conferred
herein upon the Administrative Committee which would be discriminatory in favor
of Participants or Employees who are officers, or highly-compensated employees
as defined by Code Section 401(a)(4) or which would result in the application of
different rules to substantially similar sets of facts.
Section 6.06 - Trustee May Request Instructions. The Trustee may request
instructions in writing from the Administrative Committee and may rely and act
thereon.
Section 6.07 - Legal Counsel. The Administrative Committee may consult with
legal counsel (who may also be legal counsel to the Company) concerning any
question which may arise with reference to its duties under this Plan and the
opinion of such legal counsel shall be full and complete protection with respect
to any action taken or suffered by the Administrative Committee hereunder in
good faith and in accordance with the opinion of such legal counsel.
Section 6.08 - Payment of Advisors. The compensation of any legal counsel,
accountants, consultants and other agents and any other expenses incurred by the
Administrative Committee in the administration of the Plan and Trust may be paid
by the Company or charged against the Trust Fund as the Company elects.
VI-4
Section 6.09 - Indemnification. In addition to indemnity provided to officers
and directors of the Company pursuant to the Certificate of Incorporation of the
Company, or any statute, bylaw or contract, the Company agrees to indemnify and
save harmless the members of the Administrative Committee, and each of them, and
any person to whom the Committee may specifically delegate its duties or
responsibilities hereunder (a "delegee"), from and against any and all loss
resulting from any liability to which the Administrative Committee, or any
members of the Committee (or delegee), may be subjected by reason of any act or
conduct (except willful misconduct or gross negligence) in their official
capacities in the administration of this Plan, including all legal and other
expenses reasonably incurred in their defense, in the case the Company fails to
provide such defense. Any such legal or other expenses not otherwise provided
by the Company shall be advanced as incurred prior to any outcome upon a written
undertaking to reimburse the same should a court determine that the indemnified
person is not entitled to such indemnity. The indemnification provisions of
this Section 6.09 shall not relieve any Committee member (or delegee) from any
liability the member (or other person) may have under the ERISA for breach of
fiduciary duty.
VI-5
<PAGE>
ARTICLE VII
THE TRUST FUND AND THE TRUSTEE
Section 7.01 - Trust Agreement. The Company has entered into a Trust Agreement
with the Trustee to hold the funds set aside pursuant to this Plan. The Trust
Agreement may include a provision for participation in a joint, master or
associated trust fund or pooled separate account for the purpose of pooling
investment experience.
Section 7.02 - Investment of Trust Fund. The Trustee shall have all the powers
and duties granted herein subject to the limitations in the Trust Agreement with
respect to the investment of the Trust Fund and the Trustee shall keep separate
records reflecting the investment earnings (or losses), receipts, disbursements,
purchases, sales and list of holdings of such assets.
Section 7.03 - Non-Reversion: Exclusive Benefit Clause. The Trust Fund shall be
received, held in Trust and disbursed by the Trustee in accordance with the
provisions of the Trust Agreement and this Plan. Except as provided in Sections
3.03(ii) and 3.05 hereof, no part of the Trust Fund shall be used for or
diverted to purposes other than for the exclusive benefit of Participants or
their Beneficiaries under this Plan. No person shall have any interest in, or
right to, the Trust Fund or any part thereof, except as specifically provided
for in this Plan or the Trust Agreement. Notwithstanding the above, nothing in
this Section 7.03 nor the Plan shall preclude the Trustee from complying with a
"qualified domestic relations order" as defined in Code Section 414(p).
Section 7.04 - Removal of Trustee. The Company may remove the Trustee at any
time upon the notice required by the terms of the Trust Agreement and, upon such
removal or resignation, the Company, through a duly authorized officer, shall
appoint a successor trustee.
Section 7.05 - Powers of Trustee. The Trustee shall have such powers to hold,
invest, reinvest, control and disburse the funds as shall be set forth in the
Trust Agreement or this Plan.
Section 7.06 - Trust Agreement Part of Plan. The Trust Agreement and any joint,
master or associated trust fund or pooled separate account shall be deemed to
form a part of the Plan and the rights of Participants or others under this Plan
shall be subject to the provisions of the Trust Agreement and any joint, master
or associated trust fund or pooled separate account.
Section 7.07 - Trustee's Settlement of Accounts. The Trust Agreement may contain
provisions granting authority to the Company to settle the accounts of the
Trustee on behalf of all persons having or claiming interest in the Trust Fund.
VII-1
ARTICLE VIII
AMENDMENT AND TERMINATION
Section 8.01 - Amendment. The Company, through a duly authorized officer, hereby
reserves the right, at any time, to modify or amend, in whole or in part, any or
all of the provisions of the Plan, including specifically the right to make any
such amendment effective retroactively, if necessary, to bring the Plan into
conformity with any governmental regulations which must be complied with so that
the Plan and Trust Fund shall continue to qualify under Code Sections 401(a) and
<PAGE>
401(k). No modification or amendment shall make it possible for the Trust
assets to be used for or diverted to purposes other than the exclusive benefit
of Participants and their Beneficiaries, except as provided in Sections 3.03(ii)
and 3.05 hereof.
Section 8.02 - Termination. The Company, through a duly authorized officer, may
terminate or partially terminate this Plan at any time.
Section 8.03 - Distribution of Accounts Upon Plan Termination. If the Company
terminates the Plan or partially terminates the Plan, the Administrative
Committee shall compute the value of the Accounts of the affected Participants
which shall be fully vested and nonforfeitable. The Accounts of each such
Participant shall be distributed in the manner otherwise provided in Section
5.04 hereof as soon as administratively feasible or unless the Company, in its
discretion, and if permitted under the Internal Revenue Code and the regulations
thereunder, directs the Accounts of the affected Participants continue to be
held in the Trust Fund to be distributed upon each Participant's retirement,
death, disability or termination of employment.
VIII-1
ARTICLE IX
(NOT USED)
IX-1
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 - Plan Merger, Consolidation or Transfer of Assets. In the case of
any merger, consolidation, or transfer of assets or liabilities to any other
plan, such plan shall provide that each Participant would, if the plan
terminated immediately after the merger consolidation or transfer, receive a
benefit which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer if
the Plan had then terminated.
Section 10.02 - Spendthrift Clause. Except as otherwise provided in Section 5.06
and 5.07, none of the benefits under the Plan are subject to the claims of
creditors of Participants or their Beneficiaries nor are they subject to
attachment, garnishment or any other legal process. Neither a Participant nor
his Beneficiary may assign, sell, borrow on or otherwise encumber his beneficial
interest in the Plan and Trust Fund, nor shall any such benefits be in any
manner liable for or subject to the deeds, contracts, liabilities, engagements
or torts of any Participant or Beneficiary. Notwithstanding the above, nothing
in this Section 10.02 nor the Plan shall preclude the Administrative Committee
or the Trustee from complying with a "qualified domestic relations order" as
defined in Code Section 414(p).
Section 10.03 Plan Voluntary. Although it is the intention of the Company that
this Plan shall be continued and contributions made regularly, this Plan is
entirely voluntary on the part of the Company and the continuance of the Plan
and any payments hereunder are not assumed as a contractual obligation of the
Company.
Section 10.04 - (Not used)
<PAGE>
Section 10.05 - Non-Guarantee of Employment. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the right to be retained in
the service of the Company or to interfere with the right of the Company to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon such individual as a Participant in the Plan.
Section 10.06 - Governing Law. This Plan shall be construed in accordance with
the laws of the State of Missouri, except where such laws are superseded by
ERISA, as amended or the Internal Revenue Code, in which case ERISA or the Code,
as the case may be, shall control.
Section 10.07 - Facility of Payment. In making any distribution to or for the
benefit of any minor or incompetent Participant or Beneficiary, the
Administrative Committee, in its sole, absolute and uncontrolled discretion may,
but need not, order the Trustee to make such distribution to a legal or natural
guardian of such minor or incompetent and any such guardian shall have full
authority and discretion to expend such distribution for the use and benefit of
such minor or incompetent and the receipt of such guardian shall be a complete
discharge to the Trustee without any
X-1
responsibility on its part or on the part of the Administrative Committee to see
to the application thereof.
Section 10.08 - Severability Clause. In the event any provisions of this Plan
document shall be held illegal or invalid for any reasons, the illegality or
invalidity shall not affect the remaining provisions of this Plan document,
which shall be fully severable and this Plan document shall be construed and
enforced as if the illegal or invalid provision had never been inserted herein.
Section 10.09 - Successor Companies. In the event of a merger or consolidation
of the Company or transfer of all or substantially all of its assets to any
other corporation, partnership or association, provision may be made by such
successor corporation, partnership or association, at its election, for the
continuance of this agreement and the retirement plan created hereunder by such
successor entity. Such successor shall, upon its election to continue the Plan,
be substituted in place of such Company by an instrument duly authorizing such
substitution and duly executed by the Company and its successor. Upon notice of
such substitution accompanied by a certified copy of the resolutions of the
governing Board of Directors of such Company and its successor, authorizing such
substitution and delivered to the Trustee, the Trustee and all Participants
hereunder shall be authorized to recognize such successor in the place of such
former Company.
Section 10.10 - Text of Plan Document Controls. Titles of Articles in this Plan
are inserted for convenience of reference only and in the event of any conflict,
the text of this instrument, rather than such titles, shall control.
X-2
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Plan to be executed this
4th day of April, 1996, to be effective as of April 1, 1996.
Attest: (SEAL) BUTLER MANUFACTURING COMPANY,
a Delaware corporation
<PAGE>
s/Richard O. Ballentine s/John W. Huey
__________________________ By _______________________________
Secretary Vice President, Administration
Title ____________________________
X-3
<PAGE>
GALESBURG HOURLY EMPLOYEE SAVINGS TRUST
PLAN DOCUMENT
AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1996
THIS DOCUMENT IS BASED ON THE PLAN ADOPTED MARCH 1, 1991
AND INCLUDES THE AMENDMENTS INCORPORATED IN THE
RESTATED PLAN AS OF AUGUST 1, 1994 AND APRIL 1, 1996
<PAGE>
GALESBURG HOURLY EMPLOYEE SAVINGS TRUST
INTRODUCTION
Effective as of March 1, 1991, Butler Manufacturing Company, a Delaware
corporation (hereinafter referred to as the "Company"), adopted the
Galesburg Hourly Employee Savings Trust (hereinafter referred to as the
"Plan") and amended and restated the Plan as of August 1, 1994. The Plan
is hereby further amended and restated, effective April 1, 1996, primarily
for the purposes of providing the Company's Common Stock as an investment
option and adding a Company matching contribution, under the circumstances
described herein.
The purpose of this Plan is to provide additional incentive and retirement
security for eligible employees by allowing them to make wage reduction
contributions that are tax-deferred and which may be matched by
contributions made by the Company if certain gain sharing goals are all
attained.
It is intended that this Plan shall be approved and qualified by the
Internal Revenue Service as satisfying the pertinent requirements of the
Internal Revenue Code of 1986 as amended (the "Code") with respect to
employee plans and trusts so that (1) the Participants' wage redirection
contributions under the Plan shall be tax deferred; (2) the Company may
deduct for Federal income tax purposes its contributions to the Trust Fund
(including the Participants' Wage Redirection Contributions); (3) the
Company contributions so made and the income of the Trust Fund shall not be
subject to Federal income tax to the Participants until received; and (4)
the income of the Trust Fund shall be exempt from Federal income tax.
It is also intended that this Plan and Trust shall satisfy the pertinent
requirements of the Employee Retirement Income Security Act of 1974
("ERISA"), as amended, and the Plan and Trust shall be interpreted,
wherever possible, to comply with the terms of ERISA.
GALESBURG HOURLY EMPLOYEE SAVINGS TRUST
TABLE OF CONTENTS
ARTICLE/SECTION TITLES/SECTION HEADINGS PAGE
I DEFINITIONS I-1
1.01 Accounting Year I-1
1.02 Accounts I-1
1.03 Administrative Committee I-1
1.04 Affiliate I-1
1.05 Age I-1
1.06 Beneficiary I-1
1.07 Board of Directors I-1
1.08 Break in Service I-2
1.09 Company I-2
1.10 Compensation I-2
1.11 Company Matching Account I-2
1.12 Company Matching Contributions I-3
1.13 Early Retirement Age I-3
1.14 Effective Date I-3
1.15 Employee I-3
<PAGE>
1.16 Employee Wage Redirection
Contributions I-3
1.17 Employee Wage Redirection
Contribution Account I-3
1.18 Entry Date I-3
1.19 Fiduciary I-3
1.20 Hour of Service I-3
1.21 (Not Used) I-5
1.22 Nondiscrimination Compensation I-5
1.23 Normal Retirement Age I-5
1.24 Participant I-5
1.25 Plan I-5
1.26 Rollover Account I-5
1.27 Spouse I-5
1.28 Total and Permanent Disability I-6
1.29 Trust I-6
P-1
1.30 Trust Agreement I-6
1.31 Trustee I-6
1.32 Trust Fund I-6
1.33 Valuation Date I-6
1.34 Non-Gender Clause I-6
II PARTICIPATION IN THE PLAN II-1
2.01 Eligibility to Participate II-1
2.02 Election to Participate II-1
2.03 Change in Employment Classifi-
cation From An Eligible Employee II-1
2.04 Change in Employment Classifi-
cation To An Eligible Employee II-2
2.05 Plan and Trust Binding II-2
III CONTRIBUTIONS III-1
3.01 Employee Contributions III-1
3.02 Company Matching Contributions III-1
3.03 Maximum Deductible Contributions III-2
3.04 Limitations on Contributions III-2
3.05 Corrective Adjustments III-3
3.06 Combined Plans Limit III-4
3.07 Mathematical Nondiscrimination
Test for Employee Salary
Redirection Contributions III-4
3.08 Mathematical Nondiscrimination
Test for Employee Regular and
Employer Matching Contributions;
Disposition of Excess Amounts III-7
3.09 Aggregation of Nondiscrimination
Tests III-8
3.10 Rollover Contributions; Plan-
to-Plan Transfers III-8
IV ACCOUNTS OF PARTICIPANTS IV-1
<PAGE>
4.01 Trust Fund Valuation IV-1
4.02 (Not Used) IV-1
4.03 Investment Funds IV-1
4.04 Trustee's and Administrative Com-
mittee's Determinations Binding IV-1
4.05 Investment of Accounts IV-2
4.06 Benefit Statements IV-7
P-2
V DISTRIBUTIONS UNDER THE PLAN V-1
5.01 Valuation of Accounts for
Distribution V-1
5.02 Amount of Distributions/Distri-
butable Events V-1
5.03 Timing of Distributions V-1
5.04 Forms of Distributions V-1
5.05 In-Service Withdrawals by
Participants V-2
5.06 Qualified Domestic Relations
Orders V-3
5.07 Loans to Participants V-3
5.08 Direct Rollover of Eligible
Rollover Distributions V-5
VI ADMINISTRATION VI-1
6.01 Allocation of Responsibility Among
Fiduciaries for Plan and Trust
Administration VI-1
6.02 Administrative Committee VI-1
6.03 Administrative Committee's Powers
and Duties VI-2
6.04 Claims Procedure VI-3
6.05 Non-Discrimination VI-4
6.06 Trustee May Request Instructions VI-4
6.07 Legal Counsel VI-4
6.08 Payment of Advisors VI-4
6.09 Indemnification VI-5
VII THE TRUST FUND AND THE TRUSTEE VII-1
7.01 Trust Agreement VII-1
7.02 Investment of Trust Fund VII-1
7.03 Non-Reversion; Exclusive Benefit
Clause VII-1
7.04 Removal of Trustee VII-1
7.05 Powers of Trustee VII-1
7.06 Trust Agreement Part of Plan VII-1
7.07 Trustee's Settlement of Accounts VII-1
VIII AMENDMENT AND TERMINATION VIII-1
8.01 Amendment VIII-1
8.02 Termination VIII-1
P-3
<PAGE>
8.03 Distribution of Accounts Upon Plan
Termination VIII-1
IX (NOT USED)
X MISCELLANEOUS PROVISIONS X-1
10.01 Plan Merger, Consolidation or
Transfer of Assets X-1
10.02 Spendthrift Clause X-1
10.03 Plan Voluntary X-1
10.04 Reservation of Right to Suspend
or Discontinue Contributions X-1
10.05 Non-Guarantee of Employment X-1
10.06 Governing Law X-1
10.07 Facility of Payment X-1
10.08 Severability Clause X-2
10.09 Successor Companies X-2
10.10 Text of Plan Document Controls X-2
P-4
SIGNATURES
This instrument is executed in _____________________ counterparts, each of
which shall be deemed to be the original. This is copy
____________________.
ARTICLE I
DEFINITIONS
The following terms, as used in this Plan, shall have the meaning specified
in this Article I, unless a different meaning is clearly required by the
context in which they are used:
Section 1.01. The term "Accounting Year" shall mean a twelve (12) month
period beginning on each January 1 and ending on the following December 31.
Section 1.02. The term "Accounts" shall mean a Participant's Employee Wage
Redirection Contribution Account, Company Matching Account, and, if
applicable, Rollover Account.
Section 1.03. The terms "Administrative Committee" or "Committee" shall
mean the Administrative Committee as provided for in Article VI hereof.
Section 1.04. The term "Affiliate" shall mean any corporation or
unincorporated trade or business which is a member, as is the Company, of
the same controlled group of corporations, the same group of trades or
businesses under common control, or the same affiliated service group
(within the meaning of Code Sections 414(b), 414(c) or 414(m),
respectively).
Section 1.05. The term "Age" shall mean the age, in years, of a Participant
as of the last anniversary of his date of birth.
Section 1.06. The term "Beneficiary" shall mean the Spouse of the
<PAGE>
Participant, or, in the event that either
(a) the Participant has no Spouse at his death, or
(b) his surviving Spouse has agreed, in writing, witnessed by a
Plan representative or notary public, to the designation of
another Beneficiary,
the person or persons (including a trust) designated by the Participant in
the latest written notice to the Administrative Committee on a form
approved by the Committee. If any non-spouse Beneficiary so designated
predeceases the Participant and the Participant has no Spouse at his death
and has not designated another Beneficiary, his estate shall be his
Beneficiary. The Participant shall have the right to change his
Beneficiary from time to time in the manner herein above described.
Any Beneficiary designation made in accordance with the above, shall be
automatically revoked on the marriage or remarriage of the Participant.
Section 1.07. The term "Board of Directors" shall mean the Board of
Directors of the Company.
I-1
Section 1.08. The term "Break in Service" shall mean a Plan Year or first
twelve (12) months of employment during which an Employee or former
Employee has not been credited with more than five hundred (500) Hours of
Service. However, in accordance with Code Section 410(a)(5)(E) and 411
(a)(6)(E), an Employee shall not incur a Break in Service in the first
Accounting Year that he is not credited with more than five hundred (500)
Hours of Service because of an absence from work, due to the
(a) pregnancy of the Employee;
(b) birth of a child of the Employee;
(c) placement of a child for adoption with the Employee; or
(d) care by the Employee of a child immediately following such a
birth or placement.
To avoid incurring a Break in Service, an Employee, at the request of the
Committee, shall establish that the absence was due to one of the reasons
described above and the number of days for which there was such an absence.
Section 1.09. The term "Company" shall mean Butler Manufacturing Company
and any Affiliate which adopts this Plan with the consent of the Board of
Directors, and subject to the provisions of Article X, any corporation or
other entity into which a Company shall be merged or consolidated or to
which all or substantially all of its assets may be transferred.
Section 1.10. The term "Compensation" shall mean the Participant's total
cash compensation (as reported on Treasury department Form W-2) paid by the
Company during any pay period, including overtime and bonuses, as well as
any Employee Wage Redirection Contributions to this Plan or a Code Section
125 Plan and payments from an executive incentive plan, but excluding
extraordinary items of compensation, such as imputed income from group term
life insurance, taxable perquisites and taxable moving allowances. No
annual earnings in excess of one hundred fifty thousand dollars ($150,000)
<PAGE>
shall be counted as "Compensation" for purposes of this Plan. Such $150,000
cap shall be adjusted for cost of living increases in the manner described
in Code Section 401 (a)(17).
Compensation for U. S. citizens employed in a foreign country on assignment
by the Company shall exclude foreign service premiums, hardship allowances,
housing allowances, goods and services allowances, or any other payment
designed to compensate such individuals solely for their change in
geographic location.
Section 1.11. The term "Company Matching Account" shall mean the account
established on behalf of a Participant to which shall be credited the
amount of any Company Matching Contributions allocated to the Participant
pursuant to Section 3.02, and this account's proportionate share of any net
investment gains, determined in accordance with Section 4.01
I-2
hereof. From said account its proportionate share of any net investment
losses, as determined in accordance with Section 4.01 hereof, and any
benefit payments or withdrawals shall be deducted. The Participant's
interest in his Company Matching Contribution Account shall be fully vested
and nonforfeitable.
Section 1.12. The term "Company Matching Contributions" shall mean the
matching contributions the Company may make as provided in Section 3.02
hereof.
Section 1.13. The term "Early Retirement Age" shall mean Age fifty-five
(55).
Section 1.14. The term "Effective Date" shall mean March 1, 1991.
Section 1.15. The term "Employee" shall mean each full time Galesburg union
hourly employee of the Company.
Section 1.16. The term "Employee Wage Redirection Contributions" shall mean
the contributions made by a Participant pursuant to Section 3.01 hereof
which are considered "elective deferrals" as described in Code Section
402(g)(3).
Section 1.17. The term "Employee Wage Redirection Contribution Account"
shall mean the account established on behalf of a Participant to which
shall be credited (i) the amount of his contributions pursuant to Section
3.01 hereof, and (ii) the account's proportionate share of any net
investment gains, determined in accordance with Section 4.01 hereof. From
said account, its proportionate share of any net investment losses,
determined in accordance with Section 4.01 hereof, and any benefit payments
or withdrawals shall be deducted. The Participant's interest in his
Employee Wage Redirection Contribution Account shall be fully vested and
nonforfeitable.
Section 1.18. The term "Entry Date" shall mean the first day of each
calendar quarter (i.e., the first day of January, April, July or October).
A special entry date of August 1, 1994 was established in recognition of
expanded investment choices and increased level of Employee Wage
Redirection Contributions implemented on that date.
Section 1.19. The term "Fiduciary" shall have the same meaning as contained
<PAGE>
in the definition in ERISA Section 3(21)(A) and, whenever applicable, shall
include the Trustee.
Section 1.20. The term "Hour of Service" shall mean each hour for which an
Employee is directly or indirectly compensated or entitled to compensation
by the Company:
(a) for the performance of duties for the Company;
(b) for other reasons not requiring the performance of duties such
as vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or a paid leave
of absence; and
I-3
(c) as a result of a back pay award (irrespective of mitigation of
damages), which is either awarded or agreed to by the Company.
The same Hours of Service shall not be credited both under
this subsection (c) and under either of subsection (a) or
subsection (b) above.
Hours of Service for the performance of duties shall be credited to the
Employee for the computation period in which the duties were performed;
Hours of Service for reasons other than the performance of duties shall be
credited to the Employee for the computation period or periods for which
payment is made; Hours of Service resulting from a back pay award or
agreement shall be credited to the Employee for the computation period or
periods to which the award or agreement pertains.
The number of Hours of Service to be credited under subsection (a) above
shall be the actual number of Hours of Service for which such
Employee is paid or entitled to payment for the performance of
duties. In the case of payments made or due an Employee pursuant to
subsection (b) or subsection (c) with respect of the periods described in
subsection (b) during which no duties were performed, if such payments are
calculated on the basis of "units of time" (such as hours, days, weeks or
months), the number of Hours of Service to be credited to the Employee
shall be the number of regularly scheduled working hours included in such
units of time. If such payments relating to periods during which no duties
were performed are not based on "units of time", the Hours of Service to be
credited to the Employee shall be calculated in accordance with the U.S.
Department of Labor regulations which can be found at 29 CFR 2530.200b-2(b)
and (c) or any successor regulations.
Notwithstanding the foregoing, the crediting of Hours of Service pursuant
to the provisions of subsections (b) and (c) above shall be subject to the
following limitations:
(i) except as otherwise provided in this Section with respect to
certain authorized leaves of absence, no more than five
hundred (500) Hours of Service shall be credited to an
Employee on account of any single continuous period during
which the Employee performs no duties;
(ii) no Hours of Service shall be credited to an Employee with
respect to hours for which the Employee is paid or entitled to
payment if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable workers'
<PAGE>
compensation, or unemployment compensation or disability
insurance laws; and
(iii) no Hours of Service shall be credited for a payment to an
Employee which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee.
In addition to the Hours of Service to be credited in accordance with the
provisions above, an Employee shall be credited with Hours of Service at
the rate of eight (8) hours per day, subject to a maximum of forty (40)
hours per week, for the following periods during which the Employee is not
directly or indirectly paid, or entitled to payment by the Company:
I-4
(a) any leave of absence for military service in the Armed Forces
of the United States during which the employee's reemployment
rights are guaranteed by federal law, provided the Employee
applies for reemployment with the Company after his separation
from military service within the time required by such law.
(b) all or any portion of any other leave of absence which is
granted for a reason for which Hours of Service will be
credited, all as determined by the Administrative Committee on
the basis of a uniform policy applied without discrimination.
Section 1.21. (Not Used)
Section 1.22. Effective for Accounting Years beginning on or after March 1,
1991, the term "Nondiscrimination Compensation" shall mean the Employee's
total earnings while eligible to participate in the Plan as reported on
federal income tax Form W-2 for the Accounting Year less amounts received
from any qualified or previously qualified plan of the Company, and shall
include all amounts not currently includible in the Employee's gross income
by reason of the application of Code Sections 125 or 402(g).
Section 1.23. The term "Normal Retirement Age" shall mean Age sixty-five
(65).
Section 1.24. The term "Participant" shall mean an Employee who has met the
requirements of Article II for participation hereunder.
Section 1.25. The term "Plan" shall mean the Galesburg Hourly Employee
Savings Trust as originally adopted effective as of March 1, 1991 and
as amended from time to time thereafter.
Section 1.26. The term "Rollover Account" shall mean an account established
on behalf of an Employee to which shall be credited (i) the value of any
amounts transferred from another qualified plan or rolled over into this
Plan pursuant to Section 3.10 hereof and (ii) the Employee's proportionate
share attributable to this account of the net gain (if any) of the Trust
Fund determined in accordance with Section 4.01 hereof. From said account
the Employee's proportionate share, attributable to this account, of the
net losses (if any) of the Trust Fund as determined in accordance with
Section 4.01 hereof and any benefit payments shall be deducted. The
Participant's interest in his Rollover Account shall be fully vested and
nonforfeitable.
Section 1.27. The term "Spouse" shall mean the legally married husband or
<PAGE>
wife of a Participant at the earlier of the Participant's date of death or
the date benefits are payable to the Participant under the Plan. To the
extent required by a "qualified domestic relations order," as such term is
defined in Code Section 414(p), the term Spouse shall include the former
husband or wife of the Participant.
I-5
Section 1.28. The term "Total and Permanent Disability" or "Totally and
Permanently Disabled" shall mean a physical or mental condition which
totally and permanently prevents a Participant from engaging in any
occupation or employment for remuneration or profit, except for the purpose
of rehabilitation not incompatible with a finding of total and permanent
disability. The determination as to whether a Participant is Totally and
Permanently Disabled shall be made solely on evidence that the Participant
is (or will be following the requisite waiting period) eligible for
disability benefits under the Social Security Act in effect at the date of
disability. Total and Permanent Disability shall exclude disability
arising from:
(a) chronic or excessive use of intoxicants, drugs or narcotics;
(b) intentionally self-inflicted injury or intentionally self-
induced sickness;
(c) a proven felonious act or enterprise on the part of the
Participant; or
(d) military service where the Participant is eligible to receive
a government sponsored military disability pension.
Section 1.29. The term "Trust" shall mean the trust created under the
Trust Agreement to fund the Plan.
Section 1.30. The term "Trust Agreement" shall mean the agreement entered
into between the Company and the Trustee, including all amendments to such
Trust Agreement from time to time.
Section 1.31. The term "Trustee" shall mean the Trustee named in the Trust
Agreement, its successors and assigns or any successor Trustee named
pursuant to the Trust Agreement.
Section 1.32. The term "Trust Fund" shall mean all cash, securities and
any other property held by the Trustee pursuant to the terms of the Trust
Agreement, together with any income therefrom.
Section 1.33. The term "Valuation Date" shall mean December 31 of each
Accounting Year and also may mean any date on which the New York Stock
Exchange is open, as of which dates the Trust Fund may be valued at fair
market value. The Administrative Committee may from time to time establish
such Valuation Dates as it deems desirable.
Section 1.34. "Non-Gender Clause" Any words herein used in the masculine
shall be read and construed in the feminine where they would so apply.
Words in the singular shall be read and construed as though used in the
plural in all cases where they would so apply.
I-6
<PAGE>
ARTICLE II
PARTICIPATION IN THE PLAN
Section 2.01 - Eligibility to Participate. Each active Employee of the
Company shall be eligible to participate in this Plan upon satisfying the
requirements set forth in this Section 2.01.
Section 2.01(a) - Initial Participation. An Employee of the Company
shall be eligible to participate in this Plan and make Employee Wage
Redirection Contributions in accordance with Section 3.01 hereof as of
the Entry Date coinciding with or immediately following such
Employee's completion of six (6) months of employment.
Section 2.01 (b) - Participation upon Reemployment of a Former
Employee. A terminated Participant who resumes employment with the
Company shall be eligible to reenter the Plan on his reemployment
date.
A terminated Employee who was not a Participant and who resumes his
employment with the Company shall be eligible to become a Participant
in this Plan on the Entry Date coincident with or next following his
date of reemployment (counting his prior service).
Section 2.02 - Election to Participate. Each eligible Employee shall be
furnished a summary of the Plan and an enrollment form. If the Employee
elects to participate, he must complete the enrollment form and file it
with the Committee. The Employee shall indicate on such form the rate of
contribution he elects to make and his choice of investment funds pursuant
to Section 4.03, and may designate a Beneficiary (with the written consent
of his Spouse, if any, witnessed by a Plan representative or notary public,
if a nonspouse Beneficiary is named), to whom benefits should be paid in
the event of his death.
An eligible Employee who elects not to participate when first eligible may
begin participation as of any later Entry Date upon the submission of his
completed enrollment form at least fifteen (15) days prior to the Entry
Date.
Section 2.03 - Change in Employment Classification From An Eligible
Employee. A Participant who ceases to be an Employee of the Company for the
purpose of this Plan while remaining an employee of the Company shall
become a limited Participant as of the date of the change of his employment
status.
As a limited Participant he shall not be entitled to make contributions
hereunder or to share in any Employer contributions until he changes his
employment status so he again qualifies as an Employee. Such a limited
Participant shall, however, be entitled to share in Employer Matching
Contributions made for the Accounting Year in which he transferred
employment but only in proportion to the eligible Employee contributions
made by the Participant for such Accounting
II-1
Year. On each Valuation Date such limited Participant's Accounts shall be
adjusted in accordance with Section 4.01.
Section 2.04 - Change in Employment Classification To An Eligible Employee.
<PAGE>
An employee of the Company or Affiliate (including a limited Participant
under Section 2.03) who becomes an Employee for the purpose of this Plan
shall be eligible to become a Participant on the Entry Date coincident with
or immediately following the date of his change in employment
classification.
Section 2.05 - Plan and Trust Binding. Upon becoming a Participant, a
Participant shall be bound then and thereafter by the terms of this Plan
and of the Trust, including all amendments thereto.
II-2
ARTICLE III
CONTRIBUTIONS
Section 3.01 - Employee Contributions. Each Employee who becomes a
Participant in this Plan shall specify on his enrollment form the rate of
Employee Wage Redirection Contributions he wishes to make, by payroll
deduction, as set forth in this Section 3.01. Such contributions shall be
transmitted to the Trustee as soon as reasonably practicable after the end
of each month, but in no event shall Employee Wage Redirection
Contributions for an Accounting Year be transmitted later than thirty (30)
days after the end of such Accounting Year.
Section 3.01(a) - Employee Wage Redirection Contributions. A
Participant's Employee Wage Redirection Contributions shall not be
less than one percent (1%) nor more than fifteen percent (15%) of his
Compensation, in one percent (1%) increments.
Section 3.01(b) - Change of Contributions. A Participant may, by
filing a written notice with the Administrative Committee, elect to
change the rate of his Employee Wage Redirection Contributions,
effective as of the next following January 1, April 1, July 1, or
October 1. Such written notice shall be filed with the Committee not
less than fifteen (15) working days prior to the date it is to be
effective.
Section 3.01(c) - Suspension of Contributions. A Participant may, by
filing a written notice with the Administrative Committee, elect to
suspend his contributions. Such suspension shall be effective as of
the next following January 1, April 1, July 1; or October 1 provided
it is received fifteen (15) days prior to the first day of such
quarter. A Participant may resume making Employee Wage Redirection
Contributions as of the first day of any succeeding calendar quarter
by filing a written notice with the Committee not less than fifteen
(15) working days prior to the effective date of such resumption.
Section 3.02 - Company Matching Contributions. The Company may make
contributions out of its Galesburg gain sharing plan at the Galesburg plant
(the "Galesburg Plan") under the circumstances set forth in this Section
3.02. As soon as reasonably practicable after the end of each year under
the Galesburg Plan (i.e., June 1 to May 31, the "Galesburg Plan Year"), a
matching contribution may be made out of the Company's share of any gain
sharing under the Galesburg Plan for said Galesburg Plan Year in an amount
up to twenty-five percent (25%) of each Participant's Employee Wage
Redirection Contribution of up to six percent (6%) of his annual
Compensation, so that the total matching contribution for a Participant
shall in no event exceed one and one-half percent (1.5%) of the
<PAGE>
Participant's Compensation. Any such matching contribution only may be
made if the Company has made a Company Matching Contribution under the BEST
Plan for the Accounting Year which ended during the Galesburg Plan Year,
and such matching contribution shall not exceed the percentage Company
match, if any, under the BEST Plan for said Accounting Year. Any matching
contribution for a Galesburg Plan Year may not exceed the Company's share
of Galesburg Plan gain sharing, if any, for such Galesburg
III-1
Plan Year, first reduced by the portion of such gain sharing amount
attributable to Galesburg salaried employees and to employees not
participating in or making Employee Wage Redirection Contributions to this
Plan. Such Company Matching Contributions shall be credited to the
Participant's Company Matching Account, shall be paid to the Trustee and
shall be vested one hundred percent (100%) immediately. Company Matching
Contributions, if any, shall be made only on behalf of Participants who are
Employees (including Employees who are on a leave of absence or temporary
lay off) as of the last day of the Galesburg Plan Year and on behalf of
Participants who terminate employment during the Galesburg Plan Year for
reasons of retirement, disability or death. Note, however, that no Company
Matching Contributions will be made in connection with Employee Wage
Redirection Contributions in excess of the Code Section 402(g) limit as
updated by Code Section 415(d).
Section 3.03 - Maximum Deductible Contributions. The contributions of the
Company computed in accordance with the provisions of Sections 3.01 and
3.02 above shall be subject to the following limitations:
(i) in no event shall the Company be obligated to make a
contribution for an Accounting Year in excess of the maximum
amount deductible under Code Section 404(a)(3)(A), or any
statute or rule of similar import; and
(ii) if the Company makes a contribution to the Trust Fund due to:
(a) a mistake of fact, or (b) a mistake in determining the
maximum amount deductible, then the Company may withdraw from
the Trust Fund the amount attributable to such mistaken
contribution or disallowed deduction provided such amount is
withdrawn within one (1) year of the mistaken contribution or
disallowed deduction whichever is applicable. If the Company
does not choose to withdraw any such amount, it shall be
applied to reduce the Company's contribution for the next
Accounting Year for which the Company makes a contribution
hereunder.
Section 3.04 - Limitations on Contributions.
Section 3.04(a). Notwithstanding any provision of the Plan to the
contrary, in no event shall a Participant's Employee Wage Redirection
Contributions (when combined with any other elective deferrals made by
the Participant, as defined under Code Section 402(g)(3)), exceed in
an Accounting Year nine thousand five hundred dollars ($9,500) in 1996
(or such other amount in subsequent years which shall result from
adjustments under Code Section 415(d)). The Company will monitor each
Participant's Wage Redirection Contributions throughout the year and
will, as necessary, compel a Participant to reduce their Wage
Redirection Contributions if the applicable annual dollar limit will
be exceeded. If it is determined that the Participant has exceeded
<PAGE>
the limit set forth in this Section 3.04(a) for an Accounting Year,
the excess amount and any income allocable to such excess amount shall
be distributed to the Participant no later than the end of the
Accounting Year following the Accounting Year in which such excess
contribution was made. The return of Employee Wage Redirection
Contributions and income
III-2
shall be accomplished by a proportionate reduction of the affected
Participants' investments in the investment funds designated in
Section 4.03 as of the Valuation Date preceding the distribution. A
distribution shall be made during the same Accounting Year in which
the excess Employee Wage Redirection Contributions were made, only if
(i) the Participant and the Plan designate the distribution as a
distribution of an excess deferral, and (ii) the distribution is made
after the date on which the Plan received the excess deferral.
Whether or not distributed, excess Employee Wage Redirection
Contributions shall continue to be considered as Employee Wage
Redirection Contributions for purposes of determining the average
deferral percentage under Section 3.07 and "annual additions" for
purposes of the limitations described in Section 3.04(b).
Section 3.04(b). Notwithstanding any provisions contained herein to
the contrary, except for transfers to a Rollover Account, the total
annual addition to any Participant's Accounts in this Plan and any
other defined contribution plan of the Company and its Affiliates for
any Accounting Year shall not exceed the lesser of (i) thirty thousand
dollars ($30,000) or the specific dollar amount set forth in Code
Section 415(c)(1)(A) as such amount may hereafter be adjusted pursuant
to Code Section 415(d)(1)(B), or (ii) twenty-five percent (25%) of the
Participant's annual compensation (as hereinafter defined) for such
Accounting Year.
For this purpose, a Participant's compensation shall include his
earned income, wages, gain sharing payments, bonuses and other amounts
received for personal services actually rendered in the course of
employment with the Company and its Affiliates.
The term "annual addition" shall mean the total additions in the
Accounting Year to the Participant's Accounts in this Plan and any
other defined contribution plan of the Company or its Affiliates
attributable to:
(i) employer contributions;
(ii) employee contributions;
(iii) forfeitures; and
(iv) any post-retirement medical benefits or individual medical
accounts maintained under any defined benefit plans of the
Company or its Affiliates pursuant to Code Sections 419A(d)(3)
and 415(1)(2), which are treated as "annual additions" for
purposes of Code Section 415.
Section 3.05 - Corrective Adjustments. In the event that as of any
Valuation Date corrective adjustments in the "annual addition" to any
Participant's Account are required pursuant to Section 3.04(b), such
<PAGE>
adjustments shall be made by:
(i) a reduction in the Participant's Company Matching Account in
this Plan; and
III-3
(ii) then, by a reduction in the Participant's Employee Wage
Redirection Contribution Account.
Section 3.06 - Combined Plans Limit. If a Participant is a participant in a
defined benefit plan maintained by the Company, the sum of his defined
benefit plan fraction and his defined contribution plan fraction for any
limitation year may not exceed 1.0.
For purposes of this Section 3.06, the term "defined contribution plan
fraction" shall mean a fraction the numerator of which is the sum of all of
the annual additions to (a) the Participant's Accounts under this Plan and
(b) the Participant's accounts under any other defined contribution plans
which may be maintained by the Company as of the close of the Accounting
Year and the denominator of which is the sum of the lesser of the following
amounts determined for such Accounting Year and for each prior Accounting
Year of his employment by the Company:
(i) the product of 1.25 multiplied by the dollar limitation
calculated pursuant to Section 3.04(b) for such Accounting
Year; or
(ii) the product of 1.4 multiplied by the percentage limitation
calculated pursuant to Section 3.04(b) for such Accounting
Year.
For purposes of this Section 3.06, the term, "defined benefit plan
fraction" shall mean a fraction the numerator of which is the Participant's
projected annual benefit (as defined in the said defined benefit plan)
determined as of the close of the Accounting Year and the denominator of
which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation under
Code Section 415(b)(1)(A) for such Accounting Year; or
(ii) the product of 1.4 multiplied by the percentage limitation
which may be taken into account pursuant to Code Section
415(b)(1)(A) for such Accounting Year.
The limitation on aggregate benefits from a defined benefit plan and a
defined contribution plan set forth in this Section 3.06 shall be complied
with by a reduction (if necessary) in the Participant's benefits under the
defined benefit plan in accordance with the provisions of such plan and his
benefits hereunder shall not be affected by such aggregate limitation.
Section 3.07 - Mathematical Nondiscrimination Test for Employee Wage
Redirection Contributions Notwithstanding any of the provisions of this
Plan to the contrary, a Participant's Employee Wage Redirection
Contributions shall be subject to the mathematical nondiscrimination test
set forth in Code Section 401(k): that is, the "average deferral
percentage" of the eligible highly compensated Employees for each
Accounting Year shall not exceed the average deferral percentage of the
non-highly compensated Employees by more than the limit determined in
<PAGE>
accordance with the following table, counting for this purpose each
Employee Wage Redirection
III-4
Contribution (including zero (0) Employee Wage Redirection Contributions in
the case of any nonparticipating eligible Employee):
If the average The average deferral
deferral percentage percentage (ADP) of
(ADP) of the non-highly the highly compensated
compensated Employee is Employees can be
----------------------- -----------------------
Less than two percent (2%) Up to the ADP of the eligible non-
highly compensated Employees
multiplied by 2.0 (the "alternative
test").
Two percent (2%) but not Up to the ADP of the eligible non-
more than eight percent (8%) highly compensated Employees
plus two percent (2%) (the
"alternative test").
Eight percent (8%) or more Up to the ADP of the eligible non-
highly compensated Employees
multiplied by 1.25 (the "general
test").
"Average deferral percentage" as used herein shall mean the average of the
ratios (calculated separately for each eligible Employee) of (i) the amount
of Employee Wage Redirection Contributions actually paid over to the Trust
Fund on behalf of each such Employee for such Accounting Year and (ii) the
Employee's Nondiscrimination Compensation for such Accounting Year. During
each Accounting Year the Company shall monitor the average deferral
percentages of the non-highly compensated Employees and of the highly
compensated Employees for such Accounting Year. If it appears at any time
within an Accounting Year that the mathematical nondiscrimination test may
not be satisfied, the Company may suspend or decrease the rate of Employee
Wage Redirection Contributions of highly compensated Employees (beginning
with the highly compensated Employee with the highest average deferral
percentage) for the remainder of the Accounting Year. If, after the end of
the Accounting Year it is determined that the mathematical nondiscrimi-
nation test has not been satisfied, the Company shall direct the Trustee to
return the amount of the affected Participants' Employee Wage Redirection
Contributions for such Accounting Year that will cause the mathematical
nondiscrimination test to be satisfied, with the income allocable to such
Participants' Employee Wage Redirection Contributions calculated in
accordance with the regulations under Code Section 401(k). In addition,
any Company Matching Contributions determined to be attributable to
Participant Employee Wage Redirection Contributions returned pursuant to
this Section, together with any income allocable to the Company Matching
Contributions calculated in accordance with regulations under Code Section
401(m), shall be distributed to the affected Participants. The return of
Employee Wage Redirection Contributions and any income and the distribution
of Company Matching Contributions and any income shall occur before the end
of the Accounting Year following the
III-5
<PAGE>
Accounting Year in which the Plan failed to satisfy the mathematical
nondiscrimination test. The return of Employee Wage Redirection
Contributions and Company Matching Contributions and any income thereon
shall be accomplished by a proportionate reduction of each affected
Participant's investments in the investment Funds designated in Section
4.03 as of the end of the applicable Accounting Year in question.
For purposes of this Section and Section 3.08, the term "highly
compensated" Employee for an Accounting Year includes an Employee who:
a. was a five percent (5%) or greater owner of the Company (as
defined in Code Section 416(i)) in the current or preceding
Accounting Year,
b. was in the top twenty percent (20%) of all employees of the
Company and any Affiliates ranked by compensation and received
more than sixty-six thousand dollars ($66,000) (as such amount
may be adjusted hereafter by the Secretary of the Treasury as
authorized by the Code) in compensation in the current or
preceding Accounting Year,
c. received more than one hundred thousand dollars ($100,000) (as
such amount may be adjusted hereafter by the Secretary of the
Treasury as authorized by the Code) in compensation in the
current or preceding Accounting Year, or
d. was an officer of the Company or an Affiliate in the current or
preceding Accounting Year and received compensation of more
than fifty percent (50%) of the Code Section 415(b)(1)(A)
defined benefit dollar limit ($60,000 in 1996), but not to
include more than fifty (50) individuals or if less, the
greater of three (3) employees or ten percent (10%) of all
employees of the Company and Affiliates.
For purposes of determining who is a "highly compensated Employee," the
term "compensation" shall have the same meaning as specified in Section
3.04(b), but shall include any Employee Wage Redirection Contributions to
this Plan or amounts excludable from an Employee's gross income by
application of Code Section 125.
Notwithstanding the foregoing, an Employee should not be considered a
highly compensated Employee for an Accounting year unless he satisfied the
definition set forth in (a), (b), (c) or (d) in the preceding Accounting
Year, satisfies the definition set forth in (a) in the current Accounting
Year, or satisfies the definition set forth in (c) or (d) and is one of the
one hundred (100) highest paid Employees of the Company and Affiliates in
the current Accounting Year ranked by compensation.
If a Participant in the Plan is a family member of another Participant in
the Plan who is (i) a five percent (5%) owner of the Company, or (ii) one
(1) of the top ten (10) highest paid employees of the Company, the
Compensation paid to and contributions made on behalf of such family member
III-6
shall be deemed to have been made on behalf of such five percent (5%) owner
or other highly compensated Employee.
Any former employee shall be treated as a highly compensated Employee if
<PAGE>
such Employee was a highly compensated Employee when he (i) terminated
employment, or (ii) attained Age fifty-five (55). In addition, an Employee
who worked only a de minimis amount of service may be considered a highly
compensated Employee.
For purposes of this Section, the term "non-highly compensated" Employee
for an Accounting Year includes any Employee eligible to participate in
this Plan who is not "highly compensated" as defined above.
Notwithstanding any provision of this Section or Section 3.08 to the
contrary, the Committee, in its discretion, may determine which Employees
are highly compensated Employees for an Accounting Year in accordance with
the "calendar year election" or, if applicable, the "simplified method" or
"transitional rule" as described in Code Section 414(g) and regulations
thereunder.
Section 3.08 - Mathematical Nondiscrimination Test for Company Matching
Contributions: Disposition of Excess Amounts. Notwithstanding any other
provisions of this Plan to the contrary, the Company Matching
Contributions, if any, made to the Plan in each Accounting Year shall be
subject to the mathematical nondiscrimination test set forth in Code
Section 401(m)(2)(A): that is, the average contribution percentage of the
eligible highly compensated Employees in each Accounting Year shall not
exceed the average contribution percentage of the eligible non-highly
compensated Employees for such Accounting Year by more than the limit
determined in accordance with the following table, counting for this
purpose Company Matching Contributions (including zero (0) Company Matching
Contributions in the case of any nonparticipating eligible Employee):
If the average The average contribution
contribution percentage percentage (ACP) of the
(ACP) of the non-highly highly compensated
compensated Employees is Employees can be
------------------------ ------------------------
Less than two percent (2%) Up to the ACP of the eligible non-
highly compensated Employees
multiplied by 2.0 (the
"alternative test").
Two percent (2%) but not more Up to the ACP of the eligible non-
than eight percent (8%) highly compensated Employees plus
two percent(2%) (the "alternative
test").
Eight percent (8%) or more Up to the ACP of the eligible non-
highly compensated Employees
multiplied by 1.25 (the "general
test").
III-7
The "alternative test" described above may only be used to meet one of the
mathematical nondiscrimination tests described in Section 3.07 and 3.08 for
the same Accounting Year. To the extent the "alternative test" cannot be
used, the "general test" will be applied in the manner described in
regulations under Code Section 401(m).
The term "average contribution percentage" as used herein shall mean the
average of the ratios (calculated separately for each eligible Employee) of
<PAGE>
(i) the sum of the Company Matching Contributions paid over to the Trust
Fund on behalf of the Employee for such Accounting Year and (ii) the
Employee's Nondiscrimination Compensation for such year.
During each Accounting Year, the Company shall monitor the average
contribution percentages of the eligible highly compensated Employees and
the eligible non-highly compensated Employees for such Accounting Year and
may make prospective adjustments in the Company Matching Contributions, if
any, of the eligible highly compensated Employees (beginning with the
highly compensated Employee with the highest average contribution
percentage) as may be necessary to meet the average contribution test
herein. Further, the Committee shall have the discretion to declare
a special contribution to the Plan allocable only to the Company Matching
Contribution Accounts of the participating non-highly compensated
Employees, in the ratio that each such Participant's Nondiscrimination
Compensation for the Accounting Year bears to the total Nondiscrimination
Compensation of all such Participants for the Accounting Year. If, after
the end of the Accounting Year, it is determined that the average
contribution percentage test herein has not been satisfied, the
Company shall direct the Trustee to distribute the amount of
Company Matching Contributions for such Accounting Year which will cause
the average contribution percentage test to be satisfied, with the income,
if any, allocable to such Company Matching Contributions calculated in
accordance with regulations under Code Section 401(m). Company Matching
Contributions returned in accordance with this Section shall be returned no
later than the close of the Accounting Year following the Accounting Year
for which the Plan failed to satisfy the average contribution thereto and
shall be accomplished by a proportionate reduction of each affected
Participant's investments in the investment funds designated in Section
4.03 as of the Valuation Date preceding such distributions.
Section 3.09 - Aggregation of Nondiscrimination Tests. The tests described
in Sections 3.07 and 3.08 herein may not be performed on a combined basis
for Employee Wage Redirection Contributions and Company Matching
Contributions for any Accounting Year beginning on or after January 1,
1989.
Section 3.10 - Rollover Contributions; Plan-to-Plan Transfers. In addition
to Employee Wage Redirection Contributions under Section 3.01 and Company
Matching Contributions under Section 3.02, an Employee may make
contributions to the Plan due to a rollover of his interests from other
qualified plans meeting the requirements set forth in the following
paragraphs.
An Employee of the Company who would otherwise be eligible to participate
in this Plan except that such Employee has been employed before an Entry
Date and who has had distributed to him his entire vested interest in a
plan which meets the requirements of Code Section 401(a) as a result
III-8
of (i) termination of employment, (ii) plan termination, (iii) disability,
or (iv) on or after he has attained age fifty-nine and one-half (591/2)
may, in accordance with procedures approved by the Administrative
Committee, contribute part or all of the taxable portion of the
distribution received from such other plan to the Trust Fund for this Plan,
provided the following conditions are satisfied:
(i) such contribution occurs on or before the sixtieth (60th) day
<PAGE>
following his receipt of the distribution from the other plan;
(ii) the distribution received from the other plan is a "qualified
rollover distribution" within the meaning of Code Section
402(a)(5)(D)(i); and
(iii) the amount contributed is not more than the distribution he
received from the other plan less the amount, if any,
considered to be an employee after-tax contribution in
accordance with Code Section 402(e)(4)(D)(i).
An Employee of the Company, regardless of whether he is otherwise eligible
to participate in the Plan and in accordance with procedures approved by
the Administrative Committee, may also authorize the plan-to-plan transfer
of his entire interest in any other retirement plan that is qualified under
Code Section 401(a) to the Trust Fund for the Plan, provided such
transferred amount is permitted by such other plan and meets with the other
provisions of this Section 3.10.
Notwithstanding the above provisions of this Section 3.10 to the contrary,
any plan-to-plan transfer hereunder shall only be permitted if such amount
transferred to the Plan is not a direct or indirect transfer from a
transferor plan that is (a) a defined benefit plan, (b) a defined
contribution plan subject to Code Section 412, or (c) a defined
contribution plan that is subject to Code Sections 401(a)(11) and Section
417 with respect to the Participant.
The Administrative Committee shall develop such procedures, and may require
such information from the Employee desiring to make such a contribution or
transfer, as it deems necessary or desirable to determine that the proposed
contribution or plan-to-plan transfer will meet the requirements of this
Section 3.10. Upon approval by the Administrative Committee, the amount
contributed shall be deposited in the Trust Fund and shall be credited to
the Employee's Rollover Account. Upon such a contribution or transfer by
an Employee who is not yet a Participant hereunder, his Rollover Account
shall represent his sole interest in the Plan until he becomes a
Participant.
If an Employee makes a contribution or plan-to-plan transfer as provided in
this Section 3.10, a Rollover Account shall be established for him
hereunder equal to the amount contributed to the Trust. Such Account shall
be fully vested and nonforfeitable at all times. The Employee's Rollover
Account shall be invested at the direction of the Participant pursuant to
Section 4.03 as a part of the Trust Fund and shall share in gains and
losses in accordance with the terms of Section 4.01 hereof.
III-9
If a Participant is subsequently employed by another employer which has a
retirement plan that is qualified under Code Section 401(a), the
Administrative Committee may, at the request of the Participant, direct the
plan-to-plan transfer of the Participant's Plan benefits directly to the
trustee of the qualified plan of the Participant's new employer if the
following conditions are met:
(i) the trustee of the other qualified plan is permitted to accept
the transfer of benefits from the Plan;
(ii) the Participant's transferred assets will be maintained in a
<PAGE>
separate account (or separate accounts if needed to clearly
identify contributions and earnings thereon attributable to
employee contributions); and
(iii) the Participant's transferred assets shall not be forfeitable
or reduce in any way the obligation of the new employer.
Amounts transferred from the Plan shall be deducted from the Employee's
affected Accounts under the Plan.
III-10
ARTICLE IV
ACCOUNTS OF PARTICIPANTS
Section 4.01 - Trust Fund Valuation. As of the market close on each
Valuation Date, the Trustee shall determine the fair market value of the
Trust Fund and the Administrative Committee shall cause the fair market
value of the Accounts to be determined. The value of a Participant's
Account, as of any Valuation Date, shall be determined by the number of
shares in each investment fund (each "Fund") held by the Trust allocated to
such Participant's Account(s) (including any Participant loans), multiplied
by the per share net asset value for each Fund as of the market close on
such Valuation Date.
Section 4.02. - (Not Used)
Section 4.03 - Investment Funds. The Trustee shall have no responsibility
for the selection of investment options within the Trust Fund and shall not
render investment advice to any person in connection with the selection of
such options. The Administrative Committee shall direct the Trustee as to
the investment options in which Participants may invest, subject to the
following limitations. The Administrative Committee shall select a range
of investment options which shall include the Butler Company Stock Fund as
described at Section 4.05(b) hereof, and which may include (i) mutual funds
managed by the investment companies advised by Fidelity Management &
Research Company, (ii) a pool of investment contracts or similar fixed
income instruments provided in an investment portfolio advised by Fidelity
Management & Research Company, and (iii) mutual funds or other investment
funds managed or offered by advisors unrelated to Fidelity.
The Company may from time to time, at its discretion, change, delete or add
investment options available within the Trust Fund; provided that until
further amendment of the Plan, the Plan shall continue to provide the
Butler Stock Fund as an investment option. Income from and proceeds of
sales of investments in each Fund shall be reinvested in the same Fund.
Brokerage commissions, transfer taxes and other charges and expenses in
connection with the purchase and sale of securities held in a Fund may be
charged to the respective Fund as determined by the Administrative
Committee. Any income or other taxes payable with respect to each Fund
shall be charged to such Fund. The Trustee may hold amounts in cash or
short-term marketable securities for each Fund as it may deem appropriate.
The Trustee, on written direction from the Committee, shall be authorized
to provide amounts required for loans made pursuant to Section 5.07 from
any Fund.
Section 4.04 - Trustee's and Administrative Committee's Determinations
Binding. In determining the value of the Trust Fund and each Participant's
<PAGE>
Accounts, the Trustee and the Committee shall exercise their best judgment
and all such determinations (in the absence of bad faith) shall be binding
upon all Participants and their beneficiaries. All allocations shall be
IV-1
deemed to have been made as of the appropriate Valuation Date regardless of
when the allocations are actually made.
Section 4.05 - Investment of Accounts. All Accounts shall be invested as
hereinafter provided.
Section 4.05(a) - Direction by Participants. When an Employee becomes
a Participant in the Plan, he becomes responsible for directing the
investment of the contributions to his Accounts in one percent (1%)
increments (or as nearly as possible) among the Funds.
Any investment direction made by a Participant will continue in effect
until changed by the Participant. A Participant may change his
investment direction at any time pursuant to procedures established by
the Administrative Committee. The change in investment direction may
apply to future contributions, to amounts already invested or to both.
The terms and conditions of making and changing investment elections
shall also be subject to any requirements imposed by the financial
institution or other entity which establishes the Funds.
Directions with respect to investments among the Funds and changes
therein may be made by Participants by the use of the telephone
exchange system maintained for such purpose by the Trustee or its
agent or in such other manner, if any, as the Administrative Committee
may determine from time to time. Such investments (or exchanges among
investment options) normally shall be made on the same business day
that the agent of the Trustee receives a proper direction and monies,
if received before 4:00 p.m. Eastern time; if received after 4:00 p.m.
Eastern time, the investments normally shall be made the following
business day. In the event that the agent of the Trustee fails to
receive a proper direction, or if a Participant fails to make an
investment election, the assets shall be invested in the Fidelity
Money Market Trust: Retirement Money Market (hereafter, the "Money
Market Portfolio") until the agent of the Trustee receives a proper
direction. The net sales price or purchase price of units in a Fund
shall be as determined on the basis of the value of a unit as of the
market close on the Valuation Date on which the transaction occurs.
In addition, contributions the Trustee receives from the Company on
other than a Valuation Date shall be invested in the securities of the
Money Market Portfolio until the following Valuation Date. With-
drawals (other than those made to accomplish the exchanges) shall be
made within ten (10) days of receipt by the agent of the Trustee of a
proper direction to withdraw. If any assets allocable to Participant
Accounts hereunder are received by the agent of the current Trustee
from a predecessor trustee, such investments shall be invested in the
Money Market Portfolio until a full reconciliation of such assets has
been received from such predecessor trustee, at which time such assets
shall then be invested pursuant to proper directions received from a
Participant, or as directed by the Administrative Committee.
IV-2
<PAGE>
It is the intention of the parties to comply with the requirements of
Section 404(c) of ERISA and to enable and require Participants to
exercise independent control over assets in their Accounts. Neither
the Company, the Administrative Committee, nor the Trustee shall have
any responsibility for any loss in connection with Participant's
selection of an investment option.
Section 4.05(b) - Butler Common Stock Fund. One of the investment
options under the Plan, referenced in Section 4.03 hereof, shall be
the Butler Common Stock Fund ("Butler Stock Fund"), which shall
consist of shares of the Common Stock of Butler Manufacturing Company
("Company Stock") and cash (the "Cash Portion") invested in short-term
liquid investments maintained by the Trustee necessary to satisfy the
Butler Stock Fund's cash needs for Participants' requests for
transfers to other Funds, distributions or withdrawals, or held
temporarily pending investment in Company Stock.
Each Participant's proportional interest in the Butler Stock Fund
shall be measured in units of participation, rather than shares of
Company Stock. This method of accounting is referred to as
"unitization". Each unit of the Butler Stock Fund represents a
proportionate interest in all of the assets of the Butler Stock Fund,
which includes shares of Company Stock and short term investments. A
Net Asset Value ("NAV") per unit will be determined on each Valuation
Date for each unit outstanding of the Butler Stock Fund.
Purchases and sales of Company Stock shall be made on the open market
as soon as practicable after the Trustee's receipt from the Company
and/or the Plan Participants, as applicable, in good order all
information and documentation necessary to accurately effect such
purchases and sales, subject to market conditions and applicable laws
and regulations. Purchases and sales of Company Stock also may be
made from or to the Company or third parties who are "parties in
interest" as defined in Section 3(14) of ERISA, provided (i) the
Company or Administrative Committee so requests, (ii) the purchase or
sale is for adequate consideration (within the meaning of Section
3(18) of ERISA) and (iii) no commission is charged.
Notwithstanding the foregoing, neither the Company nor any affiliate
of the Company (other than with respect to directions by an affiliate
with respect to that affiliate's account only) may exercise any direct
or indirect control or influence over the times when, or the prices at
which, the Trustee, or any broker selected by the Trustee, may
purchase Company Stock for the Butler Stock Fund, the number of shares
of such stock to be purchased, the manner in which such stock is to be
purchased, or the selection of a broker or dealer (other than the
Trustee) through which purchases may be executed; it being understood
that the Company shall not be deemed to have such control or influence
solely because it revises not more than once in any three month period
the basis for determining the amount of its contributions to the Plan
or the basis for determining the frequency of its allocations to the
Plan. For purposes of this paragraph only, "affiliate," means a
person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, the Company.
IV-3
Notwithstanding any other provision of this Plan or of the Trust, the
<PAGE>
provisions of this Section shall govern the voting and tendering of
Company Stock. The Company, after consultation with the Trustee,
shall provide and pay for all printing, mailing, tabulation and other
costs associated with the voting and tendering of Company Stock.
(i) Voting
(a) Upon the filing of definitive proxy solicitation
materials with the Securities and Exchange Commission,
the Company shall cause a copy of all such materials to
be sent to the Trustee. Based on these materials, the
Trustee shall prepare a voting instruction form. At the
time of mailing of notice of each annual or special
stockholders' meeting of the Company, the Company shall
cause a copy of the notice and all proxy solicitation
materials to be sent to each Participant, together with
the foregoing voting instruction form to be returned to
the Trustee or its designee. The form shall show the
number of full and fractional shares of Company Stock
attributable to the Participant's interest in the Butler
Stock Fund. The Company shall provide the Trustee with
a copy of any materials provided to the Participants and
shall certify to the Trustee that the materials have
been mailed or otherwise sent to Participants.
(b) Each Participant with an interest in the Butler Stock
Fund shall have the right to direct the Trustee as to
the manner in which the Trustee is to vote that number
of shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund.
Directions from a Participant to the Trustee concerning
the voting of Company Stock shall be communicated in
writing, or by mailgram or similar means. These
directions shall be held in confidence by the Trustee
and shall not be divulged to the Company, or to any
director, officer or employee of the Company or any
affiliated company. Upon its receipt of the directions,
the Trustee shall vote the shares of Company Stock as
directed by the Participant. Shares of Company Stock
attributable to a Participant's interest in the Butler
Stock Fund for which the Trustee has received no
directions from the Participant shall be voted by the
Trustee in proportion to all those shares for which
direction has been received by Trustee.
(ii) Tender Offers
(a) Upon commencement of a public tender offer or exchange
offer for shares of Company Stock ("Tender Offer"), the
Company shall notify each Participant with an interest
in the Butler Stock Fund of the Tender Offer and shall
utilize its best efforts to timely distribute or cause
to be distributed to such Participants the same
information that is distributed to holders of Company
Stock in connection with the Tender Offer, and, after
consulting with the Trustee, shall provide and pay for a
means by which
IV-4
<PAGE>
such Participants may direct the Trustee whether or not
to tender the Company Stock attributable to the
Participant's interest in the Butler Stock Fund.
The Company shall provide the Trustee with a copy of any
materials provided to such Participants and shall
certify to the Trustee that the materials have been
mailed or otherwise sent to such Participants.
(b) Each Participant shall have the right to direct the
Trustee to tender or not to tender some or all of the
shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund.
Directions from a Participant to the Trustee concerning
the tender of Company Stock shall be communicated in
writing, or by mailgram or such similar means as is
agreed upon by the Trustee and the Company under the
preceding paragraph. These directions shall be held in
confidence by the Trustee and shall not be divulged to
the Company, or to any officer or employee thereof, or
any other person except to the extent that the
consequences of such directions are reflected in reports
regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's
services hereunder. The Trustee shall tender or not
tender shares of Company Stock as directed by the
Participant. The Trustee shall not tender shares of
Company Stock attributable to a Participant's interest
in the Butler Stock Fund for which it has received no
directions from the Participant.
(c) A Participant who has directed the Trustee to tender
some or all of the shares of Company Stock attributable
to the Participant's interest in the Butler Stock Fund
may, at any time prior to the date permited under the
Tender Offer for the revocation or withdrawal of tenders
(the "Withdrawal Date"), direct the Trustee to revoke or
withdraw some or all of the tendered shares, and the
Trustee shall withdraw the directed number of shares
from the Tender Offer or otherwise revoke the same prior
to the Withdrawal Date. A Participant shall not be
limited as to the number of directions to tender or to
withdraw or revoke a tender that the Participant may
give to the Trustee.
(d) A direction by a Participant to the Trustee to tender
shares of Company Stock attributable to the
Participant's interest in the Butler Stock Fund shall
not be considered a written election under the Plan by
the Participant to withdraw, or have distributed, any or
all of the Participant's interest in the Plan, which may
be withdrawn pursuant to the provisions of the Plan.
The Trustee shall credit to each Account of the
Participant from which the tendered shares were deemed
to have been taken the proceeds received by the Trustee
in exchange for the shares of Company Stock tendered in
connection with that Account. Pending receipt of
directions from the Participant, as provided in the
Plan, as to which of the remaining investment options
the proceeds should be invested in, the Trustee shall
<PAGE>
invest the proceeds in the securities of the Money
Market Portfolio.
IV-5
(iii) Shares Credited
For all purposes of this Section, the number of shares of
Company Stock deemed "attributable" to a Participant's
interest in the Butler Stock Fund shall be determined by the
Trustee as of the last preceding Valuation Date.
(iv) General
With respect to all rights other than the right to vote, the
right to tender, and the right to withdraw shares previously
tendered, in the case of Company Stock attributable to a
Participant's interest in the Butler Stock Fund, the Trustee
shall follow the directions of the Participant and, if no such
directions are received, the Trustee shall not act. The
Trustee shall have no duty to solicit directions from
Participants but shall pass on to Participants notices,
offers, proxy materials and other information furnished to the
Trustee; provided that the Trustee shall have no duty to pass
on such information to the extent that the Company has
certified to the Trustee that such information has previously
been furnished to Participants.
(v) Conversion
All provisions in this Section 4.05(b) shall also apply to any
securities received as a result of a conversion of Company
Stock.
Section 4.05(c). - (Not Used)
Section 4.05(d) - Rollover Accounts. If permitted by the
Administrative Committee, a Participant who has a rollover Account as
set forth in Section 3.10 may invest such Account in one percent (1%)
increments in the Funds. The initial allocation of his Rollover
Account among the Funds may be independent of his investment choices
for prospective Employee Wage Redirection Contributions.
Section 4.05(e) - Loan Accounts. Loans for investment purposes shall
be treated as an individual loan investment of the Participant making
the loan. Loans will be charged first to the Participant's Employee
Wage Redirection Contribution Account, next to his Company Matching
Account and then to his Rollover Account if applicable. Repayment of
loans shall be credited to the Participant's Accounts from which they
were charged but first to his Rollover Account if applicable, next to
his Company Matching Account and then to his Employee Wage Redirection
Contribution Account. In the last Account to be used for satisfying
the loan amount, amounts will be taken from each Fund in said Account,
pro rata in proportion to the value of each such Fund on the Valuation
Date as of which the loan is made. Loan repayments shall be credited
to the investment Fund(s) within the applicable Account(s) in the same
percentage as has been elected for the
IV-6
<PAGE>
Participant's future contributions. Interest payments will be
credited on a prorata basis using the outstanding principal balance in
each Account.
Section 4.06 - Benefit Statements. As soon as reasonably practicable
after the end of each calendar quarter of each Accounting Year, the
Administrative Committee shall advise each Participant of the value of
his Accounts as of those dates.
IV-7
ARTICLE V
DISTRIBUTIONS UNDER THE PLAN
Section 5.01 - Valuation of Accounts for Distribution. When a Participant's
Accounts become distributable pursuant to Section 5.02 hereof, such
Accounts, less any disbursements made from such Accounts, shall be valued,
normally as of the market close on the first Valuation Date immediately
preceding the distribution.
Section 5.02 - Amount of Distributions/Distributable Events. If a
Participant (i) retires on or after attaining Early Retirement Age or
Normal Retirement Age, (ii) becomes Totally and Permanently Disabled, (iii)
dies, or (iv) terminates employment for any other reason, the full value of
his Accounts shall become distributable to him, or, in the case of his
death, shall become distributable to his Beneficiary, valued as of the
Valuation Date set forth in Section 5.01 hereof.
Section 5.03 - Timing of Distributions. Any benefits that become
distributable under this Article V shall commence as soon as reasonably
practicable after the applicable event in Section 5.02 hereof, but normally
no later than sixty (60) days thereafter. If the distributable amount
cannot be ascertained and distribution commenced within sixty (60) days
following the applicable event in Section 5.02 hereof, it shall be payable
as soon as reasonably practicable thereafter. In no event shall a
Participant's benefits be paid or commence later than the first day of
April of the calendar year immediately following the date he reaches Age
seventy and one-half (70 1/2) even if he is still employed; provided,
however, the benefits of a Participant who is not a 5% owner of the Company
and who attained age seventy and one-half (70 1/2) prior to January 1, 1988
shall not be required to be paid or commence prior to April 1 of the
calendar year immediately following the year in which he retires. In
addition, any death benefit that becomes payable under this Plan shall
commence (or otherwise be paid) within one (1) year after it becomes
distributable hereunder. Notwithstanding any provision of this Article V,
the Participant must consent in writing to a distribution of his benefits
if: (i) the present value of the Participant's nonforfeitable Accounts
exceeds $3,500 and (ii) the Committee directs the Trustee to make
distribution to the Participant prior to his attaining the later of Normal
Retirement Age or Age 62.
Section 5.04 - Form of Distributions. Distributions of any benefits under
the Plan attributable to the Participant's Employee Wage Redirection
Contribution Account, Company Matching Contribution Account and Rollover
Account, if any, shall be in the form of a lump sum distribution in cash or
in kind, as elected by the Participant. If a Participant has elected under
Section 4.05 to invest in the Butler Common Stock Fund, the Participanat
may request a distribution in the form of shares of Butler Common Stock
<PAGE>
equal to the number of whole shares of Common Stock attributable to such
Participant's interest in the Butler Stock Fund on the Valuation Date as of
which the amount of the Participant's distribution is determined, with the
value of any balance of such interest to be distributed in cash.
V-1
Section 5.05 - In-Service Withdrawals by Participants. A Participant may,
while employed by the Company, withdraw amounts from his Rollover Account,
if any, Company Matching Account (provided Company Matching Contributions
are not aggregated with Employee Wage Redirection Contributions in
satisfying the mathematical nondiscrimination tests of Sections 3.03 and
3.04) and/or Employee Wage Redirection Contribution Account, provided the
withdrawal is approved by the Administrative Committee and otherwise
satisfies the terms and conditions of this Section 5.05. Hardship
withdrawal distributions shall be made only in cash.
Section 5.05(a). With respect to his Rollover Account, a Participant
may request a hardship withdrawal of the entire value of such Account,
including any investment earnings in the Account.
Section 5.05(b). With respect to the Employee Wage Redirection
Contribution Account, a Participant may request a hardship withdrawal
up to the value of his Employee Wage Redirection Contributions in such
Account, excluding accumulated investment earnings thereon.
Section 5.05(c). Provided Company Matching Contributions are not
aggregated with Employee Wage Redirection Contributions for purposes
of satisfying the mathematical nondiscrimination tests of Sections
3.03 and 3.04 herein, a Participant may request a hardship withdrawal
up to the value of the Company Matching Contributions in such Account,
excluding any accumulated investment earnings thereon.
Section 5.05(d). For purposes of this Section 5.05, "financial
hardship" shall mean an immediate and heavy financial need of the
Participant, which cannot be satisfied from other reasonably available
resources, for reasons of:
(i) medical expenses incurred by the Participant, his spouse or
his dependents;
(ii) the payment of tuition and related educational fees for the
next twelve months of post-secondary education for the
Participant, his spouse or his dependents;
(iii) the purchase of a principal residence of the Participant (not
including mortgage payments); or,
(iv) the need to prevent eviction of the Participant from his
principal residence or foreclosure on the mortgage of such
principal residence.
A hardship withdrawal shall be deemed necessary to satisfy an
immediate and heavy financial need of a Participant if all of the
following requirements are satisfied:
(i) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant. The
amount of an immediate and heavy financial need may
<PAGE>
V-2
include any amounts necessary to pay Federal, state, or local
income taxes or penalties reasonably anticipated to result
from the distribution.
(ii) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable (at the time of the
loan) loans currently available under all plans maintained by
the Company.
(iii) The Plan and all other plans maintained by the Company limit
the Participant's elective contributions for the next taxable
year to the applicable limit under Code Section 402(g) for
that year minus the Participant's elective contributions for
the year of hardship distribution.
(iv) The Participant is prohibited, under the terms of the Plan or
an otherwise legally enforceable agreement, from making
elective contributions and employee contributions to the Plan
and all other plans maintained by the Company for at least
twelve (12) months after receipt of the hardship distribution.
For this purpose, the phrase "all other plans maintained by
the Company" means all qualified and nonqualified plans of
deferred compensation maintained by the Company. The phrase
includes a stock option, stock purchase, or similar plan, or a
cash or deferred arrangement that is part of a cafeteria plan
within the meaning of Code Section 125 (excluding
contributions to a health and welfare plan under Code Section
125).
However, a hardship withdrawal can be obtained for the above outlined
reasons if a Participant represents in writing to the Committee that
the financial hardship cannot be relieved through (i) insurance, (ii)
reasonable liquidation of the Participant's assets, (iii) ceasing of
Employee contributions, or (iv) borrowing from this Plan or other
plans maintained by the Company from commercial lenders on reasonable
terms.
A hardship withdrawal (i) may not be less than five hundred dollars
($500); and (ii) may not exceed the amount necessary to meet the
financial hardship. Hardship withdrawals shall be made first from a
Participant's Wage Redirection Contribution Account and thereafter
from the Participant's Rollover Account and thereafter from his
Company Matching Account. Such withdrawals shall be accomplished by a
proportionate reduction from such investment Fund(s) which may apply
to such Accounts. In no event shall a hardship withdrawal exceed the
sum of the Participant's Rollover Account, if any, plus the amount of
the Participant's Employee Wage Redirection Contributions and Company
Matching Contributions.
Section 5.06 - Qualified Domestic Relations Orders. Notwithstanding any
provisions herein to the contrary, the Plan and Trustee shall comply with
the provisions of a "qualified domestic relations order" as defined in
Code Section 414(p).
Section 5.07 - Loans to Participants. Subject to thirty (30) days notice
and upon proper application of a Participant in such form as the
Administrative Committee may specify, the Administrative Committee will
<PAGE>
direct the Trustee to make a loan to the Participant. The
V-3
application, and the resulting loan, must meet the terms and conditions
specified by the Administrative Committee and in the following provisions
of this Section 5.07.
Section 5.07(a). A loan shall not be made that exceeds the lesser of
fifty thousand dollars ($50,000) reduced by the highest outstanding
loan balance during the twelve (12) month period ending on the date
the loan application is received by the Administrative Committee, but
not in any case more than fifty percent (50%) of the total of the
Participant's Wage Redirection Contribution Account, Company Matching
Account and Rollover Account, if any, determined as of the Valuation
Date coincident with or immediately preceding the date the loan
application is received by the Administrative Committee, less any
distributions from such Accounts since such Valuation Date, plus any
Employee Redirection Contributions and Company Matching Contributions
since that Valuation Date.
Section 5.07(b). No loan may be for an amount of less than one
thousand dollars ($1,000). A Participant may have no more than one
loan outstanding from the Plan at any one time, and may not apply for
a loan while he has a loan outstanding.
Section 5.07(c). The term of repayment for the loan shall be that
determined by the Participant, but shall not be less than twelve (12)
months nor exceed the maximum term established by normal rules adopted
by the Administrative Committee. Except for a loan for the purchase
of a primary residence, the Committee's formal rules shall not allow a
term in excess of sixty (60) months for any loan. Such formal rules
shall be reduced to writing and shall be made available, upon request
and free of charge, to any Participant.
Section 5.07(d). The Participant shall authorize the Company to deduct
approximately equal monthly payments of principal and interest from
his Compensation in such an amount as would permit the loan to be
fully amortized over its term. The Company shall transfer such
payroll deductions to the Trustee as soon as reasonably practicable.
If a Participant is not receiving Compensation during a period of
time, he shall remit the monthly payments that would otherwise be
deducted from his Compensation directly to the Trustee.
Section 5.07(e). A Participant may prepay, at any time, any portion or
all of the then outstanding principal balance of his loan, together
with interest, without premium or penalty.
Section 5.07(f). The loan shall be made against the assignment of the
Participant's Employee Wage Redirection Contribution, Company Matching
Contribution, and Rollover Accounts, and shall be evidenced by the
Participant's promissory note for the amount of such loan, including
interest, payable to the order of the Trustee; provided, however, no
more than (i) fifty percent (50%) of the present value of a
Participant's vested Accounts or (ii) the amount of principal and
interest owed from time to time, may be considered by the Plan as
security for the outstanding balance of all Plan loans made to that
Participant, determined immediately after the origination of each
Participant loan secured in whole or in part by that Participant's
<PAGE>
vested Accounts.
V-4
Section 5.07(g). The loan shall bear a reasonable rate of interest set
by the Administrative Committee in accordance with uniform procedures
consistently applied in a manner that does not discriminate in favor
of officers or highly compensated Participants.
Section 5.07(h). The terms of the promissory note for said loan shall
provide that, if the Participant defaults on the loan by not making
payments when due, and if the entire balance due, including interest,
is not paid by the Participant within thirty (30) days following the
default, the Trustee, upon a direction from the Committee, shall
execute upon the security of the Participant's Company Matching
Contribution Account (unless said Account has been utilized to satisfy
the nondiscrimination tests described in Section 3.07) and his
Rollover Account in satisfaction of the unpaid debt. If such
execution upon the Participant's Company Matching Contribution Account
(if available) and Rollover Account, if any, is insufficient to
satisfy the unpaid debt, the Trustee shall delay execution upon the
Participant's Employee Wage Redirection Contribution Account until
such time as the Participant becomes entitled to a distribution
therefrom, at which time the Trustee shall execute upon such Account
to the extent necessary to repay the debt.
Section 5.07(i). No distribution under this Article V shall be made to
any Participant, former Participant, or Beneficiary unless and until
all unpaid loans, including accrued interest, have been repaid (which
may be offset from any benefit payment distributions hereunder).
Section 5.07(j). As of the date of this restatement of the Plan, loans
may be made only for the following purposes: (i) purchase, repair, or
renovation of primary residence, (ii) college tuition, (iii) severe,
unreimbursed medical expense, or (iv) a consumer purchase. In
granting or refusing any request for a loan hereunder, the Committee
shall apply uniform standards consistently in a manner that does not
discriminate in favor of officers, or highly-compensated Participants.
Section 5.07(k). A period of at least thirty (30) days must elapse
between repayment of a loan and the creation of another loan to the
same Participant.
Section 5.08 - Direct Rollover of Eligible Rollover Distributions. A
Participant may elect, at the time and in the manner prescribed by the
Committee, to have any portion of such Participant's eligible rollover
distribution paid directly to an eligible retirement plan specified by the
Participant in a direct rollover designation. For purposes of this Section
5.08, a Participant includes a Participant's surviving spouse and the
Participant's spouse or former spouse who is an alternate payee under a
qualified domestic relations order.
The following definitions apply to this Section 5.08:
Section 5.08(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of a
Participant's Account balances, except an eligible rollover
distribution does not include: any distribution which is one of a
series of
<PAGE>
V-5
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Participant or
the joint lives (or joint life expectancies) of the Participant and
the Participant's designated Beneficiary, or for a specified period of
ten years or more; any distribution to the extent required under Code
Section 401(a)(9); and the portion of any distribution which is not
included in gross income.
Section 5.08(b) Eligible Retirement Plan. An eligible retirement plan
is an individual retirement account described in Code Section 408(a),
an individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a) or a qualified trust
described in Code Section 401(a), which accepts the Participant's
eligible rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual retirement
annuity.
Section 5.08(c)Direct Rollover. A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the distributee.
V-6
ARTICLE VI
ADMINISTRATION
Section 6.01 - Allocation of Responsibility Among Fiduciaries for Plan and
Trust Administration. The Fiduciaries shall have only those specific
powers, duties, responsibilities and obligations as are specifically given
them under this Plan or the Trust as follows:
(a) The Company shall have the sole responsibility for making the
contributions specified in Article III. The Company shall
have the sole authority to appoint and remove the Trustee and
to amend or terminate, in whole or in part, this Plan or the
Trust. For purposes of ERISA, the Company shall be deemed to
be the Plan Administrator.
(b) The Administrative Committee shall have the sole
responsibility for the administration of this Plan, which
responsibility is specifically described in this Plan and the
Trust Agreement. The Administrative Committee may appoint one
or more employees of the Company to have the responsibility of
implementing such administration of the Plan as the
Administrative Committee shall direct.
(c) The Trustee shall have the sole responsibility for the
administration of the Trust and the management of the assets
held under the Trust, as directed by the Participants and the
Administrative Committee and as specifically provided in the
Trust Agreement.
(d) A Fiduciary may rely upon any direction, information or action
of another Fiduciary as being proper under this Plan or the
Trust, and is not required under this Plan or the Trust to
inquire into the propriety of any such direction, information
<PAGE>
or action. It is intended under this Plan and the Trust that
each Fiduciary shall be responsible for the proper exercise of
his or its own powers, duties, responsibilities and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in any
manner against investment loss or depreciation in asset
value. Any party may serve in more than one (1) fiduciary
capacity with respect to the Plan or Trust.
Section 6.02 - Administrative Committee. The general administration of the
Plan and the responsibility for carrying out the provisions hereof shall be
placed in a committee of one (1) or more members, each of whom shall be
appointed by the Chairman of the Board of Directors and serve at the
pleasure of the Chairman. Any member of the Administrative Committee may
resign by notice in writing filed with the Chairman of the Board of
Directors of the Company, such resignation to become effective no earlier
than the date of such written notice.
VI-1
All customary and reasonable expenses of the Administrative Committee may
be paid by the Company or charged against the Trust Fund as the Company
elects. Members of the Administrative Committee shall not receive
compensation with respect to their services for the Administrative
Committee. The Administrative Committee shall hold meetings upon notice,
at such place or places, and at such time or times, as they may determine.
A majority of the members of the Administrative Committee at the time in
office shall constitute a quorum for the transaction of business. All
resolutions or actions taken by the Administrative Committee at a meeting
shall be by vote of the majority of the Administrative Committee present.
Action by the Administrative Committee may be taken without a formal
meeting by the written authorization of all of the members thereof.
The Administrative Committee shall exercise its powers hereunder in a
uniform and nondiscriminatory manner, but in the exercise of its
discretion. An Administrative Committee member shall be disqualified from
acting upon any matter affecting only himself.
Section 6.03 - Administrative Committee's Powers and Duties. The
Administrative Committee shall have such powers and duties as may be
necessary to discharge its functions hereunder, in its sole and exclusive
discretion, including but not limited to, the following:
(a) to construe and interpret the Plan, to decide all questions of
eligibility and determine the amount, manner and time of
payment of any benefits hereunder,
(b) to formulate uniform rules and regulations wherever, in the
opinion of the Administrative Committee, such rules and
regulations are required by the terms of the Plan or would
facilitate the operation of the Plan;
(c) to make a determination as to the right of any person to a
benefit;
(d) to obtain from the Company and from Employees such information
as shall be necessary for the proper administration of the
Plan, to fully rely upon such information and, when
<PAGE>
appropriate, to furnish such information promptly to the
Trustee or other persons entitled thereto;
(e) to prepare and distribute, in such manner as the
Administrative Committee determines to be appropriate,
information explaining the Plan;
(f) to furnish the Company, upon request, such reports with
respect to the administration of the Plan as are reasonable
and appropriate;
(g) to establish and maintain such accounts in the name of the
Company and of each Participant as are necessary;
(h) to instruct the Trustee with respect to the payment of
benefits hereunder;
VI-2
(i) to provide for any required bonding of fiduciaries and other
persons who may from time to time handle Plan assets;
(j) to authorize one or more of its members, or any agent, to make
any payment on behalf of the Administrative Committee
(including instructions to the Trustee as to the application
or disbursement of the Trust Fund) and to appoint agents and
clerks, and such professional services, including legal,
accounting and actuarial, as may be required in carrying out
the provisions of the Plan;
(k) to keep all such books of accounts, record and other data as
may be necessary for the proper administration of the Plan;
and
(l) to select as investment options under the Plan, at least three
diversified Funds with materially different risk and return
characteristics advised by qualified investment managers;
provided, that the Butler Common Stock Fund shall remain an
additional option until the Plan is amended to eliminate the
same as an option.
Notwithstanding the foregoing, the Administrative Committee shall have
no authority to direct the investment, reinvestment, or exercise of
any voting or other stock rights with respect to any assets of the
Trust allocated to any Fund maintained by the Trust.
Section 6.04 - Claims Procedure. Subject to the limitations of the Plan and
of the Trust Agreement, the Administrative Committee shall from time to
time establish rules for the administration of the Plan and the transaction
of its business. Without limiting the generality of the above, it is
specifically provided that the Administrative Committee shall set forth in
writing, available for inspection by any interested party, the procedures
to be followed in presenting claims for benefits under the Plan. The
Administrative Committee shall rely on the records of the Company, as
certified to it, with respect to any and all factual matters dealing with
the employment of an Employee or Participant. In case of any factual
dispute hereunder, the Administrative Committee shall resolve such dispute
giving due weight to all evidence available to it. The Administrative
Committee shall interpret the Plan and shall determine all questions
<PAGE>
arising in the administration, interpretation and application of the Plan.
All such determinations shall be final, conclusive and binding except to
the extent that they are appealed under the following claims procedure. In
the event that the claim of any person to all or any part of any payment or
benefit under this Plan shall be denied, the Administrative Committee shall
provide to the claimant, normally within sixty (60) days after receipt of
such claim, a written notice setting forth:
(i) the specific reason or reasons for the denial;
(ii) specific references to the pertinent Plan provisions on which
the denial is based;
VI-3
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation as to why such material or information is
necessary; and
(iv) an explanation of the Plan's claim procedure.
Within sixty (60) days after receipt of the above material, the claimant
shall have a reasonable opportunity to appeal the claim denial to the
Administrative Committee for a full and fair review. The claimant or his
duly authorized representative:
(i) may request a review upon written notice to the Administrative
Committee;
(ii) may review pertinent documents; and
(iii) may submit issues and comments in writing.
A decision by the Administrative Committee shall be made not later than
sixty (60) days after receipt of a request for review, unless special
circumstances require an extension of time for processing, in which event a
decision shall be rendered as soon as practicable, but in no event later
than one hundred twenty (120) days after such receipt. The Administrative
Committee's decision on review shall be written and include specific
reasons for the decision, with specific references to the pertinent Plan
provisions on which the decision is based.
Section 6.05 Non-Discrimination. The Administrative Committee shall not
take any action or direct the Trustee to take any action with respect to
any of the benefits provided hereunder or otherwise in pursuance of the
powers conferred herein upon the Administrative Committee which would be
discriminatory in favor of Participants or Employees who are officers, or
highly-compensated employees as defined by Code Section 401(a)(4) or which
would result in the application of different rules to substantially similar
sets of facts.
Section 6.06 - Trustee May Request Instructions. The Trustee may request
instructions in writing from the Administrative Committee and may rely and
act thereon.
Section 6.07 - Legal Counsel. The Administrative Committee may consult with
legal counsel (who may also be legal counsel to the Company) concerning any
question which may arise with reference to its duties under this Plan and
<PAGE>
the opinion of such legal counsel shall be full and complete protection
with respect to any action taken or suffered by the Administrative
Committee hereunder in good faith and in accordance with the opinion of
such legal counsel.
Section 6.08 - Payment of Advisors. The compensation of any legal counsel,
accountants, consultants and other agents and any other expenses incurred
by the Administrative Committee in the administration of the Plan and Trust
may be paid by the Company or charged against the Trust Fund as the Company
elects.
VI-4
Section 6.09 - Indemnification. In addition to indemnity provided to
officers and directors of the Company pursuant to the Certificate of
Incorporation of the Company, or any statute, bylaw or contract, the
Company agrees to indemnify and save harmless the members of the
Administrative Committee, and each of them, and any person to whom the
Committee may specifically delegate its duties or responsibilities
hereunder (a "delegee"), from and against any and all loss resulting from
any liability to which the Administrative Committee, or any members of the
Committee (or delegees), may be subjected by reason of any act or conduct
(except willful misconduct or gross negligence) in their official
capacities in the administration of this Plan, including all legal and
other expenses reasonably incurred in their defense, in the case the
Company fails to provide such defense. Any such legal or other expenses
not otherwise provided by the Company shall be advanced as incurred prior
to any outcome upon a written undertaking to reimburse the same should a
court determine that the indemnified person is not entitled to such
indemnity. The indemnification provisions of this Section 6.09 shall not
relieve any Committee member (or delegee) from any liability the member (or
other person) may have under the ERISA for breach of fiduciary duty.
VI-5
ARTICLE VII
THE TRUST FUND AND THE TRUSTEE
Section 7.01 - Trust Agreement. The Company has entered into a Trust
Agreement with the Trustee to hold the funds set aside pursuant to this
Plan. The Trust Agreement may include a provision for participation in a
joint, master or associated trust fund or pooled separate account for the
purpose of pooling investment experience.
Section 7.02 - Investment of Trust Fund. The Trustee shall have all the
powers and duties granted herein subject to the limitations in the Trust
Agreement with respect to the investment of the Trust Fund and the Trustee
shall keep separate records reflecting the investment earnings (or losses),
receipts, disbursements, purchases, sales and list of holdings of such
assets.
Section 7.03 - Non-Reversion: Exclusive Benefit Clause. The Trust Fund
shall be received, held in Trust and disbursed by the Trustee in accordance
with the provisions of the Trust Agreement and this Plan. Except as
provided in Sections 3.03(ii) and 3.05 hereof, no part of the Trust Fund
shall be used for or diverted to purposes other than for the exclusive
benefit of Participants or their Beneficiaries under this Plan. No person
shall have any interest in, or right to, the Trust Fund or any part
<PAGE>
thereof, except as specifically provided for in this Plan or the Trust
Agreement. Notwithstanding the above, nothing in this Section 7.03 nor the
Plan shall preclude the Trustee from complying with a "qualified domestic
relations order" as defined in Code Section 414(p).
Section 7.04 - Removal of Trustee. The Company may remove the Trustee at
any time upon the notice required by the terms of the Trust Agreement and,
upon such removal or resignation, the Company, through a duly authorized
officer, shall appoint a successor trustee.
Section 7.05 - Powers of Trustee. The Trustee shall have such powers to
hold, invest, reinvest, control and disburse the funds as shall be set
forth in the Trust Agreement or this Plan.
Section 7.06 - Trust Agreement Part of Plan. The Trust Agreement and any
joint, master or associated trust fund or pooled separate account shall be
deemed to form a part of the Plan and the rights of Participants or others
under this Plan shall be subject to the provisions of the Trust Agreement
and any joint, master or associated trust fund or pooled separate account.
Section 7.07 - Trustee's Settlement of Accounts. The Trust Agreement may
contain provisions granting authority to the Company to settle the accounts
of the Trustee on behalf of all persons having or claiming interest in the
Trust Fund.
VII-1
ARTICLE VIII
AMENDMENT AND TERMINATION
Section 8.01 - Amendment. The Company, through a duly authorized officer,
hereby reserves the right, at any time, to modify or amend, in whole or in
part, any or all of the provisions of the Plan, including specifically the
right to make any such amendment effective retroactively, if necessary, to
bring the Plan into conformity with any governmental regulations which must
be complied with so that the Plan and Trust Fund shall continue to qualify
under Code Sections 401(a) and 401(k). No modification or amendment shall
make it possible for the Trust assets to be used for or diverted to
purposes other than the exclusive benefit of Participants and their
Beneficiaries, except as provided in Sections 3.03(ii) and 3.05 hereof.
Section 8.02 - Termination. The Company, through a duly authorized officer,
may terminate or partially terminate this Plan at any time.
Section 8.03 - Distribution of Accounts Upon Plan Termination. If the
Company terminates the Plan or partially terminates the Plan, the
Administrative Committee shall compute the value of the Accounts of the
affected Participants which shall be fully vested and nonforfeitable. The
Accounts of each such Participant shall be distributed in the manner
otherwise provided in Section 5.04 hereof as soon as administratively
feasible or unless the Company, in its discretion, and if permitted under
the Internal Revenue Code and the regulations thereunder, directs the
Accounts of the affected Participants continue to be held in the Trust Fund
to be distributed upon each Participant's retirement, death, disability or
termination of employment.
VIII-1
<PAGE>
ARTICLE IX
(NOT USED)
IX-1
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 - Plan Merger, Consolidation or Transfer of Assets. In the
case of any merger, consolidation, or transfer of assets or liabilities to
any other plan, such plan shall provide that each Participant would, if the
plan terminated immediately after the merger consolidation or transfer,
receive a benefit which is equal to or greater than the benefit he would
have been entitled to receive immediately before the merger, consolidation
or transfer if the Plan had then terminated.
Section 10.02 - Spendthrift Clause. Except as otherwise provided in Section
5.06 and 5.07, none of the benefits under the Plan are subject to the
claims of creditors of Participants or their Beneficiaries nor are they
subject to attachment, garnishment or any other legal process. Neither a
Participant nor his Beneficiary may assign, sell, borrow on or otherwise
encumber his beneficial interest in the Plan and Trust Fund, nor shall any
such benefits be in any manner liable for or subject to the deeds,
contracts, liabilities, engagements or torts of any Participant or
Beneficiary. Notwithstanding the above, nothing in this Section 10.02 nor
the Plan shall preclude the Administrative Committee or the Trustee from
complying with a "qualified domestic relations order" as defined in Code
Section 414(p).
Section 10.03 Plan Voluntary. Although it is the intention of the Company
that this Plan shall be continued and contributions made regularly, this
Plan is entirely voluntary on the part of the Company and the continuance
of the Plan and any payments hereunder are not assumed as a contractual
obligation of the Company.
Section 10.04 - Reservation of Right to Suspend or Discontinue
Contributions. The Company specifically reserves the right in its sole and
uncontrolled discretion and by its official and authorized acts to modify,
suspend (in whole or in part) at any time or from time to time and for any
period or periods or to discontinue at any time their contributions under
this Plan.
Section 10.05 - Non-Guarantee of Employment. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the right to be
retained in the service of the Company or to interfere with the right of
the Company to discharge any Participant or Employee at any time regardless
of the effect which such discharge shall have upon such individual as a
Participant in the Plan.
Section 10.06 - Governing Law. This Plan shall be construed in accordance
with the laws of the State of Missouri, except where such laws are
superseded by ERISA, as amended or the Internal Revenue Code, in which case
ERISA or the Code, as the case may be, shall control.
Section 10.07 - Facility of Payment. In making any distribution to or for
the benefit of any minor or incompetent Participant or Beneficiary, the
<PAGE>
Administrative Committee, in its sole, absolute and uncontrolled discretion
may, but need not, order the Trustee to make such distribution to a legal
X-1
or natural guardian of such minor or incompetent and any such guardian
shall have full authority and discretion to expend such distribution for
the use and benefit of such minor or incompetent and the receipt of such
guardian shall be a complete discharge to the Trustee without any
responsibility on its part or on the part of the Administrative Committee
to see to the application thereof.
Section 10.08 - Severability Clause. In the event any provisions of this
Plan document shall be held illegal or invalid for any reasons, the
illegality or invalidity shall not affect the remaining provisions of this
Plan document, which shall be fully severable and this Plan document shall
be construed and enforced as if the illegal or invalid provision had never
been inserted herein.
Section 10.09 - Successor Companies. In the event of a merger or
consolidation of the Company or transfer of all or substantially all of its
assets to any other corporation, partnership or association, provision may
be made by such successor corporation, partnership or association, at its
election, for the continuance of this agreement and the retirement plan
created hereunder by such successor entity. Such successor shall, upon its
election to continue the Plan, be substituted in place of such Company by
an instrument duly authorizing such substitution and duly executed by the
Company and its successor. Upon notice of such substitution accompanied by
a certified copy of the resolutions of the governing Board of Directors of
such Company and its successor, authorizing such substitution and delivered
to the Trustee, the Trustee and all Participants hereunder shall be
authorized to recognize such successor in the place of such former Company.
Section 10.10 - Text of Plan Document Controls. Titles of Articles in this
Plan are inserted for convenience of reference only and in the event of any
conflict, the text of this instrument, rather than such titles, shall
control.
X-2
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Plan to be executed
this 4th day of April, 1996, to be effective as of April
1, 1996.
Attest: (SEAL) BUTLER MANUFACTURING COMPANY,
a Delaware corporation
s/Richard O. Ballentine s/John W. Huey
______________________________ By _______________________________
(Assistant) Secretary Vice President, Administration
Title ____________________________
X-3
<PAGE>
<PAGE>
EXHIBIT 4(d)
Restated Master Trust Agreement
Between
Butler Manufacturing Company
And
Fidelity Management Trust Company
------------------------------------------
BUTLER MASTER SAVINGS PLAN TRUST
Dated as of April 1, 1996
<PAGE>
TABLE OF CONTENTS
SECTION: PAGE:
1. Definitions....................................................2
2. Trust..........................................................5
3. Exclusive Benefit and Reversion of Sponsor Contributions.......5
4. Disbursements..................................................6
(a) Directions from Sponsor.........................6
(b) Participant Withdrawal Requests ................6
(c) Limitations.....................................6
5. Investment of Trust............................................7
(a) Selection of Investment Options.................7
(b) Available Investment Options....................7
(c) Participant Direction...........................8
(d) Mutual Funds....................................8
(e) Notes...........................................9
(f) Sponsor Stock .................................10
(g) Guaranteed Investment Contracts-Commingled
Pool Investments...............................21
(h) Reliance of Trustee on Directions..............21
(i) Trustee Powers.................................22
6. Recordkeeping and Administrative Services to Be Performed.....24
(a) General .......................................24
(b) Accounts.......................................24
(c) Inspection and Audit...........................25
(d) Effect of Plan Amendment.......................25
(e) Returns, Reports and Information...............26
(f) Allocation of Plan Interests...................26
7. Compensation and Expenses.....................................27
8. Directions and Indemnification................................27
(a) Identity of Sponsor and Applicable Fiduciaries.27
(b) Directions from Sponsor or Administrator.......27
(c) Directions from Applicable Fiduciary...........28
(d) Co-Fiduciary Liability.........................28
(e) Mutual Indemnification.........................29
(f) Survival.......................................30
9. Resignation or Removal of Trustee............................30
(a) Resignation....................................30
(b) Removal........................................30
10. Successor Trustee...........................................30
(a) Appointment....................................30
(i)
(b) Acceptance.....................................30
(c) Corporate Action...............................31
11. Termination..................................................31
12. Resignation, Removal, and Termination Notices...............32
13. Duration....................................................32
14. Amendment or Modification...................................32
15. General.....................................................32
(a) Performance by Trustee, its Agents or
Affiliates.....................................32
(b) Delegation by Employer.........................32
(c) Entire Agreement...............................33
(d) Waiver.........................................33
(e) Successors and Assigns.........................33
(f) Partial Invalidity.............................34
<PAGE>
(g) Section Headings...............................34
16. Governing Law...............................................34
(a) Massachusetts Law Controls.....................34
(b) Trust Agreement Controls.......................34
(c) Spendthrift Clause.............................35
17. Plan Qualification..........................................35
SCHEDULES:
A. RECORDKEEPING & ADMINISTRATIVE SERVICES
B. FEE SCHEDULE
C. INVESTMENT OPTIONS
D. SPONSOR AND ADMINISTRATOR AUTHORIZATIONS
AND DESIGNATIONS
E. IRS DETERMINATION LETTER OR OPINION OF COUNSEL
F. TELEPHONE EXCHANGE PROCEDURES
(ii)
<PAGE>
TRUST AGREEMENT, dated and restated as of the first day of April, 1996.
between Butler Manufacturing Company, a Delaware corporation, having an office
at BMA Tower, Penn Valley Park, Kansas City, Missouri 64141-0917 (the "Sponsor")
and FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an
office at 82 Devonshire Street, Boston, Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Butler Employee Savings
Trust (the"Plan"); and
WHEREAS, certain divisions, affiliates and subsidiaries of the Sponsor
maintain , or may in the future maintain. qualified defined contribution Plans
for the benefit of their eligible employees; and
WHEREAS, the Sponsor desires to amend and restate the terms of the
Trust to continue to hold and invest assets under the Plans and of such other
tax-qualified defined contribution plans maintained by the Sponsor, or any of
its subsidiaries or affiliates, as are designated by the Sponsor as being
eligible to participate therein, for the exclusive benefit of participants in
the Plan and their beneficiaries; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust pursuant to the provisions of this Trust Agreement, which trust
shall constitute a continuation,
1
by means of an amendment and restatement, of the prior trust agreement dated
January 1, 1993; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid Plan
assets in trust among several investment options, including common stock of the
Sponsor, selected by the Applicable Fiduciary; and
WHEREAS, the Trustee is willing to perform additional recordkeeping and
administrative services for the Plan, in addition to its trustee
responsibilities, within a framework of Plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
Section 1. Definitions. The following terms as used in this Trust Agreement
have the meaning indicated unless the context clearly requires otherwise:
(a) "Administrator" shall mean, with respect to each Plan, the person
or entity which is the "administrator" of such Plan within the meaning of
section 3(16)(A) of ERISA.
2
(b) "Agreement" shall mean this Restated Trust Agreement, as the same
may be amended and in effect from time to time.
<PAGE>
(c) "Applicable Fiduciary" shall mean, with respect to the application
of any provision of this Agreement to any Plan, the person or entity which is
the relevant fiduciary under such Plan with respect to such matter.
(d) "Code" shall mean the Internal Revenue Code of 1986, as it
has been or may be amended from time to time.
(e) "Employer" shall mean the Sponsor and each subsidiary or
affiliate of the Sponsor having employees who are Participants in a Plan.
(f) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it has been or may be amended from time to time.
(g) "FBSI" shall mean Fidelity Brokerage Services, Inc., an
affiliate of the Trustee.
(h) "GICs" shall mean guaranteed investment contracts.
(i) "Mutual Fund" shall mean any investment company advised by Fidelity
Management & Research Company or any of its affiliates.
3
(j) "Participant" shall mean, with respect to a Plan, any employee (or
former employee) with an account under such Plan, which has not yet been fully
distributed and/or forfeited, and shall include the designated beneficiary(ies)
with respect to the account of any deceased employee (or deceased former
employee) until such account has been fully distributed and/or forfeited.
(k) "Plan" shall mean the Butler Employee Savings Trust, the Galesburg
Hourly Employee Savings Trust and the Birmingham Hourly Employee Savings Trust
and such other tax-qualified, defined contribution plans which are maintained by
the Sponsor or any of its subsidiaries or affiliates for the benefit of their
eligible employees as may be designated by the Sponsor in writing to the Trustee
as a Plan hereunder, such writing to be in the form of the Plan Designation Form
attached hereto as Schedule "G". Each reference to "a Plan" or "the Plan" in
this Agreement shall mean and include the Plan or Plans to which the particular
provision of this Agreement is being applied or all Plans, as the context may
require.
(l) "Reporting Date" shall mean the last day of each calendar quarter,
the date as of which the Trustee resigns or is removed pursuant to Section 9
hereof and the date as of which this Agreement terminates pursuant to Section 11
hereof.
(m) "Sponsor" shall mean Butler Manufacturing Company, a Delaware
corporation, or any successor to all or substantially all of its businesses
which, by agreement, operation of law or otherwise, assumes the responsibility
of the Sponsor under this Agreement.
(n) "Trust" shall mean this Butler Master Savings Plan Trust, being the
trust established by the Sponsor and the Trustee pursuant to the provisions of
this Agreement.
4
<PAGE>
(o) "Trustee" shall mean Fidelity Management Trust Company, a
Massachusetts trust company, and any successor to all or substantially all of
its trust business as described in Section 10(c). The term Trustee shall also
include any successor trustee appointed pursuant to Section 10 to the extent
such successor agrees to serve as Trustee under this Agreement.
Section 2. Trust. The Sponsor hereby amends and restates the Trust, with the
Trustee. The Trust consists of the initial contribution of money or other
property accepted by the Trustee, together with such additional sums of money
and Sponsor Stock as shall from time to time be delivered to the Trustee under a
Plan, all investments made therewith and proceeds thereof, and all earnings and
profits thereon, less the payments that are made by the Trustee as provided
herein, without distinction between principal and income. The Trustee hereby
accepts the amended and restated Trust on the terms and conditions set forth in
this Agreement. In accepting this Trust, the Trustee shall be accountable for
the assets held and received by it, subject to the terms and conditions of this
Agreement.
Section 3. Exclusive Benefit and Reversion of Sponsor Contributions. Except as
provided under applicable law, no part of the Trust allocable to a Plan may be
used for, or diverted to, purposes other than the exclusive benefit of the
Participants in the Plan or their beneficiaries prior to the satisfaction of all
liabilities with respect to the Participants and their beneficiaries.
5
Section 4. Disbursements.
(a) Directions from Sponsor. The Trustee shall make disbursements in
the amounts and in the manner that the Sponsor directs from time to time in
writing. The Trustee shall have no responsibility to ascertain any direction's
compliance with the terms of the Plan or of any applicable law or the
direction's effect for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement.
(b) Participant Withdrawal Requests. The Sponsor hereby directs that,
pursuant to the Plan, a Participant withdrawal request (in-service or full
withdrawal) may be made by the Participant via telephone (or in such other
manner as may be agreed to from time to time by the Sponsor and Trustee). The
Trustee shall process such request only after the identity of the Participant is
verified by use of a personal identification number ("PIN") and social security
number. The Trustee shall process such withdrawal in accordance with written
guidelines provided by the Sponsor and documented in the Plan Administrative
Manual, but payment to a Participant shall be made only upon written or
electronically transmitted confirmation by the Applicable Fiduciary.
(c) Limitations. The Trustee shall not be required to make any
disbursement under a Plan in excess of the net realizable value of the assets of
the Trust allocable to such Plan at the time of the disbursement. The Trustee
shall not be required to make any disbursement in cash unless the Sponsor or a
Participant has provided a written direction as to the assets to be converted to
cash for the purpose of making the disbursement.
6
Section 5. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and
shall not render investment advice to any person in connection with the
selection of such options.
<PAGE>
(b) Available Investment Options. The Applicable Fiduciary with respect
to a Plan shall direct the Trustee as to the investment options in which
Participants may invest, subject to the following limitations. The Sponsor, by
Plan amendment, has established the Sponsor's Stock Fund referred to in
subsection (f) below as an investment option. In addition, the Applicable
Fiduciary may select as investment options (i) Mutual Funds, (ii) a pooled fund
of GICs or similar fixed income instruments chosen by the Trustee, (iii)
collective investment funds maintained by the Trustee for qualified plans; and
(iv) securities issued by investment companies other than Fidelity Management &
Research Company ("Non-Fidelity Managed Funds"); provided, however, that the
Trustee, as a fiduciary, shall be considered to possess investment discretion
only with respect to Plan assets that are invested in GICs (or similar
instruments) chosen by the Trustee or in collective investment funds maintained
by the Trustee for qualified
plans. The investment options currently selected by the Applicable Fiduciary (or
by Plan amendment by the Plan Sponsor) are identified on Schedules "A" and "C"
attached hereto. Participant loan notes referred to in subsection (e) below
shall be deemed to be an investment option under this subsection (b). The
Applicable Fiduciary may add additional investment options with the consent of
the Trustee and upon mutual amendment of this Trust Agreement and the Schedules
hereto to reflect such additions.
7
(c) Participant Direction. Each Participant shall direct the Trustee in
which investment option(s) to invest the assets in the Participant's individual
accounts under the Plan. Such directions shall be made by Participants by use of
the telephone exchange system maintained for such purpose by the Trustee or its
agent, in accordance with written Telephone Exchange Guidelines attached hereto
as Schedule "F", or in such other manner as may be agreed upon by the Applicable
Fiduciary and the Trustee from time to time. Any direction made by a Participant
using the Telephone Exchange Guidelines shall be deemed to be the equivalent of
a written direction by such Participant. In the event that the Trustee fails to
receive a proper direction from a Participant, the assets in such Participant's
accounts shall be invested in the securities of the Mutual Fund set forth for
such purpose on Schedule "C", until the Trustee receives a proper direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has
received from the Trustee a copy of the prospectus for each Mutual Fund
selected by the Applicable Fiduciary as a Plan investment option. Trust
investments in Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
Mutual Funds (other than for exchanges) shall be made on the date on
which the Trustee receives from the Sponsor the Participant's
instruction in good order including all information and documentation
necessary to accurately effect such purchases and sales (or in the case
of a purchase, the subsequent date on which the Trustee has received a
wire transfer of
8
funds necessary to make such purchase). Exchanges of Mutual Funds shall
be made in accordance with the Telephone Exchange Guidelines attached
hereto as Schedule "F".
(ii) Voting. At the time of mailing of notice of each annual
or special stockholders' meeting of any Mutual Fund, the Trustee shall
send a copy of the notice and all proxy solicitation materials to each
Participant who has shares of the Mutual Fund credited to the
Participant's accounts, together with a voting direction form for
return to the Trustee or its designee. The Participant shall have the
right to direct the Trustee as to the manner in which the Trustee is to
<PAGE>
vote the shares credited to the Participant's accounts. The Trustee
shall vote the shares as directed by the Participant. The Trustee shall
not vote shares for which it has received no directions from the
Participant. With respect to all rights other than the right to vote,
the Trustee shall follow the directions of the Participant, and if no
such directions are received, any directions of the Applicable
Fiduciary. The Trustee shall have no duty to solicit directions from
Participants or the Applicable Fiduciary.
(e) Notes. The Administrator shall act as the Trustee's agent for the
purposes stated herein in connection with Participant loan notes and shall
collect by payroll direction (or otherwise) and remit all principal and interest
payments to the Trustee, clearly designating such transfers to the Trustee as
loan repayments. To originate a Participant loan, the Participant shall direct
the Trustee as to the term and the amount of the loan to be made from the
Participant's individual accounts. Such directions shall be made by Participants
by use of the telephone exchange system maintained for such purpose by the
Trustee or its agent (or in such other manner as may be agreed to from time to
time by the Sponsor and Trustee). The Trustee
9
shall determine, based on (i) the current value of the Participant's accounts
on the date of the request, (ii) guidelines provided by the Sponsor, (iii)
applicable provisions as set forth in the Plan Administrative Manual and (iv)
limitations under the Code and ERISA, the amount available for the loan. The
Trustee shall charge the amount borrowed against the Participant's accounts and
investment options and shall credit the amounts as repaid in the manner provided
in the Plan Administrative Manual and/or in the Sponsor's guidelines. Based on
the interest rate supplied by the Sponsor in accordance with the terms of the
Plan, the Trustee shall advise the Participant of such interest rate, as well as
the installment payment amounts. The Trustee shall forward the loan note, and
upon its execution by a Participant and return to the Trustee, the proceeds
check to the Participant, but only after written or electronically transmitted
approval
by the Applicable Fiduciary. The Trustee shall distribute any truth-in-lending
disclosure to the Participant. To facilitate recordkeeping, the Trustee may
destroy the original of any promissory note made in connection with a loan to a
Participant, provided that the Trustee first furnishes a copy to the
Administrator and creates for itself a duplicate by a photographic or optical
scanning or other process yielding a reasonable facsimile of the promissory note
and the Participant's signature thereon, which duplicate may be reduced or
enlarged in size from the actual size of the original promissory note. The
Trustee shall cancel and surrender the note (or otherwise evidence its
repayment) when paid in full.
(f) Sponsor Stock. Trust investments in Sponsor Stock shall be
made via the Butler Manufacturing Company Common Stock Fund (the "Stock Fund")
which shall consist of shares of Sponsor Stock and short-term liquid
investments, which may include Fidelity Institutional
10
Cash Portfolios: Money Market Portfolio: Class A or such other Mutual Fund,
commingled money market pool or short term instrument(s) as agreed to by the
Sponsor and Trustee, necessary to satisfy the Stock Fund's cash needs. A cash
target range shall be maintained in the Stock Fund as agreed to in writing by
the Sponsor and the Trustee from time to time, but initially shall be five
percent (5%), subject to a minimum of three and a half percent (3.5%) and a
maximun of six and a half percent (6.5%). The Trustee is responsible for
ensuring that the actual cash held in the Stock Fund from time to time falls
within the agreed upon range. Each Participant's proportional interest in the
Stock Fund shall be measured in units of participation, rather than shares of
<PAGE>
Sponsor Stock. Such units shall represent a proportionate interest in all
of the assets of the Stock Fund, which includes shares of Sponsor Stock,
short-term investments and at times, receivables for dividends and/or Sponsor
Stock sold and payables for Sponsor Stock purchased. A Net Asset Value ("NAV")
per unit will be determined on each business day for each unit outstanding of
the Stock Fund. The return earned by the Stock Fund will represent a combination
of the dividends paid on the shares of Sponsor Stock held by the Stock Fund,
gains or losses realized on sales of Sponsor Stock, appreciation or depreciation
in the market price of those shares owned, and interest on the short-term
investments held by the Stock Fund. Dividends and interest received by the Stock
Fund normally will be reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust
shall be invested in Sponsor Stock to the extent necessary to comply
with investment directions under Section 5(c) of this Agreement.
11
(ii) Limitation on Trustee Responsibility. The Trustee shall
not be liable for any loss, or by reason of any breach, which arises
from the directions of a Participant with respect to the acquisition
and holding of Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited by the
fiduciary duty rules under Section 404(a) of ERISA or would be contrary
to the terms of the Plan or this Agreement. The parties intend to
comply with the requirements of
Section 404(c) of ERISA and to enable and require Participants to
exercise independent control over assets in their Plan accounts.
(iii) Execution of Purchases and Sales. (A) Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on the
open market on the date on which the Trustee receives from the Sponsor
the Participant's instructions in good order including all information
and documentation necessary to accurately effect such purchases and
sales (or, in the case of purchases, the subsequent date on which the
Trustee has received a wire transfer of the funds necessary to make
such purchases). Exchanges of Sponsor Stock shall be made in accordance
with the Telephone Exchange Guidelines attached hereto as Schedule "G".
Such general rules shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the
number of shares required to be purchased or sold on such day; or
12
(2) If the Trustee is unable to purchase or
sell the total number of shares required to be purchased or sold on such day as
a result of market conditions; or
(3) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock Exchange, or any other
regulatory body from
13
purchasing or selling any or all of the shares required to be
purchased or sold on such day.
In the event of the occurrence of the circumstances described in (1),
(2), or (3) above, the Trustee shall purchase or sell such shares as
soon as possible thereafter. The Trustee may follow general written
directions, if any, from the Sponsor to deviate from the above purchase
<PAGE>
and sale procedures.
(B) Purchases and Sales from or to Sponsor or Private
Parties. If requested by the Sponsor in writing prior to the trading
date, the Trustee may purchase or sell Sponsor Stock from or to the
Sponsor or any other "party in interest" as defined in Section 3(14) of
ERISA if the purchase or sale is for adequate consideration (within the
meaning of section 3(18) of ERISA) and no commission is charged. If
Sponsor contributions or contributions made by the Sponsor on behalf of
Participants are to be invested in Sponsor Stock, the Sponsor may
transfer Sponsor Stock in lieu of cash to the Trust. In either case,
the number of shares to be transferred will be determined by dividing
the total value of Sponsor Stock to be purchased or sold by the closing
price of the Sponsor Stock on any national securities exchange on the
trading date.
13
(C) Use of an Affiliated Broker. The Sponsor
hereby acknowledges and authorizes the Trustee to use Fidelity Brokerage
Services, Inc. ("FBSI") to provide brokerage services in connection with any
purchase or sale of Sponsor Stock in
accordance with directions from Participants. FBSI shall execute such
directions directly or through its affiliate, National Financial
Services Company ("NFSC"). The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage
services, the Sponsor agrees that FBSI shall be
entitled to remuneration under this authorization
provision in the amount of three and one-half cents
($.035) commission on each share of Sponsor Stock.
Any change in such remuneration may be made only by a
signed agreement between Sponsor and Trustee.
(2) Following the procedures set forth in
Department of Labor Prohibited Transaction Class
Exemption 86-128, the Trustee will provide the
Sponsor with the following documents: (1) a
description of FBSI's brokerage placement practices;
(2) a copy of PTCE 86-128; and (3) a form by which
the Sponsor may request termination of this
authorization to use a broker affiliated with the
Trustee. The Trustee will provide the Sponsor with
this termination form annually, as well as an annual
report which summarizes all securities
transaction-related charges incurred by the Plan.
14
(3) Any successor organization of FBSI,
through reorganization, consolidation, merger or
similar transactions, shall, upon
consummation of such transaction, become the
successor broker in accordance with the terms of this
authorization provision.
(4) The Trustee and FBSI shall continue to
rely on this authorization provision until notified
to the contrary. The Sponsor reserves the right to
request termination of this authorization upon sixty
(60) days written notice to FBSI (or its successor)
<PAGE>
and the Trustee, in accordance with Section 11 of
this Agreement.
Notwithstanding the foregoing, neither the Sponsor nor any affiliate of the
Sponsor (other than with respect to directions by an affiliate with respect to
that affiliate's account only) may exercise any direct or indirect control or
influence over the times when, or the prices at which, the Trustee or any broker
selected by the Trustee, may purchase shares of Sponsor Stock for the Stock
Fund, the number of shares of such stock to be purchased, the manner in which
such stock is to be purchased, or the selection of a broker or dealer (other
than the Trustee) through which purchases may be executed; it being understood
that the Sponsor shall not be deemed to have such control or influence solely
because it may revise not more than once in any three month period the basis for
determining the amount of its contributions to the Plan or the basis for
determining the frequency of its allocations to the Plan.
15
(iv) Securities Law Reports. The Sponsor shall be
responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's
ownership of Sponsor Stock, including, without limitation, any reports
required under section 13 or 16 of the Securities Exchange Act of 1934,
and shall immediately notify the Trustee in writing of any requirement
to stop purchases or sales of Sponsor Stock pending the filing of any
report. The Trustee shall provide to the Sponsor such information on
the Trust's ownership of Sponsor Stock as the Sponsor may reasonably
request in order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement, the following provisions shall govern the
voting and tendering of Sponsor Stock. The Sponsor, after consultation
with the Trustee, shall provide and pay for all printing, mailing,
tabulation and other costs associated with the voting and tendering of
Sponsor Stock.
(A) Voting
(1) Upon the filing of definitive proxy
solicitation materials with the Securities and
Exchange Commissiion, the Sponsor shall cause a copy
of all such materials to be sent to the Trustee.
Based on these materials, the Trustee shall prepare a
voting instruction form. At the time of mailing of
notice of each annual or special stockholders'
meeting of the
16
Sponsor, the Sponsor shall cause a copy of the notice
and all proxy solicitation materials to be sent to
each Participant, together with the foregoing voting
instruction form to be returned to the Trustee or its
designee. The form shall show the number of full and
fractional shares of Sponsor Stock attributable to
the Participant's interest in the Stock Fund. The
Sponsor shall provide the Trustee with a copy of any
materials provided to the Participants and shall
certify to the Trustee that the materials have been
mailed or otherwise sent to Participants.
<PAGE>
(2) Each Participant with an interest in the
Stock Fund shall have the right to direct the Trustee
as to the manner in which the Trustee is to vote that
number of shares of Sponsor Stock attributable to the
Participant's interest in the Stock Fund. Directions
from a Participant to the Trustee concerning the
voting of Sponsor Stock shall be communicated in
writing, or by mailgram or similar means. These
directions shall be held in confidence by the Trustee
and shall not be divulged to the Sponsor, or to any
director, officer or employee of the Sponsor or any
affiliated company. Upon its receipt of the
directions, the Trustee shall vote the shares of
Sponsor Stock as directed by the Participant. Shares
of Sponsor Stock attributable to a Participant's
interest in the Stock Fund for which the Trustee has
received no directions from the Participant shall be
voted by the Trustee in proportion to all those
shares for which direction has been received by
Trustee.
17
(B) Tender Offers
(1) Upon commencement of a public tender
offer or exchange offer for shares of the Sponsor
Stock made at the same time to all of the Sponsor's
holders of Common Stock of record upon the same terms
and conditions ("Tender Offer"), the Sponsor shall
notify each Participant with an interest in the Stock
Fund of the Tender Offer and shall utilize its best
efforts to timely distribute or cause to be
distributed to such Participants the same information
that is distributed to holders of Sponsor Stock in
connection with the Tender Offer, and, after
consulting with the Trustee, shall provide and pay
for a means by which such Participants may direct the
Trustee whether or not to tender the Sponsor Stock
attributable to the Participant's interest in the
Stock Fund. The Sponsor shall provide the Trustee
with a copy of any materials provided to such
Participants and shall certify to the Trustee that
the materials have been mailed or otherwise sent to
such Participants.
(2) Each Participant shall have the
right to direct the Trustee to tender or not to
tender some or all of the shares of Sponsor Stock
attributable to the Participant's interest in the
Stock Fund. Directions from a Participant to the
Trustee concerning the tender of Sponsor Stock
shall be communicated in writing, or by mailgram or
such similar means
18
as is agreed upon by the Trustee and the Sponsor
under the preceding paragraph. These directions shall
be held in confidence by the Trustee and shall not be
divulged to the Sponsor, or to any officer or
employee thereof, or to any other person except to
the extent that the consequences of such directions
<PAGE>
are reflected in reports regularly communicated to
any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The
Trustee shall tender or not tender shares of Sponsor
Stock as directed by the Participant. The Trustee
shall not tender shares of Sponsor Stock attributable
to a Participant's interest in the Stock Fund for
which it has received no directions from the
Participant.
(3) A Participant who has directed the
Trustee to tender some or all of the shares of
Sponsor Stock attributable to the Participant's
interest in the Stock Fund may, at any time prior to
the date permitted under the Tender Offer for the
revocation or withdrawal of tenders (the "Withdrawal
Date"), direct the Trustee to revoke or withdraw some
or all of the tendered shares, and the Trustee shall
withdraw the directed number of shares from the
Tender Offer or otherwise revoke the same prior to
the Withdrawal Date. A Participant shall not be
limited as to the number of directions to tender or
to withdraw or revoke a tender that the Participant
may give to the Trustee.
19
(4) A direction by a Participant to the
Trustee to tender shares of Sponsor Stock
attributable to the Participant's interest in the
Stock Fund shall not be considered a written election
under the Plan by the Participant to withdraw, or
have distributed, any or all of the Participant's
interest in the Plan, which may be withdrawn pursuant
to the provisions of the Plan. The Trustee shall
credcit to each account of the Participant from which
the tendered shares were deemed to have been taken
the proceeds received by the Trustee in exchange for
the shares of Sponsor Stock tendered in connection
with that account. Pending receipt of directions from
the Participant, as provided in the Plan, as to which
of the remaining investment options the proceeds
should be invested in, the Trustee shall invest the
proceeds in the securities of the Fidelity Money
Market Trust:
Retirement Money Market Portfolio.
(C) Shares Credited. For all purposes of this
subsection (v), the number of shares of Sponsor Stock deemed
"attributable" to a Participant's interst in the Stock Fund
shall be determined by the Trustee as of the last preceding
Valuation Date. The trade date is the date the transaction is
valued.
(D) General. With respect to all rights other than
the right to vote, the right to tender, and the right to
withdraw shares previously tendered, in the case of Sponsor
Stock attributable to a Participant's interest in the Stock
Fund, the
20
<PAGE>
Trustee shall follow the directions of the Participant and, if
no such directions are received, the Trustee shall not act.
The Trustee shall have no duty to solicit directions from
Participants but shall pass on to Participants notices,
offers, proxy materials and other information furnished to the
Trustee; provided that the Trustee shall have no duty to pass
on such information to the extent that the Sponsor has
certified to the Trustee that such information has previously
been furnished to Participants.
(F) Conversion. All provisions in this subsection (v)
shall also apply to any securities received as a result of a
conversion of Sponsor Stock.
(g) Guaranteed Investment Contracts-Commingled Pool Investments. To the
extent that the Applicable Fiduciary selects as an investment option the Managed
Income Portfolio of the Fidelity Group Trust for Employee Benefit Plans (the
"Group Trust"), the Sponsor hereby (i) agrees to the terms of the Group Trust
and adopts said terms as a part of this Agreement and (ii) acknowledges that it
has received from the Trustee a copy of the Group Trust, the Declaration of
Separate Fund for the Managed Income Portfolio of the Group Trust, and the
Circular for the Managed Income Portfolio.
(h) Reliance of Trustee on Directions. Neither the Trustee nor the
Sponsor or Applicable Fiduciary shall be liable for any loss, or by reason of
any breach, which arises from any Participant's exercise or non-exercise of
rights under this Agreement over the assets in the Participant's accounts. The
Trustee shall not be liable for any loss, or by reason of any breach,
21
which arises from the Applicable Fiduciary's exercise or non-exercise of rights
under this Section 5, unless it was clear on their face that the actions to be
taken under the Applicable Fiduciary's directions were prohibited by the
fiduciary duty rules of Section 404(a) of ERISA or were contrary to the terms of
the Plan or this Agreement.
(i) Trustee Powers. The Trustee shall have the following powers
and authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of
this Section 5, to sell, exchange, convey, transfer, or
otherwise dispose of any property held in the Trust, by
private contract or at public auction. No person dealing with
the Trustee shall be bound to see to the application of the
purchase money or other property delivered to the Trustee or
to inquire into the validity, expediency, or propriety of any
such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this
Section 5, to invest in GICs and short term investments
(including interest bearing accounts with the Trustee or money
market mutual funds advised by affiliates of the Trustee) and
in collective investment funds maintained by the Trustee for
qualified plans, in
which case the provisions of each collective investment fund
in which the Trust is invested shall be deemed adopted by the
Sponsor and the provisions thereof incorporated as a part of
this Trust as long as the fund remains exempt from taxation
<PAGE>
under Sections 401(a) and 501(a) of the Code.
22
(iii) To cause any securities or other property held
as part of the Trust to be registered in the Trustee's own
name, in the name of one or more of its nominees, or in the
Trustee's account with the Depository Trust Company of New
York and to hold any investments in bearer form, but the books
and records of the Trustee shall at all times show that all
such investments are part of the Trust.
(iv) To keep that portion of the Trust in cash or
cash balances as the Applicable Fiduciary or Sponsor may, from
time to time, deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge. and deliver
any and all documents of transfer or conveyance and to carry
out the powers herein granted.
(vi) To settle, compromise, or submit to arbitration
any claims, debts or damages due to or arising from the Trust;
to commence or defend suits or legal or administrative
proceedings; to represent the Trust in all suits and legal
and administrative hearings; and to pay all reasonable
expenses arising from any such action, from the Trust if not
paid by the Sponsor.
(vii) To employ legal, accounting, clerical, and
other assistance as may be required in carrying out the
provisions of this Agreement and to pay their reasonable
expenses and compensation from the Trust if not paid by the
Sponsor.
23
(viii) To do all other acts although not specifically
mentioned herein as the Trustee may deem necessary to carry
out any of the foregoing powers and the purposes of the Trust.
(ix) To borrow funds from a bank not affiliated with
the Trustee in order to provide sufficient liquidity to
process Plan transactions in connection with the Sponsor Stock
Fund in a timely manner, provided that the cost of such
borrowing shall be allocated to the Stock Fund.
Section 6. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A' attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Applicable Fiduciary's written directions, if any, regarding
the Plan's provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of each Reporting
Date. Within thirty (30) days following each Reporting Date or within sixty (60)
days in the case of a Reporting Date caused by the resignation or removal of the
Trustee or the termination of this Agreement, the Trustee shall file with the
Sponsor a written account setting forth all investments, receipts,
disbursements, and other transactions effected by the Trustee between the
Reporting Date and the prior Reporting Date, and setting
24
<PAGE>
forth the value of the Trust as of the Reporting Date. Except as otherwise
required under ERISA, upon the expiration of six (6) months from the date of
filing such account with the Sponsor, the Trustee shall have no liability or
further accountability to anyone with respect to the propriety of its acts or
transactions shown in such account except with respect to such acts or
transactions as to which the Sponsor shall within such six (6) month period file
with the Trustee written objections.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to or within six months
following the termination of this Agreement, by the Sponsor or any person
designated by the Sponsor. Upon the resignation or removal of the Trustee or the
termination of this Agreement, the Trustee shall provide to the Sponsor, at no
expense to the Sponsor, in the format regularly provided to the Sponsor, a
statement of each Participant's accounts as of the resignation, removal, or
termination, and the Trustee shall
provide to the Sponsor or the Plan's new recordkeeper such further records as
are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the current qualified
status of each Plan is attached hereto as Schedule "E". The Trustee's provision
of the recordkeeping and administrative services set forth in this Section 6
shall be conditioned on the Sponsor delivering to the Trustee a copy of any
amendment to the Plan which materially affects the Trustee's provision of such
services as soon as administratively feasible following the amendment's
adoption, with, if requested, an IRS determination letter or an opinion of
counsel substantially in the form of Schedule "E" covering such amendment and on
the Sponsor providing the Trustee
25
on a timely basis with all the information the Sponsor deems necessary for the
Trustee to perform the recordkeeping and administrative services and such other
relevant information as the Trustee may reasonably request.
(e) Returns, Reports and Information. Except to the extent delegated to
the Trustee, the Sponsor shall be responsible for the preparation and filing of
all returns, reports. and information required of the Trust or Plan by law. The
Trustee shall provide the Sponsor in a timely manner with such information as
the Sponsor may reasonably request to make these filings. Unless delegated to
the Trustee, the Sponsor shall also be responsible for making any disclosures to
Participants required by law, including in connection with Sponsor Stock, but
the
Trustee (or its affiliates) shall be responsible for preparing disclosures with
respect to the Mutual Funds and other investment options maintained by the
Trustee or a related entity.
(f) Allocation of Plan Interests. All transfers to, withdrawals from,
or other transactions regarding the Trust shall be conducted in such a way that
the proportionate interest in the Trust of each Plan and the fair market value
of that interest may be determined at any time. Whenever the assets of more than
one Plan are commingled in the Trust or in any investment option, the undivided
interest therein of each such Plan shall be debited or credited (as the case may
be) (i) for the entire amount of every contribution received on behalf of such
Plan, every benefit payment, or other expense attributable solely to such Plan,
and every other transaction relating only to such Plan; and (ii) for its
proportionate share of every item of collected or accrued income, gain or loss,
and general expense, and of any other transactions attributable to the Trust or
that investment option as a whole.
26
<PAGE>
Section 7. Compensation and Expenses. Within thirty (30) days of receipt of the
Trustee's bill, which shall be computed and billed in accordance with Schedule
"B" attached hereto and made a part hereof, as amended from time to time, the
Sponsor shall send to the Trustee a payment in such amount. All expenses of the
Trustee relating directly to the acquisition and disposition of investments
constituting part of the Trust and all taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon or in respect of the
Trust, or the income thereof, shall be a charge against and paid by the Sponsor
or by the Plan.
Section 8. Directions and Indemnification.
(a) Identity of Sponsor and Applicable Fiduciaries. The Trustee shall
be fully protected in relying on the fact that the Sponsor and the Applicable
Fiduciaries under a Plan have designated, to issue directions on their behalf,
the individuals named on Schedule "D" attached hereto or such other individuals
as the Sponsor may designate and notify the Trustee in writing.
(b) Directions from Sponsor or Administrator. Whenever the Sponsor or
Administrator provides a direction to the Trustee, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from the direction if
(i) the direction is contained in a writing (or is oral and immediately
confirmed in a writing) signed by any individual whose name and signature have
been submitted (and not withdrawn) in writing to the Trustee by the Sponsor in
the form attached hereto as Schedule "D", and (ii) the Trustee reasonably
believes the signature of the individual to be genuine, unless it is clear on
the direction's face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of Section 404(a)
27
of ERISA or would be contrary to the terms of the Plan or this Agreement. Such
direction may also be made via EDT in accordance with procedures agreed to by
the Sponsor and the Trustee; provided, however, that the Trustee shall be fully
protected in relying on such direction as if it were a direction made in writing
by the Sponsor. Except to the extent required by ERISA, the Trustee shall have
no responsibility to ascertain any direction's (i) accuracy, (ii) compliance
with the terms of any applicable law, or (iii) effect for tax purposes or
otherwise.
(c) Directions from Applicable Fiduciary. Whenever an Applicable
Fiduciary provides a direction to the Trustee, the Trustee shall not be liable
for any loss, or by reason of any breach, arising from the direction (i) if the
direction is contained in a writing (or is oral and immediately confirmed in a
writing) signed by any individual whose name and signature have been submitted
(and not withdrawn) in writing to the Trustee by the Applicable Fiduciary in the
form attached hereto as Schedule "D" and (ii) if the Trustee reasonably believes
the signature of the individual to be genuine, unless it is clear on the
direction's face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of Section 404(a) of ERISA or would be
contrary to the terms of the Plan or this Agreement.
(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in Section
405(a) of ERISA. Without limiting the foregoing, the Trustee shall have no
liability for the acts or omissions of any predecessor or successor trustee.
28
(e) Mutual Indemnification. (i) The Sponsor shall indemnify the Trustee
against, and hold the Trustee harmless from, any and all loss, damage. penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
<PAGE>
asserted against the Trustee by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by the Sponsor or its
agents with respect to the Plan or Trust, excepting only any and all loss, etc.,
arising (A) from the operation of any Mutual Fund or other investment vehicle
under Section 5(b) (other than the Sponsor
Stock) offered by the Trustee or any related entity, or (B) from the Trustee's
negligence, bad faith, breach of fiduciary duties allocated to the Trustee under
the provision of this Agreement, or any failure to perform any obligation
imposed hereunder or in any related agreement between the Trustee (or any
affiliate) and the Sponsor
(ii) The Trustee, from its corporate assets and not from Plan assets,
shall indemnify the Sponsor, Applicable Fiduciary, Administrator and Plan (the
"Indemnified Parties") against, and hold the Indemnified Parties harmless from,
any and all loss, damage, penalty, liability, cost and expense, including
without limitation, reasonable attorneys' fees and disbursements, that may be
incurred by, imposed upon, or asserted against any of the Indemnified Parties by
reason of any claim, regulatory proceeding, or litigation arising from any act
done or omitted to be done by the Trustee or its agents or related entities with
respect to the Plan or Trust, excepting only any and all loss, etc. arising
solely from the Sponsor's negligence or bad faith.
29
(f) Survival. The provisions of this Section 8 shall survive the
termination of this Agreement.
Section 9. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon thirty (30)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time upon
thirty(30) days' notice in writing to the Trustee, unless a shorter period of
notice is agreed upon by the Trustee.
Section 10. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may appoint a successor trustee under this Agreement. The
successor trustee shall have all of the rights, powers, privileges, obligations,
duties, liabilities, and immunities granted to the Trustee under this Agreement.
The successor trustee and predecessor trustee shall not be liable for the acts
or omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
30
be requested in writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through
reorganization, consolidation, or merger, or any similar transaction, shall,
upon consummation of the transaction, become the successor trustee under this
Agreement.
<PAGE>
Section 11. Termination. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets, as the Sponsor shall direct, then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in writing as to whom
the assets and cash are to be transferred and delivered, the Trustee may bring
an appropriate action or proceeding for leave to deposit the assets and cash in
a court of competent jurisdiction. The Trustee shall be reimbursed by the
Sponsor for all reasonable costs and expenses of the action or proceeding
including, without limitation, reasonable attorneys' fees and disbursements.
Section 12. Resignation, Removal, and Termination Notices. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Charles Johnson,
Butler Manufacturing Company, BMA Tower, Penn Valley Park,
31
Kansas City, Missouri 64141 and to the Trustee c/o John M. Kimpel, Fidelity
Investments, 82 Devonshire Street, Boston, Massachusetts 02109, or to such other
addresses or individuals as the parties have notified each other of in the
foregoing manner.
Section 13. Duration. This Trust shall continue in effect without limit as to
time subject, however, to the provisions of this Agreement relating to
amendment, modification. and termination thereof.
Section 14. Amendment or Modification. This Agreement may be amended or modified
at any time and from time to time only by an instrument executed by both the
Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may, once each calendar year, amend Schedule "B"
without the Sponsor's consent upon seventy-five (75) days advance written notice
to the Sponsor.
Section 15. General.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Delegation by Employer. By authorizing the assets of any
plan as to which it is an Employer to be deposited in the Trust, each Employer,
if any, other than the Sponsor, hereby
32
irrevocably delegates and grants to the Sponsor full and exclusive power and
authority to exercise all of the powers conferred upon the Sponsor and each
Employer by the terms of this
Agreement, and to take or refrain from taking any and all action which such
Employer might otherwise take or refrain from taking with respect to this
Agreement, including the sole and exclusive power to exercise, enforce or waive
any rights whatsoever which such Employer might otherwise have with respect to
the Trust, and irrevocably appoints the Sponsor as its agent for all purposes
under this Agreement. The Trustee shall have no obligation to account to any
such Employer or to follow the instructions of or otherwise deal with any such
Employer, the intention being that the Trustee shall deal solely with the
Sponsor.
<PAGE>
(c) Entire Agreement. This Agreement and (i) the Schedules attached
hereto which are hereby incorporated herein and (ii) any documents referred to
in or contemplated by such Schedules, contain all of the terms agreed upon
between the parties with respect to the subject matter hereof.
(d) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(e) Successors and Assigns. The stipulations in this Agreement
shall inure to the benefit of, and shall bind. the successors and assigns of
the respective parties.
33
(f) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or circumstances shall, to
any extent, be invalid or unenforceable. the
remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
(g) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
Section 16. Governing Law.
(a) Massachusetts Law Controls. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration of
this Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under Section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the
Plan. Nevertheless, the provisions of the Plan are incorporated herein, in
particular as they relate to the duties of
34
the Trustee. However, in the event of any conflict between the provisions of the
Plan and this Agreement as to the duties of the Trustee, this Agreement shall
control.
(c) Spendthrift Clause. Except for the benefits which are the subject
of a "qualified domestic relations order," as defined in Section 414(p) of the
Code, none of the benefits under the Plan are subject to the claims of creditors
of Participants or their beneficiaries nor are they subject to attachment,
garnishment or any other legal process (other than as security for Participant
loan notes referred to in Section 5(e) of this Agreement). Neither a Participant
nor his beneficiaries may, except pursuant to a "qualified domestic relations
order" or a loan from the Plan, assign, sell, borrow on or otherwise encumber
any beneficial interest in this Trust nor shall any such benefit be in any
manner liable for or subject to the deeds, contracts, liabilities, engagements,
or torts of any Participant or beneficiary.
Section 17. Plan Qualification. The Sponsor shall be responsible for verifying
that while any assets of a particular Plan are held in the Trust, the Plan (i)
is qualified within the meaning of Section 401 (a) of the Code; (ii) is
<PAGE>
permitted by existing or future rulings of the United States Treasury Department
to pool its funds in a group trust, and (iii) permits its assets to be
commingled for investment purposes with the assets of other such plans by
investing such assets in this Trust. If any Plan ceases to be qualified within
the meaning of Section 401(a) of the Code, the Sponsor shall notify the Trustee
as promptly as is reasonable. Upon receipt of such notice, the Trustee shall
promptly segregate and withdraw from the Trust, the assets which are allocable
to such disqualified Plan, and shall dispose of such assets in the manner
directed by the Sponsor.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
BUTLER MANUFACTURING COMPANY
s/Richard O. Ballentine s/John W. Huey
Attest: __________________________ ______________________________________
Secretary Authorized Officer
FIDELITY MANAGEMENT TRUST
COMPANY
s/Christina Loddo Epstein
Attest:____________________________ _____________________________________
Assistant Clerk Vice President
36
<PAGE>
Schedule "A"
RECORDKEEPING & ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of ten plan investment options:
- Fidelity Puritan Fund
- Fidelity Magellan Fund
- Fidelity Equity-Income Fund
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Managed Income Portfolio
- Fidelity Asset Manager
- Fidelity Asset Manager-Income
- Fidelity Asset Manager-Growth
- Fidelity International Growth & Income Fund
- Butler Manufacturing Company Common Stock Fund
* Maintenance of the following three money classifications for the
Butler Employee Savings Trust:
- Employer
- Employee Before-tax
- Rollover
* Maintenance of the following two money classifications for the
Galesburg Hourly Employee Savings Trust and the Birmingham Hourly
Employee Savings Trust:
- Employee Before-tax
- Rollover
* Processing of mutual fund trades.
The Trustee will provide only the recordkeeping and administrative
services set forth on this Schedule "A" and no others.
Processing
* Monthly processing of contribution data.
* Daily processing of transfers and changes of future allocations.
* Daily processing of in-service withdrawals via telephone requests by
Participants pursuant to specific guidelines authorized by the Sponsor,
including prior approval of all such withdrawals by the Sponsor or
Applicable Fiduciary.
Other
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* 1099-Rs
* Participant Loans
* Performance of section 401(k) limitation testing upon request. In order
to obtain this service, the client shall be required to provide the
information identified in the Fidelity Discrimination Testing Package
<PAGE>
Guidelines.
* Employee communications describing available investment options,
including multimedia informational materials and group presentations.
* Preparation and mailing of investment confirmations to participants
within five business
days of the participants' instructions.
* Year-end reporting information and certifications necessary (such as
the Schedule of Reportable Transactions and the Schedule P) for Butler
to prepare the IRS forms 5500 for the Plans.
* Fidelity will determine the Sponsor's matching contribution by
participant and allocate this contribution accordingly, pursuant to
instructions given by Butler Manufacturing Company. Fidelity accepts no
responsibility for determining if the contribution and/or the
allocation complies with pertinent provisions of the Internal Revenue
Code of 1986, as amended.
<PAGE>
Schedule "B"
FEE SCHEDULE
* Annual Participant Fee For the Butler Employee Savings Trust:
$17.00 per participant*, subject to a $7,500 per plan
per year minimum. billed and payable quarterly.
For the Galesburg and Birmingham Hourly Employee
Savings Trusts:
$17.00 per participant*, subject to a $5.000 per plan
per year minimum. billed and payable quarterly.
* Loan Fee
Establishment fee of $35.00 per loan account; annual
fee of $15.00 per loan account.
* Return of Excess Fee 25.00 per participant, a one-time charge per
calculation and check generation.
* Withdrawals by Phone: $20.00 per withdrawal.
* Other Fees: separate charges for optional use of remote access, ADP
testing, extraordinary expenses resulting from large numbers of
simultaneous manual transactions or from errors not caused by Fidelity,
or for reports not contemplated in this Agreement. The Administrator
may withdraw reasonable administrative fees from the Trust by written
direction to the Trustee.
* This fee will be imposed pro rata for each calendar quarter, or any
part thereof, that a remains necessary to maintain a participant's
account(s) as part of the Plan's records, e.g., vested, deferred,
forfeiture, top-heavy and terminated participants who must remain on
file through calendar year-end for 1099-R reporting purposes.
Trustee Fees
To the extent that assets are invested in Mutual Funds, 0.02% per year
payable pro rata quarterly on the basis of such assets in the Trust as
of the calendar quarter's last valuation date, but no less than
$2,500.00 nor more than $5,000.00 per year.
To the extent that assets are invested in Sponsor Stock, .10% of such
assets in the Trust per year, but no less than $10,000 and no more than
$35,000 annually, payable pro rata quarterly on the basis of such
assets as of the calendar quarter's last valuation date.
<PAGE>
Schedule "C'
INVESTMENT OPTIONS
In accordance with Section 5(b), the Applicable Fiduciary hereby
directs the Trustee (or the Plan provides) that Participants'
individual accounts may be invested in the following investment
options:
- Fidelity Puritan Fund
- Fidelity Magellan Fund
- Fidelity Equity-Income Fund
- Fidelity Money Market Trust: Retirement Money Market
Portfolio
- Managed Income Portfolio
- Fidelity Asset Manager
- Fidelity Asset Manager-Income
- Fidelity Asset Manager-Growth
- Fidelity International Growth & Income Fund
- Butler Manufacturing Company Common Stock Fund
The mutual fund advised by Fidelity Management & Research Company
referred to in Section 5(c) shall be Fidelity Money Market Trust: Retirement
Money Market Portfolio.
<PAGE>
Schedule "D"
SPONSOR AND ADMINISTRATOR AUTHORIZATIONS AND DESIGNATIONS
In accordance with Sections 8(a) and 8(b) of the Restated Trust
Agreement, dated as of the 1st day of April, 1996, between Butler Manufacturing
Company and Fidelity Management Trust Company (the "Agreement"), each of the
plans identified below is a tax-qualified defined contribution plan which meets
the requirements of Section 17 of said Agreement and is maintained by the
Company for the benefit of certain eligible employees. Each such plan is hereby
designated as a "Plan" for purposes of the Agreement. The following individuals
are authorized to issue directions on behalf of the Sponsor, the Administrative
Committee and the Applicable Fiduciaries for the Plans. Only one individual need
provide such direction. The signature of each such designated individual is set
forth below and certified to be such.
Plans Other Authorized Individuals
Butler Employee Charles R. Johnson
Savings Trust Larry C. Miller
Galesburg Hourly Charles R. Johnson
Employees Savings Trust Larry C. Miller
Birmingham Hourly Charles R. Johnson
Employee Savings Trust Larry C. Miller
The Trustee may rely upon the foregoing authorization, designations and
certifications until the Sponsor, Administrative Committee or Applicable
Fiduciary, as applicable, delivers to the Trustee written notice of a change in
any of the information set forth herein or of the termination of the authority
of a designated individual.
s/Charles R. Johnson
-------------------------------
Charles R. Johnson
s/Larry C. Miller
-------------------------------
Larry C. Miller
<PAGE>
Schedule "E"
December 7, 1992
Jacqueline W. McCarthy
Fidelity Institutional Retirement Services Company
82 Devonshire Street - ZR9
Boston, MA 02109
RE: Butler Employee Savings Trust
Dear Ms. McCarthy:
In accordance with your request, this letter sets forth my opinion with respect
to the qualified status under section 401 (a) of the Internal Revenue Service
Code of 1986 (including amendments made by the Employee Retirement Income
Security Act of 1974) (the "Code"), of the Butler Employee Savings Trust, as
amended to the date of this letter.
The material facts regarding the Plan are as follows. The most recent favorable
determination letter as to the Plan's qualified status under section 401 (a) of
the Code was issued by the Chicago, Illinois District Director of the Internal
Revenue Service and was dated January 25, 1989. The version of the Plan
submitted by Butler Manufacturing Company (the "Company') for the District
Director's review in connection with this determination letter did not contain
amendments since that date. These amendments among other matters, included
changes to bring the Plan into compliance with the Tax Reform Act of 1986.
At the appropriate time, the Company will submit the Plan to the appropriate
District Director of the Internal Revenue Service and to request from that
person a favorable determination letter as to the Plans' qualified status under
section 401 (a) of the Code. The Company believes that the Plan will be approved
by the Internal Revenue Service at that time.
Based on my review of the Plan, it is my opinion that the Plan is qualified
under section 401 (a) of the Code, subject to the customary condition that
continued qualification of the Plan, as modified, will depend on its effect in
operation.
Sincerely
s/Richard O. Ballantine
Richard 0. Ballentine
Corporate Secretary and Chief Legal Counsel
Butler Manufacturing Company
<PAGE>
Schedule "E"
December 7, 1992
Jacqueline W. McCarthy
Fidelity Institutional Retirement Services Company
82 Devonshire Street - ZR9
Boston, MA 02109
RE: Galesburg Hourly Employee Savings Trust
Dear Ms. McCarthy:
In accordance with your request, this letter sets forth my opinion with respect
to the qualified status under section 401 (a) of the Internal Revenue Service
Code of 1986 (including amendments made by the Employee Retirement Income
Security Act of 1974) (the "Code"), of the Galesburg Hourly Employee Savings
Trust, as amended to the date of this letter.
The material facts regarding the Plan are as follows. No determination letter as
to the Plan's qualified status under section 401 (a) of the Code has been issued
by or requested from the Internal Revenue Service. At the time the Plan was
implemented, the Internal Revenue Service was not accepting Applications for
Determination.
At the appropriate time, the Company will submit the Plan to the appropriate
District Director of the Internal Revenue Service and to request from that
person a favorable determination letter as to the Plans' qualified status under
section 401 (a) of the Code. The Company believes that the Plan will be approved
by the Internal Revenue Service at that time.
Based on my review of the Plan, it is my opinion that the Plan is qualified
under section 401 (a) of the Code, subject to the customary condition that
continued qualification of the Plan, as modified, will depend on its effect in
operation.
Sincerely
s/Richard O. Ballentine
Richard O. Ballentine
Corporate Secretary and Chief Legal Counsel
Butler Manufacturing Company
<PAGE>
Schedule "E"
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Date: Dec. 22, 1994 Employer Identification Number: 44-0188420
File Folder Number: 430000353
Person to Contact: TECHNICAL SCREENER
Contact Telephone Number: (312) 435-1040
Plan Name: BIRMINGHAM HOURLY EMPLOYEE
SAVINGS TRUST
Plan Number: 043
BUTLER MANUFACTURING COMPANY
P.O. BX 419917 BMA TOWER, PENN VALL
KANSAS CITY, MO 64141-0917
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
November 1, 1994.
This determination letter is applicable for the plan adopted on November 1,
1993.
This plan satisfies the minimum coverage and nondiscrimination requirements
of sections 410(b) and 401(a)(4) of the Code because the plan benefits only
collectively bargained employees or employees treated as collectively bargained
employees.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
<PAGE>
Sincerely yours,
/s/ Marilyn W. Day
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
<PAGE>
Schedule "F"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by Fidelity
Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (ET) to 8:00 p.m. (ET) on each business
day. A "business day" is any day on which the New York Stock Exchange is open.
FIRSCO reserves the right to change these telephone exchange guidelines at its
discretion but only upon prior written notice to the Sponsor and Administrator
at least thirty (30) days in advance of such change..
Mutual Funds
Exchanges Between Mutual Funds
Participants may call on any business day to exchange between the Mutual Funds.
If the request is received before 4:00 p.m. (ET), it will receive that day's
trade date. Calls received after 4:00 p.m.
(ET) will be processed on a next day basis.
Managed Income Portfolio
Exchanges Between Mutual Funds and Managed Income Portfolio
Participants who wish to exchange between a Mutual Fund and the Managed Income
Portfolio may call on any business day. If the request is received before 4:00
p.m. (ET), it will receive that day's trade date. Calls received after 4:00 p.m.
(ET) will be processed on a next day basis.
Exchange Restrictions
Participants will not be permitted to make direct transfers from the Managed
Income Portfolio into a competing fund. Participants who wish to exchange from
the Managed Income Portfolio into a competing fund must first exchange into a
non-competing fund for a period of 90 days.
Sponsor Stock Fund
Exchanges Between Mutual Funds and Sponsor Stock Fund
Participants may call on any business day to exchange between the Mutual Funds
and the Sponsor Stock Fund. If the request is received before 4:00 p.m. (ET), it
will receive that day's trade date. Calls received after 4:00 p.m. (ET) will be
processed on a next day basis.
<PAGE>
Exchanges Between Sponsor Stock Fund and Managed Income Portfolio
Participants who wish to exchange between the Sponsor Stock Fund and the Managed
Income Portfolio may call on any business day. If the request is received before
4:00 p.m. (ET), it will receive that day's trade date. Calls received after 4:00
p.m. (ET) will be processed on a next day basis.
Exchange Restrictions
It is the intention of the Trustee to maintain a sufficient liquidity reserve in
the Sponsor Stock Fund to meet exchange, redemption or withdrawal requests.
However, if there is insufficient liquidity in the Sponsor Stock Fund to allow
for same day exchanges, the Trustee will be required to sell shares of Sponsor
Stock to meet the exchange requests. If this occurs, the subsequent exchange
into other Plan investment options will take place within three (3) business
days. This allows for settlement of the stock trade at the custodian and the
corresponding transfer to Fidelity.
<PAGE>
<PAGE>
LAW OFFICES
LATHROP & GAGE L.C.
A LIMITED LIABILITY COMPANY
2345 GRAND BOULEVARD, SUITE 2600
KANSAS CITY, MISSOURI 64108-2684
(816) 292-2000
LATHROPLAW BBS: (816) 472-3378
JOHN H. CALVERT, DIRECT DIAL: FAX NUMBERS:
816-472-3220 MISSOURI (816) 421-0500
Internet Address: KANSAS (913) 451-0875
[email protected]
Compuserve Address:
72741,3656
KANSAS OFFICE
1050/40 CORPORATE WOODS
9401 INDIAN CREEK PARKWAY
OVERLAND PARK, KANSAS 66210-2007
(913) 451-0820
April 4, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Registration Statement of Butler Manufacturing Company
(the "Company") on Form S-8.
Ladies and Gentlemen:
On behalf of the Company, we are transmitting herewith for
electronic filing the above referenced registration statement
covering 300,000 shares of the Company's Common Stock to be
acquired under the Company's 401(k) Employee Savings Trusts. The
$3,440 filing fee has been deposited with the Company's account at
Mellon Bank as "Restricted" funds.
The filing is necessitated by the fact that the new restated
401(k) plans which became effective April 1, 1996, permit plan
participants to invest their accounts, including employee
contribution accounts, in the Company's Common Stock. The stock
will be acquired for the Plans at the direction of an agent who is
independent within the meaning of Rule 10b-18(a)(6).
If you have any questions concerning this filing, please call
the undersigned at this office at 816-472-3220.
Thank you.
Very truly yours,
LATHROP & GAGE L.C.
By: s/John H. Calvert
John H. Calvert
<PAGE>
April 4, 1996
Page 2
Enclosures
cc: The NASDAQ Stock Market (3 copies)
Market Listing Qualifications
1735 K. Street, N.W.
Washington, D.C. 20006-1506
Richard O. Ballentine
Vice President and General Counsel
Butler Manufacturing Company
<PAGE>
<PAGE>
Exhibit 23(b)
KPMG Peat Marwick LLP Telephone 816 474 6480
1000 Walnut, Suite 1600 Telefax 816 556 9652
P.O. Box 13127
Kansas City, MO 64199
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTS
The Board of Directors
Butler Manufacturing Company
We consent to the incorporation by reference in the Registration Statement
on Form S-8 being filed under the Securities Act of 1933 by Butler Manufacturing
Company with respect to its Employee Savings Trusts (the "Plans"), to be used in
registering 300,000 shares of Butler Manufacturing Company Common Stock as well
as interests in the Plans, of our reports dated February 2, 1996, on our audits
of the consolidated financial statements and consolidated financial statement
schedule of Butler Manufacturing Company and consolidated subsidiaries as of
December 31, 1995 and 1994, and for each of the three years in the period ended
December 31, 1995, which reports are incorporated by reference or included in
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1995.
s/KPMG Peat Marwick LLP
Kansas City, Missouri
April 3, 1996
<PAGE>
