<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
AMCAST INDUSTRIAL CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 31-0258080
(State of Incorporation) (I.R.S. Employer Identification No.)
AMCAST INDUSTRIAL CORPORATION
7887 WASHINGTON VILLAGE DRIVE
DAYTON, OHIO 45459
(Address, including zip code, of
registrant's principal executive offices)
AMCAST INDUSTRIAL CORPORATION
401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES - PLAN 2
(Full title of the plan)
DENIS G. DALY, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
AMCAST INDUSTRIAL CORPORATION
7887 WASHINGTON VILLAGE DRIVE
DAYTON, OHIO 45459
(937) 291-7000
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------
Proposed
Maximum
Amount to be Proposed Maximum Aggregate Amount of
Registered Offering Price Per Offering Price Registration
Title of Securities Share (1) Fee
to be Registered
----------------------------------- --------------- --------------------- ---------------- ---------------
<S> <C> <C> <C> <C>
Common Shares, without par value 100,000 $13.78 $1,378,000 (3) $383
(2)
----------------------------------- --------------- --------------------- ---------------- ---------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) on the basis of the average of the high and low
prices reported on the New York Stock Exchange Composite Tape on October
22, 1999.
(2) There are also being registered hereunder an equal number of Series A
Preferred Share Purchase Rights, which are currently attached to and
transferrable only with the Common Shares registered hereunder.
(3) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an
<PAGE> 2
indeterminate amount of Common Shares that may be offered or sold as a
result of any adjustments from stock splits, stock dividends or similar
events and pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminable amount of interests to
be offered or sold pursuant to the employee benefit plan discussed herein.
================================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents are incorporated herein by reference as of their
respective dates of filing:
(a) The Annual Report of Amcast Industrial Corporation (the
"Company") on Form 10-K for the fiscal year ended August 31, 1998, filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(b) The Annual Report of the Amcast Industrial Corporation 401(k)
Salary Deferral Plan for Bargaining Unit Employees - Plan 2 on Form 11-K
for the year ended August 31, 1998, filed pursuant to Section 15(d) of
the Exchange Act.
(c) The Company's Quarterly Reports on Form 10-Q for the quarters and
periods then ended at November 29, 1998, February 28, 1999, and May 30,
1999, each filed pursuant to Section 13(a) of the Exchange Act.
(d) The description of the Company's common shares contained in the
Registration Statement filed pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Thompson Hine & Flory LLP has provided a legal opinion to the Company
with respect to the common shares of the Company issuable under the Amcast
Industrial Corporation 401(k) Salary Deferral Plan for Bargaining Unit Employees
Plan 2 and registered hereunder.
S-2
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Article VI of the Registrant's Code of Regulations, as amended July 29,
1987 (filed as Exhibit 3.2 to Registrant's Annual Report on Form 10-K for the
year ended August 31, 1996), is incorporated herein by reference.
Reference is made to Section 1701.13(E) of the Ohio Revised Code relating
to the indemnification of directors and officers of an Ohio corporation.
The Registrant maintains insurance policies which presently provide
protection, within the maximum liability limits of the policies and subject to a
deductible amount for each claim, to the Registrant under its indemnification
obligations and to the directors and officers with respect to certain matters
which are not covered by the Registrant's indemnification obligations. The
Registrant has entered into an indemnification agreement with each director of
the Company.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
See Index to Exhibits following signature pages.
Item 9. Undertakings.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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
this 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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant with the Securities
Exchange Commission or furnished to the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this
S-3
<PAGE> 4
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 undersigned registrant hereby further 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 and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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.
(d) The undersigned registrant hereby further undertakes that the
registrant will submit or has submitted the Plan and any amendment thereto to
the Internal Revenue Service ("IRS") in a timely manner and the registrant will
make or has made all changes required by the IRS in order to qualify the Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Dayton, State of Ohio, on this 26th day of October,
1999.
AMCAST INDUSTRIAL CORPORATION
S-4
<PAGE> 5
By /s/ John H. Shuey
--------------------------------------
John H. Shuey
President, Chief Executive Officer and
Chairman of the Board
S-5
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Title Date
- ---- ----- ----
- --------------------------------------------------------------------------------------
<S> <C> <C>
/s/ John H. Shuey President and Chief October 26, 1999
- ----------------- Executive Officer
John H. Shuey (principal executive
officer) and Chairman
of the Board
/s/ Douglas D. Watts Vice President, Finance October 26, 1999
- ------------------- (principal financial officer)
Douglas D. Watts
/s/ Mark D. Mishler Corporate Controller October 26, 1999
- ------------------- (principal accounting officer)
Mark D. Mishler
-------------------------------
*James K. Baker Director October 26, 1999
*Walter E. Blankey Director October 26, 1999
*Peter H. Forster Director October 26, 1999
*Ivan W. Gorr Director October 26, 1999
*Leo W. Ladehoff Director October 26, 1999
*Earl T. O'Loughlin Director October 26, 1999
*William G. Roth Director October 26, 1999
*R. William Van Sant Director October 26, 1999
</TABLE>
* The undersigned, by signing his name hereto, executes this
Registration Statement pursuant to powers of attorney executed by the
above-named persons and filed with the Securities and Exchange Commission as an
Exhibit to this Registration Statement.
/s/ John H. Shuey
-----------------
John H. Shuey
Attorney-in-Fact
S-6
<PAGE> 7
INDEX TO EXHIBITS
-----------------
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES:
4.1 Articles of Incorporation of Amcast Industrial
Corporation, as amended February 24, 1988, incorporated
by reference from the Company's Annual Report on Form
10-K for the fiscal year ended August 31, 1996.
4.2 Code of Regulations of Amcast Industrial Corporation,
incorporated by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended August
31, 1996.
4.3 Amcast Industrial Corporation 401(k) Salary Deferral
Plan for Bargaining Unit Employees - Plan 2.
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Ernst & Young LLP (relating to Amcast
Industrial Corporation financial statements)
23.2 Consent of Ernst & Young LLP (relating to financial
statements for the Amcast Industrial Corporation 401(k)
Salary Deferral Plan for Bargaining Unit
Employees - Plan 2)
23.3 Consent of Thompson Hine & Flory LLP [contained in
their opinion filed as Exhibit 5.1]
(24) POWERS OF ATTORNEY
24.1 Powers of Attorney of each person whose signature on
this registration statement was signed by another
pursuant to a power of attorney.
-------------------------------------
S-7
<PAGE> 1
Exhibit 4.3
Page 1
AMCAST INDUSTRIAL CORPORATION
401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES - PLAN 2
Amcast Industrial Corporation (the "Company") hereby adopts the Amcast
Industrial Corporation 401(k) Salary Deferral Plan for Bargaining Unit Employees
- - Plan 2 (the "Plan") effective September 1, 1997 (or any other date specified
below), as follows:
ARTICLE I
DEFINITIONS
1.1 "ACCOUNT" or "ACCOUNTS" means a Participant's Salary Deferral
Contribution Account, Basic Matching Contribution Account, Qualified
Nonelective Contribution Account, Discretionary Employer Contribution
Account, Rollover Account, Amcast Contribution Account and Prior
Supplemental Matching Contribution Account.
1.2 "AFFILIATE" means an Employer, its operating facilities and divisions,
and any affiliate or subsidiary which is under common control of an
Employer as described in Sections 414(b), 414(c), 414(m) or 414(o) of
the Code. In making the determination of affiliate status under
Sections 414(b) and (c) of the Code for purposes of Section 4.6, "more
than 50%" should be substituted wherever "at least 80%" appears.
1.3 "AMCAST CONTRIBUTION ACCOUNT" means the Account maintained for a
Participant under Section 4.1 (vii) consisting of the value
attributable to profit sharing contributions allocated thereto.
1.4 "ANNUAL DOLLAR LIMIT" for a Plan Year means $160,000 or such other
amount prescribed by the Secretary of the Treasury, in accordance with
Section 401(a)(17) of the Code.
1.5 "Basic Matching Contribution Account" means the Account maintained for
a Participant under Section 4.1(ii).
<PAGE> 2
Page 2
1.6 "BASIC MATCHING CONTRIBUTIONS" means contributions made by an Employer
under Section 3.2.
1.7 "BENEFICIARY" means a person or entity determined under Section 5.5 who
is entitled to receive payments under the Plan because of the death of
the Participant.
1.8 "BOARD" means the Board of Directors of the Company.
1.9 "BREAK IN SERVICE" means a Period of Severance of at least 12
consecutive months.
1.10 "CODE" means the Internal Revenue Code of 1986, as amended.
1.11 "COMMITTEE" means the Committee described in Article VIII of the Plan.
1.12 "COMPANY" means Amcast Industrial Corporation and such of its
successors or assigns as may adopt this Plan.
1.13 "COMPENSATION" means the total compensation paid to an Eligible
Employee by an Employer while he was a Participant during a Plan Year,
including regular pay, overtime pay, incentive payments, bonuses,
commissions, a Participant's Salary Deferral Contributions for the Plan
Year, and any elective contributions made by an Employer on behalf of
the Participant that are not includable in the Participant's taxable
income under Section 125 of the Code; but excluding any other Employer
contributions made to any "employee benefit plan" (as defined in
Section 3(3) of ERISA) for the Participant, reimbursed expenses,
special awards, gifts or allowances, severance payments, fringe
benefits (cash and noncash), moving expenses, deferred compensation,
welfare benefits and extraordinary compensation. For any Plan Year,
Compensation shall not exceed the Annual Dollar Limit.
1.14 "DISABILITY" means a physical or mental condition which qualifies the
Participant for Social Security disability benefits and is expected to
render the Participant permanently unable to perform his usual duties
or any comparable duties for an Employer.
1.15 "DISCRETIONARY EMPLOYER CONTRIBUTION ACCOUNT" means the Account
maintained for a Participant under Section 4.1 (v).
<PAGE> 3
Page 3
1.16 "DISCRETIONARY EMPLOYER CONTRIBUTIONS" means contributions made by an
Employer under Section 3.5.
1.17 "EFFECTIVE DATE" means September 1, 1997.
1.18 "ELIGIBLE EMPLOYEE" means any Employee who is a member of a collective
bargaining unit represented by a union which is listed in Appendix A
hereto and which has in effect an agreement to extend the terms of the
Plan to members of such bargaining unit, excluding individuals who have
not satisfied any "probationary period" as defined in such agreement.
1.19 "EMPLOYEE" means any person employed by an Employer as a common law
employee, but excluding any Leased Employee, and individuals engaged as
independent contractors, advisers or consultants. An individual is a
common law employee of an Employer for purposes of the Plan on any day
only if that individual is classified by the Employer as its common law
employee on that day regardless of whether that individual (A) was so
classified on an earlier or later day, or (B) for any purpose is
determined to be a common law employee of the Employer on that day by a
court or governmental agency.
1.20 "EMPLOYER" means the Company and Any other Affiliate which adopts the
Plan with the written consent of the Company.
1.21 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.22 "FORFEITURE" means an amount which a Participant is not entitled to
receive from his Basic Matching, Prior Supplemental Matching, Rollover
or Discretionary Employer Contribution Accounts even though he has
reached his Termination Date.
1.23 "415 COMPENSATION" means "Compensation" as defined in this Plan;
provided that 415 Compensation shall be consistent with the definition
of 'Compensation' in Code Section 415(c)(3) and Treasury Regulations
thereunder.
1.24 "414(q) COMPENSATION" means an Employee's 415 Compensation without
regard to Section 125, 402(e)(3) and 402(h)(1)(B) of the Code, and, in
the case of the employer contributions made pursuant to a salary
reduction agreement, without regard to Section 403(b) of the Code.
<PAGE> 4
Page 4
1.25 "HIGHLY COMPENSATED EMPLOYEE" means for any Plan Year any Employee who
(a) for the preceding or current Plan Year was a 5 % owner (as defined
in Section 416(i)(1)(B)(i) of the Code and regulations thereunder) of
an Affiliate or an Employer; or (b) for the preceding Plan Year,
received 414(q) Compensation for such Plan Year in excess of $80,000 or
such other amount prescribed by the Secretary of the Treasury in
accordance with Section 414(q) of the Code.
The Committee may elect to determine the status of Highly Compensated
Employees in accordance with such alternative definitions or procedures
as may be permitted under regulations issued pursuant to Section 414(q)
of the Code, such as considering as highly compensated only the
Employees whose 414(q) Compensation exceeds the applicable threshold
and who were in the top 20% of 414(q) Compensation of all Employees.
1.26 "INVESTMENT FUND" means any fund designated by the Company and
maintained by the Trustee for investment of amounts credited to
Participants' Accounts.
1.27 "LEASED EMPLOYEE" means any person who is not an employee of an
Employer and who provides services to the Employer if:
(a) such services are provided pursuant to an agreement between
the Employer and any other person (in this subsection referred
to as the "leasing organization"),
(b) such person has performed such services for the Employer (or
for the Employer and an Affiliate) on a substantially
full-time basis for a period of at least one year, and
(c) such services are performed under the primary direction or
control of the Employer.
For purposes of requirements listed in Section Section 414(n)(3) of the
Code, with respect to any Employer for whom a Leased Employee performs
services:
(a) the Leased Employee shall be treated as an employee of the
Employer, but
(b) contributions or benefits provided by the leasing organization
which are attributable to services performed for the Employer
shall be treated as provided by the Employer.
<PAGE> 5
Page 5
A Leased Employee shall not be considered an Employee of the recipient
if: (i) such employee is covered by a money purchase pension plan
providing: (1) a nonintegrated employer contribution rate of at least
10 percent of compensation, as defined in Section 415(c)(3) of the
Code, but including amounts contributed pursuant to a salary reduction
agreement which are excludable from the employee's gross income under
Section 125, Section 402(h), Section 402(e)(3) or Section 403(b) of the
Code, (2) immediate participation, and (3) full and immediate vesting;
and (ii) leased employees do not constitute more than 20 percent of the
recipient's nonhighly compensated workforce.
1.28 "LIMITATION YEAR" means the fiscal year of the Company beginning on
September 1 and ending on the following August 31 or any other 12-month
period elected by the Company.
1.29 "PARTICIPANT" means an Eligible Employee who has satisfied the
eligibility requirements under Article II.
1.30 "PERIOD OF SEVERANCE" means a period of time commencing with the
earliest of the following dates:
(a) an Employee's Termination Date;
(b) the second anniversary of the beginning of an absence by an
Employee from an Employer because of her pregnancy, the birth
of his or her child, the placement of a child in connection
with the adoption of the child by an Employee, or the caring
of his or her child during the period immediately following
such birth or placement for adoption; or
(c) the 12-month anniversary of the date on which the Employee is
first absent from service for any other reason, including
absence during an authorized leave of absence approved by the
Employer;
and ending with the date such Employee resumes employment with an
Affiliate.
1.31 "PLAN" means the Amcast Industrial Corporation 401(k) Salary Deferral
Plan for Bargaining Unit Employees - Plan 2 as set forth in this
document and as subsequently amended from time to time. The Plan is
intended to qualify as a profit sharing plan under Section
401(a)(27)(B) of the Code with a cash or deferred arrangement that
separately qualifies under Section 401(k) of the Code.
<PAGE> 6
Page 6
1.32 "PLAN YEAR" means the 12-month period beginning September and ending
August 31.
1.33 "PRIOR SUPPLEMENTAL MATCHING CONTRIBUTION ACCOUNT" means the Account
maintained for a Participant under Section 4.1(iii).
1.34 "QUALIFIED NONELECTIVE CONTRIBUTIONS" means the contributions made by
the Company pursuant to Section 3.4.
1.35 "QUALIFIED NONELECTIVE CONTRIBUTION ACCOUNT" means the Account
established for a Participant under Section 4.1 (iv).
1.36 "REGULAR PAYROLL SALARY DEFERRAL CONTRIBUTIONS" means the contributions
made to the Plan pursuant to Section 3. 1 (a)(i).
1.37 "RECORDKEEPER" means the person or entity designated by the Company to
perform such administrative and recordkeeping duties with respect to
Accounts as may be set forth in the Plan or agreed upon by the Company
and Recordkeeper.
1.38 "ROLLOVER ACCOUNT" means the account established for a Participant
under Section 4.1 (vi).
1.39 "SALARY DEFERRAL CONTRIBUTION ACCOUNT" means the account established
for a Participant under Section 4.1(i).
1.40 "SALARY DEFERRAL CONTRIBUTIONS" means the contributions made to the
Plan during the Plan Year by an Employer at the election of a
Participant in lieu of cash Compensation pursuant to a salary reduction
agreement under Sections 2.3 and 3.1.
1.41 "SERVICE" means the period of a Participant's employment with an
Affiliate beginning on his date of hire and ending on the date on which
a Participant commences a Period of Severance. Service shall include
service with Casting Technology Company ("CTC") (including any
affiliate or subsidiary of CTC which is under common control with CTC
as described in Code Sections 414(b), 414(c), 414(m) or 414(o)) on
behalf of an Employee whose employment with CTC is transferred to an
Affiliate if such service satisfies the definition of "Service" in the
Casting Technology Company 401(k) Salary Deferral Plan.
<PAGE> 7
Page 7
1.42 "SETTLEMENT DATE" means the first day of the month coincident with or
following a Participant's Termination Date.
1.43 "SPECIAL LUMP SUM SALARY DEFERRAL CONTRIBUTIONS" means the
contributions made to the Plan pursuant to Section 3.1 (a)(ii).
1.44 "TERMINATION DATE" means the date a Participant is treated as no longer
employed by an Affiliate on account of quit, discharge, retirement,
death, Disability or any other reason, including permanent plant
shutdown, sale or relocation.
1.45 "TRUST AGREEMENT" means the trust under this document between the
Trustee and the Company governing the administration of the Trust Fund.
1.46 "Trust Fund" means all money, securities and other property held under
the Trust Agreement for the purposes of the Plan.
1.47 "TRUSTEE" means the Trustee(s) or successor Trustee(s) named under the
Trust Agreement to administer the Trust Fund.
1.48 "VALUATION DATE" means each business day the New York Stock Exchange is
open for business, as well as a Valuation Date required under Section
9.5.
1.49 "VESTED PERCENTAGE" means 100% for (i) a Salary Deferral Contribution
Account, a Qualified Nonelective Contribution Account and the portion
of a Rollover Account not attributable to contributions under the
Casting Technology Company 401(k) Salary Deferral Plan ("CTC Plan"), as
applicable; (ii) the portion of a Rollover Account attributable to
contributions under the CTC Plan that was 100% vested as of the date
such portion was transferred from the CTC Plan, as applicable; and
(iii) the Amcast Contribution Account, Discretionary Employer
Contribution Account, Basic and Prior Supplemental Matching
Contribution Accounts, and the portion of a Rollover Account
attributable to contributions under the CTC Plan that was not 100%
vested as of the date such portion was transferred from the CTC Plan,
as applicable, of a Participant who has died, suffered a Disability or
attained age 65 while an Employee. The Vested Percentage of the Amcast
Contribution Account, Rollover Account, Discretionary Employer
Contribution Account and Basic and Prior Supplemental Matching
Contribution Accounts, as applicable, of a Participant who is not
described in the preceding sentence will be determined under the
following schedule:
<PAGE> 8
Page 8
<TABLE>
<CAPTION>
------------------------------------------ ----------------------------------
Participant's Years of Vested Percentage
Service as of any Date in Account
------------------------------------------ ----------------------------------
<S> <C>
Less than 1 0%
------------------------------------------ ----------------------------------
1 but less than 2 50%
------------------------------------------ ----------------------------------
2 but less than 3 75%
------------------------------------------ ----------------------------------
3 or more 100%
------------------------------------------ ----------------------------------
</TABLE>
1.50 "YEAR OF SERVICE" means a 12 month period of Service. A Participant
shall be credited with 1/12 of a Year of Service for each full calendar
month during a period of Service.
<PAGE> 9
Page 9
ARTICLE II
PARTICIPATION
2.1 Eligibility for Participation
(a) Each Eligible Employee who commenced his employment prior to
the Effective Date will become a Participant as of the later
of the Effective Date or the date he became an Eligible
Employee.
(b) Each Eligible Employee who commenced his employment on or
after the Effective Date will become a Participant on the date
he becomes an Eligible Employee.
(c) A Participant's status as such will cease as of his
Termination Date, provided that the term "Participant" will
include any Participant who has not received the payments to
which he is entitled under the Plan.
2.2 Reemployment of Participant
(a) Except as provided in Section 2.2(b), if a former Participant
is reemployed by an Employer, he will become a Participant
again as of his date of reemployment, but cannot resume making
Salary Deferral Contributions until the first day of the month
following his date of reemployment.
(b) Notwithstanding the foregoing, if an Employee (i) suffers a
Break in Service that is longer than the greater of (A) five
years or (B) his Service prior to the Break in Service; (ii)
had no vested interest in the Plan on the date his Break in
Service commenced; and (iii) is thereafter reemployed by an
Employer, he shall become a Participant on the date he becomes
an Eligible Employee.
(c) Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credits with respect to
qualified military service will be provided in accordance with
Section 414(u) of the Code.
<PAGE> 10
Page 10
2.3 Election to Make Salary Deferral Contributions
(a) ELECTION RIGHTS OF PARTICIPANTS
For purposes of making Salary Deferral Contributions, a
Participant must make an election as to whether he wishes to have
Regular Payroll Salary Deferral Contributions made to the Plan on
his behalf. A Participant may also elect to have Special Lump Sum
Salary Deferral Contributions made to the Plan on his behalf. An
election to make Salary Deferral Contributions shall state the
percentage by which the Participant elects to have his
Compensation reduced and shall authorize the Employer to make
corresponding payroll deductions from his Compensation. The
Employer will cause the Compensation of each Participant who makes
such an election to be reduced accordingly.
(b) REGULAR PAYROLL SALARY DEFERRAL CONTRIBUTIONS
For purposes of making Regular Payroll Salary Deferral
Contributions, a Participant must execute, in accordance with
procedures established by the Committee, a written election. The
election shall state the percentage by which the Participant
elects to have his Compensation reduced and shall authorize his
Employer to make corresponding payroll deductions from his
Compensation. The Employer will cause the Compensation of each
Participant who makes such an election to be reduced accordingly.
A Participant may change his election, but will remain a
Participant so long as he has an Account balance.
(c) SPECIAL LUMP SUM SALARY DEFERRAL CONTRIBUTIONS
For purposes of making Special Lump Sum Salary Deferral
Contributions, a Participant may execute, on a form provided by
the Committee, a written election for each such contribution. The
election shall state the percentage or dollar amount by which the
Participant elects to have a single designated payment of his
Compensation reduced and shall authorize his Employer to make a
special deduction from such designated payment of Compensation
before it is paid to the Participant. The Employer will cause such
designated payment of Compensation to be reduced accordingly. A
Participant may elect to make Special Lump Sum Salary Deferral
Contributions with respect to no more than two designated payments
of Compensation in any Plan Year.
<PAGE> 11
Page 11
ARTICLE III
CONTRIBUTIONS
3.1 Salary Deferral Contributions
(a) ELECTION TO MAKE SALARY DEFERRAL CONTRIBUTIONS
(i) REGULAR PAYROLL SALARY DEFERRAL CONTRIBUTIONS. A
Participant may elect under Section 2.3 to have his
Compensation reduced for a Plan Year by 0% or by any
other whole percentage from 1% to 15% (1% to 10% if
such Participant is projected by the Committee to be a
Highly Compensated Employee for such Plan Year) and
contributed to the Plan as Regular Payroll Salary
Deferral Contributions. Such election will become
effective as of the first pay date coincident with or
next following the date he becomes a Participant and
remain in effect until the Participant changes it under
Subsection 3.1(b), or until the Participant incurs his
Termination Date.
(ii) SPECIAL LUMP SUM SALARY DEFERRAL CONTRIBUTIONS. A
Participant may also elect under Section 2.3 to have any
single payment (as designated by the Participant) of his
Compensation reduced by any percentage or actual dollar
amount from 1% to 100% of such payment and contributed
to the Plan as a Special Lump Sum Salary Deferral
Contribution; provided that a Participant may elect to
make Special Lump Sum Salary Deferral Contributions with
respect to no more than two designated payments of
Compensation in any Plan Year. An election to make a
Special Lump Sum Salary Deferral Contribution will
become effective on the date following such election on
which the payment of such Compensation so designated by
the Participant becomes "currently available" to the
Participant within the meaning of Treasury
Regulations Section 1.401(k)(1)(a)(3) (iii), provided
that such election is made at least 10 days prior
thereto.
(iii) OVERALL LIMIT ON SALARY DEFERRAL CONTRIBUTIONS. The
total amount contributed on behalf of a Participant as
Salary Deferral Contributions for any Plan Year cannot
exceed 15% (10% if such Participant is a Highly
Compensated Employee) of such Participant's overall
Compensation for
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such Plan Year; provided that in no event can more than
the maximum amount permitted under Section 402(g)(5) of
the Code be contributed as Salary Deferral
Contributions for a Participant for any calendar year.
(b) CHANGES OF REGULAR PAYROLL SALARY DEFERRAL CONTRIBUTIONS
(i) CHANGES. A Participant with a Regular Payroll Salary
Deferral Contribution election in effect may change the
rate or amount of his Compensation reductions
contributed to the Plan as Regular Payroll Salary
Deferral Contributions in accordance with procedures
established by the Committee. The effective date of such
a change and the number of times a Participant may make
such a change during a Plan Year shall be in accordance
with procedures established by the Committee.
(ii) EFFECT ON SPECIAL LUMP SUM SALARY DEFERRAL
CONTRIBUTIONS. A Participant's election to change his
Regular Payroll Salary Deferral Contributions shall not
affect his right to make Special Lump Sum Salary
Deferral Contributions.
(c) PAYMENT OF SALARY DEFERRAL CONTRIBUTIONS TO TRUSTEE
As soon as practicable after the end of the end of the month for
which Salary Deferral Contributions are made, each Employer will
make Salary Deferral Contributions to the Trustee for each
Participant equal to the amount by which a Participant elects to
have his Compensation reduced for that month. All Salary Deferral
Contributions must be treated as Employer contributions for
purposes of the Code.
(d) RETURN OF SALARY DEFERRAL CONTRIBUTIONS IN EXCESS OF LIMIT UNDER
CODE SECTION 402(g)(5)
If more than the limit of Salary Deferral Contributions under
Section 402(g)(5) of the Code is contributed by an Employer for
any Participant for any calendar year, the Trustee shall
distribute to the Participant the excess Salary Deferral
Contributions (plus any earnings attributable to such excess) no
later than the April 15 following the calendar year for which
such excess contributions were made; provided that if such limit
is exceeded because of contributions under this Plan and another
plan, the Trustee shall make the distribution by April 15 of such
following calendar year only if the Participant notifies the
Employer by the preceding March 1.
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(e) RETURN OF SALARY DEFERRAL CONTRIBUTIONS IN EXCESS OF 10%/15%
LIMIT
If more than the 15% (10% with respect to a Participant who is a
Highly Compensated Employee) of Compensation limit on Salary
Deferral Contributions is contributed by an Employer for any
Participant for a Plan Year, the Committee shall refund the
excess Salary Deferral Contributions (plus any earnings
attributable to such excess) to such Participant within 12
months after the end of the Plan Year in which such excess
arose.
3.2 BASIC MATCHING CONTRIBUTIONS
The Employer shall make a Basic Matching Contribution to the Plan in an
amount which is equal to 15% of the amount contributed under Section
3.1 during the same Plan Year on behalf of all Participants described
in Appendix B and allocated to the Salary Deferral Accounts of such
Participants under Section 4.4(a). Basic Matching Contributions on
behalf of any Participant that do not violate the limit on such
contributions under Section 4.6(d) and (e) shall be forfeited if Salary
Deferral Contributions made on his behalf to which such Matching
Contributions related exceed (1) the limit in Section 402(g)(5) of the
Code or (2) the actual deferral percentage test limit in Section 4.6(c)
of the Plan. Notwithstanding the foregoing, no Basic Matching
Contribution shall be made to match the portion of a Participant's
Salary Deferral Contribution that exceeds 6% of such Participant's
total Compensation for a Plan Year. Basic Matching Contributions shall
be paid to the Trustee and credited to a Participant's Basic Matching
Account under Article IV.
3.3 QUALIFIED NONELECTIVE CONTRIBUTIONS
In addition to any contributions made under Sections 3.1 and 3.2, the
Employer shall make such contributions as it determines are necessary
or appropriate on behalf of Participants who do not participate in a
tax qualified defined benefit pension plan sponsored by an Employer.
Such contributions shall be made subject to Section 401(a)(4) of the
Code and Section 4.6 of the Plan.
3.4 DISCRETIONARY EMPLOYER CONTRIBUTIONS
In addition to any contributions made under Sections 3.1, 3.2 and 3.3,
the Employer may make such contributions to the Plan as it determines
to be necessary or appropriate on behalf of any Participant subject to
Section 4.6 of the Plan and Section 401(a) of the Code.
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3.5 ROLLOVER AND DIRECT TRANSFER CONTRIBUTIONS
Any Employee or Participant who has received an amount which is
described in Section 402(c)(4), 403(a)(4) or 408(d)(3)(A)(ii) of the
Code may pay to the Trustee as a rollover contribution all or a part of
such amount to the Trustee within 60 days of receiving it. The Trustee
may also accept such amounts through a direct trustee transfer from a
plan described in this Section; provided that such transferred amount
was not transferred (a) in connection with a corporate acquisition, (b)
from a plan sponsored by an Affiliate or (c) from a plan that required
an annuity as a form of payment. The Trustee shall accept amounts
directly transferred from the Casting Technology Company 401(k) Salary
Deferral Plan on behalf any person whose employment with Casting
Technology Company was transferred to an Affiliate. Any amounts
contributed pursuant to this Section on behalf of any person will be
credited to the Rollover Account of such person as soon as practicable
after they are made. If a contribution is made under this Section for
or by a person who has not yet become a Participant, such person will
be treated as a Participant solely with respect to the amount credited
to his Rollover Account.
3.6 SPECIAL RULES FOR EMPLOYER CONTRIBUTIONS
Contributions for a Plan Year made pursuant to Sections 3.2, 3.3 and
3.4 shall be subject to special rules to the extent set forth below:
(a) All such contributions shall be in the form of cash or common
stock of the Company and shall be paid to the Trustee on or
before the date on which the Employer's federal income tax
return is due (including extensions) for the taxable year of
the Employer ending with or within the taxable year of the
Trust Fund in which falls the last day of such Plan Year.
(b) All cash contributions may be used to purchase common stock of
the Company. Such purchases shall be made as soon as
practicable following the date of the contribution.
(c) The number of shares of any common stock of the Company to be
contributed to the Plan, or to be purchased with cash
contributions, will be determined on the basis of the closing
price of such stock on the trading date next preceding the
date of the contribution.
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ARTICLE IV
ACCOUNTS AND ALLOCATIONS
4.1 MAINTENANCE OF ACCOUNTS
The Committee will maintain the following accounts for each
Participant under the Plan:
(i) a Salary Deferral Contribution Account for each Participant
who elects under Section 3.1 to have Salary Deferral
Contributions made to the Plan on his behalf;
(ii) a Basic Matching Contribution Account for each Participant on
whose behalf Basic Matching Contributions are made under
Section 3.2;
(iii) a Prior Supplemental Matching Contribution Account for each
Participant consisting of the value of supplemental matching
contributions made under the Amcast Industrial Corporation
401(k) Salary Deferral Plan during the Participant's
participation in such plan and transferred to this Plan (and
gains and losses thereon);
(iv) a Qualified Nonelective Contribution Account for each
Participant on whose behalf Qualified Nonelective
Contributions are made under Section 3.4;
(v) a Discretionary Employer Contribution Account for each
Participant on whose behalf a contribution is made under
Section 3.5; and
(vi) a Rollover Account for each Employee or Participant who has a
contribution made to the Plan under Section 3.6, other than
direct transfer contributions in connection with (a) a
corporate acquisition or (b) a merger, consolidation or
termination of plans.
The Accounts maintained for each Participant shall be composed of
subaccounts to reflect the Participant's interest in an Investment
Fund. Such Accounts are primarily for accounting purposes and do not
require segregation of the Trust Fund. The Committee may delegate the
responsibility for the maintenance of Accounts to the Trustee or
Recordkeeper or to an agent appointed by the Committee.
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4.2 INVESTMENT OF SALARY DEFERRAL CONTRIBUTION AND ROLLOVER ACCOUNTS AND ANY
CASH CONTRIBUTIONS TO ANY OTHER ACCOUNT WHICH ARE NOT USED TO PURCHASE
COMMON STOCK OF THE COMPANY
(a) PARTICIPANT TO DIRECT INVESTMENT OF ACCOUNTS
A Participant must designate in the form and manner provided by
the Committee the percentage of the contributions credited to his
Salary Deferral Contribution and Rollover Accounts, which are to
be invested in each of the Investment Funds. The Participant must
also make such a designation with respect to cash contributions to
any other Account that are not used to purchase common stock of
the Company.
(b) CHANGES IN INVESTMENT DIRECTIONS
A Participant may change the percentage of the contributions
credited to his Accounts which are to be invested in each of the
Investment Funds, or transfer any percentage or dollar amount from
one Investment Fund to another, subject to the limitations under
subparagraph (c), in accordance with procedures established by the
Committee or the Recordkeeper. The effective date of such a change
and the number of times a Participant may make such changes during
a Plan Year shall be in accordance with such procedures. Any
extraordinary expenses incurred by the Trustee in transferring
assets from one Investment Fund to another for a Participant may
be charged directly against his Accounts.
(c) GENERAL PROVISIONS REGARDING INVESTMENT FUNDS
Neither the Company, the Committee, the Recordkeeper nor the
Trustee shall be liable for any loss resulting from any act or
omission in connection with the administration of the Investment
Funds, unless such act or omission shall be deemed to constitute
willful misconduct or bad faith. The investment in particular
securities shall be made by the Trustee and nothing in the Plan
shall be construed to give the power to Participants to select or
direct the purchase of any security. The selection of any
investment pursuant to any Investment Fund offered by the Plan and
Trust shall be the sole responsibility of each Participant and
neither the Committee, the Recordkeeper the Trustee nor the
Company (or any of Company officers, supervisors or employees) are
empowered to advise a Participant as to the manner in which such
options are exercised. The Participant's investment in any
Investment Fund shall be subject to the terms and
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conditions of such Fund, including but not limited to, a
limitation on transfers out of an Investment Fund that adversely
affects the rate of return on such Fund.
4.3 INVESTMENT OF BASIC MATCHING, PRIOR SUPPLEMENTAL MATCHING, QUALIFIED
NONELECTIVE, DISCRETIONARY EMPLOYER AND AMCAST CONTRIBUTION ACCOUNTS
Except for cash that may be determined to be necessary for purposes of
Account administration or appropriate for investment in Investment
Funds by the Participant, all amounts contributed to Basic Matching,
Prior Supplemental Matching, Qualified Nonelective, Discretionary
Employer and Amcast Contribution Accounts, together with income
therefrom, will be invested in common stock of the Company. Amounts in
such Accounts may be invested as a single fund without segregation of
assets to individual Accounts of Participants and shall be maintained
separately from any Investment Fund that invests in common stock of the
Company. If the Basic Matching Contribution for a Plan Year is made in
cash, the Trustee shall purchase of the required common stock of the
Company within 10 days of the date of contribution.
4.4 ALLOCATION OF CONTRIBUTIONS AND FORFEITURES
(a) ALLOCATION OF BASIC MATCHING CONTRIBUTIONS
Basic Matching Contributions for a Plan Year shall, subject
to Section 4.6, be allocated among the Basic Matching
Contribution Accounts of Participants who make Salary
Deferral Contributions for such Plan Year in proportion to
each such Participant's Salary Deferral Contributions for
the Plan Year not in excess of 6% of his Compensation for
the Plan Year.
(b) ALLOCATION OF QUALIFIED NONELECTIVE CONTRIBUTIONS
Any Qualified Nonelective Contributions for a Plan Year
shall, subject to Section 4.6 and Code Section 401(a)(4), be
allocated equally among the Qualified Nonelective
Contribution Accounts of those Participants on whose behalf
the Employer has made such contribution for such Plan Year.
(c) ALLOCATION OF DISCRETIONARY EMPLOYER CONTRIBUTIONS
Any Discretionary Employer Contributions shall, subject to
Section 4.6 and Section 401(a)(4) of the Code, be allocated
to the Discretionary Employer Contribution Accounts of those
Participants on whose behalf the Employer has made such
contributions for a Plan Year in the proportion that each
such Participant's Compensation for such Plan Year bears to
the Compensation of all such Participants for such Plan Year.
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(d) ALLOCATION OF FORFEITURES
Any Forfeitures for a Plan Year shall, subject to Section 4.6 and
Section 5.1(c) (regarding restoration of forfeitures), be
allocated to the Basic Matching, Prior Supplemental Matching or
Discretionary Employer Accounts, as applicable, of any Participant
who is not in a Period of Severance on the last day of such Plan
Year, as follows:
(1) as to Forfeitures in Basic and Prior Supplemental Matching
Contribution Accounts, in the proportion that the Salary
Deferral Contributions on behalf of any such Participant for
such Plan Year not in excess of 6% of his Compensation for
such Plan Year bear to the total of all Salary Deferral
Contributions on behalf of all Participants for such Plan
Year not in excess of 6% of all such Participants'
Compensation for such Plan Year; and
(2) as to Forfeitures in Discretionary Employer Contribution
Accounts, equally among all Participants on whose behalf a
Discretionary Employer Contribution Account is maintained as
of the last day of the Plan Year for which any such forfeiture
occurs (including any Participant for whom such contributions
were made for such Plan Year).
(3) as to Forfeitures in Amcast Contribution Accounts, in
proportion to the ratio which the Compensation of any such
Participant on whose behalf such an Account is maintained
bears to the total Compensation of all such Participants.
4.5 VALUATION OF ACCOUNTS
As of each Valuation Date, the Committee, the Recordkeeper or the
Trustee will determine the fair market value of all assets invested in
each of the Investment Funds, including income and expenses. If the
fair market value of an Investment Fund is more or less than the
aggregate amount credited to all Accounts in that investment as of the
preceding Valuation Date, each Account will be credited with its share
of the gain or loss, in the proportion which the balance of that
Account in that investment bears to the aggregate balance of all
Accounts in that investment as of such Valuation Date.
4.6 STATUTORY LIMITATIONS ON ALLOCATIONS
(a) ANNUAL LIMITS ON ALLOCATIONS TO ACCOUNTS
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(i) The amount of any "annual additions" (as defined in
Section 415(c)(2) of the Code) for a Participant
under the Plan and any other defined contribution
plan maintained by an Affiliate cannot exceed the
lesser of $30,000 (or if greater 25% of the dollar
limitation in effect under Section 415(b)(1)(A) of
the Code), or (ii) 25% of the Participant's 415
Compensation.
(ii) For Plan Years beginning prior to January 1, 2000, if
the Employer maintains, or at any time maintained, a
qualified defined benefit plan covering any
Participant in this Plan, the sum of the
Participant's defined benefit plan fraction and
defined contribution plan fraction will not exceed
1.0 in any Limitation Year. This limitation shall not
apply for Plan Years beginning on or after January 1,
2000.
(iii) The defined benefit plan fraction is a fraction, the
numerator of which is the sum of the Participant's
projected annual benefits under all the defined
benefit plans (whether or not terminated) maintained
by an Affiliate, and the denominator of which is the
lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Sections
415(b) and (d) of the Code or 140 percent of the
highest average compensation, including adjustment
under Section 415(b) of the Code.
(iv) The defined contribution fraction is a fraction, the
numerator of which is the sum of the annual additions
to the Participant's accounts under all the defined
contribution plans (whether or not terminated)
maintained by an Affiliate for the current and all
prior Limitation Years (including the annual
additions attributable to the Participant's
nondeductible employee contributions to all defined
benefit plans, whether or not terminated, maintained
by an Affiliate, and the annual additions
attributable to all welfare benefit funds, as defined
in Section 419(e) of the Code, and individual medical
accounts, as defined in Section 415(l)(2) of the
Code, maintained by an Affiliate, and the denominator
of which is the sum of the maximum aggregate amounts
for the current and all prior Limitation Years of
service with the Affiliate (regardless of whether a
defined contribution plan was maintained by the
Affiliate). The maximum aggregate amount in any
Limitation Year is the lesser of 125 percent of the
dollar limitation determined under Sections 415(b)
and (d) of the Code in effect under
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Section 415(c)(1)(A) of the Code or 35 percent of the
Participant's 415 Compensation for such year.
(b) EXCESS ANNUAL ADDITIONS
If, as a result of the allocation of Forfeitures, a reasonable
error in estimating a Participant's 415 Compensation, or under
other limited facts and circumstances which the Commissioner of
Internal Revenue finds justify the rules set forth below, a
Participant's annual additions exceed the limit under Subsection
4.6(a) for a Plan Year, the Committee must take the following
steps, in order, until Subsection 4.6(a) is satisfied.
(i) refund to the Participant his Salary Deferral Contributions
(and any earnings thereon) to the extent permitted by the
Code, or hold them in a "Suspense Account" for the
Participant under the Trust and allocate them to the
Participant in the following Limitation Year if he is still
a Participant; or otherwise to the other Participants in
the following Limitation Year in accordance with Section
4.3;
(ii) hold any Basic Matching and Discretionary Employer
Contributions in a "Suspense Account" for the Participant
under the Trust and allocate them to the Participant in the
following Limitation Year, if he is still a Participant;
or, otherwise, to the other Participants in the following
Limitation Year in accordance with Section 4.3; and then
(iii) reallocate any excess under Section 4.3 and hold any excess
which cannot be allocated to any Participant in a "Suspense
Account" under the Trust, and allocate it for the following
Limitation Year under Section 4.3 before any annual
additions are allocated or credited for that subsequent
Limitation Year.
(c) ACTUAL DEFERRAL PERCENTAGE TEST LIMIT
(i) If the Salary Deferral Contributions on behalf of all
Highly Compensated Employees who are Participants made or
to be made for a Plan Year are likely to violate the test
set forth under subparagraph (c)(ii), the Committee will
take such of the following steps as it determines necessary
or appropriate with respect to such Highly Compensated
Employees on a uniform and nondiscriminatory basis: (1)
reduce or stop such Highly Compensated Employee's
Compensation reductions and corresponding
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Salary Deferral Contributions or (2) refund to the Highly
Compensated Employee the amount of Salary Deferral Contributions
(plus any earnings thereon) necessary to satisfy subparagraph
(ii). Such reductions or refunds will be made first from the
Salary Deferral Accounts of the Highly Compensated Employees for
whom the highest dollar amount of Salary Deferral Contributions
were higher than those made for the other Highly Compensated
Employees, and then will continue pro-rata among the Highly
Compensated Employees until the Plan satisfies subparagraph (ii).
Any refunds shall be made within 12 months after the end of the
Plan Year in which the excess contribution arose.
(ii) The "actual deferral percentage" (as defined in (iii) below) for
Highly Compensated Employees who are Participants for a Plan Year
must satisfy either (A) or (B):
(A) The actual deferral percentage for such Highly Compensated
Employees must not exceed 125% of the actual deferral
percentage for the prior Plan Year of all non-Highly
Compensated Employees who are Participants; or
(B) The actual deferral percentage for such Highly Compensated
Employees must not exceed the lesser of two percentage
points more than the actual deferral percentage for the
prior Plan Year of such non-Highly Compensated Employees, or
200% of the actual deferral percentage for the prior Plan
Year of such non-Highly Compensated Employees.
(iii) The term "actual deferral percentage" for Highly Compensated
Employees who are Participants or non-Highly Compensated
Employees who are Participants for a Plan Year means the average
of the ratios (calculated separately for each Employee in each
such group who is eligible to elect Compensation reductions under
Section 2.3) of the amount of Salary Deferral Contributions
actually paid to the Trust on behalf of each such Employee (as
well as any elective contributions made by a Highly Compensated
Employee under any other arrangement described in Code Section
401(k) maintained by an Affiliate) for the Plan Year to such
Employee's Compensation for the portion of the Plan Year during
which the Employee was a Participant.
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(iv) Solely for purposes of satisfying the actual deferral percentage
test, the Committee may deem all or a portion of any Qualified
Nonelective Contributions for a Plan Year as Salary Deferral
Contributions if such Qualified Nonelective Contributions meet
all of the following conditions:
(A) The Qualified Nonelective Contributions, to the extent
they are deemed Salary Deferral Contributions, are not also
deemed Basic or Supplemental Matching Contributions, under
Section 4.6(d)(iv).
(B) The Qualified Nonelective Contributions, to the extent they
are not deemed Salary Deferral Contributions or Basic or
Supplemental Matching Contributions, satisfy Section
401(a)(4) of the Code.
(v) Contributions under plans aggregated for purposes of Section
401(a)(4) of the Code or Section 410(b) of the Code shall be
treated as made under a single plan.
(d) ACTUAL CONTRIBUTION PERCENTAGE TEST LIMIT
(i) If the Basic and Supplemental Matching Contributions on behalf of
all Highly Compensated Employees who are Participants made for a
Plan Year violate the test set forth under subparagraph (ii), the
Committee must, with respect to such Highly Compensated Employees
on a uniform and nondiscriminatory basis, return to such Highly
Compensated Employees the excess Basic and Supplemental Matching
Contributions (plus any earnings thereon) necessary to satisfy
subparagraph (ii) or, if such excess Basic and Supplemental
Matching Contributions are forfeitable, treat such excess as a
Forfeiture on or before the last day of the Plan Year following
the Plan Year for which they were made. The return of any Basic
and Supplemental Matching Contributions will be made from the
Basic and Supplemental Matching Contribution Accounts,
respectively, of the Highly Compensated Employees for whom the
highest dollar amount of Basic and Supplemental Matching
Contributions were higher than those made for other Highly
Compensated Employees, and then will continue pro rata among the
other Highly Compensated Employees until the Plan satisfies
subparagraph (ii). Any refunds shall be made within 12 months
after the end of the Plan Year in which the excess contribution
arose.
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(ii) The "actual contribution percentage" (as defined in (iii) below)
for Highly Compensated Employees who are Participants for a Plan
Year must satisfy either (A) or (B):
(A) The actual contribution percentage for such Highly
Compensated Employees must not exceed 125% of the actual
contribution percentage for the prior Plan Year of all
non-Highly Compensated Employees who are Participants; or
(B) The actual contribution percentage for such Highly
Compensated Employees must not exceed the lesser of two
percentage points more than the actual contribution
percentage for the prior Plan Year of such non-Highly
Compensated Employees, or 200% of the actual contribution
percentage for the prior Plan Year of such non-Highly
Compensated Employees.
(iii) The term "actual contribution percentage" for Highly Compensated
Employees who are Participants and non-Highly Compensated
Employees who are Participants for a Plan Year means the average
of the ratios (calculated separately for each Employee in each
such group) of the amount of Basic and Supplemental Matching
Contributions actually paid to the Trust on behalf of each such
Employee for the Plan Year (as well as any matching and employee
contributions made by a Highly Compensated Employee under any
other arrangement described in Section 401(m) of the Code
maintained by an Affiliate) to such Employee's Compensation for
the portion of the Plan Year during which he was a Participant.
(iv) Solely for purposes of satisfying the actual contribution
percentage test, the Committee may deem all or a portion of any
Qualified Nonelective Contributions for a Plan Year as Basic or
Supplemental Matching Contributions if such Qualified Nonelective
Contributions meet all of the following conditions:
(A) The Qualified Nonelective Contributions, to the extent they
are deemed Supplemental or Basic Matching Contributions, are
not also deemed Salary Deferral Contributions under Section
4.6(c)(iv).
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(B) The Qualified Nonelective Contributions, to the extent they
are not deemed Salary Deferral Contributions or Supplemental
or Basic Matching Contributions, satisfy Section 401(a)(4)
of the Code.
(v) Solely for purposes of satisfying the actual contribution
percentage test, the Committee may deem all or a portion of any
Salary Deferral Contributions for a Plan Year as Basic or
Supplemental Matching Contributions if the actual deferral
percentage test is satisfied by (A) including in such test Salary
Deferral Contributions deemed to be Supplemental or Basic
Matching Contributions and (B) excluding such Salary Deferral
Contributions from such test.
(vi) Contributions under plans aggregated for purposes of Section
401(a)(4) of the Code or Section 410(b) of the Code shall be treated as
made under a single plan.
(e) COMBINED LIMIT ON SALARY DEFERRAL CONTRIBUTIONS AND BASIC AND
SUPPLEMENTAL MATCHING CONTRIBUTIONS
Notwithstanding any other provision to the contrary, in no event shall
the sum of the actual deferral percentage plus the actual contribution
percentage for a Plan Year of Highly Compensated Employees who are
Participants exceed the greater of either (i) 125% of the actual
deferral percentage for the prior Plan Year plus 200% of the actual
contribution percentage for the prior Plan Year, or (ii) 200% of the
actual deferral percentage for the prior Plan Year plus 125% of the
actual contribution percentage for the prior Plan Year, as the case may
be, of non-Highly Compensated Employees who are Participants. If the sum
of the actual deferral percentage plus the actual contribution
percentage of such Highly Compensated Employees exceeds such limit, such
excess shall be eliminated in accordance with the correction procedures
set forth in Treasury Regulations Section 1.401(m)-2(c).
(f) The application of this Section shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury, including the
requirement that if the Plan benefits collectively bargained Employees,
each group of such Employees based on coverage under a separate
collectively bargained agreement shall be disaggregated as if in a
separate plan when applying the limitations of Section 4.6(c), (d) and
(e).
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ARTICLE V
DISTRIBUTIONS
5.1 AMOUNT PAYABLE
(a) If the Participant's Termination Date occurs for any reason, the
amount payable will be determined as of the applicable Valuation
Date. In the case of a payment under Section 5.3(a), the amount
payable will be determined as of the earliest practicable
Valuation Date following the participant's Termination Date. In
the case of a payment under Section 5.3(b), the amount payable
will be determined as of the Valuation Date for which a request
for payment is processed by the Recordkeeper.
(b) If a Participant is reemployed by an Employer after his
Termination Date but before any payment is made to him under
Section 5.2, no payment will be made.
(c) If the Vested Percentage of any of a Participant's Accounts is
less than 100% at his Termination Date, any amount in such
Accounts which is not then payable will be a Forfeiture as of the
last day of the Plan Year in which the Participant's interest was
actually paid or was payable to the Participant. If, after a
Forfeiture occurs, such Participant is reemployed by an Employer
before he has five consecutive Breaks in Service following his
Termination Date, he may repay to the Plan (without interest) the
amount which was paid to him on or before five years after the
first day the Participant resumes employment with an Employer. If
the Participant makes such repayment, the Committee must, as of
the Valuation Date coincident with or next following such
repayment, restore to such Accounts the amount necessary so that
the value of such Accounts on such date was the same as it was on
his Termination Date (with no adjustment for subsequent Trust Fund
gains or losses). In order to restore such Participant's Accounts,
the Employer will use Forfeitures for that Plan Year and to the
extent necessary will make an additional Employer contribution to
the Plan.
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5.2 MANNER OF PAYMENT
Distribution of the Vested Percentage of a Participant's Accounts shall
be made in a single lump sum. Subject to the following rules, the
Participant shall elect, in the manner provided by the Committee (or by
the Recordkeeper if designated to do so by the Committee), whether
payment will be made in cash or in common stock of the Company.
(a) CASH PAYMENTS. The following Accounts of a Participant will
automatically be paid in cash:
(i) the portion of a Participant's Salary Deferral
Contribution Account not attributable to common stock
of the Company; and
(ii) Rollover Account.
(b) STOCK PAYMENTS. Except as otherwise provided in this Section
5.2, the following Accounts of a Participant will
automatically be paid in common stock of the Company if the
Participant fails to elect that the entire value of such
Accounts be paid in cash in the manner provided by the
Committee (or by the Recordkeeper if so designated by the
Committee):
(i) Amcast Contribution Account;
(ii) Basic Matching Contribution Account;
(iii) Prior Supplemental Matching Contribution Account;
(iv) Qualified Nonelective Contribution Account;
(v) Discretionary Employer Contribution Account; and
(vi) the portion of a Participant's Salary Deferral
Contribution Account invested in such stock.
(c) DISCRETIONARY CASH PAYMENTS. The following accounts of the
Participant will be paid in the form of cash if the Committee
determines that the common stock of the Company is readily
tradable at the time of payment and if the aggregate number of
shares of common stock of the Company held in such Accounts at
the time of payment is less than 50:
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(i) Basic Matching Contribution Account;
(ii) Prior Supplemental Matching Contribution Account;
(iii) Qualified Nonelective Contribution Account;
(iv) Discretionary Employer Contribution Account;
(v) Amcast Contribution Account; and
(vi) the portion of a Participant's Salary Deferral Contribution
Account invested in common stock of the Company.
(d) FRACTIONAL SHARES. Notwithstanding the foregoing, all fractional shares
will be paid in cash.
(e) Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Article, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the
Distributee in a Direct Rollover.
(i) Definitions
(A) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover
distribution is any distribution of all or any
portion of the balance to the credit of the
Distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the Distributee or
the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of
the Code; and the portion of any distribution that is
not includable in gross income (determined without
regard to the exclusion of net unrealized
appreciation with respect to employer securities).
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(B) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan
is an individual retirement account described in
Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code,
or a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's eligible
rollover distribution. However, in the case of an
eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(C) DISTRIBUTEE. A Distributee includes an employee or
former employee. In addition, the employee's or
former employee's surviving spouse and the employee's
or former employee's spouses or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the
Code, are Distributees with regard to the interest of
the spouse or former spouse.
(D) DIRECT ROLLOVER. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by
the Distributee.
5.3 Time of Payment to Participants
(a) PAYMENT OF ACCOUNTS NOT IN EXCESS OF $5,000 If the amount
payable as determined under Section 5.1 does not exceed
$5,000, payment of such amount shall be made as soon as
practicable after the Participant's Termination Date.
(b) PAYMENT OF ACCOUNTS IN EXCESS OF $5, If the amount payable as
determined under Section 5. 1 exceeds $5, 000, payment of such
amount shall be made as soon as practicable following receipt
by the Committee (or the Recordkeeper if so designated by the
Committee) of a payment request from the Participant (or from
the Participant's Beneficiary in the case of the Participant's
death). An election of a time for payment shall be made on a
form provided by the Committee (or by the Recordkeeper if
designated to do so by the Committee).
(c) DELAYED PAYMENT
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Payment of a Participant's Accounts may be delayed, if
necessary, beyond the time otherwise provided in this Section
5.3, to be made or commenced within 60 days after the earliest
date on which the amount thereof can be determined.
(d) REQUIRED PAYMENT DATE In no event can payment be made later
than April 1 of the calendar year following the later of the
calendar year in which a Participant attains age 70 1/2;
provided that if the Participant's Termination Date is after
December 31, 1998, payment shall be made to the Participant no
later than April 1 of the calendar year following the calendar
year in which the Participants's Termination Date occurs;
provided further, however, that such distribution for a
Participant who is a five percent owner shall be required to
be made or commenced no later than April 1 following the
calendar year in which the Participant attains age 70 1/2.
5.4 TIME OF PAYMENT TO BENEFICIARIES
Payment to a Beneficiary will be made as soon as practicable after the
date the Participant dies, but in no event can payment be made later
than December 31 of the calendar year- containing the fifth anniversary
of the Participant's death; provided that, without the consent of the
surviving spouse, payment to the Participant's surviving spouse shall
not be made earlier than the later of (a) December 31 of the calendar
year immediately following the calendar year in which the Participant
died and (b) December 31 of the calendar year in which the Participant
would have attained age 70 1/2.
5.5 DESIGNATION OF BENEFICIARY
(a) Subject to subparagraph (b), each Participant may designate,
by filing a form provided by the Committee or Recordkeeper, a
Beneficiary or Beneficiaries to receive any payment in the
event of the Participant's death. If a Participant designates
an irrevocable trust as his Beneficiary, a copy of such trust
must be filed with the Committee or Recordkeeper. A
Participant who has filed a designation of Beneficiary may
revoke or change it at any time by filing a new form with the
Committee or Recordkeeper.
(b) The Beneficiary of a married Participant will automatically be
his spouse; provided, however, the Participant may designate,
on a form provided by the Committee or Recordkeeper, a
Beneficiary in addition to or other than his spouse, which
contains the spouse's signed, notarized consent to that
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designation. Such consent is not required if (i) it is
established to the satisfaction of the Committee or
Recordkeeper, that there is no spouse or the spouse cannot be
located; or (ii) the Participant furnishes the Committee or
Recordkeeper, with a court order to the effect that the
Participant is legally separated or has been abandoned (within
the meaning of local law). If a Participant is not married
when he designates a Beneficiary, but subsequently marries,
his designation will be invalid if his spouse does not give
signed, notarized consent to his prior designation, unless the
sole Beneficiary under that designation was the individual who
became the Participant's spouse.
(c) If a Beneficiary has not been designated by the Participant,
or if the Beneficiary who was designated is dead, or if such
Beneficiary designation is deemed to be illegal or invalid,
then the Participant's Beneficiary under this Section will be
the member(s) of the first of the following groups of
relatives of the person on account of whose death payment is
to be made which has any living member(s) on the date of
payment: (i) his spouse, (ii) in equal shares to each of his
children with one such share collectively to the descendent of
any deceased child PER STIRPES, and (iii) if there are no
surviving descendants, to the executor or other personal
representative of the deceased Participant to be distributed
in accordance with the Participant's will or applicable law.
(d) In the event of a Participant's death prior to complete
distribution of his Accounts, his designated Beneficiary (or
other persons entitled to receive any portion of his benefit
(hereunder) may designate a Beneficiary to receive any
payments which are unpaid at the time of the Participant's
death.
5.6 TREASURY REGULATIONS OVERRIDE
Notwithstanding any other provision of this Article V, payments made
from this Plan must be made in a manner which is consistent with
Section 401(a)(9) of the Code and the Treasury regulations issued
thereunder, including the minimum distribution incidental benefit
requirement. To the extent any provision of the Plan or Trust is
inconsistent with or contrary to the Treasury regulations, the Treasury
regulations will govern.
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5.7 LEGAL DISABILITY
If, in the Committee's opinion, a Participant or Beneficiary is under a
legal disability or is otherwise incapacitated so he is unable to
manage his financial affairs, the Committee may (until a claim is made
by a conservator or other person legally responsible for the care of
the person or of his estate) make any payment due to such person under
the Plan to any other person or entity for the benefit of the
incapacitated Participant or Beneficiary. Once a proper claim has been
made to the Committee, any payments to which the disabled or
incapacitated Participant or Beneficiary is entitled will be made to
the conservator or other person legally charged with the care of the
person or of his estate.
5.8 TRANSFER OF EMPLOYMENT TO CASTING TECHNOLOGY COMPANY
Notwithstanding the foregoing, if the employment of a Participant is
transferred from an Affiliate to Casting Technology Company ("CTC")
(including any affiliate or subsidiary of CTC which is under common
control with CTC as described in Code Sections 414(b), 414(c), 414(m)
or 414(o)), such Participant's Accounts, if any, shall not be
distributed to him or forfeited, but instead shall be transferred
directly to the Trustee of the Casting Technology Company 401(k) Salary
Deferral Plan in an amount equal to the value of such Accounts as of
the Valuation Date next following the transfer of employment. Prior to
any such transfer, the portion of such Accounts attributable common
stock of the Company shall be converted to cash.
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ARTICLE VI
LOANS
6.1 LOANS
(a) The Committee (or the Recordkeeper if designated to do so by
the Committee) may make loans to Participants who are Eligible
Employees from their Accounts, provided that such loans are
made available to all such Participants on a reasonably
equivalent basis. The following rules will apply to loans made
under this Section:
(i) Loans will be made in cash, no loan will be made in
an amount of less than $500 and no more than one loan
can be outstanding at any time. No loan, together
with accrued interest thereon, can exceed the lesser
of: (a) $50,000 (less the highest outstanding balance
of any loan made to the Participant under the Plan
during the 12-month period preceding the date of the
loan) or (b) 50% of the Vested Percentage of a
Participant's Accounts as of the Valuation Date
preceding the date of the loan.
(ii) No loan can be for a term of less than 1 year or more
than 5 years, except that loans used to acquire the
principal residence of a Participant may, under the
rules of the Committee, be for a longer term but not
to exceed 30 years.
(iii) The Participant must pledge in writing 50% of the
Vested Percentage of his Accounts, plus such other
collateral as the Committee may require to secure
repayment of the loan, including without limitation a
payroll deduction authorization for any period of
employment. The Committee will have the right to use
the collateral to remedy any default on the loan, as
well as to take any other steps in the event of such
a default. The Participant must also consent in
writing at the time the loan is made to the
Committee's right to reduce the Participant's Account
balances to remedy any default on the loan. If a
Participant who is on a leave of absence for a period
not to exceed one year due to disability, pregnancy
or layoff fails to make installment payments during
such period, such failure to pay will not constitute
a default so long as the outstanding balance of the
loan is fully satisfied within sixty months from the
date the loan is debited against the Participant's
Accounts, except for loans used to acquire the
principal
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residence of a Participant in which case the
outstanding balance of the loan must be satisfied
within three hundred-sixty months from the date the
loan is debited against the Participant's Account.
(iv) Each loan must be evidenced by a written promissory
note in the form provided by the Committee, the terms
of which provide, among other things, that repayment
be made no less frequently than in substantially
level quarterly payments of principal and interest;
provided, however, loan repayments will be suspended
under the Plan as permitted under Section 414(u) of
the Code.
(v) A Participant who receives a loan under the Plan
shall be responsible for the origination and
processing fees related to such loan in accordance
with rules adopted by the Committee.
(vi) All loans will be debited against the Participant's
Accounts on a priority basis established by the
Committee. The promissory note executed by the
Participant will be credited as an asset to the
Participant's appropriate Account(s) and principal
and interest on it will be credited to such
Participant's Account(s) as collected and paid to the
Trustee.
(vii) No loan can be made to a married Participant unless
such Participant's spouse provides his or her
written, notarized consent to the making of the loan
on a form provided by the Committee.
(b) The Committee shall adopt written plan loan rules which rules
are hereby incorporated into the Plan. The plan loan rules
shall include the following information:
(i) The procedure for Participants to follow in applying
for loans under the Plan, including the loan
processing fee, if any;
(ii) The basis on which loans from the Plan will be
approved or denied;
(iii) The limitations on the types and amounts of loans
offered under the Plan;
(iv) The procedure employed by the Committee in
determining the rate of interest on loans from the
Plan;
(v) The types of collateral that may secure a loan under
the Plan; and
(vi) The events constituting a default and the steps that
will be taken to preserve Plan assets.
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ARTICLE VII
WITHDRAWALS
7.1 WITHDRAWALS AFTER AGE 59 1/2
A Participant who has attained at least age 59 1/2 may withdraw from
his Accounts an amount not to exceed the Vested Percentage thereof
(determined as of the Valuation Date coincident with or next preceding
the date of the Participant's withdrawal request). Such withdrawal may
be made only on a form provided by the Committee (or by the
Recordkeeper if designated to do so by the Committee). A Participant
shall receive the requested funds as soon as practicable following the
receipt and approval of such form by the Committee (or by the
Recordkeeper if designated to do so by the Committee).
7.2 HARDSHIP WITHDRAWALS
A Participant who has not attained age 59 1/2 and has taken the maximum
loan permitted under Article VI may withdraw from his Rollover and
Salary Deferral Contribution Accounts, in the order specified below, an
amount not to exceed the Vested Percentage thereof (determined as of
the Valuation Date coincident with or next preceding the date of the
Participant's withdrawal request, but excluding earnings credited to
his Salary Deferral Account on or after January 1, 1989). Such
withdrawal may be made only on a form provided by the Committee (or by
the Recordkeeper if designated to do so by the Committee) and is only
permissible if (i) and (ii) are satisfied:
(i) The withdrawal is on account of one of the following immediate
and heavy financial needs:
(1) medical expenses for the Participant, his spouse and
dependents, including medical expenses not yet
incurred but which are necessary to obtain necessary
medical services;
(2) the purchase (excluding mortgage payments) of a
principal residence for the Participant;
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(3) the payment of room and board, tuition and related
educational fees for the next 12 months of post
secondary education for the Participant, his spouse,
children, or dependents.
(4) a payment to prevent eviction from or foreclosure on
the Participant's principal residence; and
(5) any other financial hardship adopted by the Company
that may be established from time to time by the
Secretary of the Treasury as a deemed immediate and
heavy financial need through publication of rulings,
notices and other documents of general applicability,
rather than on an individual basis.
(ii) The amount of the withdrawal is not in excess of the amount
necessary to meet the need, and such need may not be satisfied
from other resources that are reasonably available to the
Participant. In this regard, the Committee (or the
Recordkeeper if designated to do so by the Committee) may
reasonably rely upon the Participant's representation that the
need cannot be relieved:
(1) through reimbursement or compensation by insurance or
otherwise,
(2) by reasonable liquidation of the Participant's
assets, to the extent such liquidation would not
itself cause an immediate and heavy financial need,
(3) by cessation of the Participant's Salary Deferral
Contributions under the Plan, or
(4) by other distributions or nontaxable (at the time of
the loan) loans from the Plan or any other employee
benefit plan in which the Participant participates,
or by borrowing from commercial sources on reasonable
commercial terms. For purposes of this paragraph, the
Participant's resources shall be deemed to include
those assets of his spouse and minor children that
are reasonably available to the Participant.
The Participant shall receive the approved amount of his
hardship withdrawal request as soon as reasonably practicable
following review and approval of his withdrawal form by the
Committee and/or the Recordkeeper. Amounts withdrawn pursuant
to such request shall come first from the Participant's
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Rollover Account (if any), next from his Prior Pension
Contribution Account, and then from his Salary Deferral
Contribution Account based on the value of such Accounts on
the Valuation Date coincident with or preceding the date of
the withdrawal request. Withdrawal amounts will be deducted
from each Investment Fund in proportion to the percentage of
such Accounts of a Participant invested in each Investment
Fund.
7.3 LIMITS ON FREQUENCY OF WITHDRAWALS
The number of withdrawals of any kind in any 12-month period that a
Participant may make shall not exceed any limitation on the frequency
of withdrawals under procedures established by the Committee.
7.4 SUSPENSION OF SALARY DEFERRAL CONTRIBUTIONS
If a Participant makes a hardship withdrawal under Section 7.2, he
cannot make any further Salary Deferral Contributions for the following
12-month period commencing on the date such withdrawal is made. He may
elect to resume having Salary Deferral Contributions made to the Plan
on his behalf commencing as of the beginning of any Plan Year quarter
that is at least 12 months after the date of such withdrawal by
providing the Committee or Recordkeeper with written notice on a form
provided by the Committee.
7.5 LIMITATION ON SALARY DEFERRAL CONTRIBUTIONS
The amount of a Participant's Salary Deferral Contributions for the
calendar year following the calendar year in which a hardship
withdrawal is made shall be limited to the difference between the
maximum limit under Section 402(g)(5) of the Code for that calendar
year less the amount of his Salary Deferral Contributions for the
calendar year in which the withdrawal was made.
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ARTICLE VIII
PLAN ADMINISTRATION
8.1 COMMITTEE RESPONSIBILITY
The Company shall be responsible for and shall control and manage the
operation and administration of the Plan. The Company has the duties
and obligations of an "administrator", as defined in Section 3(16)(A)
of ERISA, and of a "plan administrator", as defined in Section 414(g)
of the Code, including, but not limited to, the exclusive authority to
appoint and remove investment managers and designate Investment Funds
for investment of contributions under the Plan. The Company shall
appoint a Committee (which may be the Pension Committee under the
Amcast Industrial Corporation Merged Pension Plan) of at least one
person to act as the agent of the Company in performing some of these
duties. The members of the Committee shall serve at the pleasure of the
Company. They may be officers, directors, or employees of the Company
or any other individuals. Any member may resign by delivering his
written resignation to the Company and to the Committee. Vacancies in
the Committee arising by resignation, death, removal or otherwise shall
be filled by the Company. The Company shall advise the Trustee in
writing of the names of the members of the Committee and of changes in
membership from time to time.
8.2 POWERS AND DUTIES OF COMMITTEE
The Committee has all authority which is necessary or appropriate for
the operation and administration of the Plan, including the following:
(a) To interpret the provisions of the Plan and to resolve
ambiguities, inconsistencies and omissions related thereto.
(b) To adopt such rules, procedures and forms as are necessary for
the operation and administration of the Plan and are
consistent with its provisions.
(c) To determine all questions relating to the eligibility,
benefits and other rights of Eligible Employees, Participants
and Beneficiaries under the Plan and to resolve ambiguities,
inconsistencies and omissions related thereto.
(d) To determine the amount payable from Accounts and to authorize
and direct all payments made under the Plan.
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(e) To keep all records necessary for the operation and
administration of the Plan, to the extent such records are not
kept by the Trustee.
(f) To designate or employ actuaries, accountants, counsel,
trustees, investment managers, recordkeepers and other
specialists (who may also be persons employed by an Employer)
and direct them to exercise the powers of the Committee.
8.3 COMMITTEE'S RELIANCE
The Committee may rely on any certificate or statement or other
representation made on behalf of an Employer which the Committee in
good faith believes to be genuine, and on any certificate, statement,
report or other representation made to it by any agent, attorney,
accountant or other expert retained by the Committee or an Employer in
connection with the operation and administration of the Plan.
8.4 PAYMENT OF PLAN EXPENSES
All expenses of operating and administering the Plan and Trust,
including, but not limited to, fees of any agents and counsel hired by
the Committee under the Plan, may be paid by the Company, and to the
extent not paid by the Company, will be paid from the Trust.
8.5 COMPENSATION AND EXPENSES OF COMMITTEE
No bond or other security will be required of the Committee except as
provided by law. Unless otherwise determined by the Company, the
Committee shall serve without compensation for services as such, but
all expenses of the Committee shall be paid by the Plan, including any
expenses incident to the functioning of the Committee, including
without limitation, fees of actuaries, accountants, counsel, Trustees,
investment managers and other specialists, and other costs of
administering the Plan, unless the Company should elect to pay any of
these expenses. The Company's election to pay any of these expenses
shall not operate to enlarge the Company's obligations hereunder or to
require it to continue paying for any such expenses.
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8.6 INDEMNIFICATION
The Committee, a Partner, or any employee of a Partner or of the parent
corporation of a Partner who is otherwise held to be a fiduciary of the
Plan shall be indemnified and saved harmless by the Company from and
against any and all claims, expenses and liabilities, joint and several
arising from any action or failure to act in connection with the
administration of the Plan, except when the same is judicially
determined to be due to the gross negligence or willful misconduct of
such person. For purposes of this section, "Partner" means Amcast
Casting Technologies, Inc., a wholly owned subsidiary of Amcast
Industrial Corporation, or Izumi, Inc., a wholly owned subsidiary of
Izumi Industries, Ltd.
8.7 CLAIMS PROCEDURE
The Committee may direct any payments to which it determines a
Participant or Beneficiary is entitled under the Plan without a claim
or application for payment by any person. If, however, any person
claims payments under the Plan in addition to those paid to him in
accordance with the previous sentence, and the Committee denies such
claim, then:
(i) The Committee will notify the applicant in writing of such
denial, with such notice setting forth the specific reasons
for such denial and written in a manner calculated to be
understood by the applicant;
(ii) The applicant will be afforded a reasonable opportunity for a
full and fair review by the Committee of the decision denying
his claim for payment; and
(iii) The Committee will notify the applicant of its decision
following review. Such decision will be conclusive and
binding.
The Committee will adopt rules for implementing this Section which are
consistent with Department of Labor Regulations Section 2560.503-1.
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ARTICLE IX
AMENDMENT AND TERMINATION
9.1 AMENDMENT OF THE PLAN
The Company may amend the Plan at any time. Subject to Section 11.1, no
amendment will cause any part of the Trust to be used for, or diverted
to, any purpose other than the exclusive benefit of Participants or
their Beneficiaries or operate retroactively so as to affect adversely
the rights of any Participant or Beneficiary to accrued benefits as
defined by Section 206(g) of ERISA. No amendment shall cause or effect
discrimination in favor of officers, shareholders, or Highly
Compensated Employees which affects the tax-qualified status of the
Plan.
9.2 AMENDMENTS AFFECTING VESTING OR BENEFITS
No amendment of this Plan shall deprive a Participant of the Vested
Percentage to which he is entitled as of the effective date of the
amendment computed without regard to the amendment. Further, if a Plan
amendment impacts vesting of benefits hereunder, each Participant with
at least 3 Years of Service may elect to have his Vested Percentage
determined under the Plan without regard to such amendment to the
extent provided for by provisions of Treasury Regulation Section 1-411
(a)-8(b).
9.3 VOLUNTARY TERMINATION OF THE PLAN
The Company expects the Plan to be permanent, but since future
conditions affecting the Company and Employers cannot be anticipated,
the Company shall have the right to terminate the Plan in whole or in
part at any time by giving written notice of such termination to the
Trustee. Such resolution must specify the effective date of termination
which shall not be earlier than the date of resolution.
9.4 AUTOMATIC TERMINATION OF THE PLAN
The Plan shall automatically terminate if the Company is legally
adjudicated bankrupt or insolvent, makes a general assignment for the
benefit of creditors, or is dissolved. In the event of the merger or
consolidation of the Company with or into any other entity, or the
transfer of substantially all of the assets of the Company to another
entity, the successor entity resulting from the consolidation or
merger, or transfer of such assets, as the case may be, shall have the
right to adopt and continue the Plan and succeed to the position of the
Company hereunder. Nothing in this Plan shall prevent
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the dissolution, liquidation, consolidation or merger of any Employer,
or the sale or transfer of all or substantially all of an Employer's
assets.
9.5 PAYMENTS ON TERMINATION OF THE PLAN
Upon termination of the Plan, or upon partial termination of the Plan
by operation of law, or upon the complete discontinuance of Employer
contributions, the following procedures shall be followed (in the event
of a partial termination it shall be followed only in cases of those
Participants and Beneficiaries directly affected):
(i) The Committee may continue to function, but if it fails to do
so, its records, books of account and other necessary data
shall be turned over to the Trustee and the Trustee shall act
on its own motion as hereinafter provided.
(ii) Notwithstanding any other provisions of the Plan, all
interests of Participants shall become fully vested and
nonforfeitable.
(iii) The value of the Trust and the shares of all Participants and
Beneficiaries shall be determined as of the date of
termination.
(iv) Distribution to Participants and Beneficiaries shall be made
at such time after termination of the Plan and by such of the
methods provided in Article V; provided that the Committee (or
the Trustee if no Committee is then acting) may, in its
discretion, make a distribution of benefits to each
Participant in a single lump sum cash payment.
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ARTICLE X
MISCELLANEOUS
10.1 APPROVAL UNDER INTERNAL REVENUE CODE
None of the assets of the Trust will revert to any Employer or be used
for or diverted to purposes other than the exclusive benefit of
Participants and Beneficiaries or to defray reasonable expenses of the
Plan and Trust; provided, that:
(i) Employer contributions are conditioned on a determination by
the Secretary of the Treasury or his delegate that the Plan
and Trust "qualify" under Section 401 of the Code, and if such
a determination is not given, following the initial
application by the Trustee, the Trustee will, upon the request
of any Employer, return to it the amount of its contribution
for any Plan Year for which the Plan and Trust fail to
qualify, adjusted by any Trust Fund gains or losses, within
one calendar year after the date the Committee receives notice
that the Plan and Trust fail to qualify upon an initial
determination;
(ii) Employer contributions to the Plan are conditioned upon the
deductibility of the contributions under Section 404 of the
Code, and, to the extent any such deduction is disallowed, the
Trustee will, upon written request of an Employer, return the
amount of the contributions (to the extent disallowed),
adjusted by any Trust Fund gains or losses, to that Employer
within one year after the date the deduction is disallowed;
(iii) If a contribution or any portion thereof is made by an
Employer by a mistake of fact, the Trustee will, upon the
request of an Employer, return the amount of the contribution
or such portion, adjusted for any earnings or losses thereon,
to the Employer within one year after the date of payment to
the Trustee; and
(iv) If, upon complete termination of the Plan, any assets remain
in the Trust after all payments required by Section 9.5 have
been made, the Trustee will, upon request of an Employer,
return such assets to such Employer.
<PAGE> 43
Page 43
10.2 LIMITATION ON TRUST ASSETS
No person has any right to, or interest in, any assets of the Trust,
except as provided under the Plan. All payments provided for in the
Plan will be made solely out of the assets of the Trust and neither
the Committee, the Trustee nor any Employer assumes any liability or
responsibility for such payments. The Trust is not in any manner
liable for, or subject to, the debts, contracts, liabilities or torts
of any person entitled to payments under the Plan.
10.3 ACCOUNT NON-TRANSFERABLE
Amounts payable under the Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy of any kind,
either voluntary or involuntary, prior to actually being received by
the person entitled to such amount under the terms of the Plan, and
any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to benefits
payable under the Plan will be void; except where such an assignment
is directed under the terms of a "qualified domestic relations order"
("QDRO") (as such term is defined under Section 414(p) of the Code),
and determined to be appropriate under uniform procedures to be
adopted by the Company. An "Alternate Payee" as defined in Section
414(p) of the Code may receive payment of the amount assigned to such
Alternate Payee under a domestic relations order as soon as
practicable after the Committee determines that such order
constitutes a QDRO under Code Section 414(p).
10.4 NO ENLARGEMENT OF EMPLOYMENT RIGHTS
Nothing contained in the Plan shall be construed as a contract of
employment between an Employer and any person, nor shall the Plan be
deemed to give any person the right to be retained in the employ of
an Employer or to limit the right of an Employer to employ or
discharge any person with or without cause, or to discipline any
employee.
10.5 MERGER OR CONSOLIDATION OF PLAN
Any merger or consolidation of the Plan with another qualified Plan,
or transfer of Plan assets or liabilities to any other Plan, shall be
effected in accordance with applicable federal regulations and in
such a manner that each Participant in the Plan would receive, if the
merged, consolidated or transferee plan were terminated, immediately
following such event, a benefit which is equal to or greater than the
<PAGE> 44
Page 44
benefit he would have been entitled to receive if the Plan had
terminated immediately before such event.
10.6 UNCLAIMED FUNDS
Each Participant shall keep the Committee informed of his current
address and the current address of his Beneficiary. Neither an
Employer, the Committee nor the Trustee shall be obligated to search
for the whereabouts of any person. If the location of a Participant
is not made known to the Committee within three years after the date
on which the Participant's Account became payable, the Committee may
deposit in an interest bearing bank account the amount payable to
such Participant for the benefit of such Participant and his
Beneficiary.
10.7 EFFECTIVE NOTICE
Any communication, statement or notice addressed and mailed, postage
prepaid, to a Participant or Beneficiary at his last Post Office
address filed with the Committee will be effective notice upon such
person for all purposes of the Plan, and neither the Committee, the
Trustee nor any Employer must search for or locate any such person.
10.8 SEVERABILITY OF PLAN PROVISIONS
If any provision of this Plan is held illegal or invalid for any
reason, such illegality or invalidity will not affect the remaining
provisions; instead, each provision is fully severable and the Plan
will be construed and enforced as if any illegal or invalid provision
had never been included.
10.9 APPLICABLE LAW
Except as provided by federal law, all questions pertaining to the
validity, construction and administration of the Plan shall be
determined under the laws of Ohio.
10. 10 GENDER AND NUMBER
Except as otherwise required by the context, any masculine
terminology in this document shall include the feminine, and any
singular terminology shall include the plural.
<PAGE> 45
Page 45
IN WITNESS WHEREOF, AMCAST INDUSTRIAL CORPORATION hereby adopts the amended and
restated Plan effective September 1, 1997.
AMCAST INDUSTRIAL CORPORATION
By:
-------------------------
Dated:
----------------------
<PAGE> 46
AMCAST INDUSTRIAL CORPORATION
401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES - PLAN 2
APPENDIX A
The term "Eligible Employee" is limited to the following Employees:
1) Effective September 1, 1997, Bargaining unit Employees located
at the Amcast Automotive Richmond, Indiana plan who are
members of the United Autoworkers of America, Local 2374.
2) Effective December 1, 1997, Bargaining unit Employees located
at the Amcast Superior Valve Company plant who are members of
the United Steelworkers of America, Local 5944.
3) Effective June 1, 1998, Bargaining unit Employees located at
the Amcast Automotive Cedarburg Wisconsin plant who are
members of the Glass, Molders, Pottery, Plastics & Allied
Workers International Union, AFL-CIO, CLC, Local 185.
<PAGE> 47
AMCAST INDUSTRIAL CORPORATION
401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES - PLAN 2
APPENDIX B
The following Participants are eligible for Basic Matching Contributions:
3) Effective September 1, 1997, Bargaining unit Employees located
at the Amcast Automotive Richmond, Indiana plant who are
members of the United Autoworkers of America, Local 2374.
<PAGE> 48
SPECIFICATIONS FOR THE REVISION AND RESTATEMENT OF THE
AMCAST INDUSTRIAL CORPORATION 401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES
AND THE
AMCAST CORPORATION 401(k) SALARY DEFERRAL PLAN
FOR BARGAINING UNIT EMPLOYEES - PLAN 2
1. There will be a short plan year from September 1, 1999 through December 31,
1999 and thereafter, the plan year will be the 12 month period ended year
December 31.
2. The non-elective cash-out threshold for the accounts of terminated employees
will be raised from $3,500 to $5,000.
3. Employees subject to the non-elective cash-out who do not elect a cash
distribution attributable to their Amcast stock within 90 days following the
date at which they are notified of their distribution rights, will automatically
receive their stock.
4. Technical changes required by 1996 and subsequent legislation and regulatory
action will be made, as applicable to the Plan.
<PAGE> 1
Exhibit 5.1
THOMPSON HINE & FLORY LLP
2000 COURTHOUSE PLAZA, N.E.
P.O. BOX 8801
DAYTON, OHIO 45401-8801
(937) 443-6600
October 26, 1999
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45401
Ladies and Gentlemen:
We have acted as counsel to Amcast Industrial Corporation, an Ohio corporation
(the "Company"), in connection with the Amcast Industrial Corporation 401(k)
Salary Deferral Plan for Bargaining Unit Employees - Plan 2 (the "Plan") and the
preparation of the Company's Registration Statement on Form S-8 being filed with
the Securities and Exchange Commission in connection therewith.
Please be advised that we have examined such proceedings and records of the
Company, and have made investigation of such other matters, as in our judgment
permits us to render an informed opinion on the matters set forth herein.
Based upon the foregoing, it is our opinion that the common shares of the
Company to be offered and sold under the Plan have been duly authorized and when
sold in accordance with the terms of the Plan, will be fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/ Thompson Hine & Flory LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Amcast Industrial Corporation 401(k)
Salary Deferral Plan for Bargaining Unit Employees - Plan 2 of our report dated
October 13, 1998, with respect to the consolidated financial statements and
schedule of Amcast Industrial Corporation incorporated by reference in its
Annual Report (Form 10-K) for the year ended August 31, 1998.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Dayton, Ohio
October 19, 1999
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amcast Industrial Corporation 401(k) Salary Deferral Plan
for Bargaining Unit Employees - Plan 2 of our report dated February 18, 1999,
with respect to the financial statements and schedule of Amcast Industrial
Corporation 401(k) Salary Deferral Plan for Bargaining Unit Employees - Plan 2
included in this Annual Report (Form 11-K) for the year ended August 31, 1998.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Dayton, Ohio
October 19, 1999
<PAGE> 1
Exhibit 24.1
AMCAST INDUSTRIAL CORPORATION
LIMITED POWER OF ATTORNEY
WHEREAS, Amcast Industrial Corporation, an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), (i) a Registration Statement
on Form S-8 covering 50,000 of its common shares, without par value, that may be
issued under the Company's Nonqualified Salary Deferral Plan and (ii) a
Registration Statement on Form S-8 covering 100,000 of its common shares,
without par value, that may be issued under the Company's 401(k) Salary Deferral
Plan for Bargaining Unit Employees--Plan 2 (together, the "Registration
Statements").
NOW THEREFORE, the undersigned, in his capacity as a director of
the Company, hereby appoints John H. Shuey and Denis G. Daly and each of them to
be his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to execute his name, place and stead, as
aforesaid, the Registration Statements and any post-effective amendments
thereto, and any and all other instruments necessary or incidental in connection
therewith, and to file the same with the Securities and Exchange Commission.
Said attorney shall have full power and authority to do and perform, in the name
and on behalf of the undersigned, every act whatsoever necessary or desirable to
be done, as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of said
attorney.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 26th day of May, 1999.
/s/ James K. Baker /s/ Leo W. Ladehoff
- ------------------------------------- -------------------------------------
James K. Baker Leo W. Ladehoff
/s/ Walter E. Blankley /s/ Earl T. O'Loughlin
- ------------------------------------- -------------------------------------
Walter E. Blankley Earl T. O'Loughlin
/s/ Peter H. Forster /s/ William G. Roth
- ------------------------------------- -------------------------------------
Peter H. Forster William G. Roth
/s/ Ivan W. Gorr /s/ R. William Van Sant
- ------------------------------------- -------------------------------------
Ivan W. Gorr R. William Van Sant
