<PAGE> 1
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE LAMSON & SESSIONS CO.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Ohio 34-0349210
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
25701 Science Park Drive, Cleveland, Ohio 44122-7313
(Address of principal executive offices including zip code)
THE LAMSON & SESSIONS CO. DEFERRED SAVINGS PLAN
(Full title of the plan)
James J. Abel
Executive Vice President, Secretary,
Treasurer and Chief Financial Officer
25701 Science Park Drive
Cleveland, Ohio 44122-7313
(Name and address of agent for service)
(216) 464-3400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares,
without par value(1) 300,000 shares $6.91(2) $2,073,000 (2) $611.54
</TABLE>
================================================================================
(1) Includes Preference Stock Purchase Rights that, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the
Common Shares. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers an indeterminate
amount of interests to be offered pursuant to The Lamson & Sessions Co.
Deferred Savings Plan.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, this estimate is
made solely for the purpose of calculating the amount of the registration
fee and is based on the average of the high and low prices of the Common
Shares on the New York Stock Exchange on February 23, 1998.
<PAGE> 2
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by The Lamson & Sessions Co. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year ended
January 3, 1998;
(2) Description of the Company's Common Shares, without par value,
contained in the Registration Statements filed by the Company under
Section 12 of the Securities Exchange Act of 1934 for purposes of
registering such security thereunder, and any amendments and reports
filed for purposes of updating that description; and
(3) Description of rights to purchase the Company's Cumulative Redeemable
Serial Preference Stock, Series II contained in the Registration
Statement on Form 8-A filed by the Company on August 25, 1988, as
amended on February 20, 1990, and any amendments and reports filed
for purposes of updating that description.
All documents that shall be filed by the Company or The Lamson & Sessions
Co. Deferred Savings Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 subsequent to the filing of
this registration statement and prior to the filing of a post-effective
amendment indicating that all securities offered under the Plan have been sold
or deregistering all securities then remaining unsold thereunder shall be
deemed to be incorporated herein by reference and shall be deemed to be a part
hereof from the date of filing thereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company's Amended Code of Regulations provides that the
Company shall indemnify its directors, officers, employees, and agents whose
conduct meets certain standards under prescribed conditions and subject to
various qualifications. Article VI of the Company's Amended Code of
Regulations is set forth in Exhibit 4(b) hereto and is incorporated herein by
reference.
II-1
<PAGE> 3
Reference is made to Section 1701.13(E) of the Ohio Revised Code relating
to indemnification of directors, officers, employees and agents of an Ohio
corporation.
The Company maintains insurance on behalf of any person who is or was
or shall become a director or officer against any loss, as defined, arising
from any claim, as defined, asserted against him in any such capacity, subject
to certain exclusions. In addition, the Company maintains a fiduciary liability
insurance policy which is designed to cover the Company and past, present and
future directors, officers, employees or trustees of the sponsor corporation or
plans while such persons are acting as fiduciaries of sponsored plans.
The Company has entered into indemnification agreements with each current
director as well as each of the Company's executive officers. Such agreements
provide that, to the extent permitted by Ohio law, the Company will indemnify
the director or officer against all expenses, costs, liabilities and losses
(including attorneys' fees, judgments, fines or settlements) incurred or
suffered by the director or officer in connection with any suit in which the
director or officer is a party or otherwise involved as a result of his service
as a director or as an officer if his conduct giving rise to such liability
meets certain prescribed standards.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4(a) Amended Articles of Incorporation of the Company (filed as Exhibit
4(a) to the Company's Registration Statement No. 333-32875 on Form
S-8 and incorporated herein by reference)
(b) Amended Code of Regulations of the Company (incorporated by reference
to Exhibit 3(b) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994)
(c) The Lamson & Sessions Co. Deferred Savings Plan, as amended
(d) Rights Agreement amended and restated as of February 14, 1990, by and
between the Company and National City Bank (incorporated by reference
to Exhibit 4(g) to the Company's Annual Report on Form 10-K for the
year ended December 30, 1995)
23 Consent of Independent Auditors
24 Power of Attorney
II-2
<PAGE> 4
UNDERTAKING:
The undersigned registrant has submitted the Plan, and will submit
any amendments thereto, to the Internal Revenue Service in a timely manner
and has made or will make, as the case may be, all changes required by the
Internal Revenue Service in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
II-3
<PAGE> 5
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.
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 this registration statement 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 Cleveland, State of
Ohio, on this 26th day of February, 1998.
THE LAMSON & SESSIONS CO.
By: /s/ James J. Abel
------------------------------------
James J. Abel
Executive Vice President, Secretary,
Treasurer and Chief Financial Officer
II-4
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John B. Schulze Chairman of the Board, February 26, 1998
- ------------------------- President and Chief
John B. Schulze Executive Officer (Principal
Executive Officer); Director
/s/ James J. Abel Executive Vice President, February 26, 1998
- ------------------------- Secretary, Treasurer and Chief
James J. Abel Financial Officer (Principal
Financial Officer)
/s/ Lori L. Spencer Vice President and Controller February 26, 1998
- -------------------------
Lori L. Spencer
*James T. Bartlett Director February 26, 1998
- -------------------------
James T. Bartlett
*Francis H. Beam, Jr. Director February 26, 1998
- -------------------------
Francis H. Beam, Jr.
*Martin J. Cleary Director February 26, 1998
- -------------------------
Martin J. Cleary
*William H. Coquillette Director February 26, 1998
- -------------------------
William H. Coquillette
*John C. Dannemiller Director February 26, 1998
- -------------------------
John C. Dannemiller
*George R. Hill Director February 26, 1998
- -------------------------
George R. Hill
*A. Malachi Mixon, III Director February 26, 1998
- -------------------------
A. Malachi Mixon, III
*John C. Morley Director February 26, 1998
- -------------------------
John C. Morley
*D. Van Skilling Director February 26, 1998
- -------------------------
D. Van Skilling
</TABLE>
II-5
<PAGE> 7
*This registration statement has been signed on behalf of the above-named
directors of the Company by James J. Abel, Executive Vice President,
Secretary, Treasurer and Chief Financial Officer of the Company, as
attorney-in-fact pursuant to a power of attorney filed with the Securities
and Exchange Commission as Exhibit 24 to this registration statement.
DATED: February 26, 1998 By: /s/ James J. Abel
----------------------------------
James J. Abel, Attorney-in-Fact
II-6
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Cleveland, State of
Ohio, on this 26th day of February, 1998.
THE LAMSON & SESSIONS CO. DEFERRED
SAVINGS PLAN
By: /s/ James J. Abel
--------------------------------------
James J. Abel
Executive Vice President, Secretary,
Treasurer and Chief Financial Officer
of The Lamson & Sessions Co.
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- ------ -------------------
<S> <C>
4(a) Amended Articles of Incorporation of the Company (filed as
Exhibit 4(a) to the Company's Registration Statement No.
333-32875 on Form S-8 and incorporated herein by reference)
4(b) Amended Code of Regulations of the Company (incorporated by
reference to Exhibit 3(b) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994)
4(c) The Lamson & Sessions Co. Deferred Savings Plan, as amended
4(d) Rights Agreement amended and restated as of February 14,
1990, by and between the Company and National City Bank
(incorporated by reference to Exhibit 4(g) to the Company's
Annual Report on Form 10-K for the year ended December 30,
1995)
23 Consent of Independent Auditors
24 Power of Attorney
</TABLE>
II-8
<PAGE> 1
Exhibit 4(c)
- --------------------------------------------------------------------------------
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
- --------------------------------------------------------------------------------
AS AMENDED AND RESTATED EFFECTIVE: December 31, 1988
<PAGE> 2
<TABLE>
<CAPTION>
ARTICLE TITLE PAGE
------- ------------------------------------- ----
<S> <C> <C>
I Preliminary Matters 1-1
II Definitions 2-1
III Eligibility and Participation 3-1
IV Participant Accounts 4-1
V Salary Reduction 5-1
VI Employer Contributions 6-1
VII Limitations on Contributions 7-1
VIII Voluntary and Rollover Contributions 8-1
IX Direction of Investments 9-1
X Retirement and Disability Benefits 10-1
XI Vesting and Termination of Employment 11-1
XII Distribution of Benefits 12-1
XIII Benefits Payable Upon Death 13-1
XIV Withdrawals From Accounts 14-1
XV Plan Administration 15-1
XVI The Trustee 16-1
XVII Amendment and Termination of Plan 17-1
XVIII Limitations on Annual Additions 18-1
XIX Top-Heavy Provisions 19-1
XX Loans 20-1
XXI Insurance Policies 21-1
XXII Miscellaneous Provisions 22-1
</TABLE>
(ii)
<PAGE> 3
AMENDMENT AND RESTATEMENT
OF
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
- --------------------------------------------------------------------------------
THIS AMENDMENT AND RESTATEMENT is entered into by and between THE LAMSON &
SESSIONS CO., a corporation organized and existing under and by virtue of the
laws of the State of Ohio (hereinafter called the "Principal Employer" and the
"Employer"), and C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO, the
individual trustees hereunder (hereinafter collectively called the "Trustee");
W I T N E S S E T H:
WHEREAS, on September 5, 1986 the Principal Employer established The
Lamson & Sessions Co. Deferred Savings Plan (hereinafter called the "Plan"),
effective December 1, 1985; and
WHEREAS, the Plan has been amended since its establishment; and
WHEREAS, effective January 1, 1992, The Lamson & Sessions Co. Carlon
Division Deferred Savings Plan was merged into the Plan; and
WHEREAS, it is the desire of the Principal Employer to amend and
restate the Plan in order to bring it into compliance with the Tax Reform
Act of 1986 and regulations issued thereunder and various other laws and
regulations currently in effect, and to make certain other necessary and
desirable changes;
NOW THEREFORE, the Principal Employer hereby amends and restates the Plan
effective, except as otherwise provided herein, as of December 31, 1988, as
follows:
iii
<PAGE> 4
ARTICLE I
Preliminary Matters
-------------------
1.1 Name of Plan. The Plan shall continue to be known as The Lamson
& Sessions Co. Deferred Savings Plan.
1.2 Purpose of Plan. The purpose of the Plan is to provide retirement
and other benefits for those Employees who qualify for participation under
the terms of the Plan. It is intended that the Plan shall constitute a
qualified profit-sharing plan and trust within the meaning of Section 401(a)
of the Code and a cash or deferred arrangement within the meaning of
Section 401(k) of the Code. It is further intended that the Plan be exempt
from the joint and survivor annuity and preretirement survivor annuity
requirements of Section 401(a) (11(A) of the Code to the extent permitted by
Section 401(a) (11) (B) of the Code.
1.3 Participation by More Than One Employer. Except as otherwise provided
by the Plan, if there is more than one Employer participating under the Plan,
the Plan shall be construed as if it constituted a separate plan for each
Employer; however (1) an Employee's Hours of Service, Years of Service,
Compensation, employment and termination of employment shall be determined as
if all Employers were a single Employer, (2) the limitation on Deferral
Percentages under Article VII shall be determined as if all Employers were a
single Employer, and (3) the Principal Employer shall have the sole authority
and responsibility for the administration, control and management of the Plan
as more fully provided in various Sections of the Plan. An Employer who adopts
the Plan with the approval of the Principal Employer (pursuant to Section 2.11)
after the Effective Date shall become a party to this agreement without further
formality. The Principal Employer shall cause copies of such adoption and
approval to be delivered to the Trustee.
1-1
<PAGE> 5
ARTICLE II
Definitions
-----------
Unless otherwise required by the context, the following words and phrases
used in the Plan shall have the meanings set forth in this Article II.
2.1 "Additional Employer Contribution Account" shall mean an account
established for a Participant pursuant to Section 4.1(b).
2.2 "Affiliate" shall mean any corporation or business organization during
any period during which it is a member of a controlled group of corporations or
trades or businesses which includes the Employer within the meaning of Sections
414(b) and 414(c) of the Code or is a member of an affiliated service group
which includes the Employer within the meaning of Section 414(m) of the Code.
2.3 "Beneficiary" shall mean any individual(s) or legal entity designated
by a Participant pursuant to Section 13.4 to receive any benefits which may be
payable under the Plan by reason of the death of the Participant.
2.4 "Board of Directors" shall mean the Board of Directors of the
Principal Employer.
2.5 "Carlon Plan" shall mean The Lamson & Sessions Co. Carlon Division
Deferred Savings Plan.
2.6 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.7 "Compensation" shall generally mean taxable remuneration paid to a
Participant for services rendered to the Employer which must be reported as
wages on the Participant's Form W-2 for income tax purposes. "Compensation"
shall be increased for salary reduction amounts which are excluded from the
taxable income of the Participant under Sections 125, 402(e) (3) and 402(h) of
the Code. "Compensation" shall be reduced by all of the following amounts even
if they are taxable to the Participant:
(a) expense reimbursements, expense allowances or moving expenses;
(b) cash and non-cash fringe benefits and welfare benefits;
(c) deferred compensation.
2-1
<PAGE> 6
In addition, on or after the Restatement Date and prior to January 1,
1994, a Participant's "Compensation" shall not exceed Two Hundred Thousand
Dollars ($200,000) (plus any increase for cost-of-living as shall be prescribed
by the Secretary of the Treasury pursuant to Sections 401(a) (17) and 415(d) of
the Code). On or after January 1, 1994, a Participant's "Compensation" shall
not exceed One Hundred Fifty Thousand Dollars ($150,000) (plus any adjustment
for cost-of-living or otherwise as shall be prescribed by the Secretary of the
Treasury pursuant to Sections 401(a) (17) and 415(d) of the Code). In
determining the limit on "Compensation" set forth in the preceding sentences,
the family aggregation rules contained in Section 414(q) (6) of the Code shall
apply, except that in applying such rules, the term "family" shall include only
the spouse of the Participant and any lineal descendants of the Participant who
have not attained age nineteen (19) before the close of the calendar year. If,
as a result of the application of such family aggregation rules, the limit on
"Compensation" set forth above is exceeded, the amount of each family member's
"Compensation" which shall count toward the limit shall equal that portion of
the limit which bears the same relationship to the limit as such family
member's "Compensation" as determined under this Section 2.7 prior to the
application of such "Compensation" limit ("Unlimited Compensation") bears to
the total Unlimited Compensation of all the family members.
2.8 "Effective Date" of the Plan shall mean December 1, 1985.
2.9 "Eligible Employee" shall mean any Employee, other than a Leased
Employee, who has satisfied the eligibility requirements of Section 3.1 and is
eligible to participate in the Plan.
2.10 "Employee" shall mean any person, including a Leased Employee, who
is:
(a) employed by the Employer as a salaried employee, but excluding a
person who is employed at the Employer's Carlon Division for
periods prior to January 1, 1992; or
(b) for periods commencing on or after December 31, 1989 and ending
prior to May 27, 1994, employed as an hourly employee at the
Midland Steel Products Division of The Lamson & Sessions Co.
Janesville, Wisconsin plant; or
(c) for periods commencing on or after April 1, 1993, employed as an
hourly paid employee at the Clinton, Iowa Plant of the
Employer's Carlon Division and who is a member of the collective
bargaining unit represented by the Plastic Workers Local Union
No. 18 of the Plastics Workers Union, AFL-CIO; or
2-2
<PAGE> 7
(d) for periods commencing on or after January 1, 1994, employed as
an hourly paid employee at the Bowling Green, Ohio Plant of the
Employer; or
(e) for periods commencing on or after January 1, 1994 and ending
prior to May 27, 1994, employed as a plant guard at the Midland
Steel Products Division of The Lamson & Sessions Co. -
Cleveland, Ohio plant and who is a member of the collective
bargaining unit represented by the National Production Workers
of Cleveland, Local 707; or
(f) for periods commencing on or after April 1, 1994, employed as an
hourly paid employee at the Employer's Valley-Todeco Division,
other than a person who is employed for one or more specified
job contracts or who is in a class of employees which generally
works less than five hundred (500) Hours of Service in any given
calendar year; or
(g) for periods commencing on or after July 1, 1994, employed as an
hourly paid employee at the Woodland, California Plant of the
Employer's Carlon Division; or
(h) for periods commencing on or after January 1, 1995, employed as
an hourly paid employee at the Oklahoma City, Oklahoma Plant of
the Employer's Carlon Division; or
(i) for periods commencing on or after January 1, 1995, employed as
an hourly paid employee at the Pasadena, Texas Plant of the
Employer's Carlon Division.
For purposes of subparagraph (f) above, an employee will be deemed to be an
employee "for specified job contracts" if his job contract with the
Valley-Todeco Division of the Employer is in writing and terminates upon
completion of said specified job contract.
2.11 "Employer" shall mean The Lamson & Sessions Co. and any Affiliate
which is designated by the Board of Directors as entitled to adopt the Plan for
its eligible Employees, and does so by a vote of its governing body; and any
successor to any of the foregoing.
2.12 "Employer Account" shall mean a Participant's Additional Employer
Contribution Account on the Restatement Date and shall mean a Participant's
Matching Employer Contribution Account and Additional Employer Contribution
Account after the Restatement Date.
2-3
<PAGE> 8
2.13 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any regulations issued pursuant
thereto.
2.14 "Group Annuity Policy" shall mean any group annuity policy or
policies issued by the Insurance Company to the Trustee for purposes of funding
all or a portion of the benefits of the Plan pursuant to Section 16.2.
2.15 "Highly Compensated Employee" shall mean any Employee or former
Employee who is highly compensated for a Plan Year as described in Section
414(q) of the Code, which is hereby incorporated by reference. A Highly
Compensated Employee is described herein for informational purposes as an
Employee during a Plan Year if either:
(a) during the preceding Plan Year, he:
(i) was at any time a five percent (5%) or more actual or
constructive owner of the Employer; or
(ii) received Total Compensation (as defined in Section 7.1(e))
from the Employer in excess of Eighty-One Thousand Seven
Hundred Twenty Dollars ($81,720.00) (plus any increase for
cost-of-living as shall be prescribed by the Secretary of
the Treasury pursuant to Section 414(q) (1) of the Code);
or
(iii) received Total Compensation (as defined in Section 7.1(e))
from the Employer in excess of Fifty-Four Thousand Four
Hundred Eighty Dollars ($54,480.00) (plus any increase for
cost-of-living as shall be prescribed by the Secretary of
the Treasury pursuant to Section 414(q) (1) of the Code)
and was in the "top paid group" of employees of the
Employer for such Plan Year; or
(iv) was at any time an officer of the Employer and received
Total Compensation (as defined in Section 7.1(e)) greater
than fifty percent (50%) of the amount in effect under
Section 415(b) (1) (A) of the Code for such Plan Year (plus
any increase for cost of living as determined by the
Secretary of the Treasury or his delegate); or
(b) during the current Plan Year, he either:
2-4
<PAGE> 9
(i) was at any time a five percent (5%) or more actual or
constructive owner of the Employer; or
(ii) was one of the one hundred (100) highest paid employees of
the Employer for the current Plan Year and meets the
requirements of (a) (ii), (a) (iii) or (a) (iv) above for
the current Plan Year.
For purposes of determining the members of the "top paid group" under
subparagraph (a) (iii) above, an Employee is a member of the top paid group for
any Plan Year if for such Plan Year the Employee is a member of a group
consisting of the top paid twenty percent (20%) of employees of the Employer
ranked on the basis of Total Compensation (as defined in Section 7.1(e)) from
the Employer during the Plan Year. In determining the members of the top paid
group, the following employees shall be excluded:
(A) employees who have not completed six (6) months of service;
(B) employees who normally work less than seventeen and one-half
(17-1/2) hours per week;
(C) employees who normally work not more than six (6) months during
any year;
(D) employees who have not attained age twenty-one (21);
(E) except to the extent provided in regulations, employees who are
included in a unit of employees covered by an agreement which
the Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and the Employer; and
(F) employees who are nonresident aliens and who receive no earned
income (within the meaning of Section 911(d) (2) of the Code)
from the Employer which constitutes income from sources within
the United States (within the meaning of Section 861(a) (3) of
the Code).
The Employer may elect (in such manner as may be provided by the Secretary of
the Treasury or his delegate) to apply subparagraph (A), (B), (C), or (D) above
by substituting a shorter period of service, smaller number of hours or months,
or lower age for the period of service, number of hours or months, or age (as
the case may be) than that specified in such subparagraph.
2-5
<PAGE> 10
For purposes of determining the number and identity of "officers" in
subparagraph (a) (iv) above:
(I) The total number of employees treated as officers shall be
limited to the lesser of:
(l) fifty (50); or
(2) the greater of three (3) employees or ten
percent (10%) of all employees of the Employer; but
(II) If no employee would be described as an officer pursuant to
subparagraph (a) (iv) above, the highest paid officer shall be
treated as described in such subparagraph.
A Highly Compensated Former Employee is described herein for informational
purposes as a former Employee if either:
(a) such Employee was a Highly Compensated Employee when he
terminated employment; or
(b) such Employee was a Highly Compensated Employee at any time
after attaining age fifty-five (55).
If any individual is a member of the family of a five percent (5%) owner
or of a Highly Compensated Employee in the group consisting of the ten (10)
Highly Compensated Employees paid the greatest Total Compensation (as defined
in Section 7.1(e)) by the Employer during the Plan Year, then for purposes of
any Section of the Plan which uses the term Highly Compensated Employee, (A)
such individual shall not be considered a separate employee, and (B) any such
Total Compensation paid to such individual by the Employer (and any applicable
contribution on behalf of such individual) shall be treated as if it were paid
to (or on behalf of) the Highly Compensated Employee. For purposes of the
foregoing and except as provided in Section 2.7 hereof, the word "family" shall
mean, with respect to any employee, such employee's spouse and lineal
ascendants or descendants and the spouses of such lineal ascendants or
descendants.
Solely for purposes of determining Highly Compensated Employees, an
Affiliate shall also be deemed to be the Employer.
2.16 "Hour of Service" shall mean:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer or any Affiliate.
Hours under this paragraph (a) shall be credited to the Employee
for the computation period in which the duties are performed;
2-6
<PAGE> 11
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer or any Affiliate on account of a period of time
during which no duties are performed (irrespective of whether
the employment relationship has terminated) -due to vacation,
holiday, illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence. No more than five
hundred and one (501) Hours of Service shall be credited under
this paragraph (b) for any single continuous period (whether or
not such period occurs in a single computation period). Hours
under this paragraph (b) shall be calculated and credited
pursuant to Section 2530.200b-2 of the Department of Labor
Regulations which are incorporated herein by this reference;
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer or any
Affiliate. The same Hours of Service shall not be credited both
under paragraph (a) or paragraph (b), as the case may be, and
under this paragraph (c). Hours under this paragraph (c) shall
be credited to the Employee for the computation period or
Operiods to which the award or agreement pertains rather than
the computation period in which the award, agreement or payment
is made.
In determining whether a One-Year Break in Service under Section 11.6 has
occurred, an Employee who is absent from work commencing on or after December
1, 1985 for maternity or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to him under this Section
2.16 but for such absence, or in any case in which such hours cannot be
determined, eight (8) Hours of Service per day of such absence.
For purposes of this Section 2.16, an absence from work for "maternity or
paternity reasons" means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of a birth of a child of the Employee, (3) by reason
of the placement of a child with the Employee in connection with the adoption
of such child by such Employee, or (4) for purposes of caring for such child
for a period beginning immediately following such birth or placement. The Hours
of Service credited under this Section 2.16 shall be credited (A) in the
computation period in which the absence begins if the crediting is necessary to
prevent a One-Year Break in Service in that period, or (B) in all other cases,
in the following computation period. The Plan Administrator shall determine
under rules of uniform application and based on information provided by the
Employee whether or not the Employee's absence from work is due to "maternity
or paternity reasons".
2-7
<PAGE> 12
2.17 "Insurance Company" shall mean New England Mutual Life Insurance
Company of Boston, Massachusetts or such other insurance company as the
Principal Employer may designate.
2.18 "Leased Employee" shall mean any individual (other than a common-law
employee of the Employer) who, pursuant to an agreement between the Employer
and any leasing organization, has performed services for the Employer or for
related persons, as determined in accordance with Section 414(n) (6) of the
Code, on a substantially full-time basis for a period of at least one (1) year;
provided, however, that such services are of a type historically performed by
employees in the business field of the Employer.
2.19 "Limitation Year" shall mean the calendar year, unless the Board of
Directors designates another twelve (12) month period.
2.20 "Matching Employer Contribution Account" shall mean an account
established for a Participant after the Restatement Date pursuant to Article
IV.
2.21 "Non-Highly Compensated Employee" shall mean any Eligible Employee
who is not a Highly Compensated Employee.
2.22 "Normal Retirement Date" shall mean the date a Participant attains
age sixty-five (65).
2.23 "Participant" shall mean any Employee who:
(a) is an Eligible Employee and has completed the requirements of Section
3.2; or
(b) on January 1, 1992 was a Participant in the Carlon Plan immediately
prior to such date; or
(c) on April 1, 1993 was an hourly paid employee of the Clinton, Iowa
Plant, was a participant in the Retirement Plan for Hourly Paid
Employees of Participating Units of the Carlon Division of The Lamson
& Sessions Co. immediately prior to such date, met the eligibility
requirements of Section 3.1 on April 1, 1993 and completed the
requirements of Section 3.2; and
and shall also include any former Employee who is receiving or is eligible to
receive benefits under the Plan.
2.24 "Participation Date" shall mean:
(a) for periods commencing on or after the Restatement Date and prior
to December 31, 1991, the
2-8
<PAGE> 13
Restatement Date and each July 1 and December 31 thereafter; or
(b) for periods commencing on or after December 31, 1991 and prior to
January 1, 1993, December 31, 1991 and each January 1 and July 1
thereafter; or
(c) for periods commencing on or after January 1, 1993, the first day of
each calendar quarter.
2.25 "Plan" shall mean The Lamson & Sessions Co. Deferred Savings Plan, as
the same may be amended from time to time.
2.26 "Plan Administrator" shall mean the Principal Employer unless an
officer of the Principal Employer or other person has been designated by the
Principal Employer to act as Plan Administrator under the Plan.
2.27 "Plan Year" shall mean the calendar year for periods commencing after
December 31, 1991, shall mean the period which commenced and simultaneously
ended on December 31, 1991 for the period which commenced immediately prior to
January 1, 1992, shall mean each twelve (12) month period which commenced on
December 31 and ended on December 30 for periods which commenced after December
30, 1988 and ended prior to December 31, 1991, shall mean the period which
commenced on January 1, 1988 and ended on December 30, 1988 for the period
immediately prior to December 31, 1988, shall mean the calendar year for the
period immediately prior to January 1, 1988, shall mean the month of December
1986 for the period immediately prior to January 1, 1987 and shall mean the 12
month period which commenced on December 1, 1985 and ended on November 30, 1986
for the first Plan Year.
2.28 "Policy" shall mean any life insurance contract issued by the
Insurance Company to the Trustee pursuant to Article XXI.
2.29 "Principal Employer" shall mean The Lamson & Sessions Co. and any
successor thereto who assumes the obligations of the Principal Employer under
the Plan.
2.30 "Restatement Date" of the Plan shall mean December 31, 1988.
2.31 "Salary Reduction Account" shall mean an account established for a
Participant pursuant to Section 4.1(a).
2.32 "Salary Reduction Agreement" shall mean the agreement entered into by
a Participant with the Employer to reduce his Compensation pursuant to Section
5.1.
2.33 "Spouse" shall mean the spouse of the Participant; provided,
however, that to the extent required by any qualified
2-9
<PAGE> 14
domestic relations order (as defined in Section 414(p) of the
Code), a former spouse of the Participant shall be treated as the Spouse of
such Participant.
2.34 "Trust Fund" shall mean the fund established pursuant to the Plan,
and shall include all the assets held by the Trustee under the Plan.
2.35 "Trustee" shall mean the party or parties named herein to act as
Trustee under the Plan, and any duly appointed additional or successor Trustee
or Trustees acting hereunder.
2.36 "Valuation Date" shall mean, with respect to assets held under the
Group Annuity Policy, the last day of each calendar month, and with respect to
all other Trust Fund assets, December 31 and such other date as may be
designated by the Plan administrator for the valuation of the Trust Fund
assets.
2.37 "Year of Service" for all purposes of the Plan except determining
eligibility under Article III, shall mean any Plan Year during which the
Employee completes at least one thousand (1,000) Hours of Service, provided,
however, that an Employee who completed one thousand (1,000) Hours of Service
during the 1988 calendar year shall be credited with a Year of Service for the
Plan Year ended December 30, 1988, irrespective of whether he completed less
than one thousand (1,000) Hours of Service during said Plan Year, and provided
further that an Employee who completed one thousand (1,000) Hours of Service
during the 1991 calendar year shall be credited with a Year of Service for the
Plan Year ended December 31, 1991, irrespective of whether he completed less
than one thousand (1,000) Hours of Service during said Plan Year. For purposes
of determining an Employee's eligibility under Article III, an Employee shall
be deemed to have completed one-half (1/2) Year of Service at the end of the
six (6) month period which commences on the date he first completed an Hour of
Service, irrespective of the number of Hours of Service he completed during
such period or whether his employment during such period was continuous.
For purposes of determining a Year of Service, employment with any
Affiliate shall be treated as employment with the Employer. Furthermore, Year
of Service shall include Years of Service in a prior or subsequent job
classification with the Employer.
If an Employee is absent from active employment with the Employer due to
entrance into the Armed Forces of the United States of America and returns to
such active employment during the period his reemployment rights are retained
under applicable law, he shall receive such credit for Years of Service during
such absence as may be required under applicable law.
2-10
<PAGE> 15
ARTICLE III
Eligibility and Participation
3.1 Eligibility Requirements. Each Employee who was a Participant in the
Plan immediately prior to the Restatement Date shall continue to be a
Participant. Each other Employee, other than a Leased Employee, who did not
become a Participant prior to the Restatement Date, shall be eligible to become
a Participant on the first Participation Date coincident with or next following
the date on which he attains age twenty-one (21) and completes at least
one-half (1/2) Year of Service.
3.2 Salary Reduction Agreement. To become a Participant, an Eligible
Employee must execute a Salary Reduction Agreement. The Plan Administrator
shall notify each Employee of his eligibility in advance of the Participation
Date on which the Employee is first eligible and furnish the Employee with a
Salary Reduction Agreement. An Eligible Employee may become a Participant as of
any Participation Date by filing his executed Salary Reduction Agreement with
the Plan Administrator at least thirty (30) days (or such shorter period as may
be prescribed by the Plan Administrator) before such Participation Date.
3.3 Termination Before Participation. If an Employee terminates his
employment with the Employer before he becomes eligible to become a Participant
and he is subsequently reemployed, all his prior Years of Service shall be used
to determine his eligibility to participate in the Plan and he shall become a
Participant on his reemployment date provided he (1) then meets the eligibility
requirements, (2) his reemployment date is coincident with or follows the date
on which he would have first been eligible to participate in the Plan had his
employment with the Employer continued, and (3) he then executes a Salary
Reduction Agreement. Otherwise, he shall be eligible to participate in the Plan
and shall become a participant pursuant to Sections 3.1 and 3.2.
3.4 Termination After Participation. If a Participant terminates his
employment with the Employer and he is subsequently reemployed, he shall again
become a Participant on the date of his reemployment provided he then executes
a new Salary Reduction Agreement and he is in the class of Employees eligible
for participation in the Plan. Otherwise, he shall again become a Participant
pursuant to Section 3.2.
3.5 Authorized Absence. If on the Participation Date on which an
Employee first becomes eligible to participate he is absent in the Armed
Forces of the United States or on layoff or on leave duly granted by
the Employer or on disability arising in or out of the course of his
employment, such Employee shall become a Participant on the first day on
which he shall ave resumed his active employment with the Employer
if he then executes a Salary
3-1
<PAGE> 16
Reduction Agreement and he is in the class of Employees eligible
for participation in the Plan. Otherwise, he shall begin his participation in
the Plan pursuant to Section 3.2.
3.6 Change in Employment Classification. In the event a person employed
by the Employer who is not in the class of Employees who are eligible to
participate in the Plan becomes a member of such class, all prior Years of
Service shall be included in determining his eligibility to participate as if
he had been a member of such class, and such person shall be eligible to
participate on the date he becomes a member of the eligible class if he then
meets the eligibility requirements. In the event a Participant becomes
ineligible to participate because he ceases to be an Employee, he shall be
eligible to participate immediately upon once again becoming an Employee.
3-2
<PAGE> 17
ARTICLE IV
Participant Accounts
4.1 Establishment of Accounts. The Plan Administrator shall establish and
maintain on behalf of each Participant the following accounts, or accounts of
equivalent purpose:
(a) A Salary Reduction Account to which shall be credited the
Participant's share of salary reduction contributions made by
the Employer pursuant to Section 6.2, and any income thereon;
(b) An Additional Employer Contribution Account to which shall be
credited the Participant's share of any additional contributions
made by the Employer pursuant to Section 6.3, any matching
contributions reallocated to such account pursuant to Section
7.8, and any income thereon;
(c) A Matching Employer Contribution Account to which shall be
credited the Participant's share of matching contributions made
on or after January 1, 1989 by the Employer pursuant to Section
6.4, and any income thereon;
The Plan Administrator shall also establish and maintain such other
accounts for each Participant as may be required to carry out the provisions of
the Plan. Accounts being maintained immediately prior to the Restatement Date
shall continue to be maintained under the Plan as amended and restated herein.
All payments of benefits to a Participant or his Beneficiary shall be charged
against the respective accounts of the Participant.
As of January 1, 1992, the Plan Administrator established a Salary
Reduction Account, an Additional Employer Contribution Account and a Matching
Employer Contribution Account, if applicable, on behalf of each Participant who
was previously a Participant in the Carlon Plan and had amounts credited to a
Salary Reduction Account, a Discretionary Employer Contribution Account and/or
a Matching Employer Contribution Account immediately prior to January 1, 1992.
4.2 Value of Accounts. For all purposes of the Plan including the
payment of benefits, withdrawals, loans and furnishing statements to
Participants pursuant to Section 15.17, the value of any account established
under the Plan on behalf of a Participant, as of any date of reference, shall
be its value as determined on the Valuation Date coinciding with or immediately
preceding such date of reference, plus any contributions or other amounts
credited to such account subsequent to such Valuation Date,
4-1
<PAGE> 18
less any distribution or other amounts charged to such account subsequent to
such Valuation Date.
4.3 Adjustment of Accounts. As of each Valuation Date the Trustee shall
adjust each Participant's accounts to reflect any increase or decrease in the
net worth of the Trust Fund determined as of such Valuation Date. Such
increase or decrease attributable to Trust Fund assets not deposited under a
Group Annuity Policy shall be credited to accounts in proportion to the
balances of such accounts invested in such assets. Any increase or decrease
attributable to Plan assets deposited under a Group Annuity Policy shall be
credited to accounts in accordance with the provisions of such Group Annuity
Policy.
4-2
<PAGE> 19
ARTICLE V
Salary Reduction
5.1 Salary Reduction Agreements. Each Eligible Employee who desires to
become a Participant shall enter into a Salary Reduction Agreement with the
Employer to have his Compensation reduced during his participation in the Plan.
The amount of each such Compensation reduction shall be no less than one
percent (1%) of his Compensation nor greater than fifteen percent (15%) of his
Compensation and shall be in multiples of one percent (1%). Any Salary
Reduction Agreement shall remain in effect until it is revoked by the
Participant pursuant to Section 5.2 or modified by the Participant or the Plan
Administrator pursuant to section 5.3. All Salary Reduction Agreements shall be
made on such form as shall be prescribed by the Plan Administrator.
5.2 Revocation of Salary Reduction Agreements. A Participant may revoke
his Salary Reduction Agreement by delivering his written revocation to the
Employer at least thirty (30) days before the effective date of such
revocation. If a Participant revokes his Salary Reduction Agreement, he may
enter into a new Salary Reduction Agreement as of any Participation Date which
coincides with or next follows a six (6) month waiting period by filing the new
Salary Reduction Agreement with the Employer at least thirty (30) days before
the effective date of the new Salary Reduction Agreement.
5.3 Increase, Decrease of Reduction Percentage. A Participant may as of
each Participation Date increase or decrease the percentage of his Salary
Reduction Agreement by entering into a new Salary Reduction Agreement at least
thirty (30) days before the effective date of such increase or decrease. The
Plan Administrator may, in accordance with Section 7.8, at any time decrease
the percentage of any Salary Reduction Agreement to the extent necessary to
meet the requirements of Section 7.2. Notwithstanding the foregoing or any
other provisions of the Plan to the contrary, a Participant may, as of April 1,
1992 or May 1, 1992, decrease the percentage of his Salary Reduction Agreement
by entering into a new Salary Reduction Agreement at least fifteen (15) days
before said date.
5-1
<PAGE> 20
ARTICLE VI
Employer Contributions
6.1 Source of and Limit On Contributions. Subject to Article VII, each
Employer shall make contributions to the Plan for each Plan Year commencing on
or after the Restatement Date as specified in this Article VI. In no event
shall any Employer contributions be permitted which would otherwise cause the
dollar limitation or percentage limitation on "annual additions" contained in
Article XVIII to be exceeded for any Participant. (Such percentage limitation
is based on the Participant's total remuneration, as defined in Section 19.2(g)
and excluding amounts subject to his Salary Reduction Agreement, and is more
fully described in Article XVIII.)
6.2 Salary Reduction Contributions. The Employer shall contribute for
each payroll period on behalf of each Participant who has a Salary Reduction
Agreement in effect for such payroll period a salary reduction contribution
equal to the amount by which the Participant's Compensation has been reduced
for such payroll period pursuant to such Salary Reduction Agreement. The
Employer shall pay over to the Trustee such contributions no later than thirty
(30) days after the payroll period for which such contribution was made.
6.3 Additional Contributions. The Employer may contribute to the Plan for
each Plan Year a discretionary contribution which shall be in addition to the
salary reduction contributions under Section 6.2 and the matching contributions
under Section 6.4. The amount of such discretionary contribution, if any, for
any Plan Year shall be determined by the Board of Directors of the Employer and
shall be allocated as of the last day of such Plan Year among the Participants
who (1) had a salary reduction contribution made by the Employer on their
behalf during the Plan Year, (2) had completed a Year of Service during the
Plan Year, and (3) were employed by the Employer on the last day of the Plan
Year. The amount of such discretionary contribution to be allocated to each
such Participant for any Plan Year shall be based on the ratio which salary
reduction contributions made on behalf of such Participant for such Plan Year
bears to the aggregate salary reduction contributions made on behalf of all
such Participants for such Plan Year. This Section 6.3 shall not be construed
as requiring the Employer to make an additional contribution for any specific
Plan Year.
6.4 Matching Contributions. For each Participant for whom a salary
reduction contribution has been made by the Employer pursuant to Section 6.2,
the Employer shall, for periods commencing on or after January 1, 1989, also
contribute a matching contribution equal to fifty percent (50%) of such salary
reduction contribution; provided, however, that no such matching
6-1
<PAGE> 21
contributions shall be made for salary reduction contributions in excess of the
limit set forth in Section 7.6, nor in excess of six percent (6%) of the
Participant's Compensation for any Plan Year.
6.5 Payment of Contributions. Subject to Section 6.2, the Employer shall
pay its contributions to the Trustee on any date or dates which the Employer
may select subject to the consent of the Trustee; provided, however, that the
total contributions for each Plan Year shall be paid within the time prescribed
by law for the deduction of such contributions for purposes of the Employer's
Federal Income Tax.
6.6 Return of Contributions. Any contribution made by the Employer
because of a mistake of fact may be returned to the Employer within one (1)
year of the contribution. Any contribution made by the Employer for years
during which the Plan did not initially qualify under Section 401 of the Code
may be returned to the Employer within one (1) year after the date of denial of
qualification. If the Employer makes a contribution to the Plan conditioned
upon its deductibility under Section 404 of the Code and the deduction is
subsequently disallowed, the Employer may recover the amount of such
contribution which has disallowed within one (1) year after the disallowance of
the deduction. Notwithstanding the foregoing, any salary reduction
contributions described above shall not be returned to the Employer, but shall
instead be returned to the Participant at whose election they were made. For
purposes of this Section 6.6, all contributions made to the Plan by the
Employer shall be deemed to be conditioned upon their deductibility unless the
Employer advises the Trustee to the contrary.
6-2
<PAGE> 22
ARTICLE VII
Limitations on Contributions
7.1 Definitions. For purposes of this Article VII, the following terms
shall be defined as follows:
(a) Average Deferral Percentage with respect to any specified group
of Employees for any Plan Year shall mean the sum of the
Deferral Percentages of each such Employee divided by the number
of Employees included in such group.
(b) Deferral Percentage for any Eligible Employee with respect to a
Plan Year shall mean the ratio which his salary reduction
contributions under Article VI, together with amounts treated as
a salary reduction contributions pursuant to Section 7.9, for
such Plan Year bears to his Total Compensation for such Plan
Year.
(c) Average Contribution Percentage with respect to any specified
group of Employees for any Plan Year shall mean the sum of
Contribution Percentages of each such Employee divided by the
number of Employees included in such group.
(d) Contribution Percentage for any Eligible Employee shall mean
the ratio which his matching contributions under Article VI
for such a Plan Year bears to his Total Compensation for such
Plan Year. Pursuant to regulations issued by the Secretary of
the Treasury, the Plan Administrator may elect to take into
account in determining Contribution Percentages any Employer
contributions used in determining Deferral Percentages under (b)
above or under any other qualified cash or deferred arrangement
maintained by the Employer.
(e) Total Compensation for any Eligible Employee shall mean
Compensation as defined in Section 2.7 but including an Eligible
Employee's Compensation during periods in which he is not a
Participant and Compensation excluded pursuant to subparagraphs
(a), (b) and (c) of said Section 2.7.
7.2 Deferral Limitation for Highly Compensated Employees. The Average
Deferral Percentage of Highly Compensated Employees for any Plan Year shall not
exceed an amount determined based upon the Average Deferral Percentages of
Non-Highly Compensated Employees as follows:
7-1
<PAGE> 23
<TABLE>
<CAPTION>
(A) (B)
Average Deferral Limit on Average
Percentage for Deferral Percentage
Non-Highly for Highly
Compensated Compensated
Employees Employees
------------------- --------------------------
<S> <C>
Less than 2% 2 times Column (A)
2% or more but less Column (A) plus 2%
than 8%
8% or more 1.25 times Column (A)
</TABLE>
7.3 Contribution Limitation for Highly Compensated Employees. The Average
Contribution Percentage of Highly Compensated Employees for any Plan Year shall
not exceed an amount determined based upon the Average Contribution Percentages
of Non-Highly Compensated Employees as follows:
<TABLE>
<CAPTION>
(A) (B)
Average Deferral Limit on Average
Percentage for Deferral Percentage
Non-Highly for Highly
Compensated Compensated
Employees Employees
--------------------- -------------------
<S> <C>
Less than 2% 2 times Column (A)
2% or more but less Column (A) plus 2%
than 8%
8% or more 1.25 times Column (A)
</TABLE>
7.4 Multiple Use. If the sum of the Deferral Percentage and the
Contribution Percentage for one or more Highly Compensated Employees exceeds
the aggregate limit described below, the Contribution Percentage for such
Employees or Employees shall be reduced (beginning with such Highly Compensated
Employee whose Contribution Percentage is highest) so that the aggregate limit
is not exceeded. The amount by which each Highly Compensated Employee's
Contribution Percentage is reduced shall be treated as an excess contribution.
The Deferral Percentage and the Contribution Percentage of the Highly
Compensated Employees shall be determined after any corrections are made to
meet the Deferral Percentage and the Contribution Percentage limits. No
reduction in a Highly Compensated Employee's Contribution Percentage will be
required under this Section 7.4 if both the Average Deferral Percentage and the
Average Contribution Percentage of the Highly Compensated Employees do not
exceed one and twenty-five one hundredths (1.25) multiplied by the Average
Deferral Percentage and the Average Contribution Percentage of the Non-Highly
Compensated Employees.
7-2
<PAGE> 24
For purposes of this Section 7.4, the words "aggregate limit" shall mean
the greater of (a) or (b), where:
(a) equals the sum of (i) and (ii) below, where:
(i) equals one and twenty-five hundredths (1.25) times the
greater of the Deferral Percentage or the Contribution
Percentage for the Non-Highly Compensated Employees; and
(ii) equals two (2) percentage points plus the lesser of the
Deferral Percentage or the Contribution Percentage for the
Non-Highly Compensated Employees. In no event, however,
shall this amount exceed twice the lesser of the Deferral
Percentage or the Contribution Percentage for the Non-Highly
Compensated Employees; and
(b) equals the sum of (i) and (ii) below, where:
(i) equals one and twenty-five hundredths (1.25) times the
lesser of the Deferral Percentage or the Contribution
Percentage for the Non-Highly Compensated Employees; and
(ii) equals two (2) percentage points plus the greater of the
Deferral Percentage or the Contribution Percentage for the
Non-Highly Compensated Employees. In no event, however,
shall this amount exceed twice the greater of the Deferral
Percentage or the Contribution Percentage for the Non-Highly
Compensated Employees.
7.5 Aggregation of Plans. If the Employer maintains another plan to which
matching contributions or salary reduction contributions are made and which
depends on the Plan to meet the requirements of Section 410(b) of the Code,
such other plan and the Plan shall be treated as a single plan for purposes of
applying the limitations set forth in Sections 7.2, 7.3 and 7.4. Further, if a
Highly Compensated Employee participates in another plan of the Employer to
which such contributions are made, all such contributions made on behalf of
such Employee under the Plan and such other plan shall be aggregated for
purposes of applying such limitations.
7.6 Limitation of Salary Reduction Contributions. Notwithstanding the
foregoing, the amount of salary reduction contributions by any Participant
under the Plan, plus any other salary reduction contributions required by law
to be aggregated with salary reductions contributions under the Plan, for any
taxable year of the Participant shall not exceed Seven Thousand
7-3
<PAGE> 25
Dollars ($7,000) (multiplied by the cost of living adjustment factor prescribed
by the Secretary of the Treasury under Sections 402(g) and 415(d) of the Code,
as applied to such items and in such manner as the Secretary shall provide).
If such limit is exceeded by any Participant for any taxable year, the excess
salary reduction contributions plus any income attributable to such excess
contributions shall be distributed to the Participant no later than the April
15 next following the end of such taxable year. Further, if a Participant
notifies the Plan Administrator in writing no later than the March 1 following
the end of any taxable year of the Participant that he has allocated to the
Plan excess deferrals (within the meaning of Section 402(g) (3) of the Code)
with respect to such taxable year, salary reduction contributions equal to the
amount of excess deferrals allocated to the Plan plus any income attributable
to such contributions shall be distributed to the Participant to the extent
that such excess deferrals have not been distributed to him pursuant to the
preceding sentence. The distribution of such excess deferrals shall be no
later than the April 15 following the end of such taxable year.
7.7 Deductibility Limit. In no event shall the amount of all
contributions by the Employer, including Salary Reduction Contributions, exceed
the maximum amount allowable as a deduction under Section 404(a) (3) of the
Code or any statute of similar import, including the amount of any contribution
carry forward allowable under said Section 404(a) (3) of the Code.
7.8 Distribution and Recharacterization of Excess Contributions. In the
event that any of the limitations set forth in Sections 7.2, 7.3, 7.4 and 7.6
shall be exceeded, the Plan Administrator shall take action to reduce future
contributions made pursuant to Sections 6.2 and 6.4 as appropriate. Such
action may include a reduction in the future rate of deferral pursuant to
Section 5.1 of any Highly Compensated Employee pursuant to any legally
permissible procedure. In the event that such action shall fail to prevent the
excess, prior contributions made pursuant to Sections 6.2, including any
contributions made pursuant to Section 6.2 which were previously distributed
during the Plan Year, plus any income and minus any loss allocable thereto to
the date of distribution, shall, except as otherwise provided below, be
distributed to the affected Highly Compensated Employees no later than two and
one-half (2-1/2) months following the end of the Plan Year in which such
contributions were made. Further, the matching contributions made pursuant to
Section 6.4 on behalf of each such Highly Compensated Employee shall be reduced
as necessary to reflect such distribution and the amount of such reduced
matching contributions shall be treated as an additional contribution to be
reallocated to Participants pursuant to Section 6.3. Any adjustments made in
Highly Compensated Employees' Salary Reduction Accounts or Matching Employer
Contribution Accounts shall be made in a uniform manner for similarly situated
Highly Compensated Employees.
7-4
<PAGE> 26
Distributions of excess contributions shall be made to or with respect to
Highly Compensated Employees on the basis of the respective portions of such
contributions attributable to such Highly Compensated Employees taking into
account the family aggregation rules contained in Section 2.7. Excess
contributions shall be treated as annual additions under Section 18.1.
For purposes of adjusting excess contributions to take into account income
and losses to the date of distribution, the income or loss shall be equal to
the sum of:
(a) income or loss for the Plan Year allocable to the Account to
which the excess was allocated multiplied by a fraction, the
numerator of which is the excess contributions credited to such
Account for the Plan Year and the denominator is the total
Account balance without regard to any income or loss occurring
during such Plan Year; and
(b) ten percent (10%) of the amount determined under subparagraph
(a) above multiplied by the number of whole calendar months
between the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs after
the fifteenth (15th) of such month.
7.9 Special Employer Contributions. If the limitations contained in
Section 7.2 are exceeded for any Plan Year, the Employer may, in lieu of the
reduction of Deferral Percentages of Highly Compensated Employees called for by
Section 7.8, make a special contribution to the Plan on behalf of Non-Highly
Compensated Employees who are Eligible Employees and are in the employ of the
Employer on the last day of such Plan Year. Such contribution shall be (1)
made within two and one-half (2-1/2) months after the end of such Plan Year,
(2) treated as a salary reduction contribution for all purposes of the Plan
except receiving matching contributions under Article VI, (3) in an amount
sufficient to satisfy such limitations for such Plan Year, and (4) allocated to
such Non-Highly Compensated Employees based on the same percentage of
Compensation.
7-5
<PAGE> 27
ARTICLE VIII
Voluntary and Rollover Contributions
8.1 Voluntary Contributions. There shall be no voluntary contributions by
any Participant permitted under the Plan.
8.2 Rollover Contribution. An Employee may, subject to the approval of
the Plan Administrator, contribute a rollover contribution to the Plan by
filing a written request with the Plan Administrator. Any such request shall
include the amount of the rollover contribution and a statement satisfactory to
the Plan Administrator that such amount constitutes a rollover contribution
within the meaning set forth below. Any rollover contribution contributed to
the Plan by an Employee shall be credited to a subaccount under the Employee's
Additional Employer Contribution Account as of the date it is received by the
Trustee, and shall be fully vested and nonforfeitable at all times. For
purposes of this Section 8.2, "rollover contribution" shall mean any rollover
amount or rollover contribution as defined in Section 402(c) or Section 403(a)
(4) of the Code (relating to certain lump sum distributions from an employer
trust or employee annuity plan) or Section 408(d) (3) of the Code (relating to
certain distributions from an individual retirement account or individual
retirement annuity). If an Employee who is not a Participant makes a rollover
contribution under this Section 8.2, he shall be deemed to be a Participant for
purposes of distributing such contribution and earnings thereon.
8-1
<PAGE> 28
ARTICLE IX
Direction of Investments
9.1 Investment Direction by Participant. Each Participant shall direct
how contributions made by the Employer on his behalf shall be invested among
the investment options available under the Plan. The Participant shall file
such investment direction with the Plan Administrator, on such form as the Plan
Administrator may provide, which shall specify how such contributions shall be
allocated among such investment options. The percentage of such allocation
shall be in multiples of one percent (1%) and shall apply uniformly to all
contributions.
9.2 Change in Investment Direction. A Participant may, once during each
calendar quarter for periods prior to January l, 1993 and as of the first day
of each calendar quarter for periods commencing on or after January 1, 1993,
change his investment direction with respect to future contributions by filing
a new investment direction form with the Plan Administrator at least thirty
(30) days prior to the effective date of such change. Such new investment
direction shall apply only to contributions made by or on behalf of the
Participant on or after such date.
9.3 Change in Investment of Prior Contributions. A Participant or a
Beneficiary may, once during each calendar quarter for periods prior to January
1, 1993 and as of the first day of each calendar quarter for periods commencing
on or after January 1, 1993, change his investment direction with respect to
prior contributions by filing a new investment direction form with the Plan
Administrator at least thirty (30) days prior to the effective date of such
change. The Participant or Beneficiary may thereby direct the Trustee to
transfer all or a portion of the value of any account in multiples of one
percent (1%) to any one or a combination of the investment options available
under the Plan.
9.4 Notice to Trustee. All Participant and Beneficiary investment
directions and changes thereof filed with the Plan Administrator pursuant to
the provisions of this Article IX shall be promptly communicated by the Plan
Administrator to the Trustee. All investment direction forms shall set forth
the portion of the Trust Fund assets which shall be subject to such investment
direction.
9.5 Group Annuity Policy. Any change in investment direction pursuant to
Section 9.2 or 9.3 with respect to assets held under a Group Annuity Policy
shall be subject to such restrictions as may be contained under the terms of
the Group Annuity Policy regarding changes in investment direction or transfers
between investment options. The effective date of any change in investment
direction under Section 9.2 or 9.3 with respect to such assets shall be &
Valuation Date.
9-1
<PAGE> 29
9.6 Compliance With ERISA Section 404(c). Notwithstanding the foregoing
provisions of this Article IX, any Participant or Beneficiary direction of
investments pursuant to this Article IX and any rules established by the
Principal Employer with respect thereto shall be designed so as to comply on
and after January 1, 1994, in the sole judgement of the Principal Employer,
with the requirements imposed by Section 404(c) of ERISA. On and after January
1, 1994, the number of investment options available shall not be less than
three (3), and of the investment options available, at least three (3) shall be
diversified and have materially different risk and return characteristics, as
determined by the Principal Employer. Any rules established by the Principal
Employer with respect to Participant or Beneficiary direction of investments
may cover any issues regarding such directions as the Principal Employer may
consider appropriate. Notwithstanding anything to the contrary in this Article
IX, on and after January 1, 1994 the Plan Administrator or Trustee may decline
to follow any investment direction which, if implemented:
(a) would not be in accordance with the Plan documents;
(b) would cause the indicia of ownership of Plan assets to be
maintained outside the jurisdiction of the United States
District Courts;
(c) would jeopardize the Plan's tax-qualified status;
(d) could result in a loss in excess of the balance of the
Participant's or Beneficiary's accounts;
(e) would cause the Plan to engage in:
(i) a sale or exchange with the Employer (except as with respect
to certain qualifying employer securities as defined in
Section 407(d) (5) of ERISA which meet the requirements of
Section 408(e) of ERISA and 29 CFR 2550.404c-1(d) (2) (ii)
(E) (4));
(ii) a lease between the Plan and the Employer or a loan to the
Employer;
(iii) acquisition or sale of real property of the Employer; or
(iv) acquisition or sale of securities of the Employer other than
certain qualifying employer securities as defined in Section
407(d) (5) of ERISA which meet the requirements of Section
408(e) of ERISA and 29 CFR Section 2550.404c-1(d) (2) (ii)
(E) (4);
9-2
<PAGE> 30
(f) would result in a prohibited transaction within the meaning of
Section 4975 of the Code or Section 406 of ERISA; or
(g) would generate income taxable to the Plan.
9-3
<PAGE> 31
ARTICLE X
Retirement and Disability Benefits
10.1 Retirement Benefits. A Participant who terminates his employment
with the Employer on or after his Normal Retirement Date for a reason other
than death shall be entitled to receive the total amount credited to his
accounts, determined in accordance with Section 4.2 as of the date distribution
of his retirement benefits commences. The Trustee shall distribute such amount
to the Participant in accordance with the provisions of Article XII.
10.2 Disability Benefits. If a Participant terminates his employment with
the Employer before his Normal Retirement Date because of his total and
permanent disability (as defined in Section 10.3), he shall be entitled to
receive the total amount credited to his accounts, determined in accordance
with Section 4.2 as of the date distribution of his disability benefits
commences The Trustee shall distribute such amount to the Participant in
accordance with the provisions of Article XII. Notwithstanding the foregoing,
if such Participant ceases to be totally and permanently disabled and is
subsequently reemployed, the foregoing provisions of this Section 10.2 shall
not apply to any amounts credited to his accounts under the Plan following such
reemployment unless he again becomes totally and permanently disabled.
10.3 Total and Permanent Disability Defined. For purposes of the Plan,
"total and permanent disability" means a physical or mental condition of a
Participant resulting from bodily injury or disease or mental disorder which
renders the Participant incapable of performing his usual duties for the
Employer. The total and permanent disability of a Participant and the
cessation of such total and permanent disability shall be determined by the
Plan Administrator, in accordance with uniform principles consistently applied,
upon the basis of such evidence as the Plan Administrator deems necessary and
desirable.
10-1
<PAGE> 32
ARTICLE XI
Vesting and Termination of Employment
11.1 Vesting. A Participant's interest in his Salary Reduction Account
shall at all times be fully vested and nonforfeitable. A Participant's
interest in his Employer Account shall be fully vested and nonforfeitable upon
the occurrence of any of the following events: his death, total and permanent
disability or attainment of his Normal Retirement Date while in the service of
the Employer, termination of the Plan or complete discontinuance of all
Employer contributions. Prior to the occurrence of any of the preceding
events, his vested interest in his Employer Account (other than rollover
contributions and amounts attributable thereto) shall be determined in
accordance with the following vesting schedule.
<TABLE>
<CAPTION>
Number of Years Vested
of Service Percentage
--------------- ----------
<S> <C>
Less than 1 year 0%
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years or more 100%
</TABLE>
For purposes of this Section 11.1, a Participant who completed at least
one thousand (1,000) Hours of Service during the twelve (12) month period which
commenced on December 1, 1986 and ended on November 30, 1987 and who completed
at least one thousand (1,000) Hours of Service during the Plan Year which
commenced on January 1, 1987 and ended on December 31, 1987 shall receive one
(1) Year of Service for each such period if he was a not employed by the
Employer's Carlon Division at that time.
Notwithstanding the above, in the case of an Employee who was included in
the membership of the TBG plan on December 31, 1986, his vested interest in his
Employer Account shall be no less than his vesting percentage under the TBG
plan as of such date.
In addition, notwithstanding anything contained in the Plan to the
contrary, each Participant:
(a) who was an employee of the Midland Steel Products Division immediately
prior to May 27, 1994 and who became an employee of Iochpe-Maxion
Ohio, Inc. on May 27, 1994; and
(a) who was not previously fully vested in his Employer Account;
11-1
<PAGE> 33
shall become fully vested in his Employer Account as of May 27, 1994.
11.2 Certain Years of Service Excluded. In determining a Participant's
nonforfeitable percentage of his Employer Account under the above vesting
schedule, all Years of Service shall be recognized except as follows:
(a) Any Year of Service after a Five-Year Break in Service (as
defined in Section 11.6) shall be disregarded for purposes of
determining the Participant's nonforfeitable percentage of such
account balance attributable to Employer contributions that
accrued prior to such Five-Year Break in Service;
(b) If an Employee sustains a Five-Year Break in Service at a time
when he has no vested interest in his Employer Account
(excluding any rollover contribution), his Years of Service
prior to such Five-Year Break in Service shall be disregarded if
the number of consecutive One-Year Breaks in Service during such
Five-Year Break in Service equals or exceeds the number of his
Years of Service before such Five-Year Break in Service (not
including in such number of Years of Service any Year of Service
previously excluded because of an earlier Break in Service under
the Plan).
11.3 Termination Benefits. A Participant who terminates his employment
with the Employer before his Normal Retirement Date for a reason other than his
death or total and permanent disability shall be entitled to receive the total
amount credited to his Salary Reduction Account plus the nonforfeitable portion
of the amount credited to his Employer Account, determined in accordance with
Section 4.2 as of the date distribution of his termination benefits commences.
The Trustee shall distribute such amounts to the Participant in accordance with
the provisions of Article XII.
Notwithstanding the foregoing provisions of this Section 11.3 or any other
provisions of the Plan, if the stock or assets-of the business unit by which
the Participant is employed are sold to a person or entity which is not an
Affiliate of the Employer or are transferred to a joint venture which is not an
Affiliate of the Employer, the Participant's date of termination of employment
shall be determined as follows:
(a) if the Plan is assumed by such person or entity, his termination
of employment with such person or entity; or
(b) if the Plan is not assumed by such person or entity, the date of
sale of the stock or assets.
11-2
<PAGE> 34
11.4 Forfeitures. All forfeitures under the Plan shall be used to reduce
Employer contributions, other than salary reduction contributions, otherwise
payable to the Plan for the Plan Year in which the forfeitures arise and for
any succeeding Plan Year, if necessary, until such forfeitures have been
exhausted.
11.5 Separate Accounts. If a Participant who has terminated his
employment at a time when he is less than fully vested in his Employer Account
sustains a Five-Year Break in Service and is subsequently reemployed by the
Employer without receiving payment of the entire nonforfeitable portion of such
account, a new Matching Employer Contribution Account and Additional Employer
contribution Account shall be established to receive his share of Employer
contributions allocated to him under the Plan following such reemployment.
Upon his subsequent termination of employment, his nonforfeitable portion shall
be determined separately with respect to such newly established accounts.
11.6 Break in Service. For purposes of this Article XI, a "One-Year Break
in Service" shall mean any computation period during which an Employee does not
complete more than five hundred (500) Hours of Service; provided, however, that
an Employee who completed more than five hundred (500) Hours of Service during
the 1988 calendar year shall not incur a "One-Year Break in Service" for the
Plan Year ended December 30, 1988, irrespective of whether he completed five
hundred (500) Hours of Service or less during said Plan Year, and provided
further that an Employee who completed more than five hundred (500) Hours of
Service during the 1991 calendar year shall not incur a "One-Year Break in
Service" for the Plan Year ended December 31, 1991, irrespective of whether he
completed five hundred (500) Hours of Service or less during said Plan Year. A
"Five-Year Break in Service" shall mean a period of five (5) consecutive
One-Year Breaks in Service. Notwithstanding the foregoing, an Employee shall
not incur a One-Year Break in Service during an authorized leave of absence for
sickness, disability, or any other reason if he returns to the employ of the
Employer at the expiration of such leave or absence.
11.7 Procedures With Respect To Forfeitures. Notwithstanding any other
provision of the Plan to the contrary, if a Participant terminates his
employment with the Employer at a time when he is less than fully vested in his
Employer account, the non-vested portion of such account shall be forfeited
pursuant to the following provisions:
(a) If the Participant receives a distribution of his entire vested
interest, the non-vested portion shall be forfeited as of the
date of such a distribution.
(b) If the Participant does not receive a distribution of his
entire vested interest, the non-vested
11-3
<PAGE> 35
portion shall be forfeited as of the last day of the Plan Year
in which he dies or sustains a Five-year Break in Service.
(c) If the Participant has no vested interest in his Employer
Account, the Participant shall be deemed to have received a lump
sum distribution of zero (0) and the entire account shall be
forfeited as of the date of his termination of employment with
the Employer.
(d) If the Participant is subsequently reemployed, he may at any
time following his reemployment but before the earlier of (1)
five (5) years after his date of reemployment or (2) the date he
sustains a Five-Year Break in Service, repay the full amount of
his distribution and thereupon have his Employer Account
restored to the extent it was forfeited above as a result of
such distribution. Such restoration shall be made as of the
date of repayment by the Participant, but assets for the
restored account balance need not be provided until the last day
of the Plan Year following the Plan Year in which the repayment
occurs. Such restoration shall, at the Employer's option, be
made from earnings of the Plan for the Plan Year in which the
restoration is to be made or from forfeitures occurring in such
Plan Year, or by an Employer contribution. If forfeitures are
allocated to Participants, any such restoration from forfeitures
shall be made prior to such allocation. If a Participant who
had no vested interest in his Employer Account when he
terminated employment is subsequently reemployed before he
sustains a Five-Year Break in Service, his Employer Account
shall be fully restored as of the date of his reemployment.
11-4
<PAGE> 36
ARTICLE XII
Distribution of Benefits
12.1 Method of Payment. Any benefits payable under the Plan to a
Participant whose employment with the Employer has terminated for any reason
other than death shall be distributed as follows: (1) if the value of such
benefits is not greater than Three Thousand Five Hundred Dollars ($3,500.00),
the distribution shall be in a lump sum payment; and (2) if the value of such
benefits is greater than Three Thousand Five Hundred Dollars ($3,500.00), the
distribution shall, at the election of the Participant, be made in any one or a
combination of the methods of payment set forth below:
(a) By lump sum payment; or
(b) By the purchase of a non-transferable and immediate annuity over
the lifetime of the Participant or the joint lifetime of the
Participant and a designated individual; such annuity to be
subject to Section 12.2.
Any lump sum payment shall be made in accordance with the provisions of Section
22.8.
If the Participant's Spouse is not his Beneficiary with respect to the
method of payment in (b) above, such method must conform to the incidental
death benefit requirements of Section 1.401(a)(9)-(2) of the Treasury
Regulations. In addition, if a Participant does not elect a method of payment
within such reasonable period after his termination of employment as the Plan
Administrator shall prescribe, his benefits shall, subject to Section 12.5(a),
be distributed to him in a lump sum payment. Each Participant shall complete
such forms and furnish such proofs as shall be required by the Plan
Administrator.
12.2 Spouse Joint and Survivor Annuity. If a Participant who has a Spouse
elects pursuant to Section 12.1(b) to receive his benefits under the Plan in
the form of an annuity, such annuity shall be a Spouse Joint and Survivor
Annuity (as herein defined) unless the Participant has elected during the
ninety (90) day period which ends on the date his benefits would otherwise
commence to waive the Spouse Joint and Survivor Annuity and receive his
benefits under another method of payment set forth in Section 12.1. No such
waiver shall be effective unless the Participant's Spouse consents to such
waiver pursuant to Section 12.3. A Participant may, at any time before the
commencement of his benefits and without the consent of his Spouse, revoke a
prior waiver under this Section 12.2 and thereby elect to receive his benefits
in the form of a Spouse Joint-and Survivor Annuity.
12-1
<PAGE> 37
For purposes of this Article XII, a "Spouse Joint and Survivor Annuity"
shall mean an annuity payable to the Participant during his lifetime with
provisions for fifty percent (50%) of the amount of such annuity to be
continued to the Participant's Spouse for the duration of the Spouse's lifetime
after the death of the Participant. The annuity payable to the Participant
under the Spouse Joint and Survivor Annuity shall be the actuarial equivalent
of a single life annuity which could be provided to the Participant by the
value of his vested account balances under the Plan.
12.3 Spousal Consent. Any consent by the Participant's Spouse to the
Participant's waiver of the Spouse Joint and Survivor Annuity under Section
12.2, and any consent to the Participant's designation of Beneficiary under
Section 13.4 or 21.5 shall (1) be in writing on a form prescribed by the Plan
Administrator, (2) acknowledge the effect of such waiver or designation on the
Spouse, and (3) be witnessed by a Plan official or notary public.
Notwithstanding the foregoing, spousal consent under this Section 12.3 shall
not be required if it is established to the satisfaction of a Plan official
that such consent cannot be obtained because there is no Spouse, because the
Spouse cannot be located or because of such other circumstances as may be
prescribed by regulations issued by the Secretary of the Treasury. Any consent
by a Spouse under this Section 12.3 or any determination that such consent is
not required as hereinbefore provided shall be effective only with respect to
the Spouse who signs the consent or the Spouse with respect to whom such
determination is made whichever is applicable. Any consent by the Spouse under
this Section 12.3 shall be irrevocable but shall be limited to the specific
non-Spouse Beneficiary, including any class of Beneficiaries or any contingent
Beneficiaries, and the specific method of payment to which the consent related.
12.4 Notice Requirements. The Plan Administrator shall, no less than
thirty (30) days and no more than ninety (90) days before the date the benefits
of a Participant who elects an annuity under Section 12.1 are to commence,
provide the Participant with a written explanation of (1) the terms and
conditions of the annuity, (2) the Participant's right to make, and the effect
of, an election to waive such annuity, (3) the rights of the Participant's
Spouse in regard to such election, (4) the right to make, and the effect of, a
revocation of such election, and (5) the relative values of the methods of
payment described in Section 12.1.
12.5 Time of Payment. Any benefits payable to a Participant pursuant to
this Article XII shall be distributed as soon as administratively practicable
following his termination of employment, subject, however, to the following
provisions:
(a) If the value of the Participant's benefits is greater than Three
Thousand Five Hundred Dollars ($3,500.00), his benefits shall
not be distributed to him before his Normal Retirement Date
unless he
12-2
<PAGE> 38
consents in writing to such earlier distribution date.
(b) Except as otherwise provided in (c) below, benefits payable to a
Participant shall not commence later than sixty (60) days after
the latest of (1) the close of the Plan Year in which he attains
his Normal Retirement Date, (2) the tenth (10th) anniversary of
the close of the Plan Year in which he commenced participation
in the Plan, and (3) the close of the Plan Year in which he
terminated his employment with the Employer.
(c) If the value of the Participant's benefits is greater than Three
Thousand Five Hundred Dollars ($3,500.00), he may elect in
writing to defer the commencement of his benefits beyond the
latest commencement date in (b) above; provided, however, that
in no event shall his benefits commence later than the April l
next following the calendar year in which he attains age seventy
and one-half (70-1/2); irrespective of whether he has then
terminated his employment with the Employer.
12-3
<PAGE> 39
ARTICLE XIII
Benefits Payable Upon Death
13.1 Amount of Death Benefits. The death benefits payable under the Plan
(1) on behalf of a Participant who dies while in the service of the Employer
shall be the total amount credited to his accounts and (2) on behalf of a
Participant who dies after he retires or terminates his employment with the
Employer shall be the total nonforfeitable portion of his accounts. Both such
totals shall be determined pursuant to Section 4.2 as of the date distribution
of such death benefits commences. The death benefits for any Participant shall
also include the proceeds of any Policy in force on his life on the date of his
death. Such proceeds shall, notwithstanding any provisions of this Article
XIII to the contrary, be distributed to the Beneficiary named in the Policy in
such manner as may be provided by the terms of the Policy.
13.2 Death Before Commencement of Benefits. If a Participant dies before
distribution of his benefits commences and the value of his death benefit is
not greater than Three Thousand Five Hundred Dollars ($3,500.00), his death
benefit shall be paid to his Beneficiary in a lump sum as soon as
administratively practicable following the Participant's death. If the value
of his death benefit is greater than Three Thousand Five Hundred Dollars
($3,500.00), his death benefit shall be paid to his Beneficiary in a lump sum
or, at the election of the Beneficiary, as a single-life annuity, and in either
case shall be distributed to the Beneficiary as soon as administratively
practicable following the Participant's death unless the Beneficiary elects a
later distribution date. In addition, any lump sum payment shall be made in
accordance with the provisions of Section 22.8.
Notwithstanding the foregoing provisions of this Section 13.2, the entire
death benefit payable under this Section 13.2 must be completely distributed
within five (5) years after the date of the Participant's death, unless the
method of distribution satisfies either (a) or (b), below:
(a) The death benefit is payable as an annuity over the lifetime of
a designated Beneficiary and distribution of the death benefit
commences no later than one (1) year after the date of the
Participant's death; or
(b) The death benefit is payable to the Participant's surviving
Spouse (as a designated Beneficiary) as an annuity over the
Spouse's lifetime and distribution of the death benefit
commences no later than the date the Participant would have
attained age seventy and one-half (70-1/2).
13-1
<PAGE> 40
If the Beneficiary is the surviving Spouse and the surviving Spouse dies
before such distribution commences, subsequent distribution shall be made as if
the surviving Spouse had been the Participant. For purposes of this Section
13.2, any payments to a child of the Participant shall be treated as if such
payment had been made to the Participant's surviving Spouse, provided such
payments become payable to the surviving Spouse when the child reaches the age
of majority.
13.3 Death After Benefit Commencement. No benefit shall be payable under
the Plan in the event of the death of a Participant after distribution of
benefits commences, except such death benefit as may be payable under the
method of payment then in effect for him. If a Participant who shall have
commenced to receive benefits in accordance with Article XII dies before an
amount equal to his death benefit been distributed to him, any remaining value
of such death benefit shall continue to be distributed at least as rapidly as
under the method of payment being used prior to the Participant's death.
13.4 Beneficiary Designation. Each Participant shall designate one or
more direct or contingent Beneficiaries to receive any amounts which may become
payable under the Plan upon his death (other than life insurance proceeds or
survivorship benefits payable under any form of annuity); provided, however,
that in the case of a Participant who has a Spouse on the date of his death,
his Spouse shall be deemed to be his Beneficiary for all death benefits under
the Plan unless his Spouse consents to another Beneficiary designation pursuant
to Section 12.3. A Participant's designation of a Beneficiary shall be in
writing and filed with the Plan Administrator on a form prescribed by the Plan
Administrator. A Participant may change such designation at any time by filing
a new or revised form with the Plan Administrator. If no Beneficiary
designation is made by the Participant, or if the Beneficiary dies before the
Participant or before complete distribution of the Participant's benefits, then
the Participant shall be deemed to have designated the following person or
persons (if living) as his Beneficiaries and contingent Beneficiaries in the
following order of priority:
(a) his Spouse;
(b) his natural and adopted children and children of deceased
children, per stirpes;
(c) his parents in equal shares;
(d) his brothers and sisters, and nephews and nieces who are
children of deceased brothers or sisters, per stirpes; and
(e) his estate.
13-2
<PAGE> 41
ARTICLE XIV
Withdrawals From Accounts
14.1 Non-Hardship Withdrawals. A Participant who has attained age
fifty-nine and one-half (59 1/2) may withdraw all or a portion of his Salary
Reduction Account or the vested portion of his Employer Account.
Notwithstanding the foregoing, a Participant may withdraw all or a part of his
THG plan rollover contributions under his Additional Employer Contribution
Account prior to his attainment of age fifty-nine and one-half (59 1/2). A
withdrawal shall be subject to Section 14.3 and may be made as of the last day
of any calendar month by filing a written request with the Plan Administrator
at least thirty (30) days before the proposed withdrawal date; provided,
however, that if such Participant has not completed at least sixty (60) months
of participation in the Plan, any such withdrawal shall be limited to amounts
held in the Trust Fund for at least two (2) years. In addition, any withdrawal
shall be made in accordance with the provisions of Section 22.8.
14.2 Hardship Withdrawals. A Participant may, subject to Section 14.3 and
the approval of the Plan Administrator, withdraw all or a portion of his Salary
Reduction Account as of the last day of any calendar month by filing a written
request with the Plan Administrator at least thirty (30) days before the
proposed withdrawal date, provided the Plan Administrator determines that such
withdrawal is being made for one of the following reasons:
(a) To pay all or a portion of the cost of the purchase (excluding
mortgage payments) of a principal residence for the Participant;
(b) To pay all or a portion of the cost of tuition for the next
semester or quarter of post-secondary education for the
Participant, his or her Spouse, children, or dependents;
(c) To pay all or a portion of medical expenses described in Code
Section 213(d) incurred by the Participant, the Participant's
Spouse, or any dependents of the Participant (as defined in Code
Section 152);or
(d) To pay all or a portion of the amount needed to prevent the
eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's principal
residence.
Notwithstanding the foregoing, any withdrawal from the Participant's
Salary Reduction Account shall be approved by the Plan Administrator only if
the Plan Administrator determines that (1) such withdrawal is being made on
account of hardship in light
14-1
<PAGE> 42
of immediate and heavy financial needs of the Participant, (2) such withdrawal
is necessary to satisfy such need. A withdrawal will be deemed to be necessary
to satisfy immediate and heavy financial needs of Participant only if all of
the following requirements are satisfied:
(a) the withdrawal is not in excess of the amount of the immediate
and heavy financial need of the Participant;
(b) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Employer;
(c) the Plan and all other plans maintained by the Employer provide
that the Participant's salary reduction contributions and
voluntary contributions, if any, will be suspended for at least
twelve (12) months after receipt of the hardship withdrawal; and
(d) the Plan and all other plans maintained by the Employer provide
that the Participant may not make salary reduction contributions
for the Participant's taxable year immediately following the
taxable year of the Participant during which said hardship
withdrawal occurs in excess of the applicable limit under
Section 402(g) of the Code for such next taxable year of the
Participant less the amount of such Participant's salary
reduction contributions for the taxable year of the Participant
during which said hardship withdrawal occurs.
In addition, any withdrawal shall be made in accordance with the provisions of
Section 22.8.
14.3 Procedure For Making Withdrawals. Any request for a withdrawal under
this Article XIV shall be filed with the Plan Administrator on such forms as
the Plan Administrator may provide and shall specify the account from which
such withdrawal is being made and the value to be withdrawn in terms of dollars
or percentage of account value. If the Participant's accounts are invested in
more than one investment facility under the Plan, the Participant shall also
specify on such request what portion of his withdrawl is to be charged against
each such investment facility. Each withdrawal shall be charged against the
applicable account as of the date such withdrawal is made. Any withdrawal with
respect to assets held under the Group Annuity Policy shall be subject to such
restrictions as may be contained under the terms of the Group Annuity Policy
with respect to the withdrawal of funds thereunder.
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14.4 Non-Forfeiture Provision. In no event shall any withdrawal made by a
Participant pursuant to the provisions of this Article XIV result in the
forfeiture of such Participant's vested interest under the Plan. No
forfeitures will occur solely as a result of a Participant's withdrawal of
salary reduction contributions.
14.5 Special Vesting Provision. If a Participant makes a withdrawal under
this Article XIV from his Employer Account at a time when he is less than fully
vested in his Employer Account, the nonforfeitable portion of his Employer
Account following such withdrawal shall be determined by first adding back the
amount of such withdrawals to the balance of his Employer Account before
applying his vested percentage and then deducting the amount of all such
withdrawals from the product of such application.
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ARTICLE XV
Plan Administration
15.1 Plan Administrator. The Plan Administrator shall be a "named
fiduciary" within the meaning of Section 402 of ERISA and shall have the
authority as set forth herein to control and manage the operation and
administration of the Plan. However, the Plan Administrator shall not have any
authority over the investment of the assets of the Trust Fund.
15.2 Duties and Powers. The Plan Administrator shall have all the power
and authority necessary and appropriate to carry out the provisions of the
Plan. For this purpose, the Plan Administrator's powers shall include, but
shall not be limited to, the following rights and privileges to be exercised in
its discretion:
(a) To adopt and enforce such rules and regulations as it deems
necessary and proper for the efficient administration of the
Plan, provided such rules and regulations are not inconsistent
with the terms and provisions hereof;
(b) To interpret and apply all terms of the Plan, to authorize the
payment of benefits hereunder, and to determine all questions
concerning eligibility, status, benefits and rights and all
other questions arising in the administration of the Plan;
(c) To employ or retain such actuaries, attorneys, accountants,
physicians, investment advisors, consultants, specialists and
other persons or firms to advise or assist in the performance of
its duties.
All determinations and actions of the Plan Administrator shall be final
and conclusive on the Employer, the Trustee, Participants, Employees,
Beneficiaries and all other persons.
15.3 Delegation of Duties. The Plan Administrator at its discretion may
delegate specific fiduciary responsibilities (other than those of the Trustee)
or ministerial duties to employees of the Employer or other individuals, all of
whom shall serve at the pleasure of the Plan Administrator and, if full-time
employees of the Employer, without compensation. Any such person may resign by
delivering written notice of such resignation to the Plan Administrator.
Vacancies created by resignation, death or other causes may be filled by the
Plan Administrator or reabsorbed or redelegated by the Plan Administrator. Any
delegation hereunder shall be communicated in writing to the Principal Employer
and the Trustee.
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15.4 Uniformity of Rules. The Plan Administrator, at all times, in the
administration of the Plan and in the interpretation and application of the
provisions of the Plan, shall exercise all powers and authority given it in a
non-discriminatory manner, and shall apply uniform administrative rules of
general application in order to assure similar treatment to all persons in
similar circumstances.
15.5 Records and Recordkeeping. The Plan Administrator shall keep a
record of all proceedings and acts, and shall keep all such books of account,
records and other data as may be necessary for the proper administration of the
Plan, which, if the Principal Employer is not the Plan Administrator, shall be
subject to inspection or audit by the Principal Employer at any reasonable
time. The Employer shall supply all Employee data and other information
required by the Plan Administrator to administer the Plan, and the Plan
Administrator may rely upon the accuracy of such information. The Plan
Administrator shall file or cause to be filed such annual reports, financial
and other statements, and shall furnish such reports, statements and other
documents to such Participants and Beneficiaries under the Plan as may be
required by any federal or state statute or regulation within the time
prescribed for filing and furnishing such documents.
15.6 Notice to Trustee. The Plan Administrator shall promptly notify the
Trustee in writing of the death, retirement, total and permanent disability or
termination of a Participant and shall execute and deliver to the Trustee such
forms as may be required to carry out the provisions of the Plan. All notices,
instructions and certifications by the Employer to effectuate the
administration of the Plan shall be in writing signed by the Plan Administrator
or its duly authorized representative.
15.7 Indemnification. Except as otherwise provided in ERISA, the Plan
Administrator, Appeals Committee, Board of Directors, and their respective
officers, employees, members and agents shall incur no personal liability of
any nature whatsoever in connection with any act done or omitted to be done in
the administration of the Plan. The Principal Employer shall indemnify,
defend, and hold harmless the Plan Administrator, Appeals Committee, Board of
Directors, and their respective officers, employees, members and agents, for
all acts taken or omitted in carrying out their responsibilities under the
terms of the Plan or other responsibilities imposed upon such persons by ERISA.
This indemnification for all acts or omissions is intentionally broad, but
shall not provide indemnification for embezzlement or diversion of Trust Fund
assets for the benefit of any such persons, nor shall it provide
indemnification for excise taxes imposed under Section 4975 of the Code. The
Principal Employer shall indemnify such persons for expenses of defending an
action by a Participant, Beneficiary, government entity, or other persons,
including all legal fees and other costs of such defense. The Principal
Employer will also reimburse such a person for any
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monetary recovery in a successful action against such person in any federal or
state court or arbitration. In addition, if the claim is settled out of court
with the concurrence of the Principal Employer, the Principal Employer shall
indemnify such person for any monetary liability under said settlement.
15.8 Removal and Resignation. The Plan Administrator, if other than the
Principal Employer, may be removed at any time, without cause, by the Principal
Employer by giving written notice to the Plan Administrator at least thirty
(30) days prior to the effective date of such removal. The Plan Administrator,
if other than the Principal Employer, may resign at any time by giving written
notice to the Principal Employer at least thirty (30) days prior to the
effective date of such resignation. Upon such removal or resignation, the
Principal Employer shall become the Plan Administrator unless it designates
some other person as Plan Administrator who accepts such appointment. The
Principal Employer shall promptly notify the Trustee in writing of any such
resignation or removal.
15.9 Compensation and Expenses. The expenses properly incurred by the
Plan Administrator in the performance of its duties, and such compensation to
the Plan Administrator as may be agreed upon in writing from time to time
between the Principal Employer and the Plan Administrator, shall be paid by the
Employer. However, no compensation shall be paid to the Plan Administrator if
he receives full-time compensation from the Employer.
15.10 Benefit Claims Procedure. Any person who thinks he is entitled to a
benefit under the Plan shall have the right to file with the Plan Administrator
a written notice of claim for such benefit. The Plan Administrator may request
a meeting with the claimant to clarify any matters it deems pertinent. Within
sixty (60) days after receipt of such written notice of claim, the Plan
Administrator shall either grant or deny such claim. In the event such claim
is denied, the Plan Administrator shall give written notice to the claimant
that describes:
(a) The specific reasons for the denial;
(b) Specific reference to the pertinent Plan provisions on which the
denial is based;
(c) A description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
(d) An explanation of the Plan's claim review procedure.
15.11 Appointment of Appeals Committee. The Board of Directors of the
Principal Employer shall appoint the members of an
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Appeals Committee, which shall consist of three (3) or more members. The
members of the Appeals Committee shall remain in office at the will of the
Board of Directors and the Board of Directors may from time to time remove any
of said members with or without cause. Any member of the Appeals Committee may
resign upon written notice to the remaining member or members of the Appeals
Committee and to the Principal Employer respectively. The fact that a person
is a Participant or a prospective Participant shall not disqualify him from
acting as a member of the Appeals Committee. In case of the death, resignation
or removal of any member of the Appeals Committee, the remaining members shall
act until a successor-member shall be appointed by the Board of Directors of
the Principal Employer. The Secretary of the Principal Employer shall notify
the Plan Administrator and the Trustee in writing of the names of the original
members of the Appeals Committee, of any and all changes in the membership of
the Appeals Committee, of the members designated as Chairman and Secretary,
respectively, of the Appeals Committee, and of any changes in either office.
Until notified of a change, the Plan Administrator and the Trustee shall be
protected in assuming that there has been no change in the membership of the
Appeals Committee or the designations of Chairman or Secretary since the last
notification was filed with it. Neither the Trustee nor the Plan Administrator
shall be under any obligation at any time to inquire into the membership of the
Appeals Committee or its officers. All communications to the Appeals Committee
shall be addressed to its Secretary at the address of the Principal Employer.
15.12 Operations of Appeals Committee. On all matters and questions the
decision of a majority of the members of the Appeals Committee shall govern and
control; but a meeting need not be called or held to make any decision. The
Appeals Committee shall appoint one of its members to act as its Chairman and
another member to act as Secretary. The terms of office of these members shall
be determined by the Appeals Committee, and its Secretary and/or Chairman may
be removed by the other members of the Appeals Committee for any reason which
such other members may deem just and proper. The Secretary shall do all things
directed by the Appeals Committee. Although the Appeals Committee shall act by
decision of a majority of its members as above provided, nevertheless in the
absence of written notice to the contrary, every person may deal with the
Secretary of the Appeals Committee and consider his acts as having been
authorized by the Appeals Committee. Any notice served or demand made on the
Secretary of the Appeals Committee shall be deemed to have been served or made
upon the Appeals Committee.
15.13 Expenses of Appeals Committee. No member of the Appeals Committee
shall be disqualified from acting on any question because of his interest
therein. No fee or compensation shall be paid to any member of the Appeals
Committee for his services as such, but the Appeals Committee shall be
reimbursed for its expenses by the Principal Employer. The Appeals Committee
may hire
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such attorneys, accountants, actuaries, agents, clerks, and
secretaries as it may deem desirable in the performance of its functions, and
the expense associated with the hiring or retention of any such person or
persons shall be paid directly by the Principal Employer.
15.14 Review Procedure. Any claimant or any authorized representative of
a claimant whose written notice of a claim for benefits hereunder has been
denied, in whole or in part, by the Plan Administrator may upon written notice
to the Appeals Committee request a review by the Appeals Committee of such
denial of his claim for benefits. Such review may be made by written briefs
submitted by the claimant and the Plan Administrator or at a hearing, or by
both, as shall be deemed necessary by the Appeals Committee. Any such hearing
shall be held in the main offices of the Principal Employer, or at such other
location as shall be agreed upon among the Plan Administrator, the Appeals
Committee and the claimant, on such date and at such time as the Appeals
Committee shall designate upon not less than seven (7) days notice to the
claimant and the Plan Administrator unless both of them accept shorter notice.
The Appeals Committee shall make every effort to schedule the hearing on a day
and at a time which is convenient to both the claimant and the Plan
Administrator. After the review has been completed, the Appeals Committee
shall render a decision in writing, a copy of which shall be sent to both the
claimant and the Administrator. In rendering its decision, the Appeals
Committee shall have full power and discretion to interpret the Plan, to
resolve ambiguities, inconsistencies and omissions, to determine any question
of fact, to determine the right to benefits of, and the amount of benefits, if
any, payable to, the claimant in accordance with the provisions of the Plan.
Such decision shall set forth the specific reason or reasons for the decision
and the specific Plan provisions upon which the decision is based. Such
decision shall be final and binding on the claimant, the Trustee and the Plan
Administrator.
15.15 Limitation on Appeals Committee Liability. Neither the Appeals
Committee nor any of its members shall be liable for any act taken by the
Appeals Committee pursuant to any provision of the Plan except for gross abuse
of the discretion given it and them hereunder. No member of the Appeals
Committee shall be liable for the act of any other member.
15.16 Service of Legal Process. The Plan Administrator shall be the agent
for service of legal process.
15.17 Annual Statement. As soon as practicable after the end of each
calendar year, the Plan Administrator shall furnish each Participant (or his
Beneficiary, if appropriate) a statement of the accounts established under the
Plan on his behalf showing the balance of each such account at the beginning of
such year, any changes during such year and the balance of each such account at
the end of such year. Statements to Participants or their
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Beneficiaries are for reporting purposes only, and no allocation, valuation or
statement of account shall operate to vest any right or title to any portion of
the Trust Fund, except as specifically provided under the Plan.
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ARTICLE XVI
The Trustee
16.1 The Trust Fund. The Trustee shall hold such sums of money and other
property as it shall receive from time to time, all of which together with
income therefrom shall constitute the Trust Fund. The Trustee shall be a
"named fiduciary" with respect to the control and management of the Trust Fund
within the meaning of Section 402(c) (3) of ERISA and shall administer the
Trust Fund pursuant to the provisions of the Plan. The Trustee shall not be
responsible for the collection of any funds from the Employer and shall have no
authority or duty to inquire into the accuracy of any payments made by the
Employer.
16.2 Investment of Trust Fund. Subject to the provisions of Section 16.3,
the Trustee shall have the power and authority in its discretion to invest and
reinvest the assets of the Trust Fund, without distinction as to principal and
income, in such property, real or personal, which the Trustee shall consider
best suited to the purposes of the Plan, including but not limited to, common
or preferred stocks, bonds, notes, debentures, mutual funds, Policies, Group
Annuity Policies, bank accounts, common trust funds, whether or not established
or operated by the Trustee, and "qualifying employer securities and real
property" within the meaning of Section 407(d) of ERISA in such amounts as the
Trustee may in its discretion determine. The investment of Trust Fund assets
under a Group Annuity Policy shall be subject to such restrictions as may be
contained under the terms of the Group Annuity Policy with respect to transfer
between investment accounts.
16.3 Investment Direction. Pursuant to Article IX, each Participant shall
have the right to direct the Trustee as to the manner in which his accounts
shall be invested among the investment options made available by the Trustee
under the Plan. The Trustees shall not be liable for any losses incurred by
the Trust Fund by reason of any such investment direction properly communicated
to the Trustee.
16.4 Investment Manager. The Trustee may in its discretion appoint an
investment manager to manage all or a portion of the assets of the Trust Fund.
Such manager shall be a registered investment advisor, bank or insurance
company within the meaning of Section 3(38) of ERISA and shall acknowledge in
writing that he is a fiduciary with respect to the Plan. The Trustee shall
notify the Principal Employer and the Plan Administrator (if other than the
Principal Employer) of any such appointment and shall designate in writing the
portion of the Trust Fund assets which shall be subject to the management of
such investment manager.
16.5 Trustee Powers. The Trustee shall have all the power and authority
necessary and appropriate to carry out the
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administration and management of the Trust Fund. For this purpose the
Trustee's powers shall include, but shall not be limited to, the following
rights and privileges to be exercised in its discretion:
(a) To sell, exchange, convey, assign or otherwise transfer any
security or other property held in the Trust Fund, either by
private contract or public offering;
(b) To exercise all rights of ownership over any property held
in the Trust Fund, including but not limited to, all rights
incident to stock ownership, Policies or Group Annuity Policies;
(c) To register securities or other Trust Fund property in the name
of the Trust or of the Trustee and to hold instruments in bearer
form; to incur and pay all necessary custodian fees;
(d) To retain such portion of the Trust Fund uninvested and in
non-income producing property for such period of time as the
Trustee deems to be in the best interest of the Plan, without
liability for interest thereon;
(e) To bring, defend, settle, compromise or submit to arbitration
action, suits, controversies, or proceedings of any kind arising
out of the Plan, and to satisfy or collect judgments, decrees,
or awards of any kind in connection therewith;
(f) To employ such clerical help, attorneys and other agents, and to
give them such title and to delegate to them such duties, powers
and functions as the Trustee deems necessary or expedient, and
to pay reasonable expenses and compensation for such services;
(g) To purchase, hold, and own any Policies for the benefit of
Participants hereunder which are consistent with the provisions
of this Article XVI and the methods of distribution in Section 12.1.
If the Trustee consists of more than one (1) individual, the Trustees may
designate in writing one of their number to act in the execution of any and all
checks, documents and instruments on behalf of the Trust. If the Trustee
consists of more than two (2) individuals, any discretionary actions of the
Trustees shall be by majority vote.
16.6 Distributions from the Trust Fund. The Trustee shall from time to
time, on written directions of the Plan
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Administrator, make distributions from the Trust Fund to such persons, in such
manner, in such amounts and for such purposes as may be specified by the Plan
Administrator. The Trustee shall be under no liability for any distribution
made pursuant to such written direction and shall be under no duty to make
inquiry as to whether any distribution direct by the Plan Administrator is made
pursuant to the provisions of the Plan. The Trustee shall not be liable for the
proper application of any portion of the Trust Fund if distribution is made in
accordance with the written directions of the Plan Administrator, as herein
provided, nor shall the Trustee be responsible for the adequacy of the Trust
Fund to meet and discharge any and all payments and liabilities under the Plan.
16.7 Trustee Liability and Protection. The Trustee shall be fully protected
in acting upon any instrument, certificate, or paper, believed by it to be
genuine and to be signed or presented by the proper person or persons, and the
Trustee shall be under no duty to make any investigation or inquiry as to any
statement contained in any such writing but may accept the same as conclusive
evidence of truth and accuracy of the statements therein contained. The Trustee
shall be free from all liabilities for its acts and conduct in the
administration and management of the Trust Fund assets and for any losses or
diminution in value of the Trust Fund, except for its acts of negligence or
willful misconduct and except for losses or diminution in the value that result
from the Trustee's own negligence or willful misconduct. However, nothing
contained herein shall relieve the Trustee from any responsibility or liability
for any responsibility, obligation or duty that the Trustee may have under
ERISA.
16.8 Indemnification. Except as provided below and as otherwise provided
in ERISA, no individual person who is serving as the Trustee or one of its
members shall incur personal liability of any nature whatsoever in connection
with any act done or omitted to be done in carrying out his responsibilities
under the terms of the Plan or other responsibilities imposed upon such
individual by ERISA. The Principal Employer shall indemnify, defend, and hold
harmless such individuals for all acts taken or omitted in carrying out their
responsibilities under the terms of the Plan or other responsibilities imposed
upon such individuals by ERISA. This indemnification for all acts or omissions
is intentionally broad, but shall not provide indemnification for embezzlement
or diversion of Trust Fund assets for the benefit of any such
individuals, nor shall it provide indemnification for excise taxes imposed
under Section 4975 of the Code. The Principal Employer shall indemnify
such individuals for expenses of defending an action by a Participant,
Beneficiary, government entity or other person, including all legal fees and
other costs of such defense. The Principal Employer will also reimburse
such an individual for any monetary recovery in a successful action
against such individual in any federal or state court or arbitration. In
addition, if the claim is settled out of court with the concurrence of the
Principal Employer, the Principal Employer shall indemnify such individual
for any monetary liability
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under said settlement. Such indemnification will not be provided with respect
to a Trustee which is a corporate trustee.
16.9 Compensation, Expenses and Taxes. The expenses incurred by the
Trustee in the performance of its duties, including fees for legal, accounting
and investment services rendered to the Trustee, and such compensation to the
Trustee as may be agreed upon in writing from time to time between the
Principal Employer and the Trustee, shall be paid by the Employer; provided,
however, that any Contract Asset Fees shall be deducted from the accounts
maintained under the Plan as of June 30 and December 31 in each calendar year.
All taxes of any and all kinds whatsoever that may believed or assessed under
existing or future laws upon, or in respect of, the Trust Fund or income
thereof shall be paid from the Trust Fund. No compensation shall be paid to
any individual Trustee if he receives full-time compensation from the Employer.
16.10 Records and Accounting. The Trustee shall keep accurate and
detailed accounts of all investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records relating thereto
shall be open to inspection at all reasonable times by the Employer and the
Plan Administrator. Within sixty (60) days following the close of each calendar
year, or such other date as may be agreed upon, the Trustee shall file with the
Principal Employer and the Plan Administrator a written report of the receipts,
disbursements and other transactions effected by the Trustee during such
calendar year.
16.11 Removal of Trustee. The Trustee may be removed at any time, without
cause, by the Principal Employer giving written notice to the Trustee at least
thirty (30) days prior to the effective date of such removal. The Trustee may
resign at any time by giving written notice to the Principal Employer at least
thirty (30) days prior to the effective date of such resignation. Upon such
removal or resignation, or upon the death of the Trustee, the Principal
Employer shall appoint a successor Trustee who shall have the same powers,
duties, privileges and immunities as its predecessor in office. If there is no
remaining Trustee after such removal or resignation, then upon such appointment
and acceptance, the replaced Trustee shall transfer, pay over and deliver to
such successor the assets then held under the Trust Fund.
16.12 Valuation of Trust Fund. The Trustee shall, as of December 31 and
at such other times as directed by the Plan Administrator, determine the net
worth of the Trust Fund and deliver a statement of such valuation to the
Principal Employer and the Plan Administrator. In determining such net worth
the Trustee shall value the Trust Fund assets at their fair market value as of
such date. The Trustee shall as of the last day of each calendar month
determine the net worth of the Trust Fund assets held under a Group Annuity
Policy and deliver a statement of such valuation to
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the Principal Employer and the Plan Administrator. Any valuation of the Trust
Fund performed hereunder shall include a separate valuation of the portion of
the Trust Fund assets held under a Group Annuity Policy.
16.13 Transfers From Other Plans. Upon receiving written instructions
from the Principal Employer, the Trustee shall accept for investment under the
Trust Fund the transfer of all or any portion of the assets of any other trust
fund maintained by the Employer (or any subsidiary thereof) which is exempt
under Section 501(a) of the Code by qualifying under Section 401(a) of the
Code. Unless otherwise directed by the Principal Employer, the Trustee shall
not be required to segregate such transferred assets but the Trustee shall
maintain records which will permit the determination of the equitable interest
of such other trust fund in the Trust Fund. Upon receiving written
instructions from the Employer, the Trustee shall make distributions out of the
Trust Fund with respect to such transferred assets in such manner and in such
amounts as specified by the Employer; however, in no event shall such
transferred assets be used for or diverted to any purpose other than for the
exclusive benefit of Employees and their Beneficiaries who are entitled to
benefits under such other trust fund. Furthermore, such transferred assets
shall not be subject to assignment by such other trust fund.
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ARTICLE XVII
Amendment and Termination of Plan
17.1 Amendment of Plan. The Principal Employer, at any time and from time
to time, may by action of its Board of Directors and/or by a writing executed
by the Principal Employer by its officer or officers amend any or all of the
provisions of the Plan without the consent of any person, provided that:
(a) no amendment shall increase the duties or liabilities of the
Trustee without its written consent;
(b) no amendment shall permit any part of the Trust Fund to revert
to the Employer or permit any part of the Trust Fund, other than
such part as may be required to pay taxes, if any, or
administration expenses of the Plan, to be used for or diverted
to purposes other than the exclusive benefit of Employees or
their Beneficiaries; provided, however, that this provision
shall not prohibit reversion permitted to the Employer by
Section 6.6 or 18.4;
(c) no amendment shall eliminate an optional form of distribution
unless permitted by law or cause any part of any Participant's
account to be forfeited unless such forfeiture is required to
obtain or retain approval of the Plan under the Code or is
otherwise required by law; and
(d) in the event the vesting schedule under Section 11.1 is amended,
the vested interest of each affected Participant in his accounts
shall not be less than his vested interest determined under such
vesting schedule without regard to such amendment.
A copy of any amendment of the Plan shall be provided to the Trustee.
17.2 Termination of Plan. While it is the intention of the Employer to
continue the Plan indefinitely, the Employer reserves the right to reduce,
suspend or discontinue contributions to the Plan, and the Principal Employer
reserves the right to terminate the Plan at any time by action of its Board of
Directors and/or by a writing executed by the Principal Employer by its officer
or officers. Upon complete discontinuance by the Employer of its contributions
to the Plan or upon termination of the Plan by the Principal Employer, all
unallocated amounts in the Trust Fund shall be allocated pursuant to Article VI
and the date of such discontinuance or termination shall be treated as a
Valuation Date.
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No Employees shall thereafter be admitted to participation hereunder. The
Principal Employer shall determine whether the Trustee shall disburse the
interest of Participants and their Beneficiaries as immediate benefit payments,
retain such interest in the Trust Fund and disburse them in the future in
accordance with Plan provisions pertaining to benefit payments, or use what
other methods the Principal Employer deems advisable in order to furnish
whatever benefits the Trust Fund will provide, subject nevertheless to the
provisions of Article XII limiting the method of distribution. The
determination of the Principal Employer shall be conclusive and binding on all
persons.
17.3 Restrictions on Distributions. Notwithstanding the foregoing
provisions of this Article XVII, in no event shall any distribution of benefits
be made hereunder which contravenes the distribution restrictions for cash or
deferred arrangements set forth in Section 401(k) of the Code.
17.4 Merger Consolidation. Transfer of Assets. Unless otherwise permitted
by law or regulations, the Plan shall not be merged into, or consolidated with,
nor shall any assets or liabilities be transferred to any profit-sharing,
pension or retirement plan under circumstances resulting in a transfer of
assets or liabilities from the Plan to any other plan unless (1) immediately
after any such merger, consolidation or transfer each Participant would, if
such other plan then terminated, receive a benefit which would be equal to or
greater than the benefit the Participant would have been entitled to receive
immediately before such merger, consolidation or transfer if the Plan had then
terminated, and (2) such other plan contains the appropriate distributions
restrictions for cash or deferred arrangements set forth in Section 401(k) of
the Code. In no event shall any assets be transferred to the Plan from any
profit-sharing, pension or retirement plan which would cause the Plan to become
a "transferee plan" (within the meaning set forth in Section 401(a) (11) (B) of
the Code).
17.5 Vesting Upon Termination. In the event of complete discontinuance by
the Employer of its contributions to the Plan or termination or partial
termination of the Plan, each affected Participant shall have a fully vested
and non-forfeitable right to his Employer Account.
17.6 Withdrawal From Plan. With the approval of the Principal Employer,
each Employer (other than the Principal Employer) may at any time withdraw from
the Plan upon giving the Principal Employer and the Trustee at least thirty
(30) days written notice of its intention to withdraw. The Principal Employer
may at any time revoke the Plan participation of any Employer upon giving such
Employer and the Trustee at least thirty (30) days written notice of the
effective date of such revocation. In the event of such withdrawal or
revocation the Principal Employer shall in its sole discretion either:
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(a) direct the Trustee to make such current or deferred distribution
to the Participants affected by such withdrawal or revocation as
it should deem appropriate and in accordance with the Plan; or
(b) direct that the portion of the Trust Fund allocable to such
affected Participants be transferred to a trust fund or group
contract which is qualified and exempt under the applicable
provisions of the Code, for purposes of providing equal or
greater benefits for such Participants.
Any distribution or transfer under this Section 17.6 with respect to
assets held under any Group Annuity Policy shall be subject to such
restrictions as may be contained under the terms of the Group Annuity Policy
with respect to the withdrawal, distribution or transfer of funds thereunder.
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ARTICLE XVIII
Limitations on Annual Additions
18.1 Maximum Annual Amounts. Notwithstanding anything contained in the
Plan to the contrary, in no event shall a Participant's annual additions and
annual amount of retirement benefits be greater than the maximum allowable
amounts determined in accordance with Section 415 of the Code and regulations
thereunder, taking into account paragraph (e) of said Section 415, Section 1106
of the Tax Reform Act of 1986, Section 235(g) of the Tax Equity and Fiscal
Responsibility Act of 1982 and Section 2004(d) of ERISA which are,
respectively, incorporated herein by reference.
18.2 Reduction of Excess Amounts. In the event a Participant, who would
otherwise be credited with excess annual additions, benefits or projected
benefits, is also a participant under any other defined benefit plan of the
Employer or an Affiliate and/or any defined contribution pension plan of the
Employer or an Affiliate, adjustment under Section 415 of the Code shall be
made in the following order:
(a) first, the excess of the Participant's projected employer funded
annual benefit under any defined benefit pension plan of the
Employer or an Affiliate over the Participant's accrued employer
funded annual benefit under such plan shall be reduced;
(b) second, annual additions under the Plan or any other defined
contribution plan of the Employer or an Affiliate, other than
contributions, if any, made by the Employer or an Affiliate
at the election of the Participant, in lieu of cash compensation
pursuant to Section 401(k) of the Code, shall be reduced; and
(c) third, accrued employer funded annual benefits under any defined
benefit plan of the Employer or an Affiliate shall be reduced;
and
(d) fourth, contributions, if any, made under the Plan or any other
defined contribution plan of the Employer or an Affiliate by the
Employer or an Affiliate at the election of the Participant in
lieu of cash compensation pursuant to Section 401(k) of the
Code, shall be reduced.
Notwithstanding the foregoing, in the event a Participant's excess annual
benefits or projected benefits would only result in a violation under Section
415(b) of the Code, his benefits under the
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defined benefit pension plans of the Employer or an Affiliate shall be reduced
in the order set forth in subparagraphs (a) and (c) above. Furthermore, in the
event a Participant's excess annual additions would only result in a violation
under Section 415(c) of the Code, his annual additions shall be reduced under
the defined contribution plans of the Employer or any Affiliate, including the
Plan, in the order set forth in subparagraphs (b) and (d) above.
18.3 Definitions. For purposes of calculating the maximum allowable
amounts under Section 18.1, a Participant's limitation year shall mean his
"Limitation Year" as defined in Section 2.19 and his "compensation" shall mean
all amounts paid to him in payment for services rendered by him to the Employer
or any Affiliate which may be taken into account for purposes of determining
limitations on annual additions and benefits under Section 415 of the Code and
any lawful regulations thereunder and includible in gross income during the
Limitation Year.
18.4 Suspense Account. In the event that, after the application of any
other provisions of the Plan and any provisions of The Lamson & Sessions Co.
Salaried Employees' Retirement Plan, there still remain, as a result of a
reasonable error in estimating a Participant's Compensation, an allocation of
forfeitures or other limited facts and circumstances which the Commissioner of
Internal Revenue finds justify the availability of the rules set forth in this
Section 18.4, Employer contributions which, if allocated to a Participant,
would be in excess of the limits on annual additions set forth in Section 18.1,
such excess shall be used in the next Limitation Year and in any succeeding
Limitation Years, as necessary, to reduce the Employer contributions which
would otherwise be made for such Participant for such Limitation Years. In the
event such Participant is not in the service of the Employer at the end of the
next Limitation Year, or at the end of any succeeding Limitation Year on which
such excess still remains, such excess amounts shall be used to reduce the
Employer contributions for all remaining Participants who are in the service of
the Employer.
Until any excess described above is used to reduce Employer contributions,
it shall be held in a suspense account. Such suspense account shall not be
subject to the periodic valuation procedure described in Section 4.3.
Notwithstanding any other provisions of the Plan to the contrary (and
specifically Section 6.6), in the event the Plan is terminated at a time when
there are amounts credited to a suspense account pursuant to this Section 18.4,
such excess shall be returned to the Employer.
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ARTICLE XIX
Top-Heavy Provisions
19.1 Restrictions. During any Plan Year that the Plan is top-heavy, as
determined in accordance with Section 19.2, the special restrictions contained
in Sections 19.3 and 19.4 shall apply.
19.2 Determination of Top-Heavy Status. The Plan shall be considered to
be top-heavy in any Plan Year if, as of the determination date for such Plan
Year, all the aggregation groups of which the Plan is a member are top-heavy
groups. In the event that in any Plan Year the Plan is a member of an
aggregation group which is not a top-heavy group, the Plan shall not be
considered to be top-heavy for such Plan Year.
For purposes of determining the foregoing, the following terms shall be
defined as follows:
(a) "determination date" shall mean, for the first Plan Year, its
last day, and thereafter shall mean, for any other Plan Year,
the last day of the preceding Plan Year;
(b) "key employee" shall mean a "key employee" as described in
Section 416(i) of the Code which is hereby incorporated by
reference and who is described for informational purposes herein
as any Employee, former Employee or Beneficiary who at any time
during the Plan Year or the four (4) preceding Plan Years is:
(i) an officer of the Employer or an Affiliate having total
remuneration (as defined in Section 19.2(g)) for the Plan
Year of determination greater than Forty-Nine Thousand
Thirty-Two Dollars ($49,032.00) or, if greater, fifty
percent (50%) of the amount specified in Section 415(b) (1)
(A) of the Code (plus any increase for cost-of-living after
1989 as determined from time to time pursuant to regulations
issued by the Secretary of the Treasury or his delegate
pursuant to Section 415(d) of the Code);
(ii) a one-half of one percent (.5%) actual or constructive owner
of the Employer or any Affiliate who owns one of the ten
(10) largest interests in the Employer or any Affiliate
and who is an employee of the Employer or an Affiliate
having total remuneration (as
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defined in Section 19.2(g)) greater than Thirty Thousand
Dollars ($30,000.00) or, if greater, the amount specified in
Section 415(c) (1) (A) of the Code (plus any increase for
cost-of-living after 1989 as determined from time to time
pursuant to regulations issued by the Secretary of the
Treasury or his delegate pursuant to Section 415(d) of the
Code);
(iii) a five percent (5%) actual or constructive owner of the
Employer or any Affiliate; or
(iv) a one percent (1%) actual or constructive owner of the
Employer or any Affiliate having total remuneration (as
defined in Section 19.2(g)) from the Employer and all
Affiliates for the Plan Year of determination greater than
One Hundred Fifty Thousand Dollars ($150,000.00);
provided that any such Employee also performed service for
the Employer or an Affiliate during the five (5) Plan Year
period ending on the determination date; and provided that
an amount held for the Beneficiary of a key employee who is
deceased shall be deemed to be an amount held for a key
employee;
(c) "non-key employee" shall mean any Employee, former Employee or
Beneficiary who is not a key employee including any Employee or
Beneficiary who was formerly a key employee;
(d) "permissive aggregation group" shall mean the required
aggregation group plus one or more other plans to which the
Employer or any Affiliate makes contributions, which, when
considered as a group with the required aggregation group, would
continue to comply with Sections 401(a) (4) and 410 of the Code;
(e) "required aggregation group" shall mean each defined benefit
plan and each defined contribution plan of the Employer or any
Affiliate in which a key employee is a participant in the Plan
Year containing the determination date or in any of the four (4)
preceding Plan Years and each other defined benefit plan and
each other defined contribution plan which, during said Plan
Years, enables such plans to meet the requirements of Section
401(a) (4) or 410 of the Code, including for this purpose each
defined benefit plan and each
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defined contribution plan of the Employer or any Affiliate which
was terminated during any of said Plan Years;
(f) "top-heavy group" shall mean any aggregation group if the sum,
as of the determination date, of:
(i) the aggregate value of the account balances of key employees
under all defined contribution plans included in such group;
and
(ii) the present value of the cumulative accrued benefits for key
employees under all defined benefit plans included in such
group;
exceeds sixty percent (60%) of a similar sum determined for
all participants, former participants and beneficiaries
permitted to be taken into account pursuant to Section
416(g) of the Code, with such values being determined for
each plan as of the most recent valuation date occurring
within the twelve (12) month period ending on the
determination date and subject to appropriate adjustments
under said Section 416(g) and lawful regulations issued
thereunder, including the requirement that benefits and
accounts of a participant be increased by the aggregate
distributions with respect to such participant during the
five (5) year period ending on the determination date;
(g) "total remuneration" shall mean, for any participant, all
amounts paid to him in payment for services rendered by him to
the Employer or any Affiliate which may be taken into account
for purposes of determining limitations on annual additions and
benefits under Section 415 of the Code and any lawful
regulations thereunder; provided that on or after the
Restatement Date and prior to January l, 1994 total remuneration
shall not exceed Two Hundred Thousand Dollars ($200,000.00)
(plus any increase for cost-of-living after 1989 prescribed by
the Secretary of the Treasury pursuant to Sections 401(a) (17)
and 415(d) of the Code) and on or after January 1, 1994 total
remuneration shall not exceed One Hundred Fifty Thousand Dollars
($150,000) (plus any adjustment for cost-of-living or otherwise
as shall be prescribed by the Secretary of the Treasury pursuant
to Sections 401(a) (17) and 415(d) of the Code) and provided
further that in determining the foregoing limit, the family
aggregation rules contained in Section 2.7 hereof shall apply;
and
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(h) "valuation date" shall mean:
(i) in the case of a defined contribution plan, as date a of
which account balances are valued; and
(ii) in the case of a defined benefit plan, a date as of which
liabilities and assets are valued for computing plan costs
for purposes of determining the plan's minimum funding
requirements under Section 412 of the Code.
In making any of the aforementioned calculations, contributions due but
unpaid as of the determination date shall be included in determining the value
of account balances. In addition, the present value of cumulative accrued
benefits shall be determined as if they accrued no more rapidly than the
slowest rate of accrual permitted under the fractional rule of Section 411(b)
(1) (C) of the Code utilizing the actuarial factors and assumptions set forth
in the defined benefit plans included in the aggregation groups. Furthermore,
for purposes of making the aforementioned calculations with respect to defined
benefit plans, proportional subsidies, and benefits not relating to retirement
benefits such as pre-retirement death and disability benefits and post
retirement medical benefits, are to be disregarded but nonproportional
subsidies are to be taken into account.
19.3 Minimum Contribution. During any Plan Year that the Plan is
top-heavy, the Employer shall make a minimum contribution to the Plan on behalf
of each non-key employee who meets all of the following requirements:
(a) he is a Eligible Employee who is employed on the last day of
such Plan Year or was an Eligible Employee whose employment
terminated on or as of the last day of such Plan Year,
irrespective of whether he has completed one thousand (1,000)
hours for the Employer or any Affiliate during such Plan Year;
and
(b) he is not a participant in a defined benefit pension plan that
provides him with a minimum accrued benefit (regardless of
whether such accrued benefit is offset by benefits under the
Plan) which satisfies the requirements of Section 416(c) (1) of
the Code.
The minimum contribution to be made hereunder for such a non-key employee shall
be an amount which when added to the contributions allocable to such non-key
employee under all other defined contribution plans of the Employer or any
Affiliate shall cause such total contributions to be at least equal to the
lesser of:
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(i) three percent (3%) of the non-key employee's total remuneration
(as defined in Section 19.2(g) hereof) during the Plan Year; or
(ii) the largest percentage of total remuneration provided to any key
employee by the contributions of the Employer or any Affiliate
for such Plan Year.
In determining the percentage set forth in subparagraph (ii) above, salary
reduction amounts which are excluded from the taxable income of a key employee
under Code Section 402(e) (3) shall be taken into account, but such amounts,
together with any related matching contributions, shall not be taken into
account with respect to non-key employees in determining compliance with this
Section 19.3. However, rollover contributions made pursuant to Section 8.2 and
Employer contributions made pursuant to Section 11.7(b) shall not be taken into
account when determining the Employer contributions required under this Section
19.3. If an Eligible Employee who is not a Participant receives a contribution
under this Section 19.3, he shall be deemed to a Participant for purposes of
distributing such contribution and earnings thereon.
19.4 Limitations on Annual Additions Under Top-Heavy Plan. During any
Plan Year that the Plan is top-heavy the limitations on annual additions and
annual benefits under Section 415 of the Code, described in Section 18.1
hereof, shall be reduced as described in Section 416(h) of the Code. The
Employer will not make the additional contributions permitted by Section 416(h)
(2) of the Code to increase the limits under Section 415(e) of the Code.
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ARTICLE XX
Loans
20.1 Loans to Participants. The Plan Administrator may upon receipt of
the written application of a Participant in accordance with a uniform,
nondiscriminatory policy available to all such Participants direct the Trustee
to make a bona fide loan or loans to such borrower; provided, however, that on
and after August 1, 1994 a Participant who has terminated employment may borrow
from the Plan only if he is a Party in Interest. No loan under this Article XX
shall be permitted unless the borrower's spouse consents to such loan (and the
assignment set forth in Section 20.3) within the ninety-day period preceding
the making of such loan pursuant to Section 12.3. For purposes of this Article
XX, the words "Party in Interest" shall mean any person who is a party in
interest within the meaning of Section 3(14) of ERISA which is hereby
incorporated by reference. For purposes of determining whether a terminated
Participant is a Party in Interest under the loan provisions contained in this
Article XX, the words "Party in Interest" generally refer to a terminated
Participant who is either an officer or director of the Employer.
20.2 Limits on Loans. Each loan under this Article XX shall be for a
minimum of One Thousand Dollars ($1,000.00). Loans made on and after August 1,
1994 may only be made from accounts which are fully vested and nonforfeitable.
In no event shall the total of any outstanding loan balances under this Article
XX, including the interest accrued thereon, exceed the then value of the vested
portion of the borrower's accounts determined pursuant to Section 4.2; nor
shall the total of such loan balances when aggregated with loan balances of the
borrower under any other qualified retirement plans maintained by the Employer
or any Affiliate exceed the lesser of (1) one-half (1/2) of the then value of
the vested portion of the borrower's accounts determined pursuant to Section
4.2, or (2) $50,000, reduced by the excess (if any) of the highest outstanding
balance of loans to such borrower from the Plan and all other qualified
retirement plans of the Employer or any Affiliate during the one-year period
preceding the date on which the loan is made over the outstanding balance of
loans to such borrower from the plans on the date the loan is made.
20.3 Security for Loans. Each loan made under this Article XX shall be
evidenced by a note payable to the order of the Trustee and shall be secured by
adequate collateral. Such collateral shall consist of the assignment of the
borrower's entire right, title and interest in and to one-half (1/2) of the
vested portion of the borrower's accounts in the Trust Fund. By accepting such
loan, the borrower automatically assigns as security for such loan his right,
title and interest in and to one-half (1/2) of the vested portion of his
accounts in the Trust Fund.
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20.4 Repayment Procedures. Except as provided in Section 20.6, repayment
of any loan made to an Employee shall be by payroll deduction unless another
procedure is agreed to by the Plan Administrator and the Employee. Except as
provided in Section 20.6, repayment of any loan made to a borrower who is not
an Employee shall be made as mutually agreed by the Plan Administrator and such
borrower.
20.5 Loans Considered Investments. Each loan made under this Article XX
shall be considered an investment by the borrower of his accounts. The
accounts of a borrower, to the extent of such borrowing, shall be deemed
segregated for investment purposes. Interest shall be charged at a reasonable
rate established by the Trustee based on the rate charged by commercial lending
institutions for similar loans. Each loan made prior to August l, 1994, shall
be charged against the borrower's accounts on a "pro rata" basis. That is, if
the borrower has more than one account, all his accounts shall be charged in
proportion to the balances in the accounts. Each loan made on and after August
l, 1994 shall only be charged against the borrower's accounts which are fully
vested and nonforfeitable on a "pro-rata" basis. That is, if the borrower has
more than one account which is fully vested and nonforfeitable, all his
accounts which are fully vested and nonforfeitable shall be charged in
proportion to the balances in such accounts. If an account is invested in more
than one investment option, all options shall be reduced in proportion to the
balance of the account invested in each option. Each borrower who applies for
a loan under this Article XX shall receive a written statement of the terms and
conditions of the loan, including the annual interest rate and the total dollar
amount of the finance charges.
20.6 Repayment of Loan. The term of each loan made under this Article XX
shall be arrived at by mutual agreement between the Trustee and the borrower
pursuant to a uniform, nondiscriminatory policy; provided, however, that (1)
such term shall in no event exceed five (5) years unless the loan is used to
acquire a dwelling unit which is to be used within a reasonable time as a
principal residence of the borrower, in which case, such loan may be for such
term as is customary in similar transactions involving lending institutions,
and (2) all loans shall be amortized in level payments made not less frequently
than quarterly over the term of the loan. Furthermore, such term shall not
extend beyond the date the Participant attains age seventy and one-half
(70-1/2). All loan repayments and interest earned on any loan shall be
credited to the Participant' s accounts in proportion to amounts that were
drawn from the accounts to make the loan.
If a Participant terminates employment or becomes entitled to a
distribution from the Trust Fund prior to August l, 1994 at a time when there
is an unpaid balance of a loan under this Article XX, the Trustee shall proceed
as follows:
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(a) permit the Participant to continue making monthly payments of
principal and interest on the remaining balance of the loan
until it is repaid;
(b) permit the Participant to pay off the remaining balance on the
loan in a single lump sum payment; or
(c) at the Participant's election or in the event the loan is in
default, deduct the unpaid balance of the principal of such loan
or any portion thereof, and any interest accrued to the date of
such deduction, from any payment or distribution from the Trust
Fund to which the Participant is entitled. If the amount of
such payment or distribution is not sufficient to repay the
remaining balance of such loan, the Participant shall be liable
for and continue to make payments on the balance still due from
him.
If a Participant terminates employment or becomes entitled to a
distribution from the Trust Fund on and after August l, 1994 at a time when
there is an unpaid balance of a loan under this Article XX, the Trustee shall
proceed as follows:
(a) require the Participant to pay off the remaining balance on the
loan in a single lump sum payment; or
(b) at the Participant's election or in the event the loan is in
default, deduct the unpaid balance of the principal of such loan
or any portion thereof, and any interest accrued to the date of
such deduction, from any payment or distribution from the Trust
Fund to which the Participant is entitled. If the amount of
such payment or distribution is not sufficient to repay the
remaining balance of such loan, the Participant shall continue
to be liable for the balance still due from him.
If a Participant's Beneficiary or Spouse becomes entitled to and elects to
receive a distribution from the Trust Fund at a time when there is an unpaid
balance of a loan under this Article XX, the Trustee shall deduct the unpaid
balance of the principal of such loan or any portion thereof, and any interest
accrued to the date of such deduction, from any payment or distribution from
the Trust Fund to which the Participant's Beneficiary or Spouse is entitled
unless the Beneficiary or Spouse repays the loan in a single lump sum payment
prior to the date of payment or distribution from the Trust Fund. If the
amount of such payment or distribution is not sufficient to repay the remaining
balance of
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such loan, the Beneficiary or Spouse shall be liable for the balance still due
from him.
20.7 Payment of Prior Loans. Notwithstanding the foregoing provisions of
this Article XX, in the event the proceeds of any loan made hereunder shall be
used directly or indirectly to pay off any obligations under a prior loan made
hereunder, the term of the more recent loan shall not extend beyond the period
of-repayment under the prior loan. For purposes of this Section 20.7, the Plan
Administrator shall be able to rely on a certification by the borrower as to
the use of the new loan's proceeds.
20.8 Group Annuity Policy. Any loan under this Article XX with respect to
assets held under the Group Annuity Policy shall be subject to such
restrictions as may be contained under the terms of the Group Annuity Policy
with respect to the withdrawal of funds thereunder.
20.9 Effective Date of Loan Provisions. Except as otherwise provided in
this Article XX, the effective date of the provisions set forth in this Article
XX is October 19, 1989. Loans made from the Plan on or after the Restatement
Date and prior to October 19, 1989 shall be deemed to have been made in
accordance with the provisions of the Plan (as constituted prior to the
Restatement Date) in effect at the time of the making of the loan.
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ARTICLE XXI
Insurance Policies
21.1 Purchase of Policies. The Trustee shall, upon written direction by a
Participant, apply a portion of contributions made by or on behalf of such
Participant toward the purchase of Policies on the life of such Participant.
The Trustee shall be designated the sole owner of such Policies, but all
benefits, rights, privileges and options under such Policies and all dividends
payable or refunds made by the Insurance Company on such Policies shall be
exercised and dealt with for the sole benefit of the Participant (or his
beneficiary) on whose behalf such Policies were purchased.
21.2 General Rules and Limitations. All Policies shall be issued on a
uniform and non-discriminatory basis as of a common anniversary date which
shall be the last day of the Plan Year or the first day of the following month.
Any adjustment to an existing Policy to increase or decrease the face amount
and premium may be made as of any such date, or as of another date during the
calendar year. Payments made to the Insurance Company with respect to any
Policy purchased on behalf of a Participant shall constitute an investment of
funds credited to such Participant's account, and his accounts shall be reduced
accordingly by any such payments. Any dividends declared upon a Policy may be
applied in any manner permitted by the Insurance Company and shall increase the
account of the Participant on whose behalf the Policy was issued. The purchase
of Policies shall be so limited that at no time shall the aggregate of premiums
paid exceed the following percentages of the aggregate Employer contributions
credited to a Participant's account:
(a) If the Policies on the life of a Participant are all term
insurance - 25%.
(b) If the Policies on the life of a Participant are all ordinary
life insurance - 49.9%.
(c) If the Policies on the life of a Participant include both term
and ordinary life insurance, the total term premiums plus
one-half of the ordinary life premiums shall not exceed 25%.
In the event of any conflict between the provisions of the Plan and the
terms of any Policy purchased hereunder, the provisions of the Plan shall
control.
21.3 Disposition at Retirement. Upon the retirement of a Participant on
or after his Normal Retirement Date or upon his termination of employment due
to total and permanent disability, the Trustee shall transfer and deliver any
Policy held on behalf of
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such Participant to the Participant (with such endorsements as the Trustee may
direct), or convert such Policy to an annuity, or surrender such Policy in
which case the cash value thereof shall be included as part of the accounts of
such Participant and distributed to him in accordance with the provisions of
Article XII.
21.4 Disposition upon Termination. If a Participant terminates his
employment before reaching his Normal Retirement Date by reason other than
death or total and permanent disability, he shall be vested in the percentage
of the cash value of any Policy held on his behalf in accordance with the
vesting schedule set forth in Section 11.1 and his Years of Service determined
pursuant to Section 11.2. The Participant may direct the Trustee to:
(a) transfer and deliver the Policy to the Participant (with such
endorsements as the Trustee may direct) or convert such Policy
to an annuity after recovering for the benefit of the Trust Fund
the nonvested portion of the cash value of the Policy by payment
from the Participant; or
(b) surrender the Policy and pay the nonforfeitable portion of the
cash value of the Policy into the Participant's accounts for
disposition in accordance with the provisions of Article XI.
The nonvested portion of the cash value of such Policy which may be
released in accordance with the provisions of this Section 21.4 shall be
treated as a forfeiture and applied in accordance with Section 11.4.
21.5 Disposition upon Death. All death benefits, dividends or refunds of
premium payable under any Policy shall be paid to the Beneficiary named in the
Policy. Such death benefits shall be paid to the Beneficiary in accordance
with the terms and settlement options contained in the Policy. The Beneficiary
of any Policy shall be deemed to be the Participant's Spouse for all proceeds
of such Policy, unless the Spouse consents to another Beneficiary pursuant to
Section 12.3.
21.6 Conversion of Policies. Notwithstanding any other provisions herein,
in the event any Policy is converted to an annuity pursuant to the provisions
of this Article XXI, such annuity shall be endorsed as nontransferable.
21.7 Kev Man Insurance. The Trustee shall have the authority, which shall
be exercised upon the written direction of the Employer, to invest in life
insurance Policies on the lives of key Employees of the Employer, payable upon
death to the Plan as beneficiary. Such Policies shall be vested exclusively in
the Trustee for the benefit of the Plan and death proceeds received
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under any such Policy shall be allocated in accordance with the provisions of
Article VI.
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ARTICLE XXII
Miscellaneous Provisions
22.1 Spendthrift Provisions. Subject to Section 20.3, the rights of any
Participant or his Beneficiary to any benefit or to any payment under the Plan
shall not be subject to alienation, assignment, attachment, transfer,
garnishment or other legal or equitable process, and no Participant or his
Beneficiary shall have any right to alienate, anticipate, commute, pledge,
encumber or assign any such benefit or payment, either voluntarily or
involuntarily. The preceding sentence shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order is
determined to be a "qualified domestic relations order", as defined in Section
414(p) of the Code. The Plan Administrator shall establish a procedure to
determine the status of a domestic relations order as a qualified domestic
relations order and to administer Plan distributions in accordance with such
qualified orders.
22.2 Limitation of Rights and Benefits. Nothing appearing in or done
pursuant to the Plan shall be held or construed to create a contract of
employment with the Employer, to obligate the Employer to continue the services
of any Employee, or to affect or modify any Employee's terms of employment in
any way; or to give any person any legal or equitable right or interest in the
Trust Fund or any part thereof or distribution therefrom, or against the
Employer, except as expressly provided herein.
22.3 Benefits Subject to Adequacy of Trust Fund. All benefits payable
under the Plan shall be paid or provided solely from the Trust Fund and the
Employer assumes no liability or responsibility therefor. The Employer is
under no legal obligation to make any contribution to the Plan and no action or
suit shall be brought by a Participant or his Beneficiary or by the Trustee,
against the Employer for any such contribution.
22.4 Plan for Exclusive Benefit of Employees. Except as provided in
Section 6.6 or 18.4 and notwithstanding any other provisions to the contrary,
no part of the Trust Fund shall revert to the Employer and no part of the Trust
Fund, other than such part as is required to pay taxes, if any, or
administrative expenses chargeable against the Trust Fund, shall be used for
any purpose other than the exclusive benefit of Employees and their
Beneficiaries, pursuant to the provisions of the Plan.
22.5 Construction. The headings of the Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof. Whenever used herein, a pronoun or adjective in the
masculine gender includes the feminine gender, the singular includes the
plural and the plural
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includes the singular, unless the content clearly indicates otherwise. To the
extent not preempted by ERISA, the Plan shall be construed according to the
laws of the State of Ohio. In the event any provision of the Plan shall be
held illegal or invalid for any reason, such determination shall not affect the
remaining provisions of the Plan and it shall be construed as if such illegal
or invalid provisions had never been included.
22.6 Facility of Payment. In the event the recipient of any benefit
payments under the Plan is incapable of handling his affairs by reason of
minority, illness, infirmity or other incapacity, the Trustee may apply such
payments to the care, comfort, maintenance, support, education or other use of
such recipient, or disburse such payments to a person or institution having the
care and control of such recipient. The receipt by such person or institution
of any such payments shall be complete acquittance therefor, and any such
payment to the extent thereof, shall discharge the liability of the Plan for
the payment of benefits hereunder to such recipient.
22.7 Non-Covered Employment. Any employment with the Employer in a job
classification not covered by the Plan shall be treated as covered employment
for the limited purpose of determining a person's eligibility to participate in
the Plan under Article III and his vested interest under Article XI. Hours of
Service and Years of Service for such employment shall be credited in
accordance with the applicable provisions of the Plan.
22.8 Direct Transfers. Any distribution made hereunder to a distributee
after December 31, 1992 shall be made directly to such distributee unless he
elects a direct rollover pursuant to the second paragraph of this Section 22.8;
provided, however, that the distributee must acknowledge in writing that he
understands that any payment after December 31, 1992 which includes more than
two hundred dollars ($200.00) in cash and which, under Code Section 402(c), is
eligible to be rolled over to an eligible retirement plan will be subject to
withholding taxes.
After December 31, 1992, each distributee shall have the right to direct
that any distribution which, under Code Section 402(c), qualifies as an
eligible rollover distribution be transferred directly to an eligible
retirement plan. A distributee may direct that part of the distribution be
transferred directly to an eligible retirement plan and the balance be paid to
him, provided that the amount directly transferred to the eligible retirement
plan shall be at least five hundred dollars ($500.00). A distributee is not
permitted to direct that his distribution be transferred directly to more than
one eligible retirement plan. In the event that a distributee fails to make
any direction, the distribution shall be paid directly to him after deduction
of appropriate withholding taxes.
22-2
<PAGE> 74
Unless the context otherwise indicates, the following terms shall have the
following meanings whenever used in this Section 22.8:
(a) "eligible rollover distributions shall mean 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:
(i) 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
(10) years or more;
(ii) any distribution to the extent such distribution is
required under Section 401(a) (9) of the Code; and
(iii) the portion of any distribution that is not includible
in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(b) "eligible retirement plan" shall mean:
(i) an individual retirement account described in Section
408(a) of the Code;
(ii) an individual retirement annuity described in Section
408(b) of the Code;
(iii) an annuity plan described in Section 403(a) of the
Code; or
(iv) a qualified trust described in Section 401(a) of the
Code;
that accepts the distributee's eligible rollover distribution.
Notwithstanding the foregoing, in the case of an eligible
rollover distribution to the surviving spouse of a deceased
Employee, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
22-3
<PAGE> 75
(c) "distributee" shall mean:
(i) an employee or former Employee; and
(ii) an Employee's or a former Employee's surviving spouse and
an Employee's or former Employee's spouse or former spouse
who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code,
without regard to the interest of the spouse or former
spouse.
(d) "direct rollover" shall mean a payment by the Plan to the
eligible retirement plan specified by the distributee.
22.9 Prior Account Balances. Notwithstanding any provision of this
Amendment and Restatement to the contrary, this Amendment and Restatement shall
not affect the balances credited to the accounts of any Participant as of the
Restatement Date, which balances shall remain credited to such accounts until
such date subsequent to the Restatement Date as of which such accounts shall be
credited, debited, or adjusted as provided in the Plan, and shall not affect
the amount or method of distribution of the vested interests of Participants
who died, became disabled, retired or terminated employment prior to the
Restatement Date.
22.10 Supplemental Agreement To The Plan. The Supplemental Agreement to
the Plan relating to the Carlon Plan, together with the Plan as modified by
said Supplemental Agreement, shall be deemed to constitute and set forth the
provisions of the Carlon Plan for the period commencing on the Restatement Date
and ending on December 31, 1991. Said Supplemental Agreement shall not be
effective for any period commencing after December 31, 1991.
22-4
<PAGE> 76
IN WITNESS WHEREOF, THE LAMSON & SESSIONS CO., by its appropriate officers
duly authorized, and C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO have
caused this Amendment and Restatement of the Plan to be executed as of
the 16 day of December, 1994.
-- --------
THE LAMSON & SESSIONS CO.
("Principal Employer")
By /s/C.E. Allen
------------------------------------
And /s/James J. Abel
------------------------------------
/s/C.E. Allen
---------------------------------------
C.E. ALLEN
/s/J.J. Abel
---------------------------------------
J.J. ABEL
/s/R.E. House
---------------------------------------
R.E. HOUSE
/s/L.C. Andreano
---------------------------------------
L.C. ANDREANO
("Trustee")
22-5
<PAGE> 77
SUPPLEMENTAL AGREEMENT
TO
THE LAMSON & SESSIONS CO. DEFERRED SAVINGS PLAN
RELATING TO
THE LAMSON & SESSIONS CO. CARLON DIVISION DEFERRED SAVINGS PLAN
---------------------------------------------------------------
THIS SUPPLEMENTAL AGREEMENT, together with the provisions of THE LAMSON &
SESSIONS CO. DEFERRED SAVINGS PLAN, as modified herein, constitute and set
forth the provisions of THE LAMSON & SESSIONS CO. CARLON DIVISION DEFERRED
SAVINGS PLAN which were in effect during the Pre-Merger Period (as hereinafter
defined).
GENERAL SUPPLEMENTAL AGREEMENT DEFINITIONS
The following terms shall have the following meaning whenever used in this
Supplemental Agreement:
(1) The words "Carlon Plan" shall mean The Lamson & Sessions Co. Carlon
Division Deferred Savings Plan, as in effect prior to the Merger Date.
(2) The words "Lamson Plan" shall mean The Lamson & Sessions Co. Deferred
Savings Plan.
(3) The words "Merger Date" shall mean January 1, 1992, the date the
Carlon Plan was merged into the Lamson Plan.
(4) The words "Pre-Merger Period" shall mean the period from December 31,
1988 until the Merger Date.
Carlon Plan - 1
<PAGE> 78
PRELIMINARY MATTERS
(5) Section 1.1 of Article I of the Lamson Plan is hereby modified with
respect to the Carlon Plan during the PreMerger Period to read as follows:
"1.1 Name of Plan. The Plan shall continue to be known as The Lamson
& Sessions Co. Carlon Division Deferred Savings Plan."
(6) Section 1.3 of Article I of the Lamson Plan is hereby deleted with
respect to the Carlon Plan during the PreMerger Period.
DEFINITIONS
(7) Section 2.5 of Article II of the Lamson Plan is hereby deleted with
respect to the Carlon Plan during the PreMerger Period.
(8) Section 2.8 of Article II of the Lamson Plan is hereby modified with
respect to the Carlon Plan during the PreMerger Period to read as follows:
"2.8 'Effective Date' of the Plan shall mean January 1, 1987."
(9) Sections 2.10 and 2.11 of Article II of the Lamson Plan are hereby
modified with respect to the Carlon Plan during the Pre-Merger Period to read
as follows:
"2.10 'Employee' shall mean any person, including a Leased Employee,
who is employed by the Employer at its Carlon Division as a salaried
employee.
2.11 'Employer' shall mean The Lamson & Sessions Co. and any
successor thereto which assumes the obligations of the Employer under the
Plan."
Carlon Plan - 2
<PAGE> 79
(10) Section 2.23 of Article II of the Lamson Plan is hereby modified with
respect to the Carlon Plan during the PreMerger Period to read as follows:
"2.23 'Participant' shall mean any Employee who is an Eligible-
Employee and has completed the requirements of Section 3.2 and shall also
include any former Employee who is receiving or is eligible to receive
benefits under the Plan."
(11) Sections 2.24 and 2.25 of Article II of the Lamson Plan are hereby
modified with respect to the Carlon Plan during the Pre-Merger Period to read
as follows:
"2.24 'Participation Date' shall mean:
(a) for periods commencing on or after the Restatement Date and
prior to December 31, 1991, the Restatement Date and each July 1
and December 31 thereafter; and
(b) for periods commencing and ending on December 31, 1991, December
31, 1991.
2.25' shall mean The Lamson & Sessions Co. Carlon Division
Deferred Savings Plan, as the same may be amended from time to time."
(12) Section 2.27 of Article II of the Lamson Plan is hereby modified with
respect to the Carlon Plan during the PreMerger Period to read as follows:
"2.27 'Plan Year' shall mean the period which commenced and
simultaneously ended on December 31, 1991 for the period which commenced
immediately prior to January 1, 1992, shall mean each twelve (12) month
period which commenced on December 31 and ended on December 30 for periods
which commenced after December 30, 1988 and ended prior to December 31,
1991, shall mean the period which commenced on January 1, 1988 and ended
on December 30, 1988 for the period immediately prior to December 31, 1988
and shall mean the calendar year for the first plan year."
Carlon Plan - 3
<PAGE> 80
(13) Section 2.35 of Article II of the Lamson Plan is hereby modified with
respect to the Carlon Plan during the PreMerger Period to read as follows:
"2.35 'Trustee' shall mean C.E. Allen, J.J. Abel, R.E. House and J.
Degnovivo."
PARTICIPANT ACCOUNTS
(14) The second paragraph of Section 4.1 of Article IV of the Lamson Plan
is hereby modified with respect to the Carlon Plan during the Pre-Merger Period
to read as follows:
"The Plan Administrator shall also establish and maintain such other
accounts for each Participant as may be required to carry out the
provisions of the Plan. Accounts being maintained immediately prior to
the Restatement Date shall continue to be maintained under the Plan as
amended and restated herein; provided, however that a Participant's
Discretionary Employer Contribution Account shall be deemed to be an
Additional Employer Contribution Account. All payments of benefits to a
Participant or his Beneficiary shall be charged against the respective
accounts of the Participant."
(15) The last paragraph of Section 4.1 of Article IV of the Lamson Plan is
hereby deleted with respect to the Carlon Plan during the Pre-Merger Period.
EMPLOYER CONTRIBUTIONS
(16) Section 6.1 of Article VI of the Lamson Plan is hereby amended by the
deletion of the words "each Employer" and the substitution in lieu thereof of
the words "the Employer" with respect to the Carlon Plan during the Pre-Merger
Period.
(17) Section 6.4 of Article VI of the Lamson Plan is hereby amended by the
deletion of the phrase", for periods
Carlon Plan - 4
<PAGE> 81
commencing on or after January 1, 1989," with respect to the
Carlon Plan during the Pre-Merger Period.
DIRECTION OF INVESTMENTS
(18) Section 9.2 and 9.3 of Article IX of the Lamson Plan are hereby
modified with respect to the Carlon Plan during the PreMerger Period to read as
follows:
"9.2 Change in Investment Direction. A Participant may, as of each
January 1 and July 1 and as of December 31, 1991, change his investment
direction with respect to future contributions by filing a new investment
direction form with the Plan Administrator at least thirty (30) days prior
to the effective date of such change. Such new investment direction shall
apply only to contributions made by or on behalf of the Participant on or
after such date.
9.3 Change in Investment of Prior Contributions. A Participant or a
Beneficiary may, once during each calendar year, change his investment
direction with respect to prior contributions by filing a new investment
direction form with the Plan Administrator at least thirty (30) days prior
to the effective date of such change. The Participant or Beneficiary may
thereby direct the Trustee to transfer all or a portion of the value of
any account in multiples of one percent (1%) to any one or a combination
of the investment options available under the Plan."
VESTING AND TERMINATION OF EMPLOYMENT
(19) The second paragraph of section 11.1 of Article XI of the Lamson Plan
is hereby deleted with respect to the Carlon Plan during the Pre-Merger Period.
PLAN ADMINISTRATION
(20) Section 15.10 of Article XV of the Lamson Plan is hereby amended by
the deletion of the words "sixty (60) days" the
Carlon Plan - 5
<PAGE> 82
first time they appear and the substitution in lieu thereof of the words
"ninety (90) days" with respect to the Carlon Plan during the Pre-Merger
Period.
THE TRUSTEE
(21) Section 16.13 of Article XIII of the Lamson Plan is hereby modified
with respect to the Carlon Plan during the Pre-Merger Period to read as
follows:
"16.13 Transferring Trust. Notwithstanding any other provision of
the Plan the contrary, the Trustee shall upon receiving written
instructions from the Employer, transfer to The Lamson & Sessions Co.
Deferred Savings Plan (the 'master trust') for investment thereunder such
portion of the assets of the Plan as directed by the Employer. Such
transferred assets shall be held and invested under the master trust for
the exclusive benefit of Participants and their beneficiaries pursuant to
the provisions the master trust which are deemed to be a part of the Plan
and are incorporated herein by reference. In the event of such transfer,
the Trustee shall have no further investment responsibility for the
transferred assets nor any duty to review and follow the investments made
by the trustee of the master trust with respect to the transferred assets
except to the extent provided by ERISA."
AMENDMENT AND TERMINATION OF PLAN
(22) Section 17.6 of Article XVII of the Lamson Plan is hereby deleted
with respect to the Carlon Plan during the PreMerger Period.
Carlon Plan - 6
<PAGE> 83
IN WITNESS WHEREOF, THE LAMSON & SESSIONS CO., by its appropriate officers
duly authorized, and C.E. ALLEN, J.J. ABEL and R.E. HOUSE have caused this
Supplemental Agreement to be executed as of the 16 day of December, 1994.
--- --------
THE LAMSON & SESSIONS CO.
("Employer")
By /s/C.E. Allen
---------------------------------------
And /s/James J. Abel
---------------------------------------
/s/C.E. Allen
------------------------------------------
C.E. ALLEN
/s/J.J. Abel
------------------------------------------
J.J. ABEL
/s/R.E. House
------------------------------------------
R.E. HOUSE
("Trustee")
Carlon Plan - 7
<PAGE> 84
AMENDMENT NO. 1
TO
THE LAMSON & SESSIONS CO. DEFERRED SAVINGS PLAN
THIS AMENDMENT NO. 1 is entered into by and between THE LAMSON & SESSIONS
CO., a corporation organized and existing under and by virtue of the laws of
the State of Ohio (hereinafter called the "Principal Employer" and the
"Employer"), and C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO, the
individual trustees hereunder (hereinafter collectively called the "Trustee").
W I T N E S S E T H:
WHEREAS, on September 5, 1986 the Principal Employer established The
Lamson & Sessions Co. Deferred Savings Plan (hereinafter called the "Plan"),
effective December 1, 1985; and
WHEREAS, on December 16, 1994, the Principal Employer amended and restated
the Plan effective December 31, 1988 in order to bring it into compliance with
the Tax Reform Act of 1986 and regulations issued thereunder and various other
laws and regulations in effect, and to make certain other necessary and
desirable changes; and
WHEREAS, the Principal employer has determined that it is appropriate to
further amend the Plan;
NOW THEREFORE, the Principal Employer hereby amends the Plan, effective as
of the date of adoption of this Amendment, as follows:
- 1 -
<PAGE> 85
1. The words "TBG Plan" are hereby deleted from the second sentence of
Section 14.1 of the Plan.
IN WITNESS WHEREOF, THE LAMSON & SESSIONS CO., by its appropriate officers
duly authorized, and C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO have
cause this Amendment No. 1 to the Plan to be executed as of the 29 day of
March , 1995. --
- -----
THE LAMSON & SESSION CO.
("Principal Employer")
By /s/C.E. Allen
---------------------------------------
And /s/J.J. Abel
---------------------------------------
/s/C.E. Allen
------------------------------------------
C.E. ALLEN
/s/J.J. Abel
------------------------------------------
J.J. ABEL
/s/R.E. House
------------------------------------------
R.E. HOUSE
/s/L.C. Andreano
------------------------------------------
L.C. ANDREANO
("Trustee")
- 2 -
<PAGE> 86
AMENDMENT NO. 1
TO
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
This Amendment No. 1 is made this 13 day of June, 1995, by THE LAMSON
& SESSIONS CO. (hereinafter referred to as the "Company");
WITNESSETH:
WHEREAS, on September 5, 1986 The Lamson & Sessions Co. (hereinafter the
"Company") established The Lamson & Sessions Co. Deferred Savings Plan
(hereinafter the "Plan"), effective December 1, 1985; and
WHEREAS, the Plan was amended and restated effective as of December 31,
1988; and
WHEREAS, the Company desires to make certain other necessary and desirable
changes;
NOW, THEREFORE, in consideration of the foregoing, the Company hereby
amends the Plan, effective June 1, 1995, as follows:
I.
Section 2.10 of the Plan is hereby amended by (i) the deletion of the word
"or" at the end of subsection (h) thereof, (ii) the deletion of the period at
the end of subsection (i) and the substitution of a semicolon in lieu
thereof and (iii) the
- 1 -
<PAGE> 87
addition at the end thereof of new subsections (j), (k) and (l) to read as
follows:
"(j) for periods commencing on or after June 1, 1995, employed as an
hourly employee at the Employer's Distribution Center in
Allentown, Pennsylvania;
(k) for periods commencing on or after July 1, 1995, employed as an
hourly paid employee at the Aurora, Ohio Plant of the Employer's
Carlon Division; or
(l) for periods commencing on or after July 1, 1995, employed as an
hourly paid employee at the Nazareth, Pennsylvania Plant of the
Employer's Carlon Division."
II.
Section 2.23 of the Plan is hereby amended in its entirety to read as follows:
"2.23 "Participant" shall mean any Employee who:
(a) is an Eligible Employee and has completed the requirements of
Section 3.2; or
(b) on January 1, 1992 was a Participant in the Carlon Plan
immediately prior to such date; or
(c) on April 1, 1993 was an hourly paid employee of the Clinton,
Iowa Plant, was a participant in the Retirement Plan for Hourly
Paid Employees of Participating Units of the Carlon Division of
The Lamson & Sessions Co. immediately prior to such date, met
the eligibility requirements of Section 3.1 on April 1, 1993 and
completed the requirements of Section 3.2; or
(d) on June 30, 1995 was an hourly paid employee of the Aurora, Ohio
Plant, was a participant in the Retirement Plan for Hourly Paid
Employees of Participating Units of the Carlon Division of The
Lamson & Sessions Co. immediately prior to such date, met the
eligibility requirements of Section 3.1 on June 30, 1995 and
completed the requirements of Section 3.2; or
(e) on June 30, 1995 was an hourly paid employee of the Nazareth,
Pennsylvania Plant, was a
- 2 -
<PAGE> 88
participant in the Retirement Plan for Hourly Paid Employees of
Participating Units of the Carlon Division of The Lamson & Sessions
Co. immediately prior to such date, met the eligibility requirements
of Section 3.1 on June 30, 1995 and completed the requirements of
Section 3.2; and
shall also include any former Employee who is receiving or eligible
to receive benefits under the Plan."
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be
executed as of the day and year first written above.
THE LAMSON & SESSIONS CO.
("Company")
By /s/James J. Abel
---------------------------------------
And /s/Charles E. Allen
---------------------------------------
- 3 -
<PAGE> 89
AMENDMENT NO. 3
TO
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
THIS AMENDMENT is made this 1 day of May, 1996, by The Lamson &
Sessions Co. (hereinafter referred to as the "Company");
W I T N E S S E T H:
WHEREAS, the Company maintains The Lamson & Sessions Co. Deferred Savings
Plan (hereinafter referred to as the "Plan"); and
WHEREAS, the Company reserved the right to make certain amendments
thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in order to
bring the Plan into compliance with certain requirements of the Tax Reform Act
of 1986 and subsequent tax acts;
NOW, THEREFORE, the Company hereby amends the Plan effective as of
December 31, 1988.
1. Section 2.2 of the Plan is hereby amended to add the following
thereto:
or any organization required to be aggregated pursuant to
Section 414(o) of the Code.
2. Section 2.18 of the Plan is hereby amended to add the following
thereto:
A leased employee shall not be considered an employee of the
Employer or an Affiliate if: (i) such employee is covered by a
money purchase pension
- 1 -
<PAGE> 90
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(e)(3), section 402(h)(1)(B) 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 compensation workforce.
3. Section 7.8 is amended by deleting the last sentence and replacing it
with the following:
Excess contributions of Highly Compensated Employees shall be
reduced in the order of their Average Deferral Percentage
("ADP") or Average Contribution Percentage ("ACP"), as
applicable, beginning with those Highly Compensated Employees
with the highest ADP or ACP, as applicable, to the extent
required to (i) either meet the ADP test in Section 7.2, the ACP
test in Section 7.3 or the multiple use test of Section 7.4, as
applicable, above or, (ii) cause such Highly Compensated
Employee's ADP or ACP, as applicable, to equal the ADP or ACP,
as applicable, of the Highly Compensated Employee with the next
highest ADP or ACP, as applicable. This process must be
repeated until the applicable test is satisfied.
4. Section 12.1 of the Plan is hereby amended by adding the following
parenthetical immediately preceding the words "Three Thousand Five Hundred
Dollars" the first time such words appear in the Section:
(and did not exceed as of any prior distribution)
- 2 -
<PAGE> 91
and by adding the following parenthetical immediately preceding the words
"Three Thousand Five Hundred Dollars" the second time such words appear in the
Section:
(or exceeded as of any prior distribution)
5. Section 12.5 of the Plan is hereby amended by adding the following
subsection (d) thereto:
(d) All distributions required or
permitted under this Article or Article XIII shall be made
in accordance with Section 401(a)(9) of the Code and the
Treasury regulations thereunder, including the minimum
distribution incidental benefit requirement of Treasury
Regulation 1.401(a)(9)-2, which are incorporated herein by
reference.
6. The second paragraph of Section 13.2 of the Plan is hereby amended to
provide as follows:
Notwithstanding the foregoing provisions of this Section 13.2,
the entire death benefit payable under this Section 13.2 must be
completely distributed no later than December 31 of the calendar
year containing the fifth anniversary of the date of the
Participant's death, unless the method of distribution satisfies
either (a) or (b), below:
(a) The death benefit is payable as an annuity over the
lifetime of a designated Beneficiary and distribution of
the death benefit commences no later than December 31 of
the calendar year immediately following the calendar year
in which the Participant died; or
(b) The death benefit is payable to the Participant's surviving
Spouse (as a designated Beneficiary) as an annuity over the
Spouse's lifetime and distribution of the death benefit
commences no later than the later of (i) December 31 of the
- 3 -
<PAGE> 92
calendar year immediately following the calendar year in which
the Participant died, or (ii) December 31 of the calendar year
in which the Participant would have attained age seventy and
one-half (70-1/2).
7. Subparagraphs (i), (ii) and (iv) of Section 19.2(b) of the Plan are
hereby amended by deleting the parenthetical which immediately follows the
words "total remuneration" therein and substituting in lieu thereof the
following parenthetical:
(as defined in Section 414(q)(7) of the Code)
IN WITNESS WHEREOF, the Company, by its duly authorized officers, has
caused this Amendment to be executed as of the day and year first above
written.
THE LAMSON & SESSIONS CO.
By /s/Charles E. Allen
---------------------------------------
And /s/James J. Abel
---------------------------------------
- 4 -
<PAGE> 93
AMENDMENT NO. 4
TO
THE LAMSON & SESSIONS CO. DEFERRED SAVINGS PLAN
THIS AMENDMENT is entered into by and between THE LAMSON & SESSIONS CO., a
corporation organized and existing under and by virtue of the laws of the State
of Ohio (hereinafter called the "Principal Employer" and the "Employer"), and
C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO, the individual trustees
hereunder (hereinafter collectively called the "Trustee").
W I T N E S S E T H:
WHEREAS, on September 5, 1986 the Principal Employer established the
Lamson & Sessions Co. Deferred Savings Plan (hereinafter called the "Plan"),
effective December 1, 1985; and
WHEREAS, on December 16, 1994, the Principal Employer amended and restated
the Plan effective December 31, 1988 in order to bring it into compliance with
the Tax Reform Act of 1986 and regulations issued thereunder and various other
laws and regulations in effect, and to make certain other necessary and
desirable changes; and
WHEREAS, the Principal Employer subsequently amended the Plan; and
WHEREAS, the Principal Employer has determined that it is appropriate
to further amend the Plan;
<PAGE> 94
NOW THEREFORE, the Principal Employer hereby amends the Plan, effective as
of November 8, 1995, as follows:
1. Section 11.1 of the Plan is hereby amended by the addition of the
following paragraph at the end thereof:
"In addition, notwithstanding anything contained in the
Plan to the contrary, each Participant:
(a) who was an employee of Valley-Todeco, Inc. on November
8, 1995; and
(b) who was not previously fully vested in his Employer
Account;
shall become fully vested in his Employer Account as of November
8, 1995."
2. Section 12.4 of the plan is hereby amended to read as follows:
"12.4 Notice Requirements. The Plan Administrator shall, no
less than thirty (30) days and no more than ninety (90) days before
the date the benefits of a Participant who elects an annuity under
Section 12.1 are to commence, provide the Participant with a written
explanation of (1) the terms and conditions of the annuity, (2) the
Participant's right to make, and the effect of, an election to waive
such annuity, (3) the rights of the Participant's Spouse in regard to
such election, (4) the right to make, and the effect of, a revocation
of such election, and (5) the relative
-2-
<PAGE> 95
values of the methods of payment described in Section 12.1. If the
Participant, after having received the written
explanation described in the preceding paragraph, affirmatively
elects to waive the Spouse Joint and Survivor Annuity and elect an
alternate form of distribution and the Participant's Spouse consents
to that form of distribution (if necessary), the Plan Administrator
may make the distribution less than thirty days after the written
explanation was provided to the Participant, provided the following
requirements are met:
(a) The Plan Administrator provided information to the
Participant, at the same time the Plan Administrator
provided the written explanation described in the first
paragraph of this Section, clearly indicating that the
Participant has a right to at least thirty (30) days to
consider whether to waive the qualified joint and survivor
annuity and consent to a form of distribution other than a
qualified joint and survivor annuity.
(b) The Participant is permitted to revoke an affirmative
distribution election at least until the annuity starting
date, or, if later, at any time prior to expiration of the
7-day period that begins the day after the
-3-
<PAGE> 96
written explanation described in the preceding paragraph is
provided to the Participant.
(c) The annuity starting date is after the date that the
written explanation of the qualified joint and survivor
annuity is provided to the Participant.
(d) Distribution in accordance with the Participant's
affirmative distribution election does not commence before
the expiration of the 7-day period that begins the day
after the written explanation described in the first
paragraph of this Section is provided to the Participant."
If the distribution is one to which sections 401(a)(11) and 417
of the Code do not apply, such distribution may commence less than 30
days after the notice required under section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable,
a particular distribution option), and
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<PAGE> 97
(b) the Participant, after receiving the notice, affirmatively
elects a distribution.
3. A new Section 12.6 is hereby added to the Plan, immediately after
Section 12.5 of the Plan, to read as follows:
"12.6 Distribution on Sale. Notwithstanding any other provision
of the Plan, a Participant whose employment with the Principal
Employer and all Affiliates terminates as a result of the sale of a
business operation of the Principal Employer or an Affiliate
(including a sale of assets or stock, or by merger), and who remains
in employment at such business operation following such sale
generally shall not be entitled to a distribution of benefits from
the Plan as a result of such sale. However, a Participant whose
employment with the Principal Employer and all Affiliates terminated
as a result of a transaction described in this Section shall be
eligible to receive a distribution of his or her entire account,
provided that such distribution shall constitute a "lump sum
distribution" within the meaning of Section 401 (k)(10)(B) of the
Code. The following transactions are described in this Section:
<TABLE>
<CAPTION>
Description of Date of
Transaction Transaction Purchaser
----------------- ----------------- ---------
<S> <C> <C>
Sale of the stock November 8, 1995 McKechnie
of Valley-Todeco, Investments,
Inc. Inc.
</TABLE>
-5-
<PAGE> 98
4. Section 22.8 of the Plan is hereby amended by the addition of the
following at the end thereof:
"To the extent permitted under Code Section 401(a)(31) and the
regulations thereunder, a direct rollover described in this Section
22.8, with respect to a Participant, may include the remaining
balance of any loan allocated to a Participant's account under the
Plan, provided that only plans described in clauses (iii) and (iv) of
subparagraph (b) of the third paragraph of this Section 22.8 that
provide for the acceptance of direct rollovers that include loans of
the type described in Article XX shall constitute eligible retirement
plans for purposes of this paragraph."
IN WITNESS THEREOF, THE LAMSON & SESSIONS CO., by its appropriate officers
duly authorized, and C.E. ALLEN, J.J. ABEL, R.E. HOUSE and L.C. ANDREANO have
caused this Amendment No. 4 to the Plan to be executed as of the 28 day of
October, 1996.
- -------
THE LAMSON & SESSIONS CO.
("Principal Employer")
By /s/James J. Abel
---------------------------------------
And /s/C.E. Allen
---------------------------------------
/s/C.E. Allen
------------------------------------------
C.E. ALLEN
-6-
<PAGE> 99
/s/J.J. Abel
------------------------------------------
J.J. ABEL
/s/R.E. House
------------------------------------------
R.E. HOUSE
/s/L.C. Andreano
------------------------------------------
L.C. ANDREANO
("Trustee")
-7-
<PAGE> 100
AMENDMENT NO. 4
TO
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
THIS AMENDMENT is made this 10th day of December, 1997, by The Lamson &
Sessions Co. (hereinafter referred to as the "Company");
W I T N E S S E T H:
WHEREAS, the Company maintains The Lamson & Sessions Co. Deferred Savings
Plan (hereinafter referred to as the "Plan"); and
WHEREAS, the Company reserved the right to make certain amendments
thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in order to
bring the Plan into compliance with certain requirements of the Taxpayer Relief
Act of 1997;
NOW, THEREFORE, the Company hereby amend the Plan, effective January 1,
1998.
1. Section 12.1 is amended by deleting "Three Thousand Five Hundred
Dollars ($3,500.00)" wherever it appears and inserting "Five
Thousand Dollars ($5,000.00)" in its place.
2. Section 12.5 is amended by deleting "Three Thousand Five Hundred
Dollars ("$3,500.00)" and inserting "Five Thousand Dollars
($5,000.00)" in its place.
3. Section 13.2 is amended by deleting "Three Thousand Five Hundred
Dollars ($3,500.00)" wherever it appears and inserting "Five
Thousand Dollars ($5,000.00)" in its place.
4. The first paragraph of Section 20.6 is amended by deleting the
second to last sentence in the paragraph, and hereinafter the
paragraph shall read as follows:
"The term of each loan made under this Article XX shall be
arrived at by mutual agreement between the Trustee and the
borrower pursuant to a uniform, nondiscriminatory policy;
provided, however, that (1) such term shall in no event exceed
five (5) years unless the loan is used to acquire a dwelling
unit which is to be used within a reasonable time as a principal
residence of the borrower, in which case, such loan may be for
such term as is customary in similar transactions involving
lending institutions, and (2) all loans shall be amortized in
level payments made not less frequently than quarterly over the
term of the loan. All loan repayments and interest earned on
any loan shall be credited to the Participant's account in
proportion to amounts that were drawn from the accounts to make
the loan."
IN WITNESS WHEREOF, the Company, by its duly authorized officers, has
caused this Amendment to be executed as of the day and year first written
above.
THE LAMSON & SESSIONS CO.
By /s/James J. Abel
---------------------------------------
And /s/Charles E. Allen
---------------------------------------
<PAGE> 101
AMENDMENT NO. 6
TO
THE LAMSON & SESSIONS CO.
DEFERRED SAVINGS PLAN
THIS AMENDMENT is made this 17th day of February, 1998, by The Lamson and
Sessions Co. (hereinafter referred to as the "Company");
W I T N E S S E T H:
WHEREAS, the Company maintains The Lamson & Sessions Co. Deferred Savings
Plan (hereinafter referred to as the "Plan"); and
WHEREAS, the Company reserved the right to make certain amendments
thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in order to
bring the Plan into compliance with certain requirements of the Tax Reform Act
of 1986 and subsequent tax acts;
NOW THEREFORE, the Company hereby amends the Plan effective as of January
1, 1998 as follows:
1. Section 2.10 of the Plan is hereby amended to add the
following subsection (m) thereto:
(m) for periods commencing on and after April 1, 1996, employed
as an hourly employee of the High Springs, Florida Plant of
the Employer's Carlon Division;
2. Section 2.23 of the Plan is hereby amended to add the
following subsection (f) thereto:
(f) on April 1, 1996 was an hourly paid employee of the High
Springs, Florida Plant, was a participant in the Retirement
Plan for Hourly Paid Employees of Participating Units of
the Carlon Division of The Lamson & Sessions Co.
immediately prior to such date, met the eligibility
requirements of Section
<PAGE> 102
3.1 on April 1, 1996 and completed the requirements of
Section 3.2; and
3. A new Section 2.34 is hereby added to the Plan and all
subsequent sections renumbered as follows:
2.34 "Stock" shall mean the common stock of the Principal
Employer.
4. Section 2.38 (formerly Section 2.37) of the Plan is hereby
amended by adding the following paragraph thereto:
For purposes of determining a Year of Service, employment
with Dimango Products, Inc. shall be treated as employment
with the Employer.
5. Sections 9.1, 9.2, 9.3 and 9.4 of the Plan are hereby amended
to provide as follows:
9.1 Investment Direction by Participant. Each Participant
shall direct how contributions made by the Employer on his
behalf shall be invested among the investment options
available under the Plan. The Participant shall
communicate such investment direction, in such manner as
the Plan Administrator may provide, which communication
shall specify how such contributions shall be allocated
among such investment options. The percentage of such
allocation shall be in multiples of one percent (1%) and
shall apply uniformly to all contributions.
9.2 Change in Investment Direction. A Participant may, no less
frequently than once each calendar quarter, change his
investment direction with respect to his future
contributions in such manner as the Plan Administrator may
provide. The Participant may thereby direct the Trustee to
invest his future contributions in multiples of one percent
(1%) to any one or a combination of the investment options
available under the Plan. Such investment direction shall
apply to contributions made by or on behalf of the
Participant on or after the effective date of such change.
9.3 Change in Investment of Prior Contributions. A Participant
or a Beneficiary may, no less frequently than once each
calendar quarter, change his investment direction with
respect to prior contributions in such manner as the Plan
Administrator may provide. The Participant or Beneficiary
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<PAGE> 103
may thereby direct the Trustee to transfer all or a portion
of the value of his accounts in multiples of one percent
(1%) to any one or a combination of the investment options
available under the Plan.
9.4 Notice to Trustee. All Participant and Beneficiary
investment directions and changes thereof communicated to
the Plan Administrator pursuant to the provisions of this
Article IX shall be promptly communicated by the Plan
Administrator to the Trustee. All investment directions
shall set forth the portion of the Trust Fund assets which
shall be subject to such investment direction.
6. New Section 9.7 is hereby added to the Plan to read as
follows:
9.7 Investment in Stock
(a) Voting and Consents. Stock held by the Trustee in
Participant accounts under the Plan shall be voted by the
Trustee (or independent fiduciary, if applicable) at each
meeting of stockholders of the Principal Employer as
instructed in writing by the Participants to whose accounts
such Stock is credited, subject to the provisions of this
Section 9.7. The Principal Employer shall cause each
Participant to be provided with a copy of the notice of
each meeting of stockholders and the proxy statement
relating thereto, together with an appropriate form for the
Participant to indicate his confidential voting or consent
instructions to the Trustee (or independent fiduciary, if
applicable). If instructions are not timely received by
the Trustee (or independent fiduciary, if applicable) with
respect to any Stock, the Trustee (or independent
fiduciary, if applicable) will not vote the uninstructed
Stock or provide such consents. The Trustee (or
independent fiduciary, if applicable) shall not divulge to
any Employer the instructions of any Participant.
(b) Tender or Exchange Offer. In the event of a tender or
exchange offer for shares of Stock, the Plan Administrator
shall utilize its best efforts to timely distribute or
cause to be distributed to each Participant (or, in the
event of his death, his Beneficiary) such information as
will be distributed to stockholders of the Principal
Employer in connection with any such tender or exchange
offer, together with a form requesting confidential
instructions as to whether or not shares of Stock in such
Participant's accounts shall be tendered or exchanged by
the Trustee (or independent
-3-
<PAGE> 104
fiduciary, if applicable). Each Participant (or his
Beneficiary) shall have the right, to the extent of his
investment in Stock, to direct the Trustee (or independent
fiduciary, if applicable) in writing as to the manner in
which to respond to such tender or exchange offer, and the
Trustee (or independent fiduciary, if applicable) shall
respond in accordance with the instructions so received.
If the Trustee (or independent fiduciary, if applicable)
shall not receive timely direction from a Participant (or
his Beneficiary) as to the manner in which to respond to
such tender or exchange offer, the Trustee (or independent
fiduciary, if applicable) shall not tender or exchange any
shares of Stock held in such Participant's accounts and the
Trustee (or independent fiduciary, if applicable) shall
have no discretion in such matter. The Trustee (or
independent fiduciary, if applicable) shall not divulge to
any Employer the instructions of any Participant.
7. A new sentence is hereby added to Section 12.1 immediately
following "Any lump sum payment shall be made in accordance with
the provisions of Section 22.8" to read as follows:
A lump sum payment from a Participant's accounts containing
shares of Stock may be paid, in accordance with the
Participant's election, (i) in whole shares of Stock held
in his accounts and cash in lieu of fractional shares of
Stock held in his accounts or (ii) entirely in cash.
8. A new sentence is hereby added to Section 13.2 at the end of
the first paragraph thereof, as follows:
A lump sum payment from a Participant's accounts containing
shares of Stock may be paid, in accordance with the
Beneficiary's election, (i) in whole shares of Stock held
in the Participant's accounts and cash in lieu of
fractional shares of stock held in the Participant's
accounts or (ii) entirely in cash.
9. A new sentence is hereby added to Section 16.2 of the Plan as
the second sentence thereof, as follows:
The Trustee shall purchase shares of Stock on a national
securities exchange at market prices current at the time of
purchase or in such other manner as the Trustee, in its
sole discretion, may determine.
-4-
<PAGE> 105
IN WITNESS WHEREOF, the Company, by its duly authorized officers, has
caused this Amendment to be executed as of the day and year first above
written.
THE LAMSON & SESSIONS CO.
By: /s/James J. Abel
------------------------------------
TRUSTEES:
/s/James J. Abel
---------------------------------------
James J. Abel
/s/Charles E. Allen
---------------------------------------
Charles E. Allen
/s/Raymond E. House
---------------------------------------
Raymond E. House
/s/Lucille C. Andreano
---------------------------------------
Lucille C. Andreano
-5-
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to The Lamson & Sessions Co. Deferred Savings Plan of The
Lamson & Sessions Co. of our report dated January 29, 1998, with respect to the
consolidated financial statements and schedule of The Lamson & Sessions Co.
included in the Annual Report on Form 10-K for the year ended January 3, 1998,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
February 25, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors of
The Lamson & Sessions Co., an Ohio corporation (the "Company"), hereby
constitutes and appoints John B. Schulze and James J. Abel, and each of them,
his true and lawful attorney or attorneys-in-fact, with full power of
substitution and revocation, for him and in his name, place, and stead, to sign
on his behalf as a director of the Company a Registration Statement pursuant to
the Securities Act of 1933 on Form S-8 concerning certain Common Shares of the
Company and certain plan interests to be offered in connection with the
Company's Deferred Savings Plan (as amended), and to sign any and all
amendments or post-effective amendments to such Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission or any state regulatory
authority, granting unto said attorney or attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitutes may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 26th day of February 1998.
/s/ James T. Bartlett /s/ John C. Dannemiller
- -------------------------------- ------------------------------------
James T. Bartlett John C. Dannemiller
Director Director
/s/ Francis H. Beam, Jr. /s/ George R. Hill
- -------------------------------- ------------------------------------
Francis H. Beam, Jr. George R. Hill
Director Director
/s/ William H. Coquillette /s/ A. Malachi Mixon, III
- -------------------------------- ------------------------------------
William H. Coquillette A. Malachi Mixon, III
Director Director
/s/ Martin J. Cleary /s/John C. Morley
- -------------------------------- ------------------------------------
Martin J. Cleary John C. Morley
Director Director
/s/ D. Van Skilling
--------------------------------
D. Van Skilling
Director
