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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LUKENS INC.
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(Exact name of issuer as specified in its charter)
Delaware 23-2451900
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
50 South First Avenue, Coatesville, Pennsylvania 19320
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(Address of principal executive offices) (Zip Code)
Washington Steel Corporation Employees
Capital Accumulation Plan (Massillon, OH)
-----------------------------------------
(Full title of the plan)
Copies to:
William D. Sprague, Esquire Rhonda R. Cohen, Esquire
Vice President and General Counsel Ballard Spahr Andrews &
Lukens Inc. Ingersoll
50 South First Avenue 1735 Market Street
Coatesville, Pennsylvania 19320 Philadelphia, PA 19103
- --------------------------------------
(Name and address of agent for service)
(610) 383-3379
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount
Title of Amount Offering Aggregate of
Securities to be Price Offering Registration
to be Registered Registered per Share(1) Price(1) Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.01 50,000 shares $31.625 $1,581,250 $546
per share (2)
- --------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Securities and Exchange Commission Rule 457(c) only
for the purpose of calculating the registration fee; based on the average
of the high and low price per share of Common Stock of Lukens Inc. on June
21, 1994, as published in the NYSE-Composite Transactions quotations.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission by the Company (File No. 1-3258) or by the Washington Steel
Corporation Employees Capital Accumulation Plan (Massillon, OH) (the "Plan") are
hereby incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended December 25,
1993.
2. Quarterly Report on Form 10-Q for the quarter ended March 26,
1994.
3. Form 8-B dated January 27, 1987.
4. Form 8-A dated July 31, 1987, as amended by Form 8 dated
September 9, 1988 and Form 8 dated July 25, 1990.
All documents filed by the Company or by the Plan subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law provides as follows regarding
indemnification of officers and directors:
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
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corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprises against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a
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determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination shall be made
(1) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
(h) For purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section
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with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
The Company's Restated Certificate of Incorporation provides as
follows regarding the indemnification of directors and officers:
The Corporation shall indemnify to the full extent authorized or
permitted by law any person made, or threatened to be made, a party to any
action or proceeding (whether civil or criminal or otherwise) by reason of
the fact that he, his testator or interstate, is or was a director or
officer of the Corporation or by reason of the fact that such director or
officer, at the request of the Corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity. Nothing contained herein shall affect
any rights to indemnification to which employees other than directors and
officers may be entitled by law. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such a director as a director.
Notwithstanding the foregoing sentence, a director shall be liable to the
extent provided by applicable law (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for payment of unlawful dividends or
approval of illegal stock purchases or redemptions prohibited pursuant to
Section 174 of the Delaware General Corporation Law, or (iv)
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for any transaction from which such director derived an improper personal
benefit.
Article VIII of the Company's By-laws provides as follows regarding
the indemnification of directors and officers:
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
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Than Those by or in the Right of the Corporation. Subject to Section 3 of
------------------------------------------------
this Article VIII, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
---------------
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
---------------------------------------------------------
in the Right of the Corporation. Subject to Section 3 of this Article
-------------------------------
VIII, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such
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person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
--------------------------------
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of conduct
set forth in Section 1 or Section 2 of this Article VIII, as the case may
be. Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described above, or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any determination
------------------
under Section 3 of this Article VIII, a person shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of
account of the Corporation or another enterprise, or on information
supplied to him by the officers of the Corporation or another enterprise in
the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 4 shall mean any other
corporation or any partnership, joint venture, trust or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of
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this Section 4 shall not be deemed to be exclusive or to limit in any way
the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
--------------------------
determination in the specific case under Section 3 of this Article VIII,
and notwithstanding the absence of any determination thereunder, any
director, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The
basis of such indemnification by a court shall be a determination by such
court that indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the case may
be. Notice of any application for indemnification pursuant to this Section
5 shall be given to the Corporation promptly upon the filing of such
application.
Section 6. Expenses Payable in Advance. Expenses incurred in
---------------------------
defending or investigating a threatened or pending action, suit or
proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 7. Non-exclusivity and Survival of Indemnification. The
-----------------------------------------------
indemnification and advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied)
of any court of competent jurisdiction or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be
made to the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Sections 1 and 2 of this Article VIII but
whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State
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of Delaware, or otherwise. The indemnification and advancement of expenses
provided by, or granted pursuant to this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
Section 8. Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against
such liability under the provisions of this Article VIII.
Section 9. Meaning of "Corporation" for Purposes of Article VIII.
-----------------------------------------------------
For purposes of this Article VIII, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
Section 10. Survival of Indemnification and Advancement of Expenses.
-------------------------------------------------------
The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of heirs,
executors and administrators of such a person.
In addition, the Company has entered into indemnification contracts
("Indemnification Agreements") with its current directors and corporate officers
and expects to enter into similar agreements with individuals who in the future
hold such positions with the Company or its subsidiaries. The Indemnification
Agreements were approved by the Board of
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Directors of the Company on January 27, 1988 and by the stockholders on April
27, 1988.
The Indemnification Agreements provide for indemnification of the
Company's directors and corporate officers to the fullest extent permitted by
law including the benefits of any subsequent changes in Delaware law relative to
indemnification. They cover any and all expenses (including attorneys' fees and
all other costs and obligations), judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other charges paid or
payable in connection therewith) incurred in connection with investigating,
defending, being a witness or participating in, or preparing to defend, be a
witness in or participate in, any threatened, pending or completed action, suit
or proceeding (including appeals), or any inquiry or investigation, whether
civil, criminal, administrative, investigative or otherwise (a "proceeding"),
related to the fact that such director or corporate officer is or was a
director, officer, employee, agent or fiduciary of the Company or is or was
serving at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not done by
such director or corporate officer in any such capacity. Indemnification would
not, however, be available under the Indemnification Agreements if a person or
body appointed by the Company's Board of Directors who is not a party to the
proceeding for which indemnification is sought and who may be or consist of one
or more members of the Board (or, under certain circumstances discussed below,
independent legal counsel) determines that such indemnification is not permitted
under applicable law and such determination is not successfully challenged
before a court. A director or corporate officer would also not be entitled to
indemnification under the Indemnification Agreements in connection with a
proceeding initiated by such director or corporate officer, unless such
proceeding was authorized or consented to by the Board of Directors.
As permitted by the Delaware General Corporation Law, the
Indemnification Agreements also provide for the prompt advancement of all
expenses incurred in connection with any proceeding and obligate the director or
corporate officer to reimburse the Company for all amounts so advanced if it is
subsequently determined, as provided in the Indemnification Agreements, that the
director or corporate officer is not entitled to indemnification.
In the event that the person or body appointed by the Company's Board
of Directors determines that the director or corporate officer would not be
permitted to be indemnified under applicable law (and, therefore, is not
entitled to indemnification under the Indemnification Agreements), the
Indemnification Agreements provide that the director or corporate officer may
seek a judicial determination of his or her right to
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indemnification. The Indemnification Agreements further provide that the
director or corporate officer is entitled to indemnification for, and
advancement of, all expenses (including attorneys' fees) incurred in any
proceeding seeking to collect from the Company an indemnity claim or advancement
of expenses under the Indemnification Agreements, the Charter, or otherwise, or
in seeking to recover under a directors' and officers' liability insurance
policy, whether or not the director or corporate officer is successful.
After a Change in Control of the Company (which Change in Control is
not approved by the Company's Board of Directors), all determinations to be made
by or on behalf of the Company regarding a director's or corporate officer's
right to indemnification and to the advancement of expenses are required to be
made by independent legal counsel to be selected by the director or corporate
officer and approved by the Board (which approval cannot be unreasonably
withheld). As defined in the Indemnification Agreements, a Change in Control is
deemed to have occurred if (i) any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee benefit plan
of the Company or a corporation owned directly or indirectly by the stockholders
of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the then
outstanding securities of the Company which vote generally in the election of
directors ("Voting Securities"), or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all of the Company's assets.
The Indemnification Agreements impose upon the Company the burden of
proving that the director or corporate officer is
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not entitled to indemnification in any particular case, and the Indemnification
Agreements negate certain presumptions which might otherwise be drawn against a
director or corporate officer in certain circumstances. The Indemnification
Agreements also provide that all legal actions brought against the director or
corporate officer by or in the right of the Company must be brought within a
period of two years from the date of the accrual of such actions (or any shorter
period that would otherwise be applicable), after which period any such cause of
action will be extinguished. Further, the Indemnification Agreements provide
that if the Company pays a director or corporate officer pursuant to an
Indemnification Agreement, the Company will be subrogated to such director's or
corporate officer's rights to recover from third parties.
Like the Delaware General Corporation Law, the Indemnification
Agreements provide that a director's or corporate officer's rights under such
contracts are not exclusive of any other indemnity rights he or she may have;
however, the Indemnification Agreements do prevent double payment. While not
requiring the maintenance of directors' and officers' liability insurance, the
Indemnification Agreements require that the director or corporate officer be
provided with the maximum coverage afforded any other director or officer of the
Company.
Finally, the Company maintains in force insurance coverage for all
duly elected or appointed Company officers and directors for damages, judgments,
settlements and "defense costs" (as defined in the policy) related to any claim
of breach of duty, neglect, error, misstatement, misleading statement, omission
or act by any such persons in their respective capacities as officers and
directors or any matter claimed against them solely by reason of their status as
officers and directors. The insurance also covers the Company for amounts
advanced by the Company to officers and directors pursuant to indemnification
arrangements provided such amounts would be covered if expended directly by the
officers and directors. Coverage is limited to $35 million. Standard
exclusions from coverage apply, including for criminal and deliberately
fraudulent acts and for the gaining of personal profit or advantage to which the
officer or director was not legally entitled.
Item 7. Exemption from Registration
Not applicable.
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Item 8. Exhibits
Exhibit
Number Description of Exhibit
------ ----------------------
4(1) Restated Certificate of Incorporation of Lukens Inc., as amended,
including Certificate of Designation of Series A Junior Participating
Preferred Stock and Certificate of Designation of Series B ESOP
Convertible Preferred Stock (incorporated by reference to Exhibit 4(1)
to Post-Effective Amendment No. 1 to Registrant's Form S-8
Registration Statement, Registration No. 33-23405)
4(2) By-laws of Lukens Inc. as amended June 26, 1991 (incorporated by
reference to Exhibit 4(2) to Post-Effective Amendment No. 4 to
Registrant's Form S-8 Registration Statement, Registration No.
33-6673)
4(3) Rights Agreement dated as of July 29, 1987, as amended as of July 25,
1990, between Lukens Inc. and Mellon Bank (East) N.A. as Rights Agent
(incorporated by reference to Exhibit 1 to Registrant's Form 8-K
Current Report dated July 25, 1990)
4(4) Form of Trust Agreement between Lukens Inc. and Vanguard Fiduciary
Trust Company, dated July 1, 1993
4(5) Form of Washington Steel Corporation Employees Capital Accumulation
Plan (Massillon, OH), as amended and restated effective July 1, 1993
5(1) Opinion of William D. Sprague, Vice President and General Counsel of
the Company, relating to the legality of securities
5(2) Opinion of Ballard Spahr Andrews & Ingersoll confirming compliance of
the provisions of the Washington Steel Corporation Employees Capital
Accumulation Plan (Massillon, OH) with the requirements of ERISA
pertaining to such provisions
23(1) Consent of William D. Sprague, Vice President and General Counsel of
the Company, is contained in the opinion filed as Exhibit 5(1)
23(2) Consent of Ballard Spahr Andrews & Ingersoll is contained in the
opinion filed as Exhibit 5(2)
23(3) Consent of Arthur Andersen & Co.
24 Power of Attorney (included on page II-16)
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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 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 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
II-13
<PAGE>
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) (1) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus to each employee to whom the
prospectus is sent or given, a copy of the registrant's annual report to
stockholders for its last fiscal year, unless such employee otherwise has
received a copy of such report, in which case the registrant shall state in the
prospectus that it will promptly furnish, without charge, a copy of such report
on written request of the employee. If the last fiscal year of the registrant
has ended within 120 days prior to the use of the prospectus, the annual report
of the registrant for the preceding fiscal year may be so delivered, but within
such 120 day period the annual report for the last fiscal year will be furnished
to each such employee.
(2) The undersigned registrant hereby undertakes to transmit or
cause to be transmitted to all employees participating in the plan who do not
otherwise receive such material as stockholders of the registrant, at the time
and in the manner such material is sent to its stockholders, copies of all
reports, proxy statements and other communications distributed to its
stockholders generally.
(3) The undersigned registrant and plan hereby undertake to
transmit or cause to be transmitted promptly, without charge, to any participant
in the plan who makes a written request, a copy of the then latest annual report
of the plan filed pursuant to Section 15(d) of the Securities Exchange Act of
1934. If such report is filed separately on Form 11-K, such form shall be
delivered upon written request. If such report is filed as a part of the
registrant's annual report on Form 10-K, that entire report (excluding exhibits)
shall be
II-14
<PAGE>
delivered upon written request. If such report is filed as a part of the
registrant's annual report to stockholders delivered pursuant to paragraph (1)
or (2) of this undertaking, additional delivery shall not be required.
II-15
<PAGE>
SIGNATURES
----------
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Coatesville, Commonwealth of Pennsylvania, on
the 21st day of June, 1994.
LUKENS INC.
By: /s/ R. William Van Sant
---------------------------
R. William Van Sant
Chairman and
Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, R. W. VAN SANT, JOHN N. MAIER, WILLIAM
D. SPRAGUE and JOHN C. VAN RODEN, JR. and each of them as true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed below by the following
persons in the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ R. William Van Sant Chairman, June 21, 1994
- ----------------------- Chief Executive
R. William Van Sant Officer and Director
II-16
<PAGE>
/s/John C. van Roden, Jr. Vice President and June 21, 1994
- ------------------------- Treasurer
John C. van Roden, Jr.
/s/John N. Maier Vice President and June 21, 1994
- ------------------------- Controller
John N. Maier
/s/Michael O. Alexander Director June 21, 1994
- -------------------------
Michael O. Alexander
/s/T. Kevin Dunnigan Director June 21, 1994
- -------------------------
T. Kevin Dunnigan
/s/Ronald M. Gross Director June 21, 1994
- -------------------------
Ronald M. Gross
/s/Nancy Huston Hansen Director June 21, 1994
- -------------------------
Nancy Huston Hansen
/s/William H. Nelson, III Director June 21, 1994
- -------------------------
William H. Nelson, III
/s/Stuart J. Northrop Director June 21, 1994
- -------------------------
Stuart J. Northrop
/s/Robert L. Seaman Director June 21, 1994
- -------------------------
Robert L. Seaman
/s/Harry C. Stonecipher Director June 21, 1994
- -------------------------
Harry C. Stonecipher
/s/Joab L. Thomas Director June 21, 1994
- -------------------------
Joab L. Thomas
/s/W. Paul Tippett Director June 21, 1994
- -------------------------
W. Paul Tippett
II-17
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Washington Steel Corporation Employees Capital Accumulation Plan (Massillon,
OH) has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Coatesville, Pennsylvania, on the
21st day of June, 1994.
WASHINGTON STEEL CORPORATION EMPLOYEES
CAPITAL ACCUMULATION PLAN (MASSILLON, OH)
By: /s/ Richard D. Luzzi
-----------------------------------------
Chairman, Employee Benefits
Administration Committee
II-18
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
4(1) Restated Certificate of Incorporation of Lukens Inc., as amended,
including Certificate of Designation of Series A Junior Participating
Preferred Stock and Certificate of Designation of Series B ESOP
Convertible Preferred Stock (incorporated by reference to Exhibit 4(1)
to Post-Effective Amendment No. 1 to Registrant's Form S-8
Registration Statement, Registration No. 33-23405)
4(2) By-laws of Lukens Inc. as amended June 26, 1991 (incorporated by
reference to Exhibit 4(2) to Post-Effective Amendment No. 4 to
Registrant's Form S-8 Registration Statement, Registration No. 33-
6673)
4(3) Rights Agreement dated as of July 29, 1987, as amended as of July 25,
1990, between Lukens Inc. and Mellon Bank (East) N.A. as Rights Agent
(incorporated by reference to Exhibit 1 to Registrant's Form 8-K
Current Report dated July 25, 1990)
4(4) Form of Trust Agreement between Lukens Inc. and Vanguard Fiduciary
Trust Company, dated July 1, 1993
4(5) Form of Washington Steel Corporation Employees Capital Accumulation
Plan (Massillon, OH), as amended and restated effective July 1, 1993
5(1) Opinion of William D. Sprague, Vice President and General Counsel of
the Company, relating to the legality of securities
5(2) Opinion of Ballard Spahr Andrews & Ingersoll confirming compliance of
the provisions of the Washington Steel Corporation Employees Capital
Accumulation Plan (Massillon, OH) with the requirements of ERISA
pertaining to such provisions
23(1) Consent of William D. Sprague, Vice President and General Counsel of
the Company, is contained in the opinion filed as Exhibit 5(1)
23(2) Consent of Ballard Spahr Andrews & Ingersoll is contained in the
opinion filed as Exhibit 5(2)
23(3) Consent of Arthur Andersen & Co.
24 Power of Attorney (included on page II-16)
<PAGE>
EXHIBIT 4(4)
TRUST AGREEMENT
---------------
THIS AGREEMENT OF TRUST (the "Agreement") made as of this 1st day of
July, 1993, by and between Lukens Inc., a Delaware corporation, (the "Employer")
and VANGUARD FIDUCIARY TRUST COMPANY, a trust company incorporated under Chapter
10 of the Pennsylvania Banking Code (the "Trustee"),
W I T N E S S E T H
-------------------
WHEREAS, the Employer has adopted and is maintaining the Washington
Steel Corporation Employees Capital Accumulation Plan (Massillon, OH)
(hereinafter referred to as the "Plan"), for the exclusive benefit of eligible
employees, hereinafter referred to as "Participants;" and
WHEREAS, the Plan provides that the assets thereof be held, in trust,
by a trustee, subject to the provisions of a trust agreement to be entered into
between the Employer and a trustee or trustees; and
WHEREAS, the Employer and the Trustee desire that the Trustee serve as
trustee for the assets of the Plan effective July 1, 1993; and
WHEREAS, the Lukens Inc. Employee Benefits Administration Committee
("EBAC") and the Lukens Inc. Employee Benefits Finance Committee ("EBFC")
(hereinafter referred to
<PAGE>
collectively as the "Plan Administrator") are the fiduciaries named in the Plan
as having the authority to control and manage the operation and administration
of the Plan; and
WHEREAS, the Employer and the Trustee deem it necessary and desirable
to enter into a written agreement of trust.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
ARTICLE I
ESTABLISHMENT OF THE TRUST
Section 1.1. The Employer and the Trustee hereby agree to the
establishment of a trust consisting of such sums of money and such other
property acceptable to the Trustee as shall from time to time be paid or
delivered to the Trustee under the Plan and such earnings, income and
appreciation as may accrue thereon, which, less payments made by the Trustee to
carry out the purposes of the Plan, are referred to herein as the "Fund." The
Trustee shall carry out the duties and responsibilities herein specified, but
shall be under no duty to determine whether the amount of any contribution by
the Employer or any Participant is in accordance with the terms of the Plan nor
shall the Trustee be responsible for the collection of any contributions under
the Plan.
2
<PAGE>
Section 1.2. The Fund shall be held, invested, reinvested and
administered by the Trustee in accordance with the terms of the Plan and this
Agreement solely in the interest of Participants and their beneficiaries and for
the exclusive purpose of providing benefits to Participants and their
beneficiaries and defraying reasonable expenses of administering the Plan.
Except as provided in Section 4.2, no assets of the Plan shall inure to the
benefit of the Employer.
Section 1.3. The Trustee shall pay benefits and expenses from the
Fund only upon the written direction of the Plan Administrator, or its designee.
The Trustee shall be fully entitled to rely on such directions furnished by the
Plan Administrator, and shall be under no duty to ascertain whether the
directions are in accordance with the provisions of the Plan.
ARTICLE II
INVESTMENT OF THE FUND
Section 2.1. The Employer or its designee shall have the exclusive
authority and discretion to select the Investment Funds available for investment
under the Plan. In making such selection, the Employer or its designee shall
use the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character and
with like aims. The available
3
<PAGE>
investments under the Plan shall be sufficiently diversified so as to minimize
the risk of large losses, unless under the circumstances it is clearly prudent
not to do so. The Employer or its designee shall notify the Trustee in writing
of the selection of the Investment Funds currently available for investment
under the Plan, and any changes thereto.
Section 2.2. Each Participant shall have the exclusive right, in
accordance with the provisions of the Plan, to direct the investment by the
Trustee of all amounts allocated to the separate accounts of the Participant
under the Plan among any one or more of the available Investment Funds. All
investment directions by Participants shall be timely furnished to the Trustee
by EBAC, or its designee, except to the extent such directions are transmitted
telephonically or otherwise by Participants directly to the Trustee or its
delegate in accordance with rules and procedures established and approved by the
Plan Administrator and communicated to the Trustee. In making any investment of
the assets of the Fund, the Trustee shall be fully entitled to rely on such
directions furnished to it by the EBAC or by Participants in accordance with the
Plan Administrator's approved rules and procedures, and shall be under no duty
to make any inquiry or investigation with respect thereto. If the Trustee
receives any contribution under the Plan that is not accompanied by instructions
directing its investment, the Trustee shall immediately notify EBAC of that
fact, and the
4
<PAGE>
Trustee may, in its discretion, hold or return all or a portion of the
contribution uninvested without liability for loss of income or appreciation
pending receipt of proper investment directions. Otherwise, it is specifically
intended under the Plan and this Agreement that the Trustee shall have no
discretionary authority to determine the investment of the assets of the Fund.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the
Trustee shall have the authority, in addition to any authority given by law, to
exercise the following powers in the administration of the Trust:
(a) to invest and reinvest all or a part of the Fund in
accordance with Participants' investment directions in any available
Investment Fund selected by the Employer without restriction to investments
authorized for fiduciaries, including, without limitation on the amount
that may be invested therein, any common, collective or commingled trust
fund maintained by the Trustee. Any investment in, and any terms and
conditions of, any common, collective or commingled trust fund available
only to employee trusts which meets the requirements of the Internal
Revenue Code of 1986, as amended (the "Code"), or corresponding provisions
of subsequent income tax laws of the United States, shall constitute an
integral part of this Agreement and the Plan;
5
<PAGE>
(b) to dispose of all or any part of the investments,
securities, or other property which may from time to time or at any time
constitute the Fund in accordance with the investment directions by
Participants furnished to it pursuant to Section 2.2 or the written
directions by the Plan Administrator furnished to it pursuant to Section
1.3, and to make, execute and deliver to the purchasers thereof good and
sufficient deeds of conveyance therefor, and all assignments, transfers
and other legal instruments, either necessary or convenient for passing
the title and ownership thereto, free and discharged of all trusts and
without liability on the part of such purchasers to see to the
application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay
benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the
name of the Trustee or the name of its nominee or nominees or to retain
such investment unregistered or in a form permitting transfer by delivery;
provided that the books and records of the Trustee shall at all times show
that all such investments are part of the Fund;
(e) to vote in person or by proxy with respect to all shares of
the mutual funds offered by The Vanguard
6
<PAGE>
Group, Inc. (the "Vanguard Funds") which are held by the Plan solely in
accordance with directions furnished to it by EBFC, and to vote in person
or by proxy with respect to all other securities credited to a
Participant's separate accounts under the Plan solely in accordance with
directions furnished to it by the Participant; provided that:
(i) any securities with respect to which timely
instructions are not received by the Trustee shall not be voted,
nor shall they be tendered in connection with a tender offer, as
the case may be;
(ii) Participant instructions to the Trustee for voting or
tender of Employer stock shall be made in confidence, and the
Trustee may not divulge such instructions to any director,
officer or employee of the Employer; and
(iii) other rights to which a Participant may be entitled as
a beneficial owner of such Employer stock shall be exercised as
provided in the Plan.
(f) upon the written direction of the Plan Administrator, to
apply for, purchase, hold or transfer any life insurance, retirement
income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of
the Trustee and to contract for legal,
7
<PAGE>
accounting, clerical and other services deemed necessary by the Trustee to
manage and administer the Fund according to the terms of the Plan and this
Agreement;
(h) upon the written direction of the EBAC, or its designated
representative and in accordance with the terms of the Plan, to make loans
from the Fund to Participants in amounts and on terms approved by the EBAC
in accordance with the provisions of the Plan, provided that the EBAC shall
have the responsibility for collecting all loan repayments required to be
made under the Plan and for furnishing the Trustee with copies of all
promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with
respect to the Fund or any part thereof under existing or future laws, and
to contest the validity or amount of any tax, assessment, claim or demand
respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated
by the Secretary of Labor, the Trustee shall not maintain the indicia of
ownership in any assets of the Fund outside of the jurisdiction of the district
courts of the United States.
8
<PAGE>
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1. The Trustee, the Employer and the Plan Administrator
shall each discharge their assigned duties and responsibilities under this
Agreement and the Plan solely in the interest of Participants and their
beneficiaries in the following manner:
(a) for the exclusive purpose of providing benefits to
Participants and their beneficiaries and defraying reasonable expenses of
administering the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(c) by diversifying the available investments under the Plan so
as to minimize the risk of large losses, unless under the circumstances it
is clearly prudent not to do so; and
(d) in accordance with the provisions of the Plan and this Trust
Agreement insofar as they are consistent with the provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
9
<PAGE>
Section 3.2. The Trustee shall keep full and accurate accounts of all
receipts, investments, disbursements and other transactions hereunder, including
such specific records as may be agreed upon in writing between the Employer and
the Trustee. All such accounts, books and records shall be open to inspection
and audit at all reasonable times by any authorized representative of the
Employer or the Plan Administrator. A Participant may examine only those
individual account records pertaining directly to him, and the general records
of the Fund if and only to the extent required under applicable law.
Section 3.3. Within 90 days after the end of each Plan Year or within
90 days after its removal or resignation, the Trustee shall file with the Plan
Administrator a written account of the administration of the Fund showing all
transactions effected by the Trustee subsequent to the period covered by the
last preceding account to the end of such Plan Year or date of removal or
resignation and all property held at its fair market value at the end of the
accounting period. Upon approval of such accounting by the Plan Administrator,
neither the Employer nor the Plan Administrator shall be entitled to any further
accounting by the Trustee. The Plan Administrator may approve such accounting
by written notice of approval delivered to the Trustee or by failure to express
objection to such accounting in writing delivered to the Trustee within 90 days
from the date on which the accounting is delivered to the Plan Administrator.
10
<PAGE>
Section 3.4. In accordance with the terms of the Plan, the Trustee
shall open and maintain separate accounts in the name of each Participant in
order to record all contributions by or on behalf of the Participant under the
Plan and any earnings, losses and expenses attributable thereto. The Plan
Administrator or its designee shall furnish the Trustee with instructions
enabling the Trustee to allocate properly all contributions and other amounts
under the Plan to the separate accounts of Participants. In making such
allocation, the Trustee shall be fully entitled to rely on the instructions
furnished by the Plan Administrator and shall be under no duty to make any
inquiry or investigation with respect thereto.
Section 3.5. The Trustee shall furnish each Participant with
statements at least quarterly or more frequently as may be agreed upon with the
Employer, reflecting the current fair market value of the Participant's separate
accounts under the Plan.
Section 3.6. The Trustee shall not be required to determine the facts
concerning the eligibility of any Participant to participate in the Plan, the
amount of benefits payable to any Participant or beneficiary under the Plan, or
the date or method of payment or disbursement. The Trustee shall be duly
entitled to rely solely upon the written advice and directions of the Plan
Administrator as to any such question of fact.
11
<PAGE>
Section 3.7. Unless resulting from the Trustee's negligence, willful
misconduct, lack of good faith, or breach of its fiduciary duties under this
Agreement or ERISA, or any other applicable law, the Employer shall indemnify
and save harmless the Trustee from, against, for and in respect of any and all
damages, losses, obligations, liabilities, liens, deficiencies, costs and
expenses, including without limitation, reasonable attorney fees incident to any
suit, action, investigation, claim or proceedings suffered, sustained, incurred
or required to be paid by the Trustee in connection with the Plan or this
Agreement.
ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2 of this Article, at no
time prior to the satisfaction of all liabilities with respect to Participants
and their beneficiaries under the Plan shall any part of the corpus or income of
the Fund be used for, or diverted to, purposes other than for the exclusive
benefit of Participants or their beneficiaries, or for defraying reasonable
expenses of administering the Plan.
Section 4.2. The provisions of Section 4.1 notwithstanding,
contributions made by the Employer under the Plan may be returned to the
Employer under the following conditions:
12
<PAGE>
(a) If a contribution is made by mistake of fact, such
contribution shall be returned to the Employer within one year of the
payment of such contribution;
(b) Contributions to the Plan are specifically conditioned upon
their deductibility under the Code. To the extent a deduction is
disallowed for any such contribution, it shall be returned to the Employer
within one year after the disallowance of the deduction. Contributions
which are not deductible in the taxable year in which made but are
deductible in subsequent taxable years shall not be considered to be
disallowed for purposes of this subsection; and
(c) Contributions to the Plan are specifically conditioned on
initial qualification of the Plan under the Code. If the Plan is
determined to be disqualified, contributions made in respect of any period
subsequent to the effective date of such disqualification shall be returned
to the Employer within one year after the date of denial of qualification.
ARTICLE V
COMMUNICATION WITH PLAN ADMINISTRATOR AND EMPLOYER
Section 5.1. Whenever the Trustee is permitted or required to act
upon the directions or instructions of the Plan Administrator, the Trustee shall
be entitled to act upon any
13
<PAGE>
written communication signed by any person or agent designated to act as or on
behalf of the Plan Administrator. Such person or agent shall be so designated
either under the provisions of the Plan or in writing by the Employer (and
signed by the Chairman of EBAC or EBFC, as the case may be) and their authority
shall continue until revoked in writing. The Trustee shall incur no liability
for failure to act on such person's or agent's instructions or orders without
written communication, and the Trustee shall be fully protected in all actions
taken in good faith in reliance upon any instructions, directions,
certifications and communications believed to be genuine and to have been signed
or communicated by the proper person.
Section 5.2. The Employer (through the Chairmen of EBAC and EBFC)
shall notify the Trustee in writing as to the appointment, removal or
resignation of any person designated to act as or on behalf of the Plan
Administrator. After such notification, the Trustee shall be fully protected in
acting upon the directions of, or dealing with, any person designated to act as
or on behalf of the Plan Administrator until it receives notice to the contrary.
The Trustee shall have no duty to inquire into the qualifications of any person
designated to act as or on behalf of the Plan Administrator.
14
<PAGE>
ARTICLE VI
TRUSTEE COMPENSATION
Section 6.1. The Trustee shall be entitled to reasonable
compensation for its services as is agreed upon with the Employer. If approved
by the Plan Administrator, the Trustee shall also be entitled to reimbursement
for all direct expenses properly and actually incurred on behalf of the Plan.
Such compensation or reimbursement shall be paid to the Trustee out of the Fund
unless paid directly by the Employer.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written notice to
the Employer which shall be effective 30 days after delivery unless a successor
Trustee has not been appointed at that time in which case the Trustee may resign
effective 90 days after delivery of said written notice or, if earlier, upon
appointment of a successor Trustee.
Section 7.2. The Trustee may be removed by the Employer at any time
upon 30 days written notice to the Trustee; such notice, however, may be waived
by the Trustee.
Section 7.3. The appointment of a successor Trustee hereunder shall
be accomplished by and shall take effect upon the delivery to the resigning or
removed Trustee, as the case may be,
15
<PAGE>
of written notice of the Employer (through the Chairman of EBFC) appointing such
successor Trustee, and an acceptance in writing of the office of successor
Trustee hereunder executed by the successor so appointed. Any successor Trustee
may be either a corporation authorized and empowered to exercise trust powers or
one or more individuals. All of the provisions set forth herein with respect to
the Trustee shall relate to each successor Trustee so appointed with the same
force and effect as if such successor Trustee had been originally named herein
as the Trustee hereunder. If within 30 days after notice of resignation shall
have been given under the provisions of this Article a successor Trustee shall
not have been appointed, the resigning Trustee or the Employer may apply to any
court of competent jurisdiction for the appointment of a successor Trustee.
Section 7.4. Upon the appointment of a successor Trustee, the
resigning or removed Trustee shall transfer and deliver the Fund to such
successor Trustee, after reserving such reasonable amount as it shall deem
necessary to provide for its expenses in the settlement of its account, the
amount of any compensation due to it and any sums chargeable against the Fund
for which it may be liable. If the sums so reserved are not sufficient for such
purposes, the resigning or removed Trustee shall be entitled to reimbursement
for any deficiency from the successor Trustee and the Employer who shall be
jointly and severally liable therefor.
16
<PAGE>
ARTICLE VIII
INSURANCE COMPANIES
Section 8.1. If any contract issued by an insurance company shall
form a part of the Trust assets, the insurance company shall not be deemed a
party to this Agreement. A certification in writing by the Trustee as to the
occurrence of any event contemplated by this Agreement or the Plan shall be
conclusive evidence thereof and the insurance company shall be protected in
relying upon such certification and shall incur no liability for so doing. With
respect to any action under any such contract, the insurance company may deal
with the Trustee as the sole owner thereof and need not see that any action of
the Trustee is authorized by this Agreement or the Plan. Any change made or
action taken by an insurance company upon the direction of the Trustee shall
fully discharge the insurance company from all liability with respect thereto,
and it need not see to the distribution or further application of any moneys
paid by it to the Trustee or paid in accordance with the direction of the
Trustee.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE TRUST PLAN
Section 9.1. The Employer may, by delivery to the Trustee of an
instrument in writing (signed by the Chairman of EBAC), amend, terminate or
partially terminate this Agreement at
17
<PAGE>
any time; provided, however, that no amendment shall increase the duties or
liabilities of the Trustee without the Trustee's consent; and, provided further,
that no amendment shall divert any part of the Fund to any purpose other than
providing benefits to Participants and their beneficiaries or defraying
reasonable expenses of administering the Plan.
Section 9.2. If the Plan is terminated in whole or in part, or if the
Employer permanently discontinues its contribution to the Plan, the Trustee
shall distribute the Fund or any part thereof in such manner and at such times
as the Plan Administrator shall direct in writing. In the absence of receipt of
such written directions within 90 days after the effective date of such
termination, the Trustee shall distribute the Fund in accordance with the
provisions of the Plan.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Unless the context of this Agreement clearly indicates
otherwise, the terms defined in the Plan shall, when used herein, have the same
meaning as in the Plan.
Section 10.2. Except as otherwise required in the case of any
qualified domestic relations order within the meaning of Section 414(p) of the
Code, the benefits or proceeds of any allocated or unallocated portion of the
assets of the Fund and any interest of any Participant or beneficiary arising
out of or
18
<PAGE>
created by the Plan either before or after the Participant's retirement shall
not be subject to execution, attachment, garnishment or other legal or judicial
process whatsoever by any person, whether creditor or otherwise, claiming
against such Participant or beneficiary. No Participant or beneficiary shall
have the right to alienate, encumber or assign any of the payments or proceeds
or any other interest arising out of or created by the Plan and any action
purporting to do so shall be void. The provisions of this Section shall apply
to all Participants and beneficiaries, regardless of their citizenship or place
of residence.
Section 10.3. Nothing contained in this Agreement or in the Plan
shall require the Employer to retain any Employee in its service.
Section 10.4. Any person dealing with the Trustee may rely upon a
copy of this Agreement and any amendments thereto certified to be true and
correct by the Trustee.
Section 10.5. The Trustee hereby acknowledges receipt of a copy of
the Plan. The Employer will cause a copy of any amendment to the Plan to be
delivered to the Trustee.
Section 10.6. The construction, validity and administration of this
Agreement and the Plan shall be governed by the laws of the Commonwealth of
Pennsylvania, except to the extent that such laws have been specifically
superseded by ERISA.
19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: LUKENS INC.
By
- -------------------- -------------------------------
Chairman, Employee Benefits
Finance Committee
By
- -------------------- -------------------------------
Chairman, Employee Benefits
Administration Committee
ATTEST: VANGUARD FIDUCIARY TRUST CO.
By
- -------------------- -------------------------------
Vice President
20
<PAGE>
EXHIBIT 4(5)
WASHINGTON STEEL CORPORATION
EMPLOYEES CAPITAL ACCUMULATION PLAN
(MASSILLON, OH)
AMENDED AND RESTATED
EFFECTIVE JULY 1, 1993
<PAGE>
WASHINGTON STEEL CORPORATION
EMPLOYEES CAPITAL ACCUMULATION PLAN
(MASSILLON, OHIO)
AMENDED AND RESTATED
EFFECTIVE JULY 1, 1993
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
-----------
"Account".................................................................. 2
"Company Contribution Account".......................................... 2
"Rollover Account"...................................................... 2
"Wage Reduction Contribution Account"................................... 2
"Active Participant"....................................................... 3
"Actual Deferral Percentage"............................................... 3
"Administration Committee"................................................. 4
"Affiliated Company"....................................................... 4
"50% Affiliated Company"................................................... 4
"Age"...................................................................... 4
"Alternate Payee".......................................................... 5
"Average Actual Deferral Percentage"....................................... 5
"Average Contribution Percentage".......................................... 5
"Benefit Commencement Date"................................................ 5
"Board of Directors"....................................................... 5
"Code"..................................................................... 5
"Committees"............................................................... 5
"Company".................................................................. 6
"Compensation"............................................................. 6
"Contribution Percentage".................................................. 8
"Covered Employee"......................................................... 9
"Early Retirement Date".................................................... 9
"Effective Date"........................................................... 9
"Eligible Employee"........................................................ 9
"Employee"................................................................. 9
"Employment Commencement Date"............................................. 10
"Entry Date"............................................................... 10
"ERISA".................................................................... 10
"Finance Committee"........................................................ 10
"Fund"..................................................................... 10
"Highly Compensated Eligible Employee"..................................... 10
"Highly Compensated Employee".............................................. 10
"Hour of Service".......................................................... 12
"Investment Medium"........................................................ 15
"Labor Agreement".......................................................... 15
"Limitation Year".......................................................... 15
"Lukens Stock"............................................................. 15
"Matching Contributions"................................................... 15
- i -
<PAGE>
PAGE
----
"Nonelective Company Contributions"........................................ 15
"Normal Retirement Age".................................................... 16
"Participant".............................................................. 16
"Plan"..................................................................... 16
"Plan Year"................................................................ 16
"Qualified Domestic Relations Order"....................................... 16
"Required Beginning Date".................................................. 16
"Rollover Contributions"................................................... 17
"Separation from Service".................................................. 17
"Spouse"................................................................... 18
"Total Disability"......................................................... 18
"Trust Agreement........................................................... 18
"Trustee".................................................................. 18
"Union".................................................................... 18
"Valuation Date"........................................................... 18
"Wage Reduction Contributions"............................................. 18
"Year of Service".......................................................... 18
ARTICLE II
TRANSITION AND ELIGIBILITY TO PARTICIPATE
-----------------------------------------
2.1 Rights Affected and Preservation of Accrued Benefit................ 19
2.2 Eligibility to Participate - Wage Reduction Contributions.......... 19
2.3 Wage Reduction Contributions Elections............................. 20
2.4 Participation in Matching Contributions............................ 21
2.5 Participation in Nonelective Company Contributions................. 21
2.6 Data............................................................... 22
ARTICLE III
CONTRIBUTIONS TO THE PLAN
-------------------------
3.1 Wage Reduction Contributions....................................... 23
3.2 Change of Percentage Rate.......................................... 24
3.3 Discontinuance of Wage Reduction Contributions..................... 25
3.4 Matching Contribution.............................................. 25
3.5 Nonelective Company Contribution................................... 26
3.6 Definition of Current or Accumulated Earnings...................... 26
3.7 Timing and Deductibility of Contributions.......................... 27
3.8 Fund............................................................... 27
3.9 Limitation on Wage Reduction Contributions......................... 28
3.10 Prevention of Violation of Limitation on Wage Reduction
Contributions and Matching Contributions........................... 32
3.11 Maximum Allocation................................................. 38
- ii -
<PAGE>
PAGE
----
ARTICLE IV
PARTICIPANTS' ACCOUNTS
----------------------
4.1 Accounts........................................................... 43
4.2 Valuation.......................................................... 43
4.3 Apportionment of Gain or Loss...................................... 43
4.4 Accounting for Allocations......................................... 44
4.5 Vesting............................................................ 44
ARTICLE V
DISTRIBUTION
------------
5.1 General............................................................ 45
5.2 Separation from Service............................................ 45
5.3 Death.............................................................. 45
5.4 Total Disability................................................... 45
5.5 Valuation for Distribution......................................... 46
5.6 Timing of Distribution............................................. 46
5.7 Mode of Distribution............................................... 48
5.8 Beneficiary Designation............................................ 49
5.9 Transfer of Account to Other Plan.................................. 51
ARTICLE VI
ROLLOVER CONTRIBUTIONS
----------------------
6.1 Rollover Contributions............................................. 54
6.2 Vesting and Distributing of Rollover Accounts...................... 55
ARTICLE VII
WITHDRAWALS
-----------
7.1 Withdrawals Subject to Hardship Restrictions....................... 56
7.2 Withdrawals Not Subject to Hardship Restrictions................... 60
7.3 Amount and Payment of Withdrawals.................................. 60
7.4 Withdrawals Not Subject to Replacement............................. 60
7.5 Investment Medium to be Charged with Withdrawal.................... 60
ARTICLE VIII
ADMINISTRATION
--------------
8.1 Plan Administrator................................................. 61
8.2 Allocation of Fiduciary Responsibilities........................... 61
8.3 Responsibilities of the Administration Committee................... 61
8.4 Responsibilities of the Finance Committee.......................... 62
- iii -
<PAGE>
PAGE
----
8.5 Joint Responsibilities............................................. 63
8.6 Membership of the Committees....................................... 63
8.7 Committee Meetings................................................. 64
8.8 Receipts and Disbursements of the Plan............................. 65
8.9 Demands for Money.................................................. 65
8.10 Disputes........................................................... 65
8.11 Indemnification.................................................... 67
ARTICLE IX
THE FUND
--------
9.1 Designation of Trustee............................................. 68
9.2 Exclusive Benefit.................................................. 68
9.3 No Interest in Fund................................................ 68
9.4 Investments........................................................ 68
ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
10.1 Power of Amendment and Termination................................. 71
10.2 Merger............................................................. 71
ARTICLE XI
TOP-HEAVY PROVISIONS
--------------------
11.1 General............................................................ 73
11.2 Definitions........................................................ 73
11.3 Minimum Contribution for Non-Key Employees......................... 78
11.4 Social Security.................................................... 80
11.5 Adjustment to Maximum Benefit Limitation........................... 80
ARTICLE XII
GENERAL PROVISIONS
------------------
12.1 No Employment Rights............................................... 82
12.2 Governing Law...................................................... 82
12.3 Severability of Provisions......................................... 82
12.4 No Interest in Fund................................................ 82
12.5 Spendthrift Clause................................................. 82
12.6 Incapacity......................................................... 83
12.7 Withholding........................................................ 83
12.8 Missing Persons.................................................... 84
12.9 Determination of Highly Compensated Employees...................... 84
- iv -
<PAGE>
PAGE
----
ARTICLE XIII
RIGHTS OF ALTERNATE PAYEES
--------------------------
13.1 General............................................................ 85
13.2 Distribution....................................................... 85
13.3 Withdrawals........................................................ 86
13.4 Death Benefits..................................................... 86
- v -
<PAGE>
WHEREAS, Mercury Stainless, Inc., formerly a subsidiary of Washington
Steel Corporation, Inc. ("Washington Steel") adopted the Mercury Stainless, Inc.
Employees Retirement Plan (the "Plan"), effective October 17, 1986, for certain
of its Employees; and
WHEREAS, Mercury Stainless, Inc. was merged into Washington Steel; and
WHEREAS, Washington Steel is a wholly-owned subsidiary of Lukens Inc.;
and
WHEREAS, Lukens Inc. desires (1) to amend and restate the Plan to
comply with the requirements of the Employee Retirement Income Security Act of
1974 and with the Internal Revenue Code of 1986, as amended and (2) to rename
the Plan;
NOW, THEREFORE, effective July 1, 1993, the Plan is renamed as the
Washington Steel Corporation Employees Capital Accumulation Plan (Massillon, OH)
and the Plan is continued, amended and restated as hereinafter set forth:
<PAGE>
ARTICLE I
DEFINITIONS
-----------
Except where otherwise clearly indicated by context, the masculine
shall include the feminine and the singular shall include the plural, and
vice-versa. Any term used herein without an initial capital letter that is used
in a provision of the Code with which this Plan must comply to meet the
requirements of section 401(a) of the Code shall be interpreted as having the
meaning used in such provision of the Code, if necessary for the Plan to
comply with such provision.
"Account" means the entries maintained in the records of the Trustee
-------
which represent the Participant's interest in the Fund. The term "Account"
shall refer, as the context indicates, to any or all of the following:
"Company Contribution Account" -- the Account to which are
----------------------------
credited Matching Contributions and Nonelective Company Contributions
allocated to a Participant, adjustments for withdrawals and distributions, and
the earnings, losses and expenses attributable thereto.
"Rollover Account" -- the Account to which are credited a
----------------
Participant's Rollover Contributions, adjustments for withdrawals and
distributions, and the earnings, losses and expenses attributable thereto.
"Wage Reduction Contribution Account" -- the Account to which are
-----------------------------------
credited a Participant's Wage Reduction
2
<PAGE>
Contributions, adjustments for withdrawals and distributions, and the earnings,
losses and expenses attributable thereto.
"Active Participant" means an individual who has become an Active
------------------
Participant as provided in Article II and has remained a Covered Employee at all
times thereafter.
"Actual Deferral Percentage" means, for any Eligible Employee for a
--------------------------
given Plan Year, the ratio of:
(a) the sum of:
(1) such Eligible Employee's Wage Reduction Contributions
for the Plan Year, plus
(2) in the case of any Highly Compensated Eligible
Employee, his elective deferrals for the year under any other qualified
retirement plan, other than an employee stock ownership plan as defined in
section 4975(e)(7) of the Code or a tax credit employee stock ownership plan as
defined in section 409(a) of the Code, maintained by the Company or any
Affiliated Company, plus
(3) at the election of the Administration Committee or,
prior to the Effective Date, the Company, any portion of the Eligible
Employee's Matching Contributions required or permitted to be taken into
account under section 401(k) of the Code and the regulations issued
thereunder, plus
(4) at the election of the Administration Committee or,
prior to the Effective Date, the Company, any portion of the Eligible Employee's
Nonelective Company Contributions required or permitted to be taken into account
3
<PAGE>
under section 401(k) of the Code and the regulations issued thereunder; to
(b) the Eligible Employee's Compensation for the Plan Year or
the calendar year ending within the Plan Year.
"Administration Committee" means the Lukens Inc. Employee Benefits
------------------------
Administration Committee.
"Affiliated Company" means, with respect to the Company, (a) any
------------------
corporation that is a member of a controlled group of corporations, as
determined under section 414(b) of the Code, which includes the Company; (b) any
member of an affiliated service group, as determined under section 414(m) of the
Code, of which the Company is a member; (c) any trade or business (whether or
not incorporated) that is under common control with the Company, as determined
under section 414(c) of the Code; and (d) any other organization or entity which
is required to be aggregated with the Company under section 414(o) of the Code
and regulations issued thereunder.
"50% Affiliated Company" means an Affiliated Company, but determined
----------------------
with "more than 50%" substituted for the phrase "at least 80%" in section
1563(a) of the Code, when applying sections 414(b) and (c) of the Code.
"Age" means, for any individual, his age on his last birthday, except
---
that an individual attains Age 70-1/2 on the corresponding date in the sixth
calendar month following the month in which his 70th birthday falls (or the last
day of such sixth month if there is no such corresponding date therein).
4
<PAGE>
"Alternate Payee" shall mean any Spouse, former Spouse, child or other
---------------
dependent of a Participant who is recognized by a domestic relations order
(within the meaning of section 414(p)(1)(B) of the Code) as having a right to
receive all, or a portion of, the benefits payable under the Plan with respect
to such Participant.
"Average Actual Deferral Percentage" means, for a specified group of
----------------------------------
Eligible Employees for a Plan Year, the average of the Actual Deferral
Percentages for such Eligible Employees for the Plan Year.
"Average Contribution Percentage" means, for a specified group of
-------------------------------
Eligible Employees for a Plan Year, the average of the Contribution Percentages
for such Eligible Employees for the Plan Year.
"Benefit Commencement Date" means, for any Participant or beneficiary,
-------------------------
the date as of which the first benefit payment, including a single sum, from the
Participant's Account is due, other than pursuant to a withdrawal under Article
VI.
"Board of Directors" means the board of directors (or other governing
------------------
body) of Lukens Inc. or a committee of the Board of Directors to which the Board
of Directors has delegated some or all of its responsibilities hereunder.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Committees" means the Administration Committee and the Finance
----------
Committee, and their duly-appointed delegates.
5
<PAGE>
"Company" means Lukens Inc.
-------
"Compensation" means, for any Eligible Employee, for any applicable
------------
period:
(a) except as otherwise provided below in this definition, and
subject to the limitations set forth in Subsection (e) of this definition, wages
as defined in Section 3401(a) of the Code and all other payments of compensation
for which the Company is required to furnish the employee a written statement
under Sections 6041(d) and 6051(a)(3) of the Code plus (1) Wage Reduction
Contributions and salary deferrals under a plan described in section 125 of the
Code, (2) pay received by an Employee from the Union when absent from employment
with the Company by reason of Union business or on a leave of absence from the
Company for Union business and (3) workers' compensation payments received in
lieu of wages for injuries incurred while in the employ of the Company, but not
including long-term disability payments, sickness and accident benefits or
profit sharing and bonus payments;
(b) for the purposes of Article X and Section 3.11, wages as
defined in section 3401(a) of the Code and all other payments of compensation
for which the Company is required to furnish the employee a written statement
under sections 6041(d) and 6051(a)(3) of the Code;
(c) for the purposes of the definitions of "Actual Deferral
Percentage" and "Contribution Percentage" in this Article (except as otherwise
provided in such definitions), and
6
<PAGE>
subject to the limitations set forth in Subsection (e) of this definition,
compensation as defined in section 414(s) of the Code as determined by the
Administration Committee or, prior to the Effective Date, the Company, and
applied on a uniform and consistent basis to all Eligible Employees, provided
that, in the sole discretion of the Administration Committee or, prior to the
Effective Date, the Company, Compensation may include Wage Reduction
Contributions and other amounts excluded from gross income under section 125,
402(a)(8), 402(h) or 403(b) of the Code; and provided further that if applied
uniformly to all Eligible Employees for the Plan Year, the Company may elect to
consider only compensation as defined above for that portion of the Plan Year or
the calendar year ending within the Plan Year during which the Employee was an
Eligible Employee; and
(d) for the purpose of the definition of "Highly Compensated
Employee" in this Article (except as otherwise provided in such definition),
wages as defined in section 3401(a) of the Code and all other payments of
compensation for which the Company is required to furnish the employee a
written statement under sections 6041(d) and 6051(a)(3) of the Code, but
including amounts that are excluded from gross income under section 125,
402(a)(8), 402(h) or 403(b) of the Code.
(e) With respect to any Plan Year beginning before 1994, only
compensation not in excess of the amount to which the $200,000 limit of Code
section 401(a)(17) has been indexed, and with respect to any Plan Year beginning
after 1993,
7
<PAGE>
only compensation not in excess of the amount to which the $150,000 Limit of
Code section 401(a)(17) has been indexed, shall be taken into account for
purposes of Subsections (a), (b) and (c) of this definition, except that this
Subsection (e) shall not apply for purposes of Section 3.11 and Section 10.2(c).
In determining Compensation for purposes of this limitation, the rules of
section 414(q)(6) of the Code shall apply, except in applying such rules, the
term "family" shall include only the spouse of the Employee and any lineal
descendants who have not attained Age 19 before the close of the Plan Year. In
applying the rules of section 414(q)(6) of the Code, the limit of this
Subsection (e) shall be allocated among family members in proportion to their
Compensation as defined in Subsection (a) without regard to this Subsection (e).
"Contribution Percentage" means for any Eligible Employee for a given
-----------------------
Plan Year, the ratio of:
(a) the sum of
(1) such Eligible Employee's Matching Contributions (to the
extent not included in such Eligible Employee's Actual Deferral Percentage for
such Plan Year) for the Plan Year, plus
(2) in the case of any Highly Compensated Eligible
Employee, any employee contributions and employer matching contributions,
including any elective deferrals recharacterized as employee contributions,
under any other qualified retirement plan, other than an employee stock
ownership
8
<PAGE>
plan as defined in section 4975(e)(7) of the Code or a tax credit employee stock
ownership plan as defined in section 409(a) of the Code, maintained by the
Company or any Affiliated Company, plus
(3) at the election of the Administration Committee or,
prior to the Effective Date, the Company, any portion of the Eligible Employee's
Nonelective Company Contributions required or permitted to be taken into account
in accordance with section 401(m) of the Code and the regulations issued
thereunder; to
(b) the Eligible Employee's Compensation for the Plan Year or
the calendar year ending within the Plan Year.
"Covered Employee" means (a) any Employee who is defined as covered
----------------
under the Plan in Article II, Section 2 of the Labor Agreement and (b) any other
Employee principally assigned to Washington Steel's Massillon, Ohio location.
"Early Retirement Date" means the date on which an Employee completes
---------------------
30 Years of Service.
"Effective Date" means July 1, 1993, the effective date of this
--------------
amended and restated Plan.
"Eligible Employee" means an Employee who has become an Eligible
-----------------
Employee as set forth in Section 2.2, whether or not he is an Active
Participant, and who has remained a Covered Employee at all times thereafter.
"Employee" means an individual who is employed by the Company or an
--------
Affiliated Company. An individual who is not otherwise employed by the Company
or an Affiliated Company shall
9
<PAGE>
be deemed to be employed by such Company if he is a leased employee with respect
to whose services the Company or such Affiliated Company is the recipient within
the meaning of Code section 414(n) or 414(o), but to whom Code section 414(n)(5)
does not apply.
"Employment Commencement Date" means, for any Employee, the date on
----------------------------
which he is first entitled to be credited with an "Hour of Service" described in
Paragraph (a)(1) of the definition of Hour of Service in this Article.
"Entry Date" means January 1 or July 1 of any Plan Year.
----------
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Finance Committee" means the Lukens Inc. Employee Benefits Finance
-----------------
Committee.
"Fund" means the fund established for this Plan, administered under
----
the Trust Agreement, out of which benefits payable under this Plan shall be
paid.
"Highly Compensated Eligible Employee" means an Eligible Employee who
------------------------------------
is (or is treated as) a Highly Compensated Employee.
"Highly Compensated Employee" means an Employee who during the current
---------------------------
Plan Year or the immediately preceding Plan Year:
(a) was a five-percent owner, as defined in section 416(i) of
the Code;
10
<PAGE>
(b) received more than $96,368 (as indexed) in Compensation from
the Company or an Affiliated Company;
(c) received more than $64,245 (as indexed) in Compensation from
the Company or an Affiliated Company and was among the top 20% of Employees of
the Company and all Affiliated Companies ranked by Compensation (excluding
Employees described in section 414(q)(8) of the Code to the extent (1) permitted
under the Code and regulations thereunder and (2) elected by the Committee, for
purposes of identifying the number of Employees in the top 20%); or
(d) was among the 50 officers of the Company or an Affiliated
Company (or, if lesser, the greater of 3 or 10% of all Employees, excluding
Employees described in section 414(q)(8) of the Code, to the extent (1)
permitted under the Code and regulations thereunder and (2) elected by the
Administration Committee or, prior to the Effective Date, the Company, for
purposes of identifying the top 20%) and received Compensation of more than
$57,820.50 (as indexed); provided, however, that, if no officer has satisfied
the compensation requirement described above during either the current Plan Year
or the immediately preceding Plan Year, the highest paid officer for such year
shall be treated as a Highly Compensated Employee.
Notwithstanding Subsections (b)-(d) of this definition, an Employee, other than
a five-percent owner, who was not a Highly Compensated Employee in the preceding
Plan Year is a Highly Compensated Employee for the current Plan Year only if he
is
11
<PAGE>
among the top 100 Employees of the Company and all Affiliated Companies ranked
by Compensation for the current Plan Year.
If an Employee is, during the current Plan Year or the immediately
preceding Plan Year, a family member of either a 5 percent owner who is an
Employee or a former Employee or a Highly Compensated Employee who is one of the
10 most highly compensated Employees ranked by compensation during such year,
then the family member and the 5 percent owner or Highly Compensated Employee
shall be treated as a single Highly Compensated Employee, and the Compensation
and elective deferrals, employee contributions and employer matching
contributions of such family member and 5 percent owner or Highly Compensated
Employee shall be aggregated in determining the Actual Deferral Percentage and
Contribution Percentage of such "single" Highly Compensated Employee. For
purposes of this definition, "family member" shall include the spouse, lineal
ascendants and descendants of the Employee or former Employee and the spouse of
such lineal ascendants and descendants.
If the Company has made the election described in Section 12.9,
references to the "preceding Plan Year" shall refer instead to the calendar year
ending with or within the current Plan Year.
"Hour of Service" means, for any Employee, a credit awarded with
---------------
respect to:
(a) except as provided in (b) or (c),
12
<PAGE>
(1) each hour for which he is directly or indirectly paid or
entitled to payment by the Company or an Affiliated Company for the performance
of employment duties; or
(2) each hour for which he is entitled, either by award or
agreement, to back pay from the Company or an Affiliated Company, irrespective
of mitigation of damages; or
(3) each hour for which he is directly or indirectly paid
or entitled to payment by the Company or an Affiliated Company on account of a
period of time during which no duties are performed due to vacation, holiday,
illness, incapacity (including disability), jury duty, layoff, leave of absence,
or military duty.
(b) For any period that includes any hours for which an Hour of
Service would otherwise be credited to an Employee under (a), above, the
Administration Committee may, in accordance with rules applied in a uniform and
non-discriminatory manner, elect instead to credit Hours of Service using one or
more of the following equivalencies:
13
<PAGE>
<TABLE>
<CAPTION>
Basis Upon Which Records Credit Granted to Individual
Are Maintained For Period
--------------------------- ---------------------------------
<S> <C>
shift actual hours for full shift
day 10 Hours of Service
week 45 Hours of Service
semi-monthly period 95 Hours of Service
month 190 Hours of Service
</TABLE>
(c) Anything to the contrary in Subsection (a) or (b)
notwithstanding:
(1) No Hours of Service shall be credited to an Employee
for any period merely because, during such period, payments are made or due him
under a plan maintained solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or disability insurance laws.
(2) No more than 501 Hours of Service shall be credited to
an Employee under Paragraph (a)(3) of this definition on account of any single
continuous period during which no duties are performed by him, except to the
extent otherwise provided in the Plan.
(3) No Hours of Service shall be credited to an Employee
with respect to payments solely to reimburse for medical or medically related
expenses.
(4) No Hours of Service shall be credited twice.
14
<PAGE>
(5) Hours of Service shall be credited at least as
liberally as required by the rules set forth in U.S. Department of Labor Reg.
(S)2530.200b-2(b) and (c).
(6) In the case of an Employee who is such solely by reason
of service as a leased employee within the meaning of section 414(n) or 414(o)
of the Code, Hours of Service shall be credited as if such Employee were
employed and paid with respect to such service (or with respect to any related
absences or entitlements) by the Company or Affiliated Company that is the
recipient thereof.
"Investment Medium" means any fund, contract, obligation or other mode
-----------------
of investment to which a Participant may direct the investment of the assets of
his Account.
"Labor Agreement" means the collective bargaining agreement between
---------------
the Company and the Union, dated September 18, 1986, and any successor
agreements thereto.
"Limitation Year" means the Plan Year or such other 12-consecutive-
---------------
month period as may be designated by the Company.
"Lukens Stock" means common stock of Lukens Inc., par value $0.01 per
------------
share.
"Matching Contributions" means the amounts contributed by the Company
----------------------
pursuant to Section 3.4.
15
<PAGE>
"Nonelective Company Contributions" means the amounts contributed by
---------------------------------
the Company pursuant to Section 3.5.
"Normal Retirement Age" means, for any Participant, the later of (a)
---------------------
the date on which he attains Age 65 or (b) the fifth anniversary of his
commencement of participation in the Plan.
"Participant" means an individual for whom one or more Accounts are
-----------
maintained under the Plan.
"Plan" means the Washington Steel Corporation Employees Capital
----
Accumulation Plan (Massillon, OH), a profit sharing plan, as set forth herein.
"Plan Year" means each 12-consecutive month period that begins on July
---------
1 and ends on the next following June 30.
"Qualified Domestic Relations Order" means a domestic relations order
----------------------------------
(within the meaning of section 414(p)(1)(B) of the Code) which creates or
recognizes the existence of an Alternate Payee's rights to, or assigns to an
Alternate Payee the right to receive all or a portion of the benefits payable
with respect to a Participant under the Plan, and is determined by the Committee
to satisfy the requirements of section 414(p) of the Code.
"Required Beginning Date" means, for any Participant:
-----------------------
(a) if he attained Age 70-1/2 before January 1, 1988, and is not
a 5-percent owner (within the meaning of section 416 of the Code) of the Company
at any time during the five-Plan-Year period ending in the calendar year in
which he attained Age 70-1/2, or thereafter, April 1 of the calendar year
following the
16
<PAGE>
later of the calendar year in which he has a Separation from Service or the
calendar year in which he attained Age 70-1/2;
(b) if he attained Age 70-1/2 before January 1, 1988, and is a
5-percent owner (within the meaning of section 416 of the Code) of the Company
at any time during the five-Plan-Year period ending in the calendar year in
which he attained Age 70-1/2, or thereafter, the latest of (1) December 31, 1987
(2) April 1 of the calendar year following the calendar year in which he
attained Age 70-1/2 or (3) April 1 of the calendar year in which he becomes a 5-
percent owner;
(c) if he attained Age 70-1/2 before January 1, 1989 and after
December 31, 1987, is not a 5-percent owner (within the meaning of section 416
of the Code) of the Company and has not had a Separation from Service before
January 1, 1989, April 1, 1990; and
(d) except as otherwise provided in Subsection (c), if he
attains Age 70-1/2 on or after January 1, 1988, April 1 of the calendar year
next following the calendar year in which he attains Age 70-1/2.
"Rollover Contributions" means, for any Participant, his rollover
----------------------
contributions as provided in Section 6.1.
"Separation from Service" means, for any Employee, his death,
-----------------------
retirement, resignation, discharge or any absence that causes him to cease to be
an Employee.
17
<PAGE>
"Spouse" means the person to whom a Participant is married on any date
------
of reference.
"Total Disability" means such physical or mental condition which shall
----------------
render a Participant permanently and totally unable to perform any duty for the
Company.
"Trust Agreement" means any agreement and declaration of trust
---------------
executed under this Plan.
"Trustee" means the corporate trustee or one or more individuals
-------
collectively appointed and acting under the Trust Agreement.
"Union" means the United Steelworkers of America, AFL-CIO-CLC, on
-----
behalf of itself and Local Union No. 1124.
"Valuation Date" means each business day.
--------------
"Wage Reduction Contributions" means, for any Participant,
----------------------------
contributions on his behalf as provided in Section 3.1(a).
"Year of Service" means, for any Employee, a Plan Year for which he is
---------------
credited with at least 1,000 Hours of Service.
18
<PAGE>
ARTICLE II
TRANSITION AND ELIGIBILITY TO PARTICIPATE
-----------------------------------------
2.1 Rights Affected and Preservation of Accrued Benefit. Except as
---------------------------------------------------
provided to the contrary herein, the provisions of this amended and restated
Plan shall apply only to Employees who complete an Hour of Service on or after
the Effective Date. The rights of any other individual shall be governed by the
Plan as in effect upon his Separation from Service, except to the extent
expressly provided in any amendment adopted subsequently thereto.
2.2 Eligibility to Participate - Wage Reduction Contributions.
---------------------------------------------------------
(a) Each Covered Employee who is covered by the Labor Agreement
as of the Effective Date who was eligible to participate in the Plan immediately
prior to the Effective Date shall continue to be an Eligible Employee as of the
Effective Date.
(b) Each Covered Employee as of the Effective Date (who was not
eligible to participate in the Plan immediately prior to the Effective Date) who
has completed as of the Effective Date the probationary period set forth in
Article X, Section 4 of the Labor Agreement shall become an Eligible Employee as
of the Effective Date. Each other Covered Employee (who was not eligible to
participate immediately prior to the Effective Date) shall become an Eligible
Employee on the Entry
19
<PAGE>
Date coincident with or next following his Employment Commencement Date.
(c) If an individual is not a Covered Employee on the Entry Date
next following the date he meets the requirements of Subsection (b) of this
Section, he shall become an Eligible Employee as of the first date thereafter
on which he is a Covered Employee.
(d) An Eligible Employee who ceases to be a Covered Employee, by
Separation from Service or otherwise, and who later becomes a Covered Employee,
shall become an Eligible Employee as of the date on which he first again
completes an Hour of Service as a Covered Employee.
2.3 Wage Reduction Contributions Elections. Each Eligible Employee
--------------------------------------
may elect to make Wage Reduction Contributions and become an Active Participant
by filing a written notice of such election with the Administration Committee on
a form provided for that purpose. Such notice shall authorize the Company to
reduce such Eligible Employee's cash remuneration by an amount determined in
accordance with Section 3.1 and to make Wage Reduction Contributions on such
Eligible Employee's behalf in the amount of such reduction. Such election shall
be effective as of the payroll period that is administratively practicable
following receipt of the election by the Administration Committee. An Eligible
Employee may elect to discontinue or resume Wage Reduction Contributions at any
time, effective as of payroll period that is administratively
20
<PAGE>
practicable following receipt of the election by the Administration Committee.
An Eligible Employee may change the amount of Wage Reduction contributions to
another permissible amount twice per calendar quarter, effective as of the
payroll period that is administratively practicable following receipt of the
election by the Administration Committee.
2.4 Participation in Matching Contributions. An Active Participant
---------------------------------------
shall share in Matching Contributions under Section 3.4 for any Plan Year if
Wage Reduction Contributions are made on his behalf in such Plan Year and he is
an Employee on the last day of such Plan Year. Notwithstanding the foregoing,
an Active Participant who has had Wage Reduction Contributions made on his
behalf in any Plan Year shall share in Matching Contributions under Section 3.4
for such Plan Year, if, during such Plan Year, he has a Separation from Service
on or after his Early Retirement Date or Normal Retirement Age, dies or suffers
a Total Disability.
2.5 Participation in Nonelective Company Contributions. An Eligible
--------------------------------------------------
Employee shall share in Nonelective Company Contributions under Section 3.5 for
any Plan Year during which he (a) receives Compensation and (b) is an Employee
on the last day of the Plan Year. Notwithstanding the foregoing, an Eligible
Employee shall share in Nonelective Company Contributions under Section 3.5 for
any Plan Year in which he receives Compensation if, during such Plan Year, he
has a
21
<PAGE>
Separation from Service after his Early Retirement Date or Normal Retirement
Age, dies or suffers a Total Disability.
2.6 Data. Each Employee shall furnish to the Committees such data as
----
the Committees may consider necessary for the determination of the Employee's
rights and benefits under the Plan and shall otherwise cooperate fully with the
Committees in the administration of the Plan.
22
<PAGE>
ARTICLE III
CONTRIBUTIONS TO THE PLAN
-------------------------
3.1 Wage Reduction Contributions.
----------------------------
(a) When an Eligible Employee files an election under Section
2.3 to have Wage Reduction Contributions made on his behalf, he shall elect the
percentage by which his Compensation shall be reduced on account of such Wage
Reduction Contributions. Subject to Sections 3.9 and 3.11, this percentage may
be between one percent (1%) and ten percent (10%) of such Compensation, rounded
to the nearer whole percent. The Company shall contribute an amount equal to
such percentage of the Eligible Employee's Compensation to the Fund for credit
to the Eligible Employee's Wage Reduction Contribution Account, provided that
such contributions may be prospectively limited as provided in Section 3.10.
(b) Wage Reduction Contributions made on behalf of an Eligible
Employee under this Plan together with elective deferrals under any other plan
or arrangement maintained by the Company or any Affiliated Company shall not
exceed $8,728 (as adjusted in accordance with section 402(g) of the Code and
regulations thereunder) for any calendar year beginning after December 31, 1992.
To the extent necessary to satisfy this limitation for any year:
(1) elections under Subsection (a) of this Section shall be
prospectively restricted; and,
23
<PAGE>
(2) after application of Subparagraph (1), the excess Wage
Reduction Contributions and excess elective deferrals under any other plan or
arrangement maintained by the Company or any Affiliated Company (with earnings
thereon, but reduced by any amounts previously distributed under Subsection (a)
of Section 3.10 for the year) shall be paid to the Participant on or before the
April 15 first following the calendar year in which such contributions were
made. If the Wage Reduction Contributions plus elective deferrals described
above do not exceed such limitation, but Wage Reduction Contributions, plus
the elective deferrals, as defined in section 402(g)(3) of the Code, under any
other plan for any Participant exceed such limitation for any calendar year,
upon the written request of the Participant made on or before the March 15
first following such calendar year, the excess, including any earnings
attributable thereto, designated by the Participant to be distributed from the
Plan shall be paid to the Participant on or before the April 15 first
following such calendar year.
3.2 Change of Percentage Rate. A Participant may without penalty
-------------------------
change the percentage of Compensation designated by him as his contribution rate
under Subsection (a) of Section 3.1, to any percentage permitted by such
Subsection, and such percentage shall remain in effect until so changed. Any
such change shall become effective as of the first Entry Date that is
administratively practicable following receipt of the change by the
Administration Committee.
24
<PAGE>
3.3 Discontinuance of Wage Reduction Contributions. A Participant
----------------------------------------------
may discontinue his Wage Reduction Contributions at any time. Such
discontinuance shall become effective as of the first Entry Date that is
administratively practicable following receipt of the discontinuance by the
Administration Committee. A Participant who discontinues his Wage Reduction
Contributions may resume his Wage Reduction Contributions effective as of the
first Entry Date that is administratively practicable following receipt of
notice by the Administration Committee.
3.4 Matching Contribution. Subject to Sections 3.9 and 3.11, the
---------------------
Company shall contribute to the Fund for each Plan Year on behalf of each Active
Participant who is eligible to share in Matching Contributions for the Plan Year
under Section 2.4 from current or accumulated earnings of Washington Steel, an
amount equal to fifty percent (50%) of each such Active Participant's Wage
Reduction Contributions for such Plan Year that are in excess of six percent
(6%) of the Active Participant's Compensation, provided that such contributions
may be prospectively limited as provided in Section 3.10 and provided further
that the contribution under this Section for any Plan Year shall not cause the
total contributions by the Company to exceed the maximum allowable current
deduction under the applicable provisions of the Code. Matching Contributions
shall be credited to Active Participants' Company Contribution Accounts.
25
<PAGE>
3.5 Nonelective Company Contribution. Subject to Section 3.11, the
--------------------------------
Company shall contribute to the Fund for each Plan Year on behalf of each
Eligible Employee who is eligible to share in Nonelective Company Contributions
in accordance with Section 2.5 from the current or accumulated earnings of
Washington Steel, an amount equal to six percent (6%) of such Eligible
Employee's Compensation; provided that the contribution for any Plan Year shall
not cause the total contributions by the Company to exceed the maximum allowable
current deduction under the applicable provisions of the Code. Such
contributions shall be allocated to Eligible Employees' Company Contribution
Accounts.
3.6 Definition of Current or Accumulated Earnings. For purposes of
---------------------------------------------
Sections 3.4 and 3.5, current earnings shall include the amount of the net
earnings of Washington Steel for each fiscal year, as determined by the
responsible financial officer of the Company, for Federal income tax purposes,
but without deduction for Federal, state, and local income taxes and without
deduction for contributions to this Plan. Current earnings may also include
the amount of net earnings of Washington Steel for each fiscal year, as
determined under generally accepted accounting principles by the responsible
financial officer of the Company. Accumulated earnings shall include earnings
for prior years accumulated after deduction of Federal, state, and local
income taxes and contributions to this Plan.
26
<PAGE>
3.7 Timing and Deductibility of Contributions. Matching
-----------------------------------------
Contributions and Nonelective Company Contributions for any Plan Year under this
Article shall be made no later than the last date on which amounts so paid may
be deducted for Federal income tax purposes for the taxable year of the employer
in which the Plan Year ends. Amounts contributed as Wage Reduction
Contributions will be remitted to the Trustee as soon as practicable, but no
later than 90 days after the date on which such contributions were received or
withheld from the Participant's Compensation.
3.8 Fund. The contributions deposited by the Company in the Fund in
----
accordance with this Article shall constitute a fund held for the benefit of
Participants and their eligible beneficiaries under and in accordance with this
Plan. No part of the principal or income of the Fund shall be used for, or
diverted to, purposes other than for the exclusive benefit of such Participants
and their eligible beneficiaries (including necessary administrative costs);
provided, that (a) in the case of a contribution made by the Company as a
mistake of fact, or for which a tax deduction is disallowed, in whole or in
part, by the Internal Revenue Service, the Company shall be entitled to a refund
of said contributions, which must be made within one year after payment of a
contribution made as a mistake of fact, or within one year after disallowance of
the tax deduction, to the extent of such disallowance, and (b) in the case of
contributions made by the Company which are conditioned on the initial
27
<PAGE>
qualification of the plan under section 401 of the Code, if the Plan is the
subject of an adverse determination with respect to its initial qualification,
then the Company shall be entitled to a refund of said contributions, but only
if application for the determination is made by the time prescribed by law for
filing the Company's federal income tax return for the taxable year in which the
Plan is adopted or such later date as may be permitted by applicable Treasury
Regulation or other applicable administrative pronouncements.
3.9 Limitation on Wage Reduction Contributions.
------------------------------------------
(a) For any Plan Year beginning after December 31, 1986, the
Average Actual Deferral Percentage for the Highly Compensated Eligible Employees
shall not exceed the greater of:
(1) one hundred twenty-five percent (125%) of the Average
Actual Deferral Percentage for all other Eligible Employees; or
(2) the lesser of:
(A) two hundred percent (200%) of the Average Actual
Deferral Percentage for all other Eligible Employees; or
(B) two percent (2%) plus the Average Actual Deferral
Percentage for all other Eligible Employees.
(b) For any Plan Year beginning after December 31, 1986, the
Average Contribution Percentage for the
28
<PAGE>
Highly Compensated Eligible Employees shall not exceed the greater of:
(1) one hundred twenty-five (125%) of the Average
Contribution Percentage for all other Eligible Employees; or
(2) the lesser of:
(A) two hundred percent (200%) of the Average
Contribution Percentage for all other Eligible Employees; or
(B) two percent (2%) plus the Average Contribution
Percentage for all other Eligible Employees.
(c) For any Plan Year beginning after December 31, 1988, the sum
of the Average Actual Deferral Percentage and the Average Contribution
Percentage for the Highly Compensated Eligible Employees shall not exceed the
greater of:
(1) the sum of:
(A) one hundred twenty-five percent (125%) of the
greater of the Average Actual Deferral Percentage or the Average Contribution
Percentage for all other Eligible Employees; plus
(B) the lesser of:
(i) two hundred percent (200%) of the lesser of
the Average Actual Deferral Percentage or the Average Contribution Percentage
for all other Eligible Employees; or
29
<PAGE>
(ii) two percent (2%) plus the lesser of the
Average Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees; or
(2) the sum of:
(A) one hundred twenty-five percent (125%) of the
lesser of the Average Actual Deferral Percentage or the Average Contribution
Percentage for all other Eligible Employees; plus
(B) the lesser of:
(i) two hundred percent (200%) of the greater of
the Average Actual Deferral Percentage or the Average Contribution Percentage
for all other Eligible Employees; or
(ii) two percent (2%) plus the greater of the
Average Actual Deferral Percentage or the Average Contribution Percentage for
all other Eligible Employees.
(d) For purposes of this Section, the Wage Reduction
Contributions and Matching Contributions, respectively, of any 5% owner or other
Highly Compensated Employee who is one of the top 10 Employees ranked by pay
(without regard to this sentence) for the Plan Year or the preceding Plan Year
shall be increased by the amount of the Wage Reduction Contributions and
Matching Contributions, respectively of any Employee who is a spouse or lineal
ascendant or descendant (or a spouse thereof) ("family member") of such Highly
Compensated Employee, and the Compensation of the former shall be increased by
the Compensation
30
<PAGE>
of the latter, and such family member and such Highly Compensated Employee shall
be treated as a single Highly Compensated Eligible Employee and such family
member shall not be treated as a separate Eligible Employee for purposes of
applying this Section. The application of this Subsection (d) and the
determination of the Actual Deferral Percentage and Contribution Percentage of
such single Highly Compensated Eligible Employee shall be made in accordance
with sections 414(q), 401(k) and 401(m) of the Code and regulations thereunder.
(e) If the Plan and any other plan(s) maintained by a the Company or
an Affiliated Company are treated as a single plan for purposes of section
401(a)(4) or section 410(b) of the Code, the limitations in Subsections (a)
through (d) of this Section shall be applied by treating the Plan and such other
plan(s) as a single plan.
(f) The application of this Section shall satisfy sections 401(k) and
401(m) of the Code and regulations thereunder and such other requirements as may
be prescribed by the Secretary of the Treasury.
(g) The test set forth in Subsection (a) of this Section must be
satisfied separately with respect to (1) Eligible Employees who are not covered
by a collective bargaining agreement and (2) Eligible Employees who are covered
by a collective bargaining agreement. The test set forth in subsection (a) of
this Section must be satisfied with respect to the Eligible Employees who are
covered by a collective bargaining
31
<PAGE>
agreement only for Plan Years beginning after 1992. The tests set forth in
Subsections (b) and (c) must be satisfied only with respect to Eligible
Employees who are not covered by a collective bargaining agreement.
3.10 Prevention of Violation of Limitation on Wage Reduction
-------------------------------------------------------
Contributions and Matching Contributions. The Administration Committee or,
- ----------------------------------------
prior to the Effective Date, the Company, shall monitor the level of
Participants' Wage Reduction Contributions and Matching Contributions and
elective deferrals, employee contributions, and employer matching contributions
under any other qualified retirement plan maintained by a the Company or any
Affiliated Company to insure against exceeding the limits of Section 3.9. To
the extent practicable, the Administration Committee or, prior to the Effective
Date, the Company, may prospectively limit (i) some or all of the Highly
Compensated Eligible Employees' Wage Reduction Contributions to reduce the
Average Actual Deferral Percentage of the Highly Compensated Eligible Employees
to the extent necessary to satisfy subsection (a) of Section 3.9 and/or (ii)
some or all of the Highly Compensated Eligible Employees' Matching Contributions
to reduce the Average Contribution Percentage of the Highly Compensated Eligible
Employees to the extent necessary to satisfy subsection (b) of Section 3.9
and/or (iii) some or all of the Highly Compensated Eligible Employees' Wage
Reduction Contributions and Matching Contributions to the extent necessary to
satisfy subsection (c) of Section 3.9. If the Administration Committee
32
<PAGE>
or, prior to the Effective Date, the Company, determines after the end of the
Plan Year that the limits of Section 3.9 may be or have been exceeded, it shall
take the appropriate following action for such Plan Year:
(a) (1) The Average Actual Deferral Percentage for the Highly
Compensated Eligible Employees shall be reduced to the extent necessary to
satisfy Subsection (a) of Section 3.9.
(2) The reduction shall be accomplished by reducing the
maximum Actual Deferral Percentage for any Highly Compensated Eligible Employee
to an adjusted maximum Actual Deferral Percentage, which shall be the highest
Actual Deferral Percentage that would cause one of the tests in Subsection 3.9
to be satisfied, if each Highly Compensated Eligible Employee with a higher
Actual Deferral Percentage had instead the adjusted maximum Actual Deferral
Percentage, reducing the Highly Compensated Eligible Employee's Wage Reduction
Contributions and elective deferrals under any other qualified retirement plan
maintained by the Company or any Affiliated Company (less any amounts previously
distributed under Section 3.1 for the year) in order, beginning with the Highly
Compensated Eligible Employee(s) with the highest Actual Deferral Percentage;
provided, however, that excess contributions shall be allocated to Eligible
Employees who are subject to the family member aggregation rules of section
414(q)(6) of the Code in the manner prescribed by regulations.
33
<PAGE>
(3) Not later than the end of the Plan Year following the close of
the Plan Year for which the Wage Reduction Contributions were made, the
difference between a Highly Compensated Eligible Employee's Actual Deferral
Percentage and the Highly Compensated Eligible Employee's adjusted maximum
Actual Deferral Percentage shall be paid to the Highly Compensated Eligible
Employee, with earnings attributable thereto (as determined in accordance with
applicable Treasury Regulations);
provided, however, that for any Participant who is also a participant in any
other qualified retirement plan maintained by the Company or any Affiliated
Company under which the Participant makes elective deferrals for such year, the
Administration Committee or, prior to the Effective Date, the Company, shall
coordinate corrective actions under this Plan and such other plan for the year.
(b) (1) The Average Contribution Percentage for the Highly
Compensated Eligible Employees shall be reduced to the extent necessary to
satisfy at least one of the tests in Subsection (b) of Section 3.9.
(2) The reduction shall be accomplished by reducing the
maximum Contribution Percentage for any Highly Compensated Eligible Employee to
an adjusted maximum Contribution Percentage, which shall be the highest
Contribution Percentage that would cause one of the tests in Section 3.9(b) to
be satisfied, if each Highly Compensated Eligible Employee with a
34
<PAGE>
higher Contribution Percentage had instead the adjusted maximum Contribution
Percentage, reducing, in the following order of priority, the Highly Compensated
Eligible Employees' Matching Contributions and employee contributions and
employer matching contributions under any other qualified retirement plan
maintained by the Company or an Affiliated Company, in order beginning with the
Highly Compensated Eligible Employee(s) with the highest Contribution
Percentage; provided, however, that excess contributions shall be allocated to
Eligible Employees who are subject to the family member aggregation rules of
section 414(q)(6) of the Code in the manner prescribed in regulations.
(3) Not later than the end of the Plan Year following the
close of the Plan Year for which such contributions were made, the difference
between a Highly Compensated Eligible Employee's Contribution Percentage and
the Highly Compensated Eligible Employee's adjusted maximum Contribution
Percentage, with earnings attributable thereto (as determined in accordance
with applicable Treasury Regulations), shall be paid to the Highly Compensated
Eligible Employee;
provided, however, that, for any Participant who is also a participant in any
other qualified retirement plan maintained by the Company or any Affiliated
Company under which the Participant makes employee contributions or is credited
with employer matching contributions for the year, the Administration Committee
or, prior to the Effective Date, the Company, shall coordinate
35
<PAGE>
corrective actions under this Plan and such other plan for the year.
(c) (1) The Average Contribution Percentage and/or Average
Actual Deferral Percentage (as determined under Subparagraph (2) below) for the
Highly Compensated Eligible Employees shall be reduced to satisfy the test in
Subsection (c) of Section 3.9 in a manner and to the extent determined by the
Administration Committee or, prior to the Effective Date, the Company.
(2) The reductions shall be accomplished in the same manner
as is set forth in Subsections (a) and (b) of Section 3.10, whichever is
appropriate. A reduction to the Average Actual Deferral Percentage shall be
charged against the appropriate Highly Compensated Eligible Employees' Wage
Reduction Contribution Accounts. A reduction to the Average Contribution
Percentage shall be charged against the appropriate Highly Compensated Eligible
Employees' Company Contribution Accounts. Notwithstanding the foregoing, for
any Participant who is also a participant in any other qualified retirement plan
maintained by the Company or an Affiliated Company under which the Participant
makes employee contributions or elective deferrals or is credited with employer
matching contributions for such year, the Administration Committee or, prior to
the Effective Date, the Company, shall coordinate corrective actions under this
Plan and such other plan for the year.
36
<PAGE>
(d) If the corrective payment to a Highly Compensated Eligible
Employee who is not covered by a collective bargaining agreement of his Wage
Reduction Contributions pursuant to Paragraph (a)(3) or Subsection (c) of this
Section causes Matching Contributions made on his behalf for the Plan Year
(excluding such Matching Contributions that were paid to the Participant
pursuant to Subsection (b)(2) or Subsection (c) of this Section) to exceed fifty
percent (50%) of his remaining Wage Reduction Contributions for the Plan Year
that are in excess of six percent (6%) of his Compensation, the Matching
Contributions in excess of fifty percent (50%) of his Wage Reduction
Contributions for the Plan Year that are in excess of six percent (6%) of his
Compensation that were not distributed to him shall be forfeited, and used to
offset future Matching Contributions.
(e) If the Plan and any other plan maintained by the Company or
an Affiliated Company are treated as a single plan pursuant to Subsection (e) of
Section 3.9, the Administration Committee or, prior to the Effective Date, the
Company, shall coordinate corrective actions under the Plan and such other plan
for the year.
37
<PAGE>
3.11 Maximum Allocation. The provisions of this Section shall be
------------------
construed to comply with section 415 of the Code.
(a) Notwithstanding anything in this Plan to the contrary,
in no event shall the sum of:
(1) any Matching Contributions, Nonelective Company
Contributions, Wage Reduction Contributions and other employer contributions;
any forfeitures, and any employee contributions allocated for any Limitation
Year to any Participant (including any such amounts distributed pursuant to
Section 3.10 but not amounts distributed pursuant to Subsection (b) of Section
3.1) under this and any other defined contribution plan maintained by the
Company or any 50% Affiliated Company; and
(2) all amounts allocated to any Participant after
March 31, 1984 to an individual medical account (within the meaning of Code
section 415(l)(2)) which is part of a pension or annuity plan maintained by
the Company or any 50% Affiliated Company; and
(3) all amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date which
are attributable to post-retirement medical benefits allocated to a separate
account of a Participant who is a key employee, as defined in section
419A(d)(3) of the Code, under a welfare benefit fund maintained by the Company
or any 50% Affiliated Company; exceed the lesser of $30,000, (or such other
dollar limitation in effect for the Limitation Year under section
38
<PAGE>
415(c)(1)(A) of the Code) or twenty-five percent (25%) of such Participant's
Compensation for the Limitation Year. The 25% Compensation limitation shall not
apply to any contribution for medical benefits (within the meaning of section
401(h) or 419A(f)(2) of the Code) which is otherwise treated as an annual
addition under section 415(l)(1) or 419A(d)(2) of the Code.
(b) If the amount otherwise allocable to the Account of a
Participant would exceed the amount described in Subsection (a) of this Section
as a result of the reallocation of forfeitures, a reasonable error in estimating
the Participant's Compensation, a reasonable error in determining the amount of
Wage Reduction Contributions that may be made with respect to a Participant
under the limits of this Section or such other circumstances as permitted by
law, the Administration Committee shall determine which portion, if any, of such
excess amount is attributable to the Participant's Wage Reduction Contributions,
and/or Matching Contributions and/or Nonelective Company Contributions, if any,
until such amount has been exhausted, and shall take the following appropriate
steps to correct such violation:
(1) excess Wage Reduction Contributions and earnings
thereon shall be paid to the Participant as soon as is administratively
feasible;
(2) (A) while the Participant remains a Covered Employee,
his excess Matching Contributions and Nonelective Company Contributions shall be
held in a suspense
39
<PAGE>
account (which shall not share in investment gains and losses of the Fund) by
the Trustee until the following Plan Year (or any succeeding Plan Years), at
which time such amounts shall be allocated to the Participant's Account before
any Matching Contributions or Nonelective Company Contributions, as appropriate,
are made on his behalf for such Plan Year; and
(B) when the Participant ceases to be a Covered Employee,
his excess Matching Contributions and Nonelective Company Contributions, along
with earnings thereon, held in the suspense account shall be allocated in the
following Plan Year (or any succeeding Plan Years) to the Accounts of other
Participants in the Plan.
(c) If, in any Limitation Year, a Participant in this Plan is
also a participant in one or more defined benefit plans maintained by the
Company or any 50% Affiliated Company, the projected annual benefit referred to
in Paragraph (c)(1) shall be reduced, if necessary, so that the sum of the
fractions described in (1) and (2) does not exceed 1.0 for such Limitation Year.
(1) Defined Benefit Fraction - a fraction, the numerator of
------------------------
which is the Participant's projected annual benefit under all such defined
benefit pension plans determined as of the close of the limitation years of such
plans, and the denominator of which is the lesser of:
40
<PAGE>
(A) 1.25 x $90,000 (or such other dollar limitation
determined for the Limitation Year under section 415(b)(1)(A) of the Code); or
(B) one hundred forty percent (140%) of the
Participant's highest average Compensation over any three consecutive calendar
years;
provided, however, that the denominator of the defined benefit fraction shall be
determined after taking into account any adjustments to the dollar limit
described in Subparagraph (A) or to the compensation limit described in
Subparagraph (B) prescribed by sections 415(b) or 415(d) of the Code, as
appropriate. For the purpose of this Paragraph (1), "projected annual benefit"
means the annual benefit to which a Participant would be entitled under the
terms of a defined benefit plan if he had continued employment until his normal
retirement date under such plan and if his compensation counted for the purpose
of such plan had continued at the same rate.
(2) Defined Contribution Fraction - a fraction, the
-----------------------------
numerator of which is the sum of the annual additions to the Participant's
accounts under all defined contribution plans sponsored by the Company or any
50% Affiliated Company for all limitation years, and the denominator of which is
the sum of the lesser of the following amounts, determined for each of such
limitation years and for each prior limitation year of service with the Company
or 50% Affiliated Company:
41
<PAGE>
(A) 1.25 x $30,000 (or such other dollar limitation in
effect for the Limitation Year under section 415(c)(1)(A) of the Code); or
(B) thirty-five percent (35%) of the Participant's
Compensation for such limitation year.
(d) If the Plan and the defined benefit plan referred to in
Paragraph (c)(1) satisfied section 415 of the Code for the Plan Year ending
December 31, 1986, an amount shall be subtracted from the numerator of the
fraction described in Paragraph (c)(2) (not exceeding such numerator). The
amount to be subtracted shall be the product of:
(1) the sum of the defined contribution fraction under
Paragraph (c)(2) plus the defined benefit fraction under Paragraph (c)(1) as of
December 31, 1986 minus one, multiplied by
(2) the denominator of the defined contribution fraction
under Paragraph (c)(2) as of December 31, 1986.
42
<PAGE>
ARTICLE IV
PARTICIPANTS' ACCOUNTS
----------------------
4.1 Accounts. All contributions and earnings thereon may be invested
--------
in one commingled Fund for the benefit of all Participants. However, in order
that the interest of each Participant may be accurately determined and computed,
separate Accounts shall be maintained for each Participant and each
Participant's Accounts shall be made up of subaccounts reflecting his investment
elections pursuant to Section 9.4. These Accounts shall represent the
Participant's individual interest in the Fund. All contributions shall be
credited to Participants' accounts as set forth in Article III.
4.2 Valuation. The value of each Investment Medium within the Fund
---------
shall be computed by the Trustee as of the close of business on each Valuation
Date on the basis of the market value of the assets of the Fund.
4.3 Apportionment of Gain or Loss. The value of each Investment
-----------------------------
Medium in the Fund, as computed pursuant to Section 4.2, shall be compared with
the value of such Investment Medium in the Fund as of the preceding Valuation
Date. Any difference in the value, not including contributions or distributions
made since the preceding Valuation Date, shall be the net increase or decrease
of such Investment Medium, and such amount shall be ratably apportioned by the
Trustee on its books, among the
43
<PAGE>
Participants' Accounts which are invested in such Investment Medium at the
current Valuation Date.
4.4 Accounting for Allocations. The Administration Committee shall
--------------------------
establish or provide for the establishment of accounting procedures for the
purpose of making the allocations, valuations and adjustments to Participants'
Accounts provided for in this Article. From time to time such procedures may be
modified for the purpose of achieving equitable and non-discriminatory
allocations among the Accounts of Participants in accordance with the general
concepts of the Plan and the provisions of this Article.
4.5 Vesting. A Participant shall have a 100% nonforfeitable interest
-------
at all times in his Accounts.
44
<PAGE>
ARTICLE V
DISTRIBUTION
------------
5.1 General. The interest of each Participant in the Fund shall be
-------
distributed in the manner, in the amount, and at the time provided in this
Article, except as provided in Article VI and except in the event of the
termination of the Plan. The provisions of this Article shall be construed in
accordance with section 401(a)(9) of the Code and regulations thereunder,
including, effective for distributions that commence on or after January 1,
1989, the incidental death benefit requirements of section 401(a)(9)(G) of the
Code.
5.2 Separation from Service. A Participant who has a Separation from
-----------------------
Service for reasons other than death shall have his Account paid to him or
applied for his benefit in accordance with the provisions of this Article.
5.3 Death. If a Participant dies before his entire interest in his
-----
Account has been paid to him, his remaining interest shall be paid to, or
applied for the benefit of, his beneficiary in accordance with the provisions of
this Article.
5.4 Total Disability.
----------------
(a) If a Participant who is an Employee suffers a Total
Disability, his Account shall be paid to him or applied for his benefit in
accordance with the provisions of this Article following the determination of
his Total Disability.
45
<PAGE>
(b) Total Disability shall be determined by a majority of three
medical examiners, one chosen by the Administration Committee, one chosen by the
Participant and one chosen by the other two medical examiners. Each medical
examiner shall have the right to make such physical examinations and other
investigations as may be reasonably required to determine Total Disability.
5.5 Valuation for Distribution. For the purposes of paying the
--------------------------
amounts to be distributed to a Participant or his beneficiaries under the
provisions of this Article, the value of the Fund and the amount of the
Participant's nonforfeitable interest in the Fund shall be determined in
accordance with the provisions of Article IV as of the Valuation Date coincident
with or immediately preceding the date of any payment under this Article. Such
amount shall be adjusted to take into account any additional contributions which
have been or are to be allocated to the Participant's Account since that
Valuation Date, and any distributions or withdrawals made since that date.
5.6 Timing of Distribution.
----------------------
(a) Any Participant who is entitled to his Account under Section
5.2 or Section 5.4 shall receive his interest in his Account pursuant to the
following rules:
(1) Except as provided in Paragraph (a)(2), if the
Participant's nonforfeitable interest in his Account is $3,500 or less, or the
Participant has attained Normal Retirement Age, the Participant's Benefit
Commencement Date shall be the
46
<PAGE>
earliest practicable date following the Valuation Date coincident with or next
following his Separation from Service or the determination of his Total
Disability.
(2) If the Participant has not attained Normal Retirement
Age and his nonforfeitable interest exceeds, or has ever exceeded at the time of
any prior distribution, $3,500, his Benefit Commencement Date shall be the
earliest practicable date following the Valuation Date coincident with or next
following his Separation from Service or the determination of his Total
Disability, except that, if the Participant does not consent to such
distribution, distribution of his benefits shall commence on any later date
elected by the Participant, that is not later than his Required Beginning Date,
at which time his nonforfeitable interest shall be automatically paid to him. A
Participant's election to receive payment prior to his Required Beginning Date
may be made no earlier than 90 days prior to the Benefit Commencement Date
elected by the Participant. The Administration Committee shall inform each
Participant who is subject to this Paragraph (a)(2) of his right to defer
distribution. Such notice shall be furnished not less than 30 days nor more than
90 days prior to the date of any distribution that occurs prior to the earlier
of his death or his Normal Retirement Age.
(3) Unless a Participant elects to defer his Benefit
Commencement Date under Paragraph (a)(2) above, the Participant's Benefit
Commencement Date shall be no later than
47
<PAGE>
the 60th day following the close of the Plan Year in which the Participant
attains his Normal Retirement Age or has a Separation from Service, whichever
occurs last. In no event, however, shall a Participant's Benefit Commencement
Date be later than his Required Beginning Date.
(b) If a Participant dies before his entire interest in his
Account has been paid to him, his remaining nonforfeitable interest shall be
distributed to his beneficiary commencing as soon as practicable following the
Participant's death.
(c) This Section shall apply to all Participants, including
Participants who had a Separation from Service or ceased to be Covered Employees
prior to the Effective Date.
5.7 Mode of Distribution.
--------------------
(a) Except as provided in Subsection (b), a Participant shall
have his Account paid to him, and benefits payable under Section 5.3 upon the
death of a Participant shall be distributed, in a single sum payment.
(b) If a Participant has not had a Separation from Service as of
his Required Beginning Date, he may elect to receive distribution of his Account
while he remains employed, commencing not later than his Required Beginning
Date, over a period certain not extending beyond the life expectancy of the
Participant or the life expectancy of the Participant and his spouse.
Notwithstanding the Participant's election to receive distribution as described
above, the portion of the Participant's
48
<PAGE>
interest remaining upon his actual Separation from Service will be distributed
to him in a single sum on the earliest practicable date following the Valuation
Date coincident with or next following his Separation from Service, but not
later than the 60th day after the close of the Plan Year in which his Separation
from Service occurs.
5.8 Beneficiary Designation.
-----------------------
(a) Except as provided in this Section, a Participant may
designate the beneficiary or beneficiaries who shall receive, on or after his
death, his interest in the Fund. Such designation shall be made by executing
and filing with the Administration Committee a written instrument in such form
as may be prescribed by the Administration Committee for that purpose. Except
as provided in this Section, the Participant may also revoke or change, at any
time and from time to time, any beneficiary designations previously made. Such
revocations and/or changes shall be made by executing and filing with the
Administration Committee a written instrument in such form as may be prescribed
by the Administration Committee for that purpose. If a Participant names a
trust as beneficiary, a change in the identity of the trustees or in the
instrument governing such trust shall not be deemed a change in beneficiary.
(b) No designation, revocation, or change of beneficiaries shall
be valid and effective unless and until filed with the Administration Committee.
49
<PAGE>
(c) A Participant who does not establish to the satisfaction
of the Administration Committee that he has no spouse may not designate
someone other than his spouse to be his beneficiary unless:
(1) (A) such spouse (or the spouse's legal guardian if the
spouse is legally incompetent) executes a written instrument whereby such spouse
consents not to receive such benefit and consents either:
(i) to the specific beneficiary or beneficiaries
designated by the Participant; or
(ii) to the Participant's right to designate any
beneficiary without further consent by the spouse;
(B) such instrument acknowledges the effect of the
election to which the spouse's consent is being given; and
(C) such instrument is witnessed by a Plan
representative or notary public;
(2) the Participant:
(A) establishes to the satisfaction of the
Administration Committee that his spouse cannot be located; or
(B) furnishes a court order to the Administration
Committee establishing that the Participant is legally separated or has been
abandoned (within the meaning of local law), unless a qualified domestic
relations order
50
<PAGE>
pertaining to such Participant provides that the spouse's consent must be
obtained; or
(3) the spouse has previously given consent in accordance
with this Subsection and consented to the Participant's right to designate any
beneficiary without further consent by the spouse.
The consent of a spouse in accordance with this Subsection (c) shall not be
effective with respect to other spouses of the Participant prior to the
Participant's Benefit Commencement Date, and an election to which Paragraph (2)
of this Subsection (c) applies shall become void if the circumstances causing
the consent of the spouse not to be required no longer exist prior to the
Participant's Benefit Commencement Date.
(d) If a Participant has no beneficiary under Subsection (a) of
this Section, if the Participant's beneficiary(ies) predecease the Participant,
or if the beneficiary(ies) cannot be located by the Administration Committee,
the interest of the deceased Participant shall be paid to the Participant's
estate.
5.9 Transfer of Account to Other Plan.
---------------------------------
(a) If (1) a Participant entitled to receive a distribution
from the Plan, either pursuant to this Article or pursuant to Article VII, or
(2) the spouse or former spouse of a Participant who is entitled to receive a
distribution from the Plan pursuant to a qualified domestic relations order,
directs
51
<PAGE>
the Administration Committee to have the Trustee transfer the amount to be
distributed directly to:
(1) an individual retirement account described in section
408(a) of the Code;
(2) an individual retirement annuity described in section
408(b) of the Code (other than an endowment contract);
(3) a qualified defined contribution retirement plan
described in section 401(a) and section 414(i) of the Code the terms of which
permit the acceptance of rollover contributions; or
(4) an annuity plan described in section 403(a),
the amount to be distributed shall be so transferred.
(b) If a Participant's surviving spouse is entitled to receive a
distribution from the Plan under Section 5.3, and such surviving spouse directs
the Administration Committee to have the Trustee transfer the amount to be
distributed directly to:
(1) an individual retirement account described in section
408(a) of the Code; or
(2) an individual retirement annuity described in section
408(b) of the Code (other than an endowment contract),
the amount to be distributed shall be so transferred.
52
<PAGE>
(c) The Participant, spouse or former spouse must specify the
name of the plan to which the Participant, spouse or former spouse wishes to
have the amount transferred, plus such other information as may be requested
by the Administration Committee, on a form and in a manner prescribed by the
Administration Committee.
(d) Subsections (a) and (b) shall not apply to the following
distributions:
(1) that portion of any distribution after the
Participant's Required Beginning Date that is required to be distributed to
the Participant by the minimum distribution rules of section 401(a)(9) of the
Code; or
(2) such other distributions as may be exempted by
applicable statute or regulation from the requirements of section 401(a)(31)
of the Code.
53
<PAGE>
ARTICLE VI
ROLLOVER CONTRIBUTIONS
----------------------
6.1 Rollover Contributions.
----------------------
(a) Subject to the restrictions set forth in Subsection (b), a
Covered Employee may transfer or have transferred directly to the Fund, from any
qualified retirement plan of a former employer, all or a portion of his interest
in the distributing plan. In addition, a Covered Employee who has established
an individual retirement account to hold distributions received from qualified
retirement plans of former employers may transfer all of the assets of such
individual retirement account to the Fund. Such individual retirement account
shall not contain nondeductible contributions made by the Employee while he was
a participant in such plans.
(b) The Trustee shall not accept a distribution from any other
qualified retirement plan or from an individual retirement account unless the
following conditions are met:
(1) (A) the distribution being transferred must come
directly from the fiduciary of the plan of the former employer, or
(B) it must come from the Employee within 60 days
after the Employee receives a distribution from such other qualified
retirement plan or individual retirement account and must comply with the
provisions of section 402(a)(5), 403(a), or 408(d)(3) of the Code, whichever
applies;
54
<PAGE>
(2) distributions from a plan for a self-employed person
shall not be transferred to this Plan, unless the transfer is directly to the
Fund from the funding agent of the distributing plan;
(3) the interest being transferred shall not include
assets from any plan to the extent that the Administration Committee
determines that the transfer of such interest (A) would impose upon the Plan
requirements as to form of distribution that would not otherwise apply
hereunder, (B) would otherwise result in the elimination of Code section
411(d)(6) protected benefits or would cause the Plan to be a direct or
indirect transferee of a plan to which the joint and survivor annuity
requirements of sections 401(a)(11) and 417 of the Code apply; and
(4) the interest being transferred shall not certain
nondeductible contributions made to the distributing plan by the Employee
unless the transfer to the Fund is directly from the funding agent of the
distributing plan.
6.2 Vesting and Distributing of Rollover Accounts.
---------------------------------------------
(a) The distributions transferred by or for a Covered Employee
from another qualified retirement plan or from an individual retirement
account shall be credited to the Employee's Rollover Account. An Employee
shall be fully vested at all times in his Rollover Account.
(b) An Employee's Rollover Account shall be distributed as
otherwise provided under the Plan.
55
<PAGE>
ARTICLE VII
WITHDRAWALS
-----------
7.1 Withdrawals Subject to Hardship Restrictions.
--------------------------------------------
(a) A Participant who has not reached age 59 1/2 may withdraw,
not more than once during any Plan Year, under the rules set forth in
Subsections (b) through (g) of this Section, the following amounts:
(1) his Company Contribution Account;
(2) his Wage Reduction Contribution Account as of June 30,
1989; plus
(3) the sum of his Wage Reduction Contributions made after
June 30, 1989;
less amounts previously withdrawn from his Company Contribution Account and Wage
Reduction Contribution Account, as applicable, by submitting his written request
to the Administration Committee.
(b) A withdrawal under Subsection (a) of this Section shall be
permitted only if the Administration Committee finds that:
(1) it is made on account of immediate and heavy financial
need (as defined in Subsection (c) of this Section) of the Participant; and
(2) it is necessary (as defined in Subsection (d) of this
Section) to satisfy such immediate and heavy financial need.
56
<PAGE>
(c) A withdrawal under Subsection (a) will be deemed to be on
account of an immediate and heavy financial need if the Participant requests
such withdrawal on account of:
(1) expenses for medical care described in section 213(d)
of the Code and previously incurred by the Participant, his spouse, or any of
the Participant's dependents (as defined in section 152 of the Code) or
necessary for such individuals to obtain such medical care;
(2) costs directly related to the purchase (excluding
mortgage payments) of a principal residence of the Participant;
(3) the payment of tuition and related educational fees for
the next 12 months of post-secondary education for the Participant, his spouse,
children, or dependents (as defined in section 152 of the Code);
(4) the need to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of his principal
residence; or
(5) such other circumstances as the Administration
Committee determines (in accordance with applicable governmental regulations)
constitute an immediate and heavy financial need of the Participant.
(d) Whether a withdrawal under Subsection (a) is necessary shall
be determined by the Administration Committee on the basis of all relevant facts
and circumstances, in accordance
57
<PAGE>
with applicable government regulations. A withdrawal under Subsection (a) shall
be deemed to be necessary if:
(1) The amount of the withdrawal does not exceed the amount
of the Participant's immediate and heavy financial need, including any amounts
necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the withdrawal.
(2) The Participant has obtained all currently permissible
distributions (other than hardship distributions) and non-taxable loans, if any,
under this and all other plans maintained by the Company and all Affiliated
Companies. For this purpose, the Participant's Company Contribution Account
must be exhausted before withdrawals from the Wage Reduction Account are
permitted.
(3) The Participant agrees in writing to be bound by the
rules of Subsection (e).
(e) If a Participant withdraws any amount from his Wage
Reduction Contribution Account pursuant to Subsection (a), or withdraws any
elective deferrals under any other qualified retirement plan maintained by the
Company or any Affiliated Company, which other plan conditions such withdrawal
upon the Participant's being subject to rules similar to those stated in this
Subsection and Subsection (d), such Participant:
(1) may not make Wage Reduction Contributions under this
Plan or employee contributions (other than mandatory contributions under a
defined benefit plan) or
58
<PAGE>
elective deferrals under any other qualified or non-qualified plan of deferred
compensation (which does not include any health or welfare plan, including a
health or welfare plan that is part of a cafeteria plan described in section 125
of the Code) maintained by the Company or an Affiliated Company for a period of
12 months commencing on the date of his receipt of the withdrawal; and
(2) in the calendar year next following the calendar year
of such withdrawal, may not make Wage Reduction Contributions or elective
deferrals under any other qualified retirement plan maintained by the Company or
an Affiliated Company in excess of:
(A) the dollar amount described in Subsection (b) of
Section 3.1 for such year, minus
(B) the total Wage Reduction Contributions under this
Plan and elective deferrals under any other qualified plan made by the
Participant during the calendar year of the withdrawal.
(f) No more than one withdrawal may be made under this Section
for any Plan Year.
(g) For any Plan Year, the withdrawal under this Section shall
not exceed the lesser of (1) $50,000 or (2) 50% of the value of the
Participant's Wage Reduction Contribution Account as of the date of the
withdrawal.
59
<PAGE>
7.2 Withdrawals Not Subject to Hardship Restrictions.
------------------------------------------------
A Participant may withdraw all or part of his Rollover Account
not more than once during any Plan Year. In addition, a Participant who has
reached age 59-1/2 may withdraw, not more than once during any Plan Year, all
or any part of his Rollover Account, Company Contribution Account or Wage
Reduction Account. Withdrawals shall be debited from Participants' Accounts in
that order.
7.3 Amount and Payment of Withdrawals. The amount of any withdrawal
---------------------------------
will be determined on the basis of the value of the Participant's Account valued
as of the Valuation Date coincident with or immediately preceding the date of
the withdrawal. Any withdrawal requested under this Section shall be paid as
soon as practicable following the Administration Committee's determination that
the requested withdrawal complies with the terms and conditions set forth in
this Section.
7.4 Withdrawals Not Subject to Replacement. A Participant may not
--------------------------------------
replace any portion of his Accounts withdrawn under this Plan.
7.5 Investment Medium to be Charged with Withdrawal. A Participant
-----------------------------------------------
may specify to which Investment Medium or Investment Media any withdrawal under
this Article is to be charged. Unless so specified, distribution will be made
out of the Participant's interest in the various Investment Media in proportion
to the Participant's share in such Investment Media.
60
<PAGE>
ARTICLE VIII
ADMINISTRATION
--------------
8.1 Plan Administrator. The Administration Committee and the Finance
------------------
Committee shall be the named fiduciaries of the Plan (with respect to the
matters for which they are hereby made responsible) for purposes of ERISA and
shall administer the Plan.
8.2 Allocation of Fiduciary Responsibilities. The Committees shall
----------------------------------------
have only those specific powers, duties, responsibilities and obligations as are
specifically given them under the Plan, the Trust Agreement or any operating
procedures adopted by the Board of Directors and as such Plan, Trust Agreement
or operating procedures may be amended from time to time. It is intended that
each Committee shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations and shall not be responsible for any
act or failure to act on the part of the other Committee or of another
fiduciary.
8.3 Responsibilities of the Administration Committee. The
------------------------------------------------
Administration Committee shall have general responsibility for the
administration and interpretation of the Plan, including but not limited to
complying with nonfinancial reporting and disclosure requirements, establishing
and maintaining Plan records and adopting amendments to the Plan as described in
Section 10.1.
61
<PAGE>
8.4 Responsibilities of the Finance Committee. Except as provided in
-----------------------------------------
Article IV, the Trustee shall have responsibility under the Plan for the
management and control of the assets of the Plan. The Finance Committee shall
periodically review the investment performance and methods of the Trustee and
any other funding agency, including any insurance company, under the Plan and
may, with the written approval of the Board of Directors appoint or remove or
change the Trustee and any such funding agency. The Finance Committee shall
have the power to appoint or remove one or more investment managers, with the
written approval of the Board of Directors, and to delegate to such investment
manager authority and discretion to manage (including the power to acquire and
dispose of) assets of the Plan, provided that the Finance Committee shall
periodically review the investment performance and methods of each investment
manager with such authority and discretion. The Finance Committee shall
determine the requirements and objectives of the Plan and any audit information
which may be pertinent to the investment of Plan assets and shall establish
investment standards and policies incorporating such requirements and objectives
and communicate the same to the Trustee (or other funding agencies under the
Plan). The Finance Committee shall engage such certified public accountants,
who may be accountants for the Company as it shall require or may deem advisable
for purposes of the Plan. If annuities are to be purchased under the Plan, the
Finance
62
<PAGE>
Committee shall determine what contracts should be made available to terminated
Participants or purchased by the Trust.
8.5 Joint Responsibilities. Both the Administration Committee and
----------------------
the Finance Committee may arrange for the engagement of such legal counsel, who
may be counsel for the Company, and make use of such agents, consultants, and
clerical or other personnel as they each shall require or may deem advisable for
purposes of the Plan. Each of said Committees may rely upon the written opinion
of such counsel and the accountants engaged by the Finance Committee and may
delegate to any such agent, to any department of the Company, or to any
subcommittee or member of such Committee its authority to perform any act
hereunder, including without limitation those matters involving the exercise of
discretion, provided that such delegation shall be subject to revocation at any
time at the discretion of said Committee. Each of said Committees shall report
to the Board of Directors no less frequently than annually, with regard to the
matters for which it is responsible under the Plan.
8.6 Membership of the Committees. Both the Administration Committee
----------------------------
and the Finance Committee shall consist of not less than three members, each of
whom shall be appointed by, shall remain in office at the will of, and may be
removed, with or without cause, by the Board of Directors or the Finance. Any
member of either of said Committees may resign at any time. No member of either
of said Committees shall be entitled to act on or decide any matter relating
solely to himself or any of his
63
<PAGE>
rights or benefits under the Plan. The members of the Administration Committee
and the Finance Committee shall not receive any special compensation for serving
in their capacities as members of such Committees but shall be reimbursed for
any reasonable expenses incurred in connection therewith. Except as otherwise
required by ERISA, no bond or other security need be required of the
Administration Committee or the Finance Committee or any member thereof in any
jurisdiction. Any person may serve on both of said Committees, and any member
of either of said Committees, any department, subcommittee or agent to whom
either of said Committees delegates any authority, and any other person or group
of persons, may serve in more than one fiduciary capacity (including service
both as a trustee or administrator) with respect to the Plan.
8.7 Committee Meetings. The Board of Directors shall designate the
------------------
chairman of the Administration Committee and the chairman of the Finance
Committee. Each Committee shall establish its own procedures and the time and
place for its meetings, and provide for the keeping of minutes of all meetings,
copies of which shall be delivered to each member of the respective Committee.
A majority of a Committee shall constitute a quorum for the transaction of
business at a meeting of the Committee. Any action of a Committee may be taken
upon the affirmative vote of a majority of the members of the Committee at a
meeting or, at the direction of its chairman, without a meeting by mail,
telegraph or telephone, provided that all of the members
64
<PAGE>
of the Committee are informed by mail or telegraph of their right to vote on the
proposal and of the outcome of the vote thereon.
8.8 Receipts and Disbursements of the Plan. The Finance Committee
--------------------------------------
shall appoint an individual who shall cause to be kept full and accurate
accounts of receipts and disbursements of the Plan, and shall cause to be
deposited all funds of the Plan to the name and credit of the Plan, in such
depositories as may be designated by the Finance Committee. Such individual
shall cause to be disbursed the monies and funds of the Plan when so authorized
by either the Finance Committee or the Administration Committee and shall
generally perform such other duties as may be assigned to him from time to time
by either such Committee.
8.9 Demands for Money. All demands for money of the Plan shall be
-----------------
signed by such officer of officers or such other person or persons as the
Finance Committee may from time to time designate in writing.
8.10 Disputes.
--------
(a) If the Administration Committee denies, in whole or in part,
a claim for benefits by a Participant or his beneficiary, the Administration
Committee shall furnish notice of the denial to the claimant, setting forth:
(1) the specific reasons for the denial;
(2) specific reference to the pertinent Plan provisions on
which the denial is based;
65
<PAGE>
(3) a description of any additional information necessary
for the claimant to perfect the claim and an explanation of why such
information is necessary; and
(4) appropriate information as to the steps to be taken if
the claimant wishes to submit his claim for review.
Such notice shall be forwarded to the claimant within 90 days of the
Administration Committee's receipt of the claim; provided, however, that in
special circumstances the Administration Committee may extend the response
period for up to an additional 90 days, in which event it shall notify the
claimant in writing of the extension, and shall specify the reason or reasons
for the extension.
(b) Within 60 days of receipt of a notice of claim denial, a
claimant or his duly authorized representative may petition the Administration
Committee in writing for a full and fair review of the denial. The claimant or
his duly authorized representative shall have the opportunity to review
pertinent documents and to submit issues and comments in writing to the
Administration Committee. The Administration Committee shall review the denial
and shall communicate its decision and the reasons therefor to the claimant in
writing within 60 days of receipt of the petition; provided, however, that in
special circumstances the Administration Committee may extend the response
period for up to an additional 60 days, in which event it shall notify the
claimant in writing prior to the commencement
66
<PAGE>
of the extension. The appeals procedure set forth in this Subsection (b) shall
be the exclusive means for contesting a decision denying benefits under the
Plan.
8.11 Indemnification. Each member of the Administration Committee
---------------
and the Finance Committee, and any other person who is an Employee or director
of the Company or an Affiliated Company shall be indemnified and held harmless
by the Company against and with respect to all damages, losses, obligations,
liabilities, liens, deficiencies, costs and expenses, including without
limitation, reasonable attorney's fees and other costs incident to any suit,
action, investigation, claim or proceedings to which he may be a party by reason
of his performance of administrative functions and duties under the Plan, except
in relation to matters as to which he shall be held liable for an act of willful
misconduct in the performance of his duties. The foregoing right to
indemnification shall be in addition to such other rights as the Administration
Committee member, Finance Committee member or other person may enjoy as a matter
of law or by reason of insurance coverage of any kind. Rights granted hereunder
shall be in addition to and not in lieu of any rights to indemnification to
which the Administration Committee member, Finance Committee member or other
person may be entitled pursuant to the by-laws of the Company.
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ARTICLE IX
THE FUND
--------
9.1 Designation of Trustee. The Company shall enter into a Trust
----------------------
Agreement with a Trustee selected by the Finance Committee and approved by the
Board of Directors. The Finance Committee shall have the power to remove the
Trustee, and to designate a successor Trustee, as provided in the Trust
Agreement. All of the assets of the Plan shall be held by the Trustee for use
in accordance with the Plan.
9.2 Exclusive Benefit. Prior to the satisfaction of all liabilities
-----------------
under the Plan in the event of termination of the Plan, no part of the corpus or
income of the Fund shall be used for or diverted to purposes other than for the
exclusive benefit of Participants and their beneficiaries except as expressly
provided in this Plan and in the Trust Agreement.
9.3 No Interest in Fund. No person shall have any interest in or
-------------------
right to any part of the assets or income of the Fund, except to the extent
expressly provided in this Plan and in the Trust Agreement.
9.4 Investments.
-----------
(a) Except as provided in Subsection (e) of this Section, the
Trustee shall invest Wage Reduction Contributions, Matching Contributions,
Nonelective Company Contributions and Rollover Contributions paid to it and
income thereon in such Investment Media as each Participant may select in
accordance
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with this Section. Such investments acquired in the manner prescribed by the
Plan shall be held by or for the Trustee. The Investment Media offered for
investments under the Plan shall include a fund that is invested exclusively in
Common Stock of Lukens Inc. A Participant to whose Accounts Common Stock has
been credited may direct the Trustee regarding the voting of such Common Stock,
provided that:
(i) any shares of Common Stock with respect to which timely
instructions are not received by the Trustee shall not be voted, nor shall
they be tendered in connection with a tender offer, as the case may be;
(ii) Participant instructions to the Trustee for voting or
tender of Common Stock shall be made in confidence, and the Trustee may not
divulge such instructions to any director, officer or employee of the
Employer.
(b) Except as provided in Subsection (e) of this Section, a
Participant shall select one or more of the Investment Media in which his
Accounts shall be invested, and the percentage thereof that shall be invested in
each Investment Medium selected. In the event a Participant fails to make an
election pursuant to this Section, amounts allocated to his Account shall be
invested in the most conservative of the Investment Media as determined by the
Finance Committee. A Participant may amend such selection by prior notice to
the Administration Committee, effective as of such dates determined by the
Administration
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Committee. Such amendments will be subject to the other requirements of this
Section.
(c) Participant may transfer, effective as of such dates
determined by the Administration Committee, such portion of the value of his
interest in any Investment Medium to another Investment Medium, as may be
permitted by the Administration Committee.
(d) The amounts contributed by all Participants to each
Investment Medium shall be commingled for investment purposes.
(e) The Trustee may hold assets of the Fund and make
distributions therefrom in the form of cash without liability for interest, if
for administrative purposes it becomes necessary or practical to do so.
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ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
10.1 Power of Amendment and Termination.
----------------------------------
(a) It is the intention of the Company that this Plan will be
permanent. However, the Company reserves the right to terminate the Plan at any
time by action of the Board of Directors or other governing body effective as of
the date designated and to amend the Plan at any time by action of the Board of
Directors or the Administration Committee.
(b) Any amendment or termination of the Plan shall become
effective as of the date designated by the Board of Directors or the
Administration Committee, as the case may be. Except as expressly provided
elsewhere in the Plan, prior to the satisfaction of all liabilities with respect
to the benefits provided under this Plan, no amendment or termination shall
cause any part of the monies contributed hereunder to revert to the Company or
to be diverted to any purpose other than for the exclusive benefit of
Participants and their beneficiaries.
10.2 Merger. The Plan shall not be merged with or consolidated with,
------
nor shall its assets be transferred to, any other qualified retirement plan
unless each Participant would receive a benefit after such merger,
consolidation, or transfer (assuming the Plan then terminated) which is of
actuarial value equal to or greater than the benefit he would have received from
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his Account if the Plan had been terminated on the day before such merger,
consolidation, or transfer.
72
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ARTICLE XI
TOP-HEAVY PROVISIONS
--------------------
11.1 General. The following provisions shall apply automatically to
-------
the Plan and shall supersede any contrary provisions for each Plan Year in which
the Plan is a Top-Heavy Plan (as defined below). It is intended that this
Article shall be construed in accordance with the provisions of section 416 of
the Code.
11.2 Definitions. The following definitions shall supplement those
-----------
set forth in Article I of the Plan:
(a) "Aggregation Group" means this Plan and each other qualified
-----------------
retirement plan (including a frozen plan or a plan which has been terminated
during the 60-month period ending on the Determination Date) of the Company or
an Affiliated Company:
(1) in which a Key Employee is a participant; or
(2) which enables any plan in which a Key Employee
participates to meet the requirements of sections 401(a)(4) or 410 of the Code;
or
(3) without the inclusion of which, the plans in the
Aggregation Group would be Top-Heavy Plans, but, with the inclusion of which,
the plans in the Aggregation Group are not Top-Heavy Plans and, taken together,
meet the requirements of sections 401(a)(4) and 410 of the Code.
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(b) "Determination Date" means, for any Plan Year, the last day
------------------
of the preceding Plan Year.
(c) "Key Employee" means, with respect to any Plan Year:
------------
(1) any Employee or former Employee who at any time during
the 60-month period ending on the Determination Date was:
(A) an officer of the Company having Compensation for
a Plan Year during such period greater than fifty percent (50%) of the amount in
effect under section 415(b)(1)(A) of the Code for the calendar year in which
such Plan Year ends; provided, that no more than 50 Employees (or, if less, the
greater of three Employees or ten percent (10%) of the greatest number of
Employees employed by the Company and all Affiliated Companies during such 60-
month period, but excluding employees described in section 414(q)(8) of the
Code) shall be treated as officers; or
(B) one of the 10 Employees having Compensation
greater than the amount described in section 415(c)(1)(A) of the Code and owning
(or are considered as owning, within the meaning of section 318 of the Code) the
largest interests in the Company or any Affiliated Company, provided that such
interest exceeds one-half of one percent (0.5%) of the total share ownership of
the Company or Affiliated Company, the total number of individuals described in
this Subparagraph (B) being limited to 10 for the entire 60-month period; or
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(C) a five-percent (5%) owner of the Company; or
(D) a one-percent (1%) owner of the Company having
Compensation in excess of $150,000; or
(2) a beneficiary of an individual described in Paragraph
(1) of this Subsection.
For purposes of this Subsection, Compensation shall include elective deferrals
under sections 125, 402(a)(8), 402(h) and 403(b) of the Code. Determinations
under this Subsection shall be made in accordance with section 416(i) of the
Code.
(d) "Key Employee Ratio" means, for any Determination Date, the
------------------
ratio of the amount described in Paragraph (1) of this Subsection to the amount
described in Paragraph (2) of this Subsection, after deducting from each such
amount any portion thereof described in Paragraph (3) of this Subsection, where:
(1) the amount described in this Paragraph is the sum of:
(A) the present value of all accrued benefits of Key
Employees under all qualified defined benefit plans included in the Aggregation
Group;
(B) the balances in all of the accounts of Key
Employees under all qualified defined contribution plans included in the
Aggregation Group; and
(C) the amounts distributed from all plans in such
Aggregation Group to or on behalf of any Key
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<PAGE>
Employee during the period of five Plan Years ending on the Determination Date,
except any benefit paid on account of death to the extent it exceeds the accrued
benefits or account balances immediately prior to death;
(2) the amount described in this Paragraph is the sum of:
(A) the present value of all accrued benefits of all
participants under all qualified defined benefit plans included in the
Aggregation Group;
(B) the balances in all of the accounts of all
participants under all qualified defined contribution plans included in the
Aggregation Group; and
(C) the amounts distributed from all plans in such
Aggregation Group to or on behalf of any participant during the period of five
Plan Years ending on the Determination Date; and
(3) the amount described in this Paragraph is the sum of:
(A) all rollover contributions (or fund to fund
transfers) to the Plan by an Employee after December 31, 1983 from a plan
sponsored by an employer which is not the Company or an Affiliated Company;
(B) any amount that is included in Paragraphs (1) and
(2) of this Subsection for a person who is a Non-Key Employee as to the Plan
Year of reference but who was a Key Employee as to any earlier Plan Year; and
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<PAGE>
(C) for Plan Years beginning after December 31, 1984,
any amount that is included in Paragraphs (1) and (2) of this Subsection for a
person who has not performed any services for the Company during the five-year
period ending on the Determination Date.
The present value of accrued benefits under any defined benefit plan shall be
determined on the basis of the interest and mortality assumptions set forth in
such plan and, effective July 1, 1987, under the method used for accrual
purposes for all plans maintained by the Company and the Affiliated Companies if
a single method is used by all such plans, or, otherwise, the slowest accrual
method permitted under section 411(b)(1)(C) of the Code.
(e) "Non-Key Employee" means, for any Plan Year:
----------------
(1) an Employee or former Employee who is not a Key
Employee with respect to such Plan Year; or
(2) a beneficiary of an individual described in Paragraph
(1) of this Subsection.
(f) "Super Top-Heavy Plan" means, for any Plan Year, each plan
--------------------
in the Aggregation Group for such Plan Year if, as of the applicable
Determination Date, the Key Employee Ratio exceeds ninety percent (90%).
(g) "Top-Heavy Compensation" means, for any Participant for any
----------------------
Plan Year, the average of his annual Compensation over the period of five
consecutive Plan Years (or, if shorter, the longest period of consecutive Plan
Years during
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<PAGE>
which the Participant was in the employ of any Participating Company) yielding
the highest average, disregarding:
(1) Compensation for Plan Years ending prior to January 1,
1984; and
(2) Compensation for Plan Years after the close of the last
Plan Year in which the Plan was a Top-Heavy Plan.
(h) "Top-Heavy Plan" means, for any Plan Year, each plan in the
--------------
Aggregation Group for such Plan Year if, as of the applicable Determination
Date, the Key Employee Ratio exceeds sixty percent (60%).
(i) "Year of Top-Heavy Service" means, for any Participant, a
-------------------------
Plan Year in which he completes 1,000 or more Hours of Service, excluding:
(1) Plan Years commencing prior to January 1, 1984; and
(2) Plan Years in which the Plan is not a Top-Heavy Plan.
11.3 Minimum Contribution for Non-Key Employees.
------------------------------------------
(a) In each Plan Year in which the Plan is a Top-Heavy Plan,
each Eligible Employee who is a Non-Key Employee (except (i) an Eligible
Employee who is a Non-Key Employee as to the Plan Year of reference but who was
a Key Employee as to any earlier Plan Year and (ii) an Eligible Employee who is
a member of the Union and is covered under the Labor Agreement) and who is an
Employee on the last day of such Plan Year will receive a
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<PAGE>
total minimum Company or Affiliated Company contribution (including forfeitures)
under all plans described in Paragraphs (a)(1) and (a)(2) of Section 11.2 of not
less than three percent (3%) of the Eligible Employee's Compensation for the
Plan Year. Elective deferrals to such plans made on behalf of a Participant in
plan years beginning after December 31, 1984 but before January 1, 1989 shall be
deemed to be Company contributions for the purpose of this Subsection. Elective
deferrals and employer matching contributions to such plans in plan years
beginning on or after January 1, 1989 shall not be used to meet the minimum
contribution requirements of this Subsection.
(b) The percentage set forth in Subsection (a) shall be reduced
to the percentage at which contributions, including forfeitures, are made (or
are required to be made) for a Plan Year for the Key Employee for whom such
percentage is the highest for that Plan Year. This percentage shall be
determined for each Key Employee by dividing the contribution for such Key
Employee by his Compensation for the Plan Year. All defined contribution plans
required to be included in an Aggregation Group shall be treated as one plan for
the purpose of this Section; however, this Section shall not apply to any plan
which is required to be included in the Aggregation Group if such plan enables a
defined benefit plan in the group to meet the requirements of section 401(a)(4)
or section 410 of the Code.
(c) If a Non-Key Employee described in Subsection (a)
participates in both a defined benefit plan and a
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<PAGE>
defined contribution plan described in Paragraphs (a)(1) and (a)(2) of Section
11.2, the Company is not required to provide such Employee with both the minimum
benefit under the defined benefit plan and the minimum contribution. In such
event, the Non-Key Employee shall not receive the minimum contribution described
in this Section if he has the minimum benefit required by section 416 of the
Code under the defined benefit Top-Heavy Plan contribution (including
forfeitures) under all plans in the Aggregation Group of not less than five
percent (5%) of the Non-Key Employee's Compensation, unless he is entitled to
the contribution described in Subsection 11.6(c).
11.4 Social Security. The Plan, for each Plan Year in which it is a
---------------
Top-Heavy Plan, must meet the requirements of this Article without regard to any
Social Security or similar contributions or benefits.
11.5 Adjustment to Maximum Benefit Limitation. (a) For
----------------------------------------
each Plan Year in which the Plan is (1) a Super Top-Heavy Plan or (2) a Top-
Heavy Plan and the Board of Directors does not make the election to amend the
Plan to provide the minimum contribution described in Subsection (c), the 1.25
factor in the defined benefit and defined contribution fractions described in
Subsection (c) of Section 3.11 shall be reduced to 1.0. The adjustment
described in this Subsection shall not apply to a Participant during any period
in which the Participant earns no additional accrued benefit under any defined
benefit plan and has no employer contributions, forfeitures, or voluntary
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<PAGE>
nondeductible contributions allocated to his accounts under any defined
contribution plan.
(b) In the case of any Top-Heavy Plan to which Subsection (e) of
Section 3.11 applies, "$41,500" shall be substituted for "$51,875" in the
calculation of the numerator of the transition fraction.
(c) If, in any Plan Year in which the Plan is a Top-Heavy Plan
but not a Super Top-Heavy Plan, the Aggregation Group also includes a defined
benefit plan, the Board of Directors may elect to use a factor of 1.25 in
computing the denominator of the defined benefit and defined contribution
fractions described in Section 3.11. In the event of such election, the minimum
contribution described in Section 11.3(a) for each Non-Key Employee who is not
covered under a defined benefit plan shall be increased to four percent (4%),
and the minimum Company contribution described in Section 11.3(c) for each Non-
Key Employee who is covered under a defined benefit plan (but who does not have
a minimum benefit under the defined benefit plan equal to the lesser of (1)
three percent (3%) of his Top-Heavy Compensation multiplied by his Years of Top-
Heavy Service or (2) thirty-percent (30%) of his Top-Heavy Compensation) shall
be increased to seven and one-half percent (7-1/2%).
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ARTICLE XII
GENERAL PROVISIONS
------------------
12.1 No Employment Rights. Neither the action of the Company in
--------------------
establishing the Plan, nor any provisions of the Plan, nor any action taken by
the Company, the Administration Committee or the Finance Committee shall be
construed as giving to any Employee the right to be retained in the employ of
the Company or any Affiliated Company, or any right to payment except to the
extent of the benefits provided in the Plan to be paid from the Fund.
12.2 Governing Law. Except to the extent superseded by ERISA, all
-------------
questions pertaining to the validity, construction, and operation of the Plan
shall be determined in accordance with the laws of Pennsylvania.
12.3 Severability of Provisions. If any provision of this Plan is
--------------------------
determined to be void by any court of competent jurisdiction, the Plan shall
continue to operate and, for the purposes of the jurisdiction of that court
only, shall be deemed not to include the provisions determined to be void.
12.4 No Interest in Fund. No person shall have any interest in, or
-------------------
right to, any part of the principal or income of the Fund, except as and to the
extent expressly provided in this Plan and in the Trust Agreement.
12.5 Spendthrift Clause. No benefit payable at any time under this
------------------
Plan and no interest or expectancy herein shall
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<PAGE>
be anticipated, assigned, or alienated by any Participant or beneficiary, or
subject to attachment, garnishment, levy, execution, or other legal or equitable
process, except for (1) a Federal tax levy made pursuant to section 6331 of the
Code and (2) any benefit payable pursuant to a qualified domestic relations
order. Any attempt to alienate or assign a benefit hereunder, whether currently
or hereafter payable, shall be void.
12.6 Incapacity. If the Administration Committee deems any
----------
Participant who is entitled to receive payments hereunder incapable of
receiving or disbursing the same by reason of age, illness, infirmity, or
incapacity of any kind, the Administration Committee may direct the Trustee to
apply such payments directly for the comfort, support, and maintenance of such
Participant, or to pay the same to any responsible person caring for the
Participant who is determined by the Administration Committee to be qualified
to receive and disburse such payments for the Participant's benefit; and the
receipt of such person shall be a complete acquittance for the payment of the
benefit. Payments pursuant to this Section shall be complete discharge to the
extent thereof of any and all liability of the Company, the Administration
Committee, the Finance Committee, the Trustee and the Fund.
12.7 Withholding. The Trustee shall have the right to withhold any
-----------
and all state, local, and Federal taxes which may be withheld in accordance with
applicable law.
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12.8 Missing Persons. None of the Trustee, the Company, nor the
---------------
Committees shall be obliged to search for or ascertain the whereabouts of any
individual entitled to benefits under the Plan. Any individual entitled to
benefits under the Plan who does not file a timely claim for his benefits will
be allowed to file a claim at any later date, and payment of his benefits will
commence after that later date, except that, in the event the Administration
Committee is satisfied that a Participant has no spouse or that a Participant's
spouse cannot be located (as described in Section 5.7) and the Participant is in
fact married or the spouse is later located, whichever is applicable, such
spouse shall not be deemed an individual entitled to benefits under the Plan.
12.9 Determination of Highly Compensated Employees. For the purpose
---------------------------------------------
of identifying highly compensated employees within the meaning of section 414(q)
of the Code, the Company and all Affiliated Companies may elect to make the
look-back year calculation for a determination year on the basis of the calendar
year ending with or within the applicable determination year; provided, however,
that, if such election is made with respect to the Plan, such election shall
also apply with respect to all other plans, entities or arrangements of the
Company and Affiliated Companies.
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ARTICLE XIII
RIGHTS OF ALTERNATE PAYEES
--------------------------
13.1 General. Except as otherwise provided in this Article, an
-------
Alternate Payee shall have no rights to a Participant's benefit and shall have
no rights under this Plan other than those rights specifically granted to the
Alternate Payee pursuant to a Qualified Domestic Relations Order.
Notwithstanding the foregoing, an Alternate Payee shall have the right to appeal
the denial of a claim for any benefits awarded to the Alternate Payee pursuant
to a Qualified Domestic Relations Order, as provided in Section 8.4. Any
interest of an Alternate Payee in the Accounts of a Participant, other than an
interest payable solely upon the Participant's death pursuant to a Qualified
Domestic Relations Order which provides that the Alternate Payee shall be
treated as the Participant's surviving spouse, shall be separately accounted for
by the Trustee in the name and for the benefit of the Alternate Payee.
13.2 Distribution.
------------
(a) Notwithstanding anything in this Plan to the contrary, a
Qualified Domestic Relations Order may provide that any benefits of a
Participant payable to an Alternate Payee shall be distributed immediately or at
any other time specified in the order. If the order does not specify the time
at which benefits shall be payable to the Alternate Payee, the benefits shall be
distributed to the Alternative Payee immediately.
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<PAGE>
(b) If a Qualified Domestic Relations Order does not provide
the form of distribution of benefits payable to an Alternate Payee, the
Alternate Payee shall have the right to elect distribution in any form
provided under Article V.
(c) If the Qualified Domestic Relations Order does not specify
the Investment Media from which amounts shall be paid to an Alternate Payee,
such amounts shall be distributed from the Investment Media in which such
Accounts are invested on a pro rata basis.
13.3 Withdrawals. An Alternate Payee shall not be permitted to make
-----------
any withdrawals under Article VI and any Qualified Domestic Relations Order
which purports to give an Alternate Payee such a right shall be invalid and
unenforceable to that extent.
13.4 Death Benefits. Unless a Qualified Domestic Relations Order
--------------
provides to the contrary, an Alternate Payee shall have the right to designate a
beneficiary, in the same manner as provided in Section 5.7 with respect to a
Participant (except that no spousal consent shall be required), who shall
receive benefits payable to the Alternate Payee which have not been distributed
at the time of the Alternate Payee's death. If the Alternate Payee does not
designate a beneficiary, or if the beneficiary predeceases the Alternate Payee,
benefits payable to
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the Alternate Payee which have not been distributed shall be paid to the
Alternate Payee's estate.
Executed this ____ day of _________________, 19__.
LUKENS INC.
Attest: By:
------------------------ ------------------------
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EXHIBIT 5(1)
[LETTERHEAD OF LUKENS INC. APPEARS HERE]
June 23, 1994
Lukens Inc.
50 South First Avenue
Coatesville, PA 19320
Gentlemen:
As Vice President and General Counsel of Lukens Inc. (the "Corporation"), a
Delaware corporation, I have participated in the preparation of the Form S-8
Registration Statement relating to certain participation interests and shares of
Lukens Inc. Common Stock, par value $0.01 per share, which may be acquired
through investment in the Washington Steel Corporation Capital Accumulation Plan
(Massillon, OH) (the "Plan"). I have examined, or caused to be examined, the
Plan and all statutes, records, instruments and documents which I deemed
necessary for the purpose of this opinion.
Based upon this examination, it is my opinion that the above-described
participation interests and shares of common stock, if and when sold in the
manner described in the Registration Statement, will be legally issued, fully
paid and non-assessable.
I hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ William D. Sprague
<PAGE>
EXHIBIT 5(2)
[LETTERHEAD BALLARD SPAHR ANDREWS & INGERSOLL APPEARS HERE]
June 22, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Re: Lukens Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Lukens Inc. in connection with the
preparation and filing of a Registration Statement on Form S-8 under the
Securities Act of 1933, as amended, registering interests ("Interests") in the
Washington Steel Corporation Employees Capital Accumulation Plan (Massillon, OH)
(the "Plan") and 50,000 shares of Common Stock, par value $.01 per share,
issuable thereunder.
In rendering our opinion, we have examined the Plan and the related
trust agreement and such other documents as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the form of the
Plan, with such changes as may be required by the Internal Revenue Service,
meets the requirements of section 401(a) of the Internal Revenue Code and the
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
<PAGE>
EXHIBIT 23(3)
[LETTERHEAD OF ARTHUR ANDERSEN & CO. APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 1, 1994
included or incorporated by reference in Lukens Inc.'s Form 10-K for the fiscal
year ended December 25, 1993 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen & Co.
Philadelphia, Pennsylvania
June 22, 1994
