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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 (Washington, PA)
------------------------------------------
(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>
- --------------------------------------------------------------------------------
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 15,000 shares $31.625 $474,375 $164
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 (Washington, PA) (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
---------------------------------------------------------
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 June 1, 1993
4(5) Form of Washington Steel Corporation Employees Capital Accumulation
Plan (Washington, PA), 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 (Washington, PA) 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
(Washington, PA) 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 (WASHINGTON, PA)
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 June 1, 1993
4(5) Form of Washington Steel Corporation Employees Capital Accumulation
Plan (Washington, PA), 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 (Washington, PA) 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
June, 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 (Washington, PA)
(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 June 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
(WASHINGTON, PA)
AMENDED AND RESTATED
EFFECTIVE JULY 1, 1993
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
-----------
"Account"................................................................. 2
"Company Contribution Account"......................................... 2
"Rollover Account"..................................................... 2
"Salary Reduction Account"............................................. 2
"Active Participant"...................................................... 3
"Actual Deferral Percentage".............................................. 3
"Administration Committee"................................................ 3
"Affiliated Company"...................................................... 3
"Age"..................................................................... 4
"Alternate Payee"......................................................... 4
"Average Actual Deferral Percentage"...................................... 4
"Benefit Commencement Date"............................................... 5
"Board of Directors"...................................................... 5
"Code".................................................................... 5
"Committees".............................................................. 5
"Company"................................................................. 5
"Company Contributions"................................................... 5
"Compensation"............................................................ 5
"Covered Employee"........................................................ 7
"Effective Date".......................................................... 7
"Eligible Employee"....................................................... 8
"Employee"................................................................ 8
"Employment Commencement Date"............................................ 8
"ERISA"................................................................... 8
"Finance Committee"....................................................... 8
"Fund".................................................................... 8
"Highly Compensated Eligible Employee".................................... 8
"Highly Compensated Employee"............................................. 9
"Hour of Service"......................................................... 11
"Investment Medium".................................................... 12
"Labor Agreement"......................................................... 12
"Limitation Year"......................................................... 12
"Normal Retirement Age"................................................... 12
"Participant"............................................................. 12
"Plan".................................................................... 12
"Plan Year"............................................................... 12
"Qualified Domestic Relations Order"...................................... 12
"Required Beginning Date"................................................. 13
"Rollover Contributions".................................................. 14
"Salary Reduction Contributions".......................................... 14
"Separation from Service"................................................. 14
"Spouse".................................................................. 14
"Total Disability"........................................................ 14
i
<PAGE>
PAGE
----
"Trust Agreement"......................................................... 14
"Trustee"................................................................. 15
"Valuation Date".......................................................... 15
ARTICLE II
TRANSITION AND ELIGIBILITY TO PARTICIPATE
-----------------------------------------
2.1 Rights Affected and Preservation of Accrued Benefit.................. 16
2.2 Eligibility to Participate - Salary Reduction
Contributions....................................................... 16
2.3 Election to Make Salary Reduction Contributions...................... 17
2.4 Data................................................................. 17
ARTICLE III
CONTRIBUTIONS TO THE PLAN
-------------------------
3.1 Salary Reduction Contributions....................................... 18
3.2 Change of Percentage Rate............................................ 19
3.3 Discontinuance of Salary Reduction Contributions..................... 20
3.4 Company Contributions................................................ 20
3.5 Timing and Deductibility of Contributions............................ 20
3.6 Fund................................................................. 21
3.7 Limitation on Salary Reduction Contributions......................... 22
3.8 Prevention of Violation of Limitation on Salary
Reduction Contributions............................................. 23
3.9 Maximum Allocation................................................... 26
ARTICLE IV
PARTICIPANTS' ACCOUNTS
----------------------
4.1 Accounts............................................................. 30
4.2 Valuation............................................................ 30
4.3 Apportionment of Gain or Loss........................................ 30
4.4 Accounting for Allocations........................................... 31
4.5 Vesting.............................................................. 31
ARTICLE V
DISTRIBUTION
------------
5.1 General.............................................................. 32
5.2 Separation from Service.............................................. 32
5.3 Death................................................................ 32
5.4 Total Disability..................................................... 32
ii
<PAGE>
PAGE
----
5.5 Valuation for Distribution........................................... 33
5.6 Timing of Distribution............................................... 33
5.7 Mode of Distribution................................................. 36
5.8 Beneficiary Designation.............................................. 37
5.9 Transfer of Account to Other Plan.................................... 40
ARTICLE VI
ROLLOVER CONTRIBUTIONS
----------------------
6.1 Rollover Contributions............................................... 42
6.2 Vesting and Distribution of Rollover Account......................... 43
ARTICLE VII
WITHDRAWALS
-----------
7.1 Withdrawals Subject to Hardship Restrictions......................... 45
7.2 Other Withdrawals.................................................... 48
7.3 Withdrawals On and After Attainment of Age 59-1/2.................... 48
7.4 Amount and Payment of Withdrawals.................................... 48
7.5 Withdrawals Not Subject to Replacement............................... 49
7.6 Pledged Amounts...................................................... 49
7.7 Investment Medium to be Charged with Withdrawal...................... 49
ARTICLE VIII
LOANS TO PARTICIPANTS
---------------------
8.1 Loan Application..................................................... 50
8.2 Amount of Loan....................................................... 50
8.3 Terms of Loan........................................................ 50
8.4 Enforcement.......................................................... 53
8.5 Additional Rules..................................................... 53
ARTICLE IX
ADMINISTRATION
--------------
9.1 Plan Administrator................................................... 54
9.2 Allocation of Fiduciary Responsibilities............................. 54
9.3 Responsibilities of the Administration Committee..................... 54
9.4 Responsibilities of the Finance Committee............................ 54
9.5 Joint Responsibilities............................................... 56
9.6 Membership of the Committees......................................... 56
9.7 Committee Meetings................................................... 57
9.8 Receipts and Disbursements of the Plan............................... 58
iii
<PAGE>
PAGE
----
9.9 Demands for Money.................................................... 58
9.10 Disputes............................................................. 58
9.11 Indemnification...................................................... 60
ARTICLE X
THE FUND
--------
10.1 Designation of Trustee............................................... 61
10.2 Exclusive Benefit.................................................... 61
10.3 No Interest in Fund.................................................. 61
10.4 Investments.......................................................... 61
ARTICLE XI
AMENDMENT OR TERMINATION OF THE PLAN
------------------------------------
11.1 Power of Amendment and Termination................................... 64
11.2 Merger............................................................... 64
ARTICLE XII
TOP-HEAVY PROVISIONS
--------------------
12.1 General.............................................................. 66
ARTICLE XIII
GENERAL PROVISIONS
------------------
13.1 No Employment Rights................................................. 67
13.2 Governing Law........................................................ 67
13.3 Severability of Provisions........................................... 67
13.4 No Interest in Fund.................................................. 67
13.5 Spendthrift Clause................................................... 67
13.6 Incapacity........................................................... 68
13.7 Withholding.......................................................... 68
13.8 Missing Persons...................................................... 69
13.9 Determination of Highly Compensated Employees........................ 69
iv
<PAGE>
PAGE
----
ARTICLE XIV
RIGHTS OF ALTERNATE PAYEES
--------------------------
14.1 General.............................................................. 70
14.2 Distribution......................................................... 70
14.3 Withdrawals.......................................................... 71
14.4 Death Benefits....................................................... 71
v
<PAGE>
WHEREAS, WASHINGTON STEEL CORPORATION ("Washington Steel") adopted the
Washington Steel Corp. Deferred Savings Plan for Collective Bargaining Employees
(the "Plan"), effective August 1, 1989, for employees of the Company whose terms
and conditions of employment are covered by the collective bargaining agreement
between the Company and Local 7139 of the United Steelworkers of America; and
WHEREAS, Washington Steel is a wholly-owned subsidiary of Lukens Inc.;
and
WHEREAS, Lukens Inc. desires to amend and restate the Plan to comply
with the requirements of the Employee Retirement Income Security Act of 1974, as
amended, and with the Internal Revenue Code of 1986, as amended; and
WHEREAS, Lukens Inc. desires to rename the Plan;
NOW, THEREFORE, effective July 1, 1993, the Plan is renamed as the
Washington Steel Corporation Employees Capital Accumulation Plan (Washington,
PA) 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 a Participant's Company Contributions, 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.
"Salary Reduction Account" -- the Account to which are credited a
------------------------
Participant's Salary Reduction Contributions,
2
<PAGE>
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 Salary 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
requirement 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; 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
3
<PAGE>
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.
"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 59-1/2 or Age 70-1/2 on the corresponding date in
the sixth calendar month following the month in which his 59th or 70th
(respectively) birthday falls (or the last day of such sixth month if there is
no such corresponding date therein).
"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.
4
<PAGE>
"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
VII.
"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, and any
----
regulations issued thereunder.
"Committees" means the Administration Committee and the Finance
----------
Committee, and their duly-appointed delegates.
"Company" means Lukens Inc.
-------
"Company Contributions" means, for any Participant, contributions on
---------------------
his behalf as provided in Section 3.4.
"Compensation" means, for any Eligible Employee, for any applicable
------------
period:
(a) For purposes of Section 3.1 and subject to the
limitations set forth in Subsection (e) of this definition, his base pay
(including Salary Reduction Contributions and salary deferrals under a plan
described in section 125 of the Code) but not including compensation received
during a leave of absence, severance pay or pay for unused vacation received by
the Employee as a result of his termination of employment.
(b) For the purposes of Section 3.9, subject to the
limitations set forth in Subsection (e) of this definition,
5
<PAGE>
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 definition of "Actual Deferral
Percentage" in this Article (except as otherwise provided in such
definitions), and 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 and applied on a uniform and
consistent basis to all Eligible Employees, provided that, in the sole
discretion of the Administration Committee, Compensation may include Salary
Reduction Contributions and other amounts excluded from gross income under
section 125, 402(a)(8), 402(h) or 403(b) of the Code.
For the purpose of this Subsection (c), the Company may elect to
consider only compensation as defined above for that portion of the Plan Year
during which the Employee was an Eligible Employee, provided that this election
is applied uniformly to all Eligible Employees for the Plan Year.
(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 Participating Company is required to
furnish the employee a written statement under sections 6041(d) and 6051(a)(3)
of the
6
<PAGE>
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, 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 3.9 and Section
12.2(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).
"Covered Employee" means any Employee who is covered by the Labor
----------------
Agreement, and who is not a seasonal, temporary or probationary employee (as
defined in such Labor Agreement).
"Effective Date" means July 1, 1993, the effective date of this
--------------
amended and restated Plan.
7
<PAGE>
"Eligible Employee" means an Employee who has become an Eligible
-----------------
Employee as set forth in Section 2.2 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 be deemed to be employed by the Company or such
Affiliated 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.
"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.
8
<PAGE>
"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;
(b) received more than $75,000 (as indexed) in Compensation from
the Company or an Affiliated Company;
(c) received more than $50,000 (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
Administration 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 for purposes of identifying the top 20%) and received
Compensation of more than $45,000 (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.
9
<PAGE>
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 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 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 13.9,
references to the "preceding Plan Year" shall refer instead to the calendar year
ending with or within the current Plan Year.
10
<PAGE>
"Hour of Service" means for any Employee a credit awarded with respect
---------------
to each hour for which:
(a) he is directly or indirectly paid or entitled to payment by
the Company or an Affiliated Company for the performance of employment
duties; or
(b) back pay, irrespective of mitigation of damages, is either
awarded or agreed to; or
(c) an Employee is directly or indirectly paid or entitled to
payment by the Participating 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), layoff, jury duty,
military duty, or leave of absence.
There shall be excluded from the foregoing those periods during which
payments are made or due under a plan maintained solely for the purpose of
complying with applicable workers' compensation, unemployment compensation, or
disability insurance laws. No more than 501 Hours of Service shall be credited
under Subsection (c) on account of any single continuous period during which no
duties are performed, except to the extent otherwise provided in this Plan. An
Hour of Service shall not be credited where an employee is being reimbursed
solely for medical or medically related expenses.
Hours of Service shall be credited in accordance with the rules set
forth in U.S. Department of Labor Reg. (S)2530.200b-2(b) and (c).
11
<PAGE>
"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
---------------
Washington Steel and Local 7134 of the United Steel Workers of America.
"Limitation Year" means the Plan Year or such other 12-consecutive-
---------------
month period as may be designated by the Company.
"Normal Retirement Age" means, for any Participant, the date on which
---------------------
he attains Age 65.
"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 (Washington, PA), a profit sharing plan, as set forth herein,
and any predecessor hereto.
"Plan Year" means the period from August 1, 1989 to December 31, 1989,
---------
and each calendar year thereafter.
"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.
12
<PAGE>
"Required Beginning Date" means, for any Participant:
-----------------------
(a) if he attained Age 70-1/2 before January 1, 1988, and is not
a 5% 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 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% 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 later 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% owner;
(c) if he attained Age 70-1/2 before January 1, 1989 and
after December 31, 1987, is not a 5% 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; or
(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.
13
<PAGE>
"Rollover Contributions" means, for any Participant, his rollover
----------------------
contributions as provided in Section 6.1.
"Salary Reduction Contributions" means, for any Participant,
------------------------------
contributions on his behalf as provided in Section 3.1(a).
"Separation from Service" means, for any Employee, his death,
-----------------------
retirement, resignation, discharge or any absence that causes him to cease to be
an Employee.
"Spouse" means the person to whom a Participant is married on any date
------
of reference.
"Total Disability" means, with respect to any Participant, a
----------------
disability of a potentially permanent character which prevents a Participant
from engaging in any work for remuneration or profit, but excluding such a
disability that results from:
(a) service in the Armed Forces or Merchant Marine of the
United States or any other country;
(b) warfare;
(c) willful participation in any criminal act;
(d) intentionally self-inflicted or self-incurred injury; or
(e) use of drugs or narcotics contrary to law.
"Trust Agreement" means any agreement and declaration of trust
---------------
executed under this Plan.
14
<PAGE>
"Trustee" means the corporate trustee or one or more individuals
-------
collectively appointed and acting under the Trust Agreement.
"Valuation Date" means each business day.
--------------
15
<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 - Salary Reduction Contributions.
-----------------------------------------------------------
(a) Each Covered Employee as of the Effective Date who
was eligible to participate in the Plan immediately prior to Effective Date
shall continue to be an Eligible Employee as of Effective Date.
(b) Each Covered Employee who was not eligible to
participate immediately prior to the Effective Date shall become an Eligible
Employee on the day next following his completion of 520 Hours of Service if he
is then a Covered Employee.
(c) If an individual is not a Covered Employee on the day
next following his completion of 520 Hours of Service, he shall become an
Eligible Employee as of the next day thereafter on which he is a Covered
Employee.
16
<PAGE>
(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 Election to Make Salary Reduction Contributions. An Eligible
-----------------------------------------------
Employee may elect to make Salary 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 Compensation, cash bonus and/or
quarterly incentive bonus by an amount determined in accordance with Section 3.1
and to make Salary Reduction Contributions on such Eligible Employee's behalf in
the amount of such reduction. An election by an Eligible Employee to reduce his
Compensation, cash bonus or quarterly incentive payment shall be effective on
the first Entry Date that is administratively practicable following receipt of
his election by the Administration Committee.
2.4 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.
17
<PAGE>
ARTICLE III
CONTRIBUTIONS TO THE PLAN
-------------------------
3.1 Salary Reduction Contributions.
------------------------------
(a) When an Eligible Employee files an election under
Section 2.3 to have Salary Reduction Contributions made on his behalf, he shall
elect the percentage by which his Compensation, cash bonus and/or quarterly
incentive payment, as the case may be, shall be reduced on account of such
Salary Reduction Contributions. Subject to Section 3.8, this percentage may be
between one percent (1%) and sixteen percent (16%) of such Compensation, between
one percent (1%) and fifty percent (50%) of such cash bonus and between one
percent (1%) and seventy-five percent (75%) of such quarterly incentive payment,
respectively, rounded to the nearer whole percent. The Company shall contribute
an amount equal to such percentage of the Eligible Employee's Compensation, cash
bonus or quarterly incentive payment, as the case may be, to the Fund for credit
to the Eligible Employee's Salary Reduction Account provided that such
contributions may be prospectively limited as provided in Section 3.7.
(b) Salary 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 $7,000 (as adjusted in accordance with section 402(g) of the
Code and
18
<PAGE>
regulations thereunder) for any calendar year. To the extent necessary to
satisfy this limitation for any year:
(1) elections under Subsection (a) of this Section
shall be prospectively restricted; and,
(2) after application of Subparagraph (1), the
excess Salary 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 3.7 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 Salary Reduction Contributions plus elective deferrals described above do
not exceed such limitation, but Salary 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 1 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. Not more than twice in any
-------------------------
calendar quarter, a Participant may without penalty change the percentage of
Compensation, cash bonus and/or quarterly incentive payment, as the case may be,
designated by him as his
19
<PAGE>
contribution rate or contribution rates 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 for the next
payroll period that is administratively practicable following receipt of the
change by the Administration Committee.
3.3 Discontinuance of Salary Reduction Contributions. A
------------------------------------------------
Participant may discontinue his elections under Section 2.3 with respect to
reduction of his Compensation, cash bonus and/or quarterly incentive payments,
as the case may be, at any time. Such discontinuance shall become effective as
soon as administratively practicable following receipt of the discontinuance by
the Administration Committee. A Participant who discontinues such election or
elections may resume such reductions of his Compensation, cash bonus and/or
quarterly incentive payments, as the case may be, by filing a written notice of
such resumption with the Administration Committee in accordance with Section
2.3.
3.4 Company Contributions. The Company shall contribute $.25 to
---------------------
the Company Contribution Account of each Eligible Employee for each Hour of
Service credited for which a contribution is required under the Labor Agreement.
This Section 3.4 shall apply to each Eligible Employee, whether or not such
Eligible Employee makes Salary Reduction Contributions.
3.5 Timing and Deductibility of Contributions. All
-----------------------------------------
contributions are expressly conditioned upon their deductibility
20
<PAGE>
for Federal income tax purposes. Amounts contributed as Salary 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, cash bonus or quarterly incentive
payment, as the case may be.
3.6 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 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
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
21
<PAGE>
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.
3.7 Limitation on Salary Reduction Contributions.
--------------------------------------------
(a) For any Plan Year, including Plan Years beginning
before the Effective Date, 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 purposes of this Section, the Salary Reduction
Contributions 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 Salary Reduction Contributions Matching Contributions, respectively of any
Employee who is a spouse or lineal ascendant
22
<PAGE>
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 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 (b) and
the determination of the Actual Deferral 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.
(c) If the Plan and any other plan(s) maintained by 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) and (b) of this Section shall be applied by treating the Plan
and such other plan(s) as a single plan.
(d) 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.
3.8 Prevention of Violation of Limitation on Salary Reduction
---------------------------------------------------------
Contributions. The Administration Committee shall monitor the level of
- -------------
Participants' Salary Reduction Contributions and elective deferrals under any
other qualified retirement plan maintained by the Company or any Affiliated
Company to insure
23
<PAGE>
against exceeding the limits of Section 3.7. To the extent practicable, the
Administration Committee may prospectively limit (i) some or all of the Highly
Compensated Eligible Employees' Salary 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 3.7. If the
Administration Committee determines after the end of the Plan Year that the
limits of Section 3.7 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 3.7 .
(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 3.7(a) 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 Salary
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)
24
<PAGE>
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.
(3) Not later than the end of the Plan Year following
the close of the Plan Year for which the Salary 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 shall coordinate corrective actions under this Plan and such other
plan for the year.
(b) If the Plan and any other plan maintained by the
Company or an Affiliated Company are treated as a single plan pursuant to
Subsection (c) of Section 3.7, the Administration Committee shall coordinate
corrective actions under the Plan and such other plan for the year.
25
<PAGE>
3.9 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) Salary 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 3.8 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 415(c)(1)(A) of the
26
<PAGE>
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
Salary Reduction Contributions that may be made with respect to the 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 Salary Reduction
Contributions, and shall distribute such amount and earnings thereon to the
Participant as soon as is administratively feasible.
(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.
27
<PAGE>
(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:
(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
28
<PAGE>
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:
(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.
29
<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 10.4. 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 and Article VI.
4.2 Valuation. The value of each Investment Medium in the Fund
---------
shall be computed by the Trustee as of the close of business on each Valuation
Date on the basis of the fair 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 in the Fund, and such amount shall be ratably
apportioned by the Trustee on its books, among
30
<PAGE>
the 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.
31
<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 VII 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 interest in 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 nonforfeitable 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.
32
<PAGE>
(b) Total Disability shall be determined by the Administration
Committee, which may consult with a medical examiner selected by it. The
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 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. Notwithstanding the
above, the Participants' Account shall be reduced by the amount necessary to
repay any outstanding loan from the Plan and interest thereon to the date the
Committee declares such loan satisfied, unless such loan is repaid as provided
in Section 8.3(d).
5.6 Timing of Distribution.
----------------------
(a) Any Participant who is entitled to his Account under
Section 5.2 or Section 5.4 shall be entitled to receive his interest in his
Account, pursuant to the following rules:
33
<PAGE>
(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 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
34
<PAGE>
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 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. In the event the Participant defaults on an outstanding loan
such that the unpaid balance becomes due and payable pursuant to Article VIII
and the Participant fails to repay the loan in accordance with Section 8.3(e),
that portion of the Participant's Account pledged as security for the loan
shall be applied to repay the loan and shall be deemed distributed to the
Participant within 60 days of the default; in which case, the Participant may
defer commencement of the balance of his Account as described above.
(b) If a Participant dies before his entire interest in his
Account has been paid to him, his remaining interest shall be distributed to
his beneficiary commencing as soon as practicable following the Participant's
death; provided, however, that, if the Participant's death occurs prior to his
Required Beginning Date, an individual beneficiary may elect to defer his
Benefit Commencement Date, but not beyond December 31 of the calendar year
containing the fifth anniversary of the
35
<PAGE>
Participant's death, unless the beneficiary is the Participant's spouse, in
which case not beyond December 31 of the later of (1) the calendar year
containing the fifth anniversary of the Participant's death, or (2) the
calendar year in which the Participant would have attained Age 70-1/2.
(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 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
36
<PAGE>
60th day after the close of the Plan Year in which his Separation from Service
occurs.
(c) Benefits payable under Section 5.3 upon the death of a
Participant shall be distributed in a single sum payment.
Notwithstanding the foregoing, in the event that the Participant's death
constitutes a default on an outstanding loan such that the unpaid balance
becomes due and payable pursuant to Article VIII and the beneficiary fails to
repay the loan in accordance with Section 8.3(e), that portion of the
Participant's Account pledged as security for the loan shall be applied to
repay the loan and shall be deemed distributed to the beneficiary within 60
days of the default; in which case, the beneficiary may elect to receive the
balance of the Participant's Account in accordance with this Subsection.
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
37
<PAGE>
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.
(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;
38
<PAGE>
(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 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
39
<PAGE>
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 a Participant entitled to receive a distribution from
the Plan, either pursuant to this Article or pursuant to Article VII, or 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 the Administration Committee to have the Trustee transfer all or a
portion (not less than $500) of 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) of the Code the terms of which permit the
acceptance of rollover contributions, or
(4) an annuity plan described in section 403(a), all or a
portion (not less than $500) of 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
40
<PAGE>
Committee to have the Trustee transfer all or a portion (not less than $500) of
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), all or a portion (not
less than $500) of the amount to be distributed shall be so transferred.
(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.
41
<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 Covered Employee within 60
days after the Covered Employee receives a distribution from such other
qualified retirement plan or individual retirement account and must comply
with the provisions
42
<PAGE>
of section 402(a)(5), 403(a)(4), or 408(d)(3) of the Code, whichever applies;
(2) distributions from a plan for a self-employed person
shall not be transferred to the 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 this 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 (C) 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 contain
nondeductible contributions made to the distributing plan by the Covered
Employee unless the transfer to the Fund is directly from the funding agent of
the distributing plan.
6.2 Vesting and Distribution of Rollover Account.
--------------------------------------------
(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 Covered Employee's Rollover Account. A
Participant shall be fully vested at all times in his Rollover Account.
43
<PAGE>
(b) A Participant's Rollover Account shall be distributed as
otherwise provided under the Plan.
44
<PAGE>
ARTICLE VII
WITHDRAWALS
-----------
7.1 Withdrawals Subject to Hardship Restrictions.
--------------------------------------------
(a) A Participant who has not reached Age 59-1/2 may withdraw,
under the rules set forth in Subsections (b) through (e) of this Section (1)
his Company Contribution Account and (2) the sum of his Salary Reduction
Contributions (exclusive of earnings credited thereto).
(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.
(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;
45
<PAGE>
(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) 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, provided further that the Participant must exhaust
his
46
<PAGE>
Company Contribution Account before withdrawing his Salary Reduction
Contributions; and
(3) the Participant agrees in writing to be bound by the
rules of Subsection (e).
(e) If a Participant withdraws any amount from his Salary
Reduction 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 Salary Reduction Contributions under
this Plan or employee contributions (other than mandatory contributions under
a defined benefit plan) or 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 Salary Reduction Contributions or elective
deferrals under any other qualified retirement plan maintained by the Company
or an Affiliated Company in excess of:
47
<PAGE>
(A) the dollar amount described in Subsection (b) of
Section 3.1 for such year, minus
(B) the total Salary Reduction Contributions under
this Plan and elective deferrals under any other qualified plan made by the
Participant during the calendar year of the withdrawal.
7.2 Other Withdrawals. A Participant may withdraw his Rollover
-----------------
Contribution Account pursuant to uniform and nondiscriminatory procedures
established by the Administration Committee.
7.3 Withdrawals On and After Attainment of Age 59-1/2. Upon and
-------------------------------------------------
after his attainment of Age 59-1/2, a Participant may withdraw up to the total
value in his Rollover Account, Company Contribution Account and Salary Reduction
Account, less amounts previously withdrawn therefrom, by submitting his written
request to the Administration Committee. Amounts shall be debited from Accounts
in that order.
7.4 Amount and Payment of Withdrawals. The amount of any
---------------------------------
withdrawal will be determined on the basis of the value of the Participant's
Account and the sum of the Participant's Salary Reduction Contributions 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 Article.
48
<PAGE>
7.5 Withdrawals Not Subject to Replacement. A Participant may not
--------------------------------------
replace any portion of his Accounts withdrawn under this Plan.
7.6 Pledged Amounts. No amount that has been pledged as
---------------
security for a loan under Article VIII may be withdrawn under this Article.
7.7 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.
49
<PAGE>
ARTICLE VIII
LOANS TO PARTICIPANTS
---------------------
8.1 Loan Application. Each Participant who is an Employee of
----------------
the Company may apply for a loan from the Plan. All applications shall be made
to the Administration Committee on forms which it prescribes, and the
Administration Committee shall rule upon such applications in a uniform and
nondiscriminatory manner in accordance with the rules and guidelines established
in this Article.
8.2 Amount of Loan.
--------------
(a) In no event shall a Participant be permitted to have
more than two loans outstanding at any time from this Plan. The minimum amount
of any loan shall be $500.
(b) The amount of any loan, when added to the amount of a
Participant's outstanding loans under the Plan and all other plans qualified
under section 401(a) of the Code which are sponsored by the Company or any
Affiliated Company shall not exceed the lesser of:
(1) $5,000; or
(2) fifty percent (50%) of the value of the Participant's
nonforfeitable Account.
8.3 Terms of Loan.
-------------
(a) The interest rate on loans shall be: (1) determined
by the Administration Committee, (2) at least commensurate with rates charged
for similar loans by entities in
50
<PAGE>
the business of making loans, and (3) adjusted from time to time as
circumstances warrant. Security for each loan granted pursuant to this Article
shall be, to the extent necessary, the currently unpledged portion of the
Participant's Account. In no event shall more than fifty percent (50%) of the
Participant's Account as of the date the loan is made be used as security for
the loan. In its sole discretion, the Administration Committee may require such
additional security as it deems necessary.
(b) Each loan shall be evidenced by the Participant's
execution of a personal installment note on such form as shall be supplied by
the Administration Committee. Each such note shall specify that, to the extent
repayment is not required sooner by the terms of Subsection (d) of this Section
repayment shall be included in installments over not more than 60 months from
the date on which the loan is distributed. All loans from the Plan shall be
non-renewable. Each note shall also specify the interest rate as determined by
the Administration Committee at the time the loan is approved.
(c) All loans shall be repaid in approximately equal
installments (not less frequently than quarterly) through payroll deductions
or in such other manner as the Administration Committee may determine. A
Participant may repay the outstanding balance of any loan in one lump sum at
any time by notifying the Administration Committee of his intent to do so and
by forwarding to the Administration Committee payment in full of the then
outstanding balance, plus interest accrued to the date of
51
<PAGE>
payment. The amount of principal and interest repaid by a Participant shall be
credited to a Participant's Account as each repayment is made.
(d) If, and only if:
(1) the Participant dies;
(2) the loan is not repaid by the time the note matures;
(3) the Participant fails to pay any installment of the loan
when due and the Administration Committee elects to treat such failure as
default; or
(4) the outstanding balance of the loan, plus interest accrued
to the date of determination, exceeds 100% of the total value of the
Participant's Account pledged as security for the loan, determined as of the
Valuation Date coincident with or next preceding the date of determination;
before a loan is repaid in full, the unpaid balance thereof, with interest due
thereon, shall become immediately due and payable. The Participant (or his
beneficiary, in the event of the Participant's death) may satisfy the loan by
paying the outstanding balance of the loan within 30 days. If the loan and
interest are not repaid within the time specified, the Administration
Committee shall satisfy the indebtedness from the amount of the Participant's
interest in his Account as provided in Section 8.4 before making any payments
otherwise due hereunder to the Participant or his beneficiary.
52
<PAGE>
8.4 Enforcement. The Administration Committee shall give written
-----------
notice to the Participant (or his beneficiary in the event of the Participant's
death) of an event of default described in Subsection (d) of Section 8.3. If
the loan and interest are not paid within thirty (30) days of the date of the
notice, the Participant's Account shall be used to reduce the Participant's
indebtedness at such time as the Participant is entitled to a distribution under
Article V or a withdrawal under Article VII. Such action shall not operate as a
waiver of the rights of the Company, the Administration Committee, the Finance
Committee, the Trustee, or the Plan under applicable law. The Administration
Committee also shall be entitled to take any and all other actions necessary and
appropriate to foreclose upon any property other than the Participant's Account
pledged as security for the loan or to otherwise enforce collection of the
outstanding balance of the loan.
8.5 Additional Rules. The Administration Committee may establish
----------------
additional rules relating to Participant loans under the Plan, which rules shall
be applied on a uniform and non-discriminatory basis.
53
<PAGE>
ARTICLE IX
ADMINISTRATION
--------------
9.1 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.
9.2 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.
9.3 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 11.1.
9.4 Responsibilities of the Finance Committee. Except as provided
-----------------------------------------
in Article IV, the Trustee shall have responsibility
54
<PAGE>
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 or the
Finance Committee 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 Committee shall determine what contracts should be made available to
terminated Participants or purchased by the Trust.
55
<PAGE>
9.5 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.
9.6 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. 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 rights or benefits under the Plan. The members
of each of said Committees shall not receive any special compensation for
serving in their
56
<PAGE>
capacities as members of said 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 either of said
Committees 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.
9.7 Committee Meetings. The Board of Directors shall designate
------------------
the chairman of the Administration Committee and the chairman of the Finance
Committee. Each of said Committees 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 each of said Committees shall constitute a quorum for
the transaction of business at a meeting of said Committees. Any action of
either of said Committees may be taken upon the affirmative vote of a majority
of the members of said Committees at a meeting or, at the direction of its
chairman, without a meeting by mail, telegraph or telephone, provided that all
of the members of each of said Committees are informed by mail or telegraph of
their right to vote on the proposal and of the outcome of the vote thereon.
57
<PAGE>
9.8 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.
9.9 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.
9.10 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;
(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
58
<PAGE>
(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 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.
59
<PAGE>
9.11 Indemnification. Each member of the Administration Committee
---------------
and each member of 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.
60
<PAGE>
ARTICLE X
THE FUND
--------
10.1 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 Company shall have the power to amend the Trust
Agreement, and the Finance Committee, with the written approval of the Board of
Directors 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.
10.2 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.
10.3 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.
10.4 Investments.
-----------
(a) Except as provided in Subsection (e) of this Section, the Trustee
shall invest Salary Reduction Contributions and Rollover Contributions paid to
it and income thereon in such
61
<PAGE>
Investment Media as each Participant may select in accordance 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 the
Company. 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,
62
<PAGE>
effective as of such dates determined by the Administration Committee. Such
amendments will be subject to the other requirements of this Section.
(c) A 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.
63
<PAGE>
ARTICLE XI
AMENDMENT OR TERMINATION OF THE PLAN
------------------------------------
11.1 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 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.
11.2 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
his Account if the Plan had been terminated on the day before
64
<PAGE>
such merger, consolidation, or transfer. No amounts shall be transferred to
this Plan which would cause the Plan to be a direct or indirect transferee of a
plan to which the joint and survivor annuity and pre-retirement survivor annuity
requirements of sections 401(a)(11) and 417 of the Code apply.
65
<PAGE>
ARTICLE XII
TOP-HEAVY PROVISIONS
--------------------
12.1 General. Pursuant to Treasury Regulation (S) 1.416-1, T-3, the
-------
top-heavy rules of section 416 of the Code shall not apply to this Plan.
66
<PAGE>
ARTICLE XIII
GENERAL PROVISIONS
------------------
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 Spendthrift Clause. No benefit payable at any time under this Plan
------------------
and no interest or expectancy herein shall
67
<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.
13.6 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 and the Fund.
13.7 Withholding. The Administration Committee and 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.
68
<PAGE>
13.8 Missing Persons. Neither the Trustee nor the Company 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 Company is satisfied that a Participant has no
spouse or that a Participant's spouse cannot be located (as described in Section
5.8) 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.
13.9 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.
69
<PAGE>
ARTICLE XIV
RIGHTS OF ALTERNATE PAYEES
--------------------------
14.1 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 9.10. 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.
14.2 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 Alternate Payee immediately in a lump sum.
70
<PAGE>
(b) 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.
14.3 Withdrawals. Unless a Qualified Domestic Relations Order
-----------
provides to the contrary, an Alternate Payee shall not be permitted to make any
withdrawals under Article VII. Notwithstanding the foregoing, an Alternate
Payee shall in no event have the right to make withdrawals under Section 7.1,
and any Qualified Domestic Relations Order which purports to give an Alternate
Payee such a right shall be invalid and unenforceable to that extent.
14.4 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 5.8 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 the Alternate Payee which have not been distributed shall be
paid to the Alternate Payee's estate.
71
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Executed this ____ day of _________________, 19__.
LUKENS INC.
[SEAL] By:
---------------------------
Attest: Title:
------------------------ ------------------------
Secretary
72
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[LETTERHEAD OF LUKENS INC. APPEARS HERE]
EXHIBIT 5(1)
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
(Washington, PA) (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 OF 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 (Washington,
PA) (the "Plan") and 15,000 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>
[LETTERHEAD OF ARTHUR ANDERSEN & CO. APPEARS HERE]
EXHIBIT 23(3)
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
