Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
THE MANITOWOC COMPANY, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0448110
(State or other jurisdiction (I.R.S. Employer of
incorporation or organization) Identification No.)
500 South 16th Street
Manitowoc, Wisconsin 54220
(Address of principal executive offices) (Zip Code)
The Manitowoc Company, Inc. RSVP Profit Sharing Plan
(Full title of the plan)
Robert R. Friedl Copy to:
Vice President and
Chief Financial Officer Harvey A. Kurtz
The Manitowoc Company, Inc. Foley & Lardner
500 South 16th Street 777 East Wisconsin Avenue
Manitowoc, Wisconsin 54220 Milwaukee, Wisconsin 53202
(414) 684-4410
(Name, address and telephone number,
including area code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Offering Registration
Registered Registered Per Share Price Fee
Common Stock, 150,000
$.01 par value shares $31.50(1) $4,725,000(1) $1,630
Common Stock 150,000
Purchase Rights rights (2) (2) (2)
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for The Manitowoc
Company, Inc. Common Stock as reported on the New York Stock
Exchange on September 6, 1996.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by The
Manitowoc Company, Inc. (the "Company") or The Manitowoc Company, Inc.
RSVP Profit Sharing Plan (the "Plan") with the Commission and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, which includes certified financial statements as of and
for the year ended December 31, 1995.
2. The Plan's Annual Report on Form 11-K for the year ended
December 31, 1995.
3. All other reports filed by the Company or the Plan pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1995.
4. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, and any
amendment or report filed for the purpose of updating such description.
5. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A, and any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his duties to
the Company and such breach or failure constituted: (a) a willful failure
to deal fairly with the Company or its shareholders in connection with a
matter in which the director or officer had a material conflict of
interest; (b) a violation of the criminal law unless the director or
officer had reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe his or her conduct was unlawful; (c) a
transaction from which the director or officer derived an improper
personal profit; or (d) willful misconduct. It should be noted that the
Wisconsin Business Corporation Law specifically states that it is the
public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
The Company has entered into Indemnity Agreements with each of
the members of the Company's Board of Directors and each executive officer
of the Company. Pursuant to such Indemnity Agreements, the Company is
required to indemnify each such person to the fullest extent permitted or
required by the Wisconsin Business Corporation Law against any liability
incurred by such person in any proceeding in which such person is a party
because he is a director or executive officer of the Company.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) The Manitowoc Company, Inc. RSVP Profit Sharing
Plan, as amended
(4.2) The Manitowoc Company Employees' Profit Sharing
Trust (incorporated by reference to Exhibit 4.2 to
the Company's Registration Statement on Form S-8
filed June 23, 1992 (Registration No. 33-48665))
(4.3) Rights Agreement, dated as of September 5, 1986, as
amended as of August 12, 1988, between The
Manitowoc Company, Inc. and Morgan Shareholder
Services Trust Company (incorporated by reference
to Exhibit 4 to The Manitowoc Company, Inc.'s
Annual Report on Form 10-K for the fiscal year
ended June 28, 1986, and The Manitowoc Company,
Inc.'s Current Report on Form 8-K dated August 26,
1988)
(5) Opinion of Foley & Lardner
(23.1) Consents of Coopers & Lybrand L.L.P.
(23.2) Consent of Arthur Andersen LLP
(23.3) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
The undersigned Registrant has submitted the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made all changes required by the IRS in order to qualify
the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
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 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.
(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 herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, 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.
<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 Manitowoc, and
State of Wisconsin, on this 9th day of September, 1996.
THE MANITOWOC COMPANY, INC.
By: /s/ Fred M. Butler
Fred M. Butler
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints Fred M. Butler and Robert R.
Friedl, and each of them individually, his true and lawful attorney-in-
fact and agent, with full power of substitution and revocation, for him
and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith,
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 either of them, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ Fred M. Butler Chief Executive Officer September 9, 1996
Fred M. Butler and Director (Principal
Executive Officer)
/s/ Robert R. Friedl Vice President and Chief September 9, 1996
Robert R. Friedl Financial Officer (Chief
Financial Officer and
Principal Accounting
Officer)
/s/ Dean H. Anderson Director September 9, 1996
Dean H. Anderson
/s/ James P. McCann Director September 9, 1996
James P. McCann
/s/ George T. McCoy Director September 9, 1996
George T. McCoy
/s/ Guido R. Rahr, Jr. Director September 9, 1996
Guido R. Rahr, Jr.
/s/ Gilbert F. Rankin, Director September 9, 1996
Jr.
Gilbert F. Rankin, Jr.
Director
Robert K. Silva
/s/ Robert S. Throop Director September 9, 1996
Robert S. Throop
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Administrative Committee, which administers the Plan, has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Manitowoc, and
State of Wisconsin, on this 9th day of September, 1996.
THE MANITOWOC COMPANY, INC.
RSVP PROFIT SHARING PLAN
/s/ Fred M. Butler
Fred M. Butler
/s/ Robert R. Friedl
Robert R. Friedl
/s/ Philip D. Keener
Philip D. Keener
Robert K. Silva
The foregoing persons are all of the
members of the Plan's Administrative
Committee which is the administrator of
the Plan.
<PAGE>
EXHIBIT INDEX
THE MANITOWOC COMPANY, INC. RSVP PROFIT SHARING PLAN
Exhibit No. Exhibit
(4.1) The Manitowoc Company, Inc. RSVP Profit Sharing
Plan, as amended
(4.2) The Manitowoc Company Employees' Profit-
Sharing Trust (incorporated by reference to
Exhibit 4.2 to the Company's Registration
Statement on Form S-8 filed June 23, 1992
(Registration No. 33-48665))
(4.3) Rights Agreement dated as of September 5, 1986,
as amended as of August 12, 1988, between The
Manitowoc Company, Inc. and Morgan Shareholder
Services Trust Company (incorporated by
reference to Exhibit 4 to The Manitowoc
Company, Inc.'s Annual Report on Form 10-K for
the fiscal year ended June 28, 1986, and The
Manitowoc Company, Inc.'s Current Report on
Form 8-K dated August 26, 1988)
(5) Opinion of Foley & Lardner
(23.1) Consents of Coopers & Lybrand L.L.P.
(23.2) Consent of Arthur Andersen LLP
(23.3) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
Exhibit 4.1
THE MANITOWOC COMPANY, INC.
RSVP PROFIT SHARING PLAN
(As Restated Effective July 3, 1988,
And As Amended Through December 31, 1994)
(Includes Amendments to February 26, 1996)
<PAGE>
THE MANITOWOC COMPANY, INC.
RSVP PROFIT SHARING PLAN
(As Amended Through December 31, 1994)
(Includes Amendments to February 26, 1996)
Table of Contents
Page
SECTION 1. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Name of Plan . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Purpose . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3 Plan History . . . . . . . . . . . . . . . . . . . 1
Section 1.4 Effective Date . . . . . . . . . . . . . . . . . . 2
Section 1.5 Participating Company . . . . . . . . . . . . . . . 2
Section 1.6 Construction and Applicable Law . . . . . . . . . . 4
Section 1.7 Severability . . . . . . . . . . . . . . . . . . . 4
Section 1.8 Account Balances Accrued Before July 3, 1988 . . . 4
Section 1.9 Participation of Manitowoc Acquisition, Inc.
d/b/a Femco Machine Company . . . . . . . . . . . . 4
SECTION 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Affiliated Company . . . . . . . . . . . . . . . . 6
Section 2.2 Base Contribution Percentage . . . . . . . . . . . 6
Section 2.3 Beneficiary . . . . . . . . . . . . . . . . . . . . 6
Section 2.4 Board of Directors . . . . . . . . . . . . . . . . 6
Section 2.5 Cash Option Account . . . . . . . . . . . . . . . . 6
Section 2.6 Committee . . . . . . . . . . . . . . . . . . . . . 6
Section 2.7 Company . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.8 Company Matching Account . . . . . . . . . . . . . 6
Section 2.9 Disability Retirement . . . . . . . . . . . . . . . 7
Section 2.10 Eligible Compensation . . . . . . . . . . . . . . 7
Section 2.11 Eligible Employee . . . . . . . . . . . . . . . . 7
Section 2.12 ERISA . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.13 Hours of Service . . . . . . . . . . . . . . . . . 8
Section 2.14 Integration Level . . . . . . . . . . . . . . . . 10
Section 2.15 Internal Revenue Code . . . . . . . . . . . . . . 11
Section 2.16 Leave of Absence . . . . . . . . . . . . . . . . . 11
Section 2.17 Manitowoc Stock; Manitowoc Stock Fund . . . . . . 11
Section 2.18 Normal Retirement . . . . . . . . . . . . . . . . 11
Section 2.19 Normal Retirement Age . . . . . . . . . . . . . . 11
Section 2.20 Participant . . . . . . . . . . . . . . . . . . . 11
Section 2.21 Participating Company . . . . . . . . . . . . . . 11
Section 2.22 Plan Year . . . . . . . . . . . . . . . . . . . . 11
Section 2.23 Profit Center . . . . . . . . . . . . . . . . . . 12
Section 2.24 Profit Sharing Account . . . . . . . . . . . . . . 12
Section 2.25 Profit Sharing Account--Fixed . . . . . . . . . . 12
Section 2.26 Profit Sharing Account--Variable . . . . . . . . . 12
Section 2.27 Qualified Domestic Relations Order . . . . . . . . 12
Section 2.28 Qualified Joint and Survivor Annuity . . . . . . . 12
Section 2.29 Qualified Preretirement Survivor Annuity . . . . . 12
Section 2.30 RSVP Account . . . . . . . . . . . . . . . . . . . 13
Section 2.31 Rollover Contribution Account . . . . . . . . . . 13
Section 2.32 Termination of Employment . . . . . . . . . . . . 13
Section 2.33 Trustee, Trust Agreement, Trust Fund . . . . . . . 13
Section 2.34 Valuation Date . . . . . . . . . . . . . . . . . . 13
Section 2.35 Vested Balance; Nonvested Balance . . . . . . . . 13
Section 2.36 Vesting Service . . . . . . . . . . . . . . . . . 14
SECTION 3. PLAN PARTICIPATION . . . . . . . . . . . . . . . . . . . 15
Section 3.1 Commencement of Participation . . . . . . . . . . . 15
Section 3.2 Transfers to/from Eligible Employee Status . . . . 15
Section 3.3 Rehire After Termination of Employment . . . . . . 15
Section 3.4 Election to Become a Contributing Participant . . . 16
Section 3.5 No Guaranty of Employment . . . . . . . . . . . . . 16
Section 3.6 Participation Prior to July 3, 1988 . . . . . . . . 17
Section 3.7 Leased Employees . . . . . . . . . . . . . . . . . 17
SECTION 4. EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . . 18
Section 4.1 Employee Contributions . . . . . . . . . . . . . . 18
Section 4.2 Rollover Contributions . . . . . . . . . . . . . . 18
SECTION 5. CASH OPTION PROGRAM, COMPANY CONTRIBUTIONS
AND FORFEITURES . . . . . . . . . . . . . . . . . . . . . 19
Section 5.1 Elective Deferrals . . . . . . . . . . . . . . . . 19
Section 5.2 Contribution Election Procedures . . . . . . . . . 21
Section 5.3 Participating Company Matching Contributions . . . 22
Section 5.4 Participating Company Variable Profit Sharing
Contributions . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.5 Participating Company Fixed Profit Sharing
Contributions . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.6 Timing of Contributions . . . . . . . . . . . . . . 24
Section 5.7 Employees Entitled to Share . . . . . . . . . . . . 24
Section 5.8 Allocation Formula for Variable Profit Sharing
Contributions . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.9 Allocation of Forfeitures . . . . . . . . . . . . . 25
Section 5.10 Maximum Additions . . . . . . . . . . . . . . . . 26
Section 5.11 Contributions for Omitted Participants . . . . . . 26
Section 5.12 Securities Law Compliance . . . . . . . . . . . . 26
SECTION 6. INVESTMENT ELECTIONS AND
VALUATION OF ACCOUNTS . . . . . . . . . . . . . . . . . . 28
Section 6.1 Investment Elections . . . . . . . . . . . . . . . 28
Section 6.2 Account Adjustments to Reflect Net Worth of the
Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.3 Net Worth . . . . . . . . . . . . . . . . . . . . . 29
Section 6.4 Certain Segregated Accounts . . . . . . . . . . . . 29
Section 6.5 Responsibility to Maintain Account Balances . . . . 30
Section 6.6 Voting and Tender Rights as to Manitowoc Stock . . 30
SECTION 7. DISTRIBUTION OF BENEFITS AND VESTING . . . . . . . . . . 32
Section 7.1 Retirement, Disability and Death Benefits . . . . . 32
Section 7.2 Vested Benefits . . . . . . . . . . . . . . . . . . 32
Section 7.3 Forfeitures . . . . . . . . . . . . . . . . . . . . 34
Section 7.4 When Distribution of Accounts Shall Commence . . . 35
Section 7.5 How Accounts are to be Distributed . . . . . . . . 36
Section 7.6 Required Distribution Rules . . . . . . . . . . . . 38
Section 7.7 Distributions of Manitowoc Stock . . . . . . . . . 41
Section 7.8 Election to Waive Survivor Benefits . . . . . . . . 41
Section 7.9 Nonalienation of Benefits . . . . . . . . . . . . . 42
Section 7.10 Procedures on Receipt of a Domestic Relations
Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.11 Payment of Taxes . . . . . . . . . . . . . . . . . 43
Section 7.12 Incompetent Payee . . . . . . . . . . . . . . . . 43
Section 7.13 Notice, Place and Manner of Payment . . . . . . . 44
Section 7.14 Source of Benefits . . . . . . . . . . . . . . . . 44
Section 7.15 Hardship Withdrawals . . . . . . . . . . . . . . . 44
Section 7.16 Voluntary Withdrawals . . . . . . . . . . . . . . 47
Section 7.17. Loans to Participants . . . . . . . . . . . . . . 47
Section 7.18. Direct Transfer of Eligible Rollover
Distributions . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8. PLAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . 51
Section 8.1 The Administrative Committee . . . . . . . . . . . 51
Section 8.2 Agent for Legal Process . . . . . . . . . . . . . . 53
Section 8.3 Beneficiary Designations . . . . . . . . . . . . . 53
Section 8.4 Claims Procedures . . . . . . . . . . . . . . . . . 54
Section 8.5 Records . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.6 Correction of Errors . . . . . . . . . . . . . . . 55
Section 8.7 Evidence . . . . . . . . . . . . . . . . . . . . . 55
Section 8.8 Bonding . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.9 Waiver of Notice . . . . . . . . . . . . . . . . . 56
SECTION 9. TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.1 Composition . . . . . . . . . . . . . . . . . . . . 57
Section 9.2 The Trust Agreement . . . . . . . . . . . . . . . . 57
Section 9.3 Compensation, Reimbursement . . . . . . . . . . . . 57
Section 9.4 No Diversion . . . . . . . . . . . . . . . . . . . 57
SECTION 10. MAXIMUM ADDITIONS TO PARTICIPANT ACCOUNTS . . . . . . . 59
Section 10.1 Maximum Limitations on Annual Additions . . . . . 59
Section 10.2 Compensation . . . . . . . . . . . . . . . . . . . 60
Section 10.3 Adjustments of Dollar Limitations . . . . . . . . 60
Section 10.4 Aggregation of Plans . . . . . . . . . . . . . . . 61
Section 10.5. Change in Limitation Year . . . . . . . . . . . . 61
SECTION 11. SPECIAL RULES FOR TOP-HEAVY PLANS . . . . . . . . . . . 62
Section 11.1 Top-Heavy Restrictions . . . . . . . . . . . . . . 62
Section 11.2 Minimum Top-Heavy Benefits . . . . . . . . . . . . 63
Section 11.3 Combined Plan Limitations . . . . . . . . . . . . 63
Section 11.4 Top-Heavy Vesting Requirements . . . . . . . . . . 63
SECTION 12. ADOPTION, AMENDMENT, TERMINATION AND MERGER . . . . . . 65
Section 12.1 Adoption of Plan by Additional Company . . . . . . 65
Section 12.2 Amendment . . . . . . . . . . . . . . . . . . . . 65
Section 12.3 Reorganizations of Participating Companies . . . . 66
Section 12.4 Termination . . . . . . . . . . . . . . . . . . . 66
Section 12.5 Discontinuance of Contributions . . . . . . . . . 66
Section 12.6 Rights Upon Termination, Partial
Termination and Discontinuance of Contributions . . . 66
Section 12.7 Deferral of Distributions . . . . . . . . . . . . 67
Section 12.8 Merger, Consolidation or Transfer of Plan Assets . 67
SECTION 13. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES . . . . . 68
Section 13.1 Fiduciaries . . . . . . . . . . . . . . . . . . . 68
Section 13.2 Allocation of Fiduciary Responsibilities . . . . . 68
Section 13.3 General Limitation on Liability . . . . . . . . . 68
Section 13.4 Multiple Fiduciary Capacities . . . . . . . . . . 68
Section 13.5 Responsibility of Insurance Companies . . . . . . 68
SECTION 1. GENERAL
Section 1.1 Name of Plan. The name of the Plan is The
Manitowoc Company, Inc. RSVP Profit Sharing Plan. It is sometimes
referred to herein as the "Plan." Prior to July 3, 1988, the "Plan" shall
also mean, as in effect from time to time for its covered employees, The
Manitowoc Company, Inc. Salaried Employees' Deferred Profit-Sharing Plan,
The Manitowoc Company, Inc. Hourly Paid Employees' Deferred Profit-Sharing
Plan, The Manitowoc Equipment Works Salaried Employees' Deferred
Profit-Sharing Plan, The Manitowoc Engineering Co. Salaried Employees'
Deferred Profit-Sharing Plan, The Bay Shipbuilding Corp. Salaried
Employees' Deferred Profit-Sharing Plan, The Manitowoc Shipbuilding Co.
Salaried Employees' Deferred Profit-Sharing Plan, The Manitex, Inc.
Salaried Employees' Deferred Profit-Sharing Plan, The Manitex, Inc.
Hourly-Paid Employees' Deferred Profit-Sharing Plan, The North Central
Crane & Excavator Sales Corp. Non-Union Employees' Deferred Profit-Sharing
Plan, The Manitowoc-Forsythe Corp. Non-Union Employees' Deferred
Profit-Sharing Plan, and The Manitowoc Crane Sales Organizations Non-Union
Deferred Profit-Sharing Plan.
Section 1.2 Purpose. The Plan has been established to provide
eligible employees with a deferred profit sharing plan and a money
purchase pension retirement savings plan, in order to provide employees
with a source of retirement income in addition to other sources of
retirement income available to them. The separate programs under the Plan
are generally referred to as the Profit Sharing program and the RSVP
program.
Section 1.3 Plan History. The Manitowoc Company, Inc. Salaried
Employees' Deferred Profit-Sharing Plan was adopted on May 2, 1960. It
was amended and restated effective as of July 1, 1984.
The Manitowoc Company, Inc. Hourly-Paid Employees' Deferred
Profit-Sharing Plan was adopted, under a different name, on November 3,
1969, and on March 19, 1973, the name of the plan was changed to The
Manitowoc Company, Inc. Hourly-Paid Employees' Deferred Profit-Sharing
Plan. It was amended and restated effective July 1, 1984.
The Manitowoc Engineering Co. Salaried Employees' Deferred
Profit-Sharing Plan was adopted on June 29, 1956. It was amended and
restated effective as of July 1, 1984.
The Manitowoc Equipment Works Salaried Employees' Deferred
Profit-Sharing Plan was adopted on May 2, 1960. It was amended and
restated effective as of July 1, 1984.
The Bay Shipbuilding Corp. Salaried Employees' Deferred
Profit-Sharing Plan was adopted on June 26, 1969. It was amended and
restated effective as of July l, 1984.
The Manitowoc Shipbuilding Co. Salaried Employees' Deferred
Profit-Sharing Plan was adopted on June 24, 1959. It was amended and
restated effective as of July 1, 1984.
The Manitex, Inc. Salaried Employees' Deferred Profit-Sharing
Plan was adopted on June 27, 1986, effective as of June 30, 1985.
The Manitex, Inc. Hourly-Paid Employees' Deferred Profit-Sharing
Plan was adopted on June 27, 1986, effective as of June 30, 1985.
The North Central Crane & Excavator Sales Corp. Non-Union
Employees' Deferred Profit-Sharing Plan was adopted on June 6, 1983. It
was amended and restated effective as of July 1, 1984.
The Manitowoc-Forsythe Corp. Non-Union Employees' Deferred
Profit-Sharing Plan was adopted on June 20, 1980. It was amended and
restated effective as of July 1, 1984.
The Manitowoc Crane Sales Organizations Non-Union Deferred
Profit-Sharing Plan was adopted June 29, 1986.
Effective July 3, 1988, the Plan was substituted for each of the
foregoing separate plans, as an amendment and restatement thereof to
comply with the provisions of the Tax Reform Act of 1986 and other recent
legislation, regulations, interpretations and decisions affecting the
Plan, to enhance retirement benefits and to add an Internal Revenue Code
Section 401(k) feature. Further amendments conforming the Plan to final
regulations and incorporating additional changes have been incorporated in
the restated Plan, as amended through June 28, 1992.
Effective July 3, 1994, the Plan is further amended to adopt a
calendar year Plan Year.
Section 1.4 Effective Date. The effective date of the Plan is
July 3, 1988. The following provisions shall apply retroactively from and
after Plan Years beginning in 1987: Section 3.7, Section 10, Section 11,
and Section 12. The loan provisions of Section 7.17 are effective April
1, 1992. The incentive matching provisions of Section 5.3 and related
addition of the opportunity to invest in Manitowoc Stock are effective
June 28, 1992.
Section 1.5 Participating Company. The following Affiliated
Companies, in addition to the Company, are Participating Companies in this
Plan as of the dates indicated:
Date
Participating Participation
Company Commenced
Bay Shipbuilding Corp. July 3, 1988
Manitex, Inc. July 3, 1988
Manitowoc Re-Manufacturing, Inc. July 3, 1988
The North Central Crane
& Excavator Sales Corp. July 3, 1988
The Manitowoc-Forsythe Corp. July 3, 1988
Manitowoc Southeastern Company, Inc. July 3, 1988
Manitowoc Western Company, Inc. July 3, 1988
Environmental Rehab, Inc. July 3, 1988
The Manitowoc Leasing Company, Inc. July 3, 1988
Manitowoc Mid-Atlantic, Inc. March 1, 1990
Manitowoc Nevada, Inc. April 1, 1992
Manitowoc Equipment Company, Inc. July 4, 1993
Manitowoc MEC, Inc. July 4, 1993
Manitowoc Acquisition, Inc.
d/b/a Femco Machine Company. January 1, 1994
[The participation in the Plan by
Manitowoc Acquisition, Inc. is
governed in its entirety by new Section
1.9 of the Plan.]
West Manitowoc, Inc. July 3, 1994
Section 1.6 Construction and Applicable Law. The Plan is
intended to meet the requirements for tax qualification under the Internal
Revenue Code. The Plan is also intended to be in full compliance with
applicable requirements of the Employee Retirement Income Security Act.
The Plan shall be administered and construed consistent with such intent.
It shall also be construed and administered according to the laws of the
State of Wisconsin to the extent that such laws are not preempted by the
laws of the United States. All words used herein in the singular number
shall extend to and include the plural. All words used in the plural
number shall extend to and include the singular. All words used in any
gender shall extend to and include all genders. The words "hereof,"
"herein," "hereunder," and other similar compounds of "here" shall mean
and refer to this Plan and the separate Trust Agreement and not to any
particular Section. Headings are for convenience of reference, shall not
be considered part of the text of the Plan, and shall not influence its
construction. All references to statutory sections shall include the
section so identified as amended from time to time or any other statute of
similar import.
Section 1.7 Severability. In case any provision of this Plan
shall be held illegal or invalid for any reason, such illegality or
invalidity shall not affect the remaining parts of this Plan which shall
then be construed and enforced as if such illegal or invalid provisions
had never been inserted herein.
Section 1.8 Account Balances Accrued Before July 3, 1988.
Notwithstanding any provisions of the Plan to the contrary, the account
balances, if any, of a Plan Participant accrued prior to July 3, 1988, as
to any predecessor plan, shall be determined as of July 2, 1988, in
accordance with the provisions of such plan prior to its restatement
hereunder. No provisions of the Plan hereunder shall be construed to cause
an adjustment to be made in the amount of any such account balance so
determined as of July 2, 1988.
Section 1.9 Participation of Manitowoc Acquisition, Inc. d/b/a
Femco Machine Company. Effective January 1, 1994, Manitowoc Acquisition,
Inc. d/b/a Femco Machine Company (referred to herein as "Femco"), is a
Participating Company under the Plan subject to the following conditions:
(a) For Eligible Employees transferring employment directly
from Femco Machine Company to Manitowoc Acquisition, Inc. d/b/a Femco
Machine Company, Vesting Service shall include such employees' years of
service recognized for vesting purposes under the Femco Machine Company
and Femco Southeast, Inc. Pension Trust as in effect as of December 31,
1993.
(b) The cash option program under Section 5 of the Plan shall
not be available to Eligible Employees employed by Femco until such date
as shall be determined by the Plan Administrator.
(c) In lieu of the provisions of Section 5.4 of the Plan
concerning variable Profit Sharing Contributions and Section 5.8
concerning the allocation of variable Profit Sharing Contributions on
behalf of Femco Participants, the following rules shall apply:
(1) Femco shall determine the amount of its variable Profit
Sharing Contribution, in its discretion, as of the close of each Plan
Year. It is intended that this contribution will be at the rate of four
percent (4%) of Eligible Compensation per year until the participation of
Femco in the Plan is conformed to that of all other Participating
Companies.
(2) Femco's variable Profit Sharing Contribution shall be
allocated to the Profit Sharing Accounts--Variable of those employees
entitled to share therein in the proportion that the Eligible Compensation
of each employee employed in the Femco Profit Center bears to the
aggregate of the Eligible Compensation of all such employees for the Plan
Year.
(d) Section 5.5 pertaining to Company Fixed Profit Sharing
Contributions shall not apply to Eligible Employees employed by Femco
until such date as shall be determined by the Plan Administrator.
(e) Section 5.9 pertaining to the allocation of forfeitures
shall apply separately to Eligible Employees employed by Femco until such
date as shall be determined by the Plan Administrator.
SECTION 2. DEFINITIONS
Section 2.1 Affiliated Company. "Affiliated Company" means any
member of a controlled group of corporations, group of trades or
businesses under common control, or affiliated service group, (as defined
in Section 414(b), (c), (m), or (o) of the Internal Revenue Code) which
includes a Participating Company.
Section 2.2 Base Contribution Percentage. For each Plan Year,
"Base Contribution Percentage" for a Profit Center means the proportion
that the Profit Sharing Contributions allocated to each Participant in
such Profit Center pursuant to Sections 5.8(b) and 5.8(d) bears to each
such Participant's Eligible Compensation not in excess of the Integration
Level.
Section 2.3 Beneficiary. "Beneficiary" means such person or
entity designated by a Participant, or by the Plan in the absence of
designation by a Participant, as the beneficiary of the Participant's
account balances in the Plan as described in Section 8.3.
Section 2.4 Board of Directors. "Board of Directors" means the
Board of Directors of The Manitowoc Company, Inc., or the appropriate
committee of members of such Board of Directors appointed to serve with
respect to the Plan.
Section 2.5 Cash Option Account. "Cash Option Account" means
the account maintained for each Participant in the RSVP program,
consisting of elective deferrals which a Participant has elected to have
contributed by the Participating Company employing the Participant, on the
Participant's behalf, to the Participant's account, in lieu of receiving
such amount as current compensation, and the net investment earnings on
such account. The Cash Option Account, together with the Company Matching
Account, is an RSVP Account.
Section 2.6 Committee. "Committee" means the Administrative
Committee described in Section 8.1, which is the Plan administrator. If
the Board of Directors does not appoint members of the Committee, then the
Company shall serve as Plan administrator.
Section 2.7 Company. "Company" means The Manitowoc Company,
Inc., a Wisconsin corporation, and any successors and assigns thereto.
Section 2.8 Company Matching Account. "Company Matching
Account" means the matching contributions made by a Participating Company
to the Trust Fund pursuant to Section 5.3, on a Participant's behalf,
together with the net investment earnings on such account. The Company
Matching Account, together with the Cash Option Account, is an RSVP
Account.
Section 2.9 Disability Retirement. "Disability Retirement"
means a Termination of Employment of a Participant by reason of permanent
disability occurring before the Participant is eligible for Normal
Retirement. For all purposes of this Plan, a Participant shall be deemed
"permanently disabled" if the Participant has been found entitled to
Social Security disability benefits. If a Participant has reached age
sixty-five (65), a Participant shall be deemed "permanently disabled" if a
physician, approved by the Committee, states in writing that the
Participant would have been entitled to Social Security disability
benefits if the Participant had been less than sixty-five (65) years of
age.
Section 2.10 Eligible Compensation. "Eligible Compensation"
shall include wages, salary, overtime pay, commissions, cash bonuses or
incentive pay, and amounts subject to both the cash option election
described in Section 5 and any salary reduction election made pursuant to
a cafeteria plan described in Section 125 of the Internal Revenue Code,
without regard to whether such amounts are currently received by the
employee as income or deferred pursuant to an election under this Plan.
Eligible Compensation shall not include reimbursements for expenses or
payments or contributions to or for the benefit of an employee under this
or any other tax-qualified or other deferred compensation, pension,
insurance, or other employee benefit plan, except as provided in the
preceding sentence. For Plan Years beginning after December 31, 1988,
Eligible Compensation shall not exceed two hundred thousand dollars
($200,000) per year, subject to adjustment in accordance with Section
401(a)(17) of the Internal Revenue Code. For Plan Years beginning after
December 31, 1993, Eligible Compensation shall not exceed the maximum
amount permitted by Section 401(a)(17) of the Code. For purposes of
calculating this limit on Eligible Compensation for any five percent (5%)
owner (within the meaning of Code Section 416(i)(l)) or highly compensated
employee who is in the group of ten (10) Eligible Employees paid the
greatest compensation during the year, pursuant to Section 414(q)(6) of
the Internal Revenue Code, the Eligible Compensation of such Eligible
Employee's spouse or lineal descendant under age nineteen (19) before the
end of the Plan Year shall be treated as if paid to the Eligible Employee.
Eligible Compensation does not include compensation received while an
employee is not a Participant; for purposes of applying Sections 401(k)
and 401(m) of the Internal Revenue Code to this Plan, during Plan Years
commencing after December 31, 1988, however, Eligible Compensation
includes all such compensation received by the Employee during the entire
Plan Year.
Section 2.11 Eligible Employee. An "Eligible Employee" is a
salaried or non-union hourly employee of a Participating Company, subject
to the following paragraphs:
(a) Eligibility of employees in a collective bargaining unit or
other labor organization representing a group of employees of the
Participating Company shall be subject to negotiations with the
representative of that unit. During any period that an employee is
covered by the provisions of a collective bargaining agreement between the
Participating Company and such representative, the employee shall not be
considered an Eligible Employee for purposes of this Plan unless such
agreement expressly so provides. For purposes of this Plan only, such an
agreement shall be deemed to continue after its formal expiration during
collective bargaining negotiations pending the execution of a new
agreement.
(b) An employee shall be deemed to be an Eligible Employee
during a period of absence from service which does not result from a
Termination of Employment, provided the employee is an Eligible Employee
at the commencement of such period of absence.
(c) Eligible Employee does not include any temporary employee,
temporary or permanent part-time employee, student employee, or intern.
Each Participating Company shall determine, in its sole discretion,
whether any individual is an Eligible Employee under the Plan.
Section 2.12 ERISA. "ERISA" means the Employee Retirement
Income Security Act of 1974, as interpreted by regulations and rulings
issued pursuant thereto, all as amended and in effect from time to time.
Section 2.13 Hours of Service. "Hours of Service" shall be
aggregated for service with Participating Companies and any Affiliated
Company, and shall be determined in accordance with the following
paragraphs:
(a) An Hour of Service means each hour for which an employee is
directly paid or indirectly paid (for example, from a trust fund or
insurer) by the Participating Company or an Affiliated Company, or
entitled to payment by such Company, including any such hours accrued
after an employee's Termination of Employment. Notwithstanding the
preceding sentence:
(1) No more than five hundred one (501) Hours of
Service shall be credited for any single
continuous period during which an employee
performs no duties;
(2) No Hours of Service shall be credited for
payments made or due to an employee under a plan
maintained solely for the purpose of complying
with applicable workmen's compensation, or
unemployment compensation or disability insurance
laws; and
(3) Hours of Service shall not be credited for
payments which solely reimburse an employee for
medical or medically related expenses incurred by
the employee.
Hours of Service credited for the performance of duties shall be credited
to the computation period in which such duties are performed. Hours of
Service not credited for the performance of duties shall be credited to
the computation period or periods in which the period during which no
duties are performed occurs, beginning with the first unit of time (such
as a day or week) to which the payment relates. However, if the period
during which no duties are performed extends beyond one computation period
and the Payment is not calculated on the basis of time, such Hours of
Service shall be allocated between the first two computation periods on a
reasonable basis consistently applied.
(b) An Hour of Service shall also mean each hour for which back
pay, irrespective of mitigation of damages, is either awarded or agreed to
by the Participating Company or Affiliated Company, provided that Hours of
Service credited under the preceding paragraph shall not be credited under
this paragraph. Hours credited under this paragraph shall be credited for
the period to which the award or agreement pertains.
(c) An Hour of Service shall also mean each hour during which
an employee is on a Leave of Absence. Hours credited under this paragraph
shall be credited for the period during which the employee was on a Leave
of Absence.
(d) Hours of Service credited for any period during which an
employee performs duties may be determined from the Participating
Company's records of hours worked or may be determined on the basis of
equivalency periods of employment in which one week shall be the
equivalent of forty-five (45) Hours of Service. If one Hour of Service
must be credited under the preceding paragraphs (a) through (c) during an
equivalency period, Hours of Service shall be credited for the entire
equivalency period. If an equivalency period spans two (2) computation
periods, the equivalent Hours of Service shall be allocated pro rata
between such computation periods.
(e) Hours of Service credited to an employee for any period
during which the employee does not perform duties shall be determined as
follows:
(1) For payments which are calculated on the basis of
units of time or for periods during which an
employee is on a Leave of Absence, Hours of
Service shall be credited based upon the
equivalency period set forth in the preceding
paragraph.
(2) For payments which are not calculated on the
basis of units of time, Hours of Service shall be
calculated by dividing the amount of the payment
by the employee's most recent hourly rate of
compensation before the period during which no
duties were performed. For an employee paid on
the basis of a fixed rate for a specified period
of time other than an hour, the employee's hourly
rate shall be deemed the employee's most recent
rate of compensation for a specified period of
time divided by the number of hours regularly
scheduled for the performance of duties during
that period, or, for an employee without a
regular working schedule, a number of hours based
on a forty (40) hour workweek or eight (8) hour
workday. However, the number of Hours of Service
credited under this paragraph for any period
shall not exceed the number of hours regularly
scheduled for the performance of duties by the
employee during that period.
(f) Effective for Plan Years beginning after December 31, 1984,
in the case of an employee absent by reason of maternity or paternity
leave (within the meaning of Section 410(a)(5)(E) of the Internal Revenue
Code), Hours of Service shall be credited solely for purposes of
determining whether a Break in Service has occurred unless credit for such
Hours of Service is authorized by other paragraphs of this Section. No
more than 501 Hours of Service shall be credited under this paragraph for
any single continuous period of absence described herein. The Hours of
Service credited pursuant to this paragraph shall be credited in the
computation period in which the absence from work commences if necessary
to prevent a break in service, or in all other cases, in the computation
period immediately following.
(g) Notwithstanding the preceding paragraphs, in the case of an
employee whose compensation is not determined on the basis of a fixed rate
for specified periods of time, Hours of Service for any computation period
shall be determined as four-thirds (4/3) of the quotient of the employee's
earnings for such period divided by the lowest minimum wage established
from time to time under Section 6(a)(1) of the Fair Labor Standards Act of
1938, as amended. In addition to the Hours of Service so arrived at,
appropriate Hours of Service shall also be credited as called for by
paragraph (c) above.
Different methods may be used to determine Hours of Service for separate
classifications of employees provided such classifications are reasonable
and are consistently applied. Hours of Service may be rounded up at the
end of any computation period or more frequently. A Participating Company
may use any records to determine Hours of Service which it considers an
accurate reflection of the facts.
Section 2.14 Integration Level. "Integration Level" means such
part of an employee's Eligible Compensation not in excess of the Social
Security taxable wage base in effect on the first day of the Plan Year.
If an employee is not a Participant throughout an entire Plan Year, the
Social Security taxable wage base for the Participant for that Plan Year
shall be reduced by multiplying the Social Security taxable wage base by a
fraction, the numerator of which is the number of full months during the
Plan Year that the employee was a Participant and the denominator of which
is twelve (12) or if less, the number of months in the Plan Year.
Section 2.15 Internal Revenue Code. "Internal Revenue Code" or
"Code" means the Internal Revenue Code of 1986, as interpreted by
regulations and rulings issued pursuant thereto, all as amended and in
effect from time to time.
Section 2.16 Leave of Absence. A "Leave of Absence" means an
authorized absence from the performance of duties for the Company or an
Affiliated Company which is incurred either by an employee who is on an
absence recognized by the Committee, under rules and policies uniformly
applied to all employees similarly situated, as being a period of service
for purposes of the Plan, incurred by an employee due to a temporary
layoff for a period of one (1) year or less or incurred by an employee who
leaves his employment to enter the Armed Forces of the United States and
who returns to service with the Company or an Affiliated Company within
the period during which the employee has reemployment rights under federal
law.
Section 2.17 Manitowoc Stock; Manitowoc Stock Fund. "Manitowoc
Stock" is the common stock of the Company. "Manitowoc Stock Fund" has the
meaning assigned to this term in the Trust Agreement.
Section 2.18 Normal Retirement. "Normal Retirement" means a
Termination of Employment of a Participant (except termination by death)
occurring on or after the date upon which the Participant attains Normal
Retirement Age.
Section 2.19 Normal Retirement Age. "Normal Retirement Age"
means age sixty-five (65).
Section 2.20 Participant. A "Participant" is a person who has
been or who is an employee admitted to participation in the Plan pursuant
to Section 3, and who continues to be entitled to benefits under the Plan.
Section 2.21 Participating Company. A "Participating Company"
is the Company, any Affiliated Company currently participating in the
Plan, and any other Affiliated Company which subsequently elects to
participate in the Plan pursuant to its rules.
Section 2.22 Plan Year. The "Plan Year" is the twelve (12)
consecutive month period commencing on the first date of the fiscal year
of the Company and is the year on which records of the Plan are kept. The
period of July 3, 1994, through December 31, 1994, is a short Plan Year.
Effective January 1, 1995, the Plan Year is the calendar year. For the
short Plan Year ending December 31, 1994, where applicable herein, the
Hours of Service requirement applicable to the Plan Year shall be five
hundred (500), rather than the one thousand (1,000) Hours of Service
requirement applicable to twelve (12) month Plan Years.
Section 2.23 Profit Center. "Profit Center" means the profit
center applicable to the Participating Companies as determined from time
to time by the Company, with respect to which the Profit Sharing
Contributions to the Plan shall be determined under Section 5.4. The
Profit Centers are as set forth on Exhibit A attached hereto, and by this
reference incorporated herein, as it may be amended from time to time.
Section 2.24 Profit Sharing Account. "Profit Sharing Account"
means the Profit Sharing Account--Variable and the Profit Sharing
Account--Fixed maintained for each Participant. Such accounts are treated
as a single account for purposes of investment elections and Beneficiary
designations under the plan.
Section 2.25 Profit Sharing Account--Fixed. "Profit Sharing
Account--Fixed" means the account maintained for each Participant
consisting of contributions to the Trust Fund made pursuant to Section 5.5
and their net investment earnings. The Profit Sharing Account--Fixed,
together with the Profit-Sharing Account--Variable, is a Profit Sharing
Account for Plan purposes.
Section 2.26 Profit Sharing Account--Variable. "Profit Sharing
Account--Variable" means the account maintained for each Participant,
consisting of contributions to the Trust Fund made pursuant to Section 5.4
and their net investment earnings. The Profit Sharing Account--Variable,
together with the Profit Sharing Account--Fixed, is a Profit Sharing
Account.
Section 2.27 Qualified Domestic Relations Order. A "Qualified
Domestic Relations Order" means a domestic relations order which creates
or recognizes the existence of an alternate payee's right 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.
Section 2.28 Qualified Joint and Survivor Annuity. A
"Qualified Joint and Survivor Annuity" is an annuity for the life of the
Participant with a survivor annuity for the life of the surviving spouse
which is fifty percent (50%) of the amount of the annuity which is payable
during the joint lives of the Participant and the spouse and which is the
amount of benefit which can be purchased with the Participant's accounts
in the Plan.
Section 2.29 Qualified Preretirement Survivor Annuity. A
"Qualified Preretirement Survivor Annuity" is an annuity for the life of
the surviving spouse which is the amount of benefit which can be purchased
with fifty percent (50%) of the amount of the Participant's accounts in
the Plan (as of the Participant's date of death) to which the Participant
had a nonforfeitable right (within the meaning of Section 411(a) of the
Internal Revenue Code).
Section 2.30 RSVP Account. "RSVP Account" means the Cash
Option Account and the Company Matching Account maintained for each
Participant. Such accounts are treated as a single account for purposes
of investment elections and Beneficiary designations under the Plan.
Section 2.31 Rollover Contribution Account. "Rollover
Contribution Account" means the account maintained for a Participant,
consisting of rollover contributions and their net investment earnings.
Section 2.32 Termination of Employment. "Termination of
Employment" with the Company or any Affiliated Company, for purposes of
the Plan, shall be deemed to occur upon the first to occur of (1)
employee's resignation, discharge, retirement, death; (2) the date a Leave
of Absence ends if the Leave of Absence is for a period of one (1) year or
less; or (3) the first anniversary of a Leave of Absence if the Leave of
Absence is for a period of more than one (1) year. Notwithstanding the
foregoing, an employee who leaves employment to enter the Armed Forces of
the United States shall not incur a Termination of Employment in
contradiction of federal law.
Section 2.33 Trustee, Trust Agreement, Trust Fund. The assets
of the Plan shall be held in trust pursuant to the provisions of The
Manitowoc Company Employees' Profit-Sharing Trust Agreement, incorporated
herein by this reference. The "Trustee" is Associated Manitowoc Bank,
N.A. and any successor Trustee or Trustees appointed hereunder. The
"Trust Fund" means the fund established pursuant to the Trust Agreement.
Section 2.34 Valuation Date. The "Valuation Date" means the
date as of which the Trust Fund and accounts are valued as provided by the
Plan. Each of the following is a Valuation Date:
(a) The last day of each Plan Year.
(b) Any date declared by the Board of Directors or the
Committee to be a Valuation Date as if such date were the last day of the
Plan Year.
Section 2.35 Vested Balance; Nonvested Balance. The "vested
Balance" of a Participant's Profit Sharing Account and Retirement Savings
Account means that percentage of such accounts which is nonforfeitable
pursuant to the Provisions of Section 7.2. The "Nonvested Balance" of
such accounts shall mean that percentage which is forfeitable pursuant to
the provisions of Section 7.3.
Section 2.36 Vesting Service. An employee's "Vesting Service"
means an employee's period of employment by a Participating Company or an
Affiliated Company determined in accordance with reasonable and uniform
standards and policies adopted by the Committee from time to time,
provided, however, that:
(a) Vesting Service shall be determined in completed full years
and completed months in excess of completed full years, each full twelve
(12) months of Vesting Service constituting a completed full year of
Vesting Service and any full month of Vesting Service in excess of
completed full years constituting a fractional one-twelfth (1/12) of a
year of Vesting Service.
(b) The Vesting Service any employee shall have as of July 4,
1976, shall be such employee's accrued last continuous period of
employment from the employee's most recent date of employment prior to
July 3, 1976, as determined under the Plan as in effect on July 3, 1976.
(c) Vesting Service after July 3, 1976, means the service
credited from the later to occur of July 4, 1976, or the employee's date
of hire by a Participating Company or an Affiliated Company to the date of
the employee's Termination of Employment.
(d) An employee who had a Termination of Employment Prior to
July 4, 1976, and is subsequently reemployed by a Participating Company or
an Affiliated Company after July 3, 1976, shall have rights to
reinstatement of his service prior to such Termination of Employment
determined under the reinstatement of service provisions of the Plan as in
effect on July 3, 1976.
(e) The Vesting Service of an employee who has a Termination of
Employment after July 3, 1976, and is subsequently reemployed by a
Participating Company or an Affiliated Company shall not be recognized if
such service is to be disregarded in accordance with Section 3.3.
SECTION 3. PLAN PARTICIPATION
Section 3.1 Commencement of Participation. An employee of a
Participating Company shall become a Participant on the earliest date on
which (1) the employee is an Eligible Employee, and (2) the employee
completes one (1) Hour of Service, if such employee's customary employment
is at the rate of at least forty (40) Hours of Service per week. An
Eligible Employee who is not scheduled or reasonably anticipated to
complete at least forty (40) Hours of Service per week shall not become a
Participant until the earlier of: (a) the first day following the date
during the employee's first twelve (12) consecutive months of employment
in which the employee completes one thousand (1,000) Hours of Service, or
(b) the first day of the Plan Year next following the first Plan Year
ending after the employee's date of hire during which the employee
completes one thousand (1,000) Hours of Service.
Section 3.2 Transfers to/from Eligible Employee Status. If an
employee is transferred to a position in which the employee becomes an
Eligible Employee, and the employee's customary employment is at the rate
of at least one thousand (1,000) Hours of Service during a Plan Year, the
employee shall be deemed to have become a Participant as of the first day
of the Plan Year in which such transfer occurs on which the Participant
completed an Hour of Service. Any employee not scheduled or reasonably
anticipated to complete at least one thousand (1,000) Hours of Service in
a Plan Year, shall not become a Participant after transfer until all of
the requirements of Section 3.1 are satisfied taking into account Hours of
Service completed before and after becoming an Eligible Employee. If the
employee is transferred to a position in which the employee is no longer
an Eligible Employee, the employee shall cease active participation in the
Plan on the date of transfer.
Section 3.3 Rehire After Termination of Employment. If a
terminated employee is rehired by the Company including any Affiliated
Company) before incurring a break in service (as defined below), the
employee's prior service shall be recognized immediately for all purposes
of the Plan. Such employee shall commence participation in the Plan
immediately upon rehire. If a terminated employee who has incurred a
break in service is rehired by the Company, the following paragraphs shall
be applicable:
(a) The employee's service prior to the Termination of
Employment shall be disregarded for all purposes of the Plan if:
(1) The employee was not entitled to a Vested Balance
from the employee's Profit Sharing Account upon
the Termination of Employment which occurred
immediately before the break in service occurred;
and
(2) The number of consecutive breaks in service which
occurred during the period in which the employee
incurred such break in service equals or exceeds
the greater of five (5) or the aggregate number
of his years of Vesting Service completed prior
to such break in service. In computing the
number of years of Vesting Service prior to such
break in service, years of Vesting Service not
taken into account under this paragraph, by
virtue of any prior period in which a break in
service occurred, shall be disregarded.
(b) If the employee's service is not disregarded in accordance
with the preceding paragraph (a) upon the employee's rehire, then the
employee's prior service shall be recognized immediately for all purposes
of the Plan.
(c) If the rehired employee was formerly a Participant, and the
employee's prior service is not disregarded, the employee shall commence
participation immediately upon again becoming an Eligible Employee.
A "break in service" is any twelve (12) consecutive month period
beginning on the date the employee incurs a Termination of Employment,
during which the employee does not perform one (1) Hour of Service.
Section 3.4 Election to Become a Contributing Participant. A
Participant shall file an enrollment form with the Committee in order to
elect to become a contributing Participant. The enrollment form, which
shall also contain any contribution election agreement of the contributing
Participant, shall be as prescribed by the Committee. An Eligible
Employee may enroll when first becoming a Participant or as of any
subsequent enrollment dates as may be determined by the Committee. Such
enrollments shall be effective as of dates determined by Committee rules.
Each Participating Company shall advise its employees of their initial
eligibility to enroll in the Plan as a contributing Participant but shall
have no obligation to provide additional notice thereafter. Any
contribution election agreement hereunder is voluntary and enrollment in
the Plan as a contributing Participant shall constitute acceptance of the
terms of the Plan. The contribution election procedures described in
Section 5 shall also apply to enrollment forms.
Section 3.5 No Guaranty of Employment. Participation in the
Plan does not constitute a guaranty or contract of employment with a
Participating Company. Such participation shall in no way interfere with
any rights a Participating Company would have in the absence of such
participation to determine the duration of the employee's employment with
a Participating Company.
Section 3.6 Participation Prior to July 3, 1988.
Notwithstanding Section 3.1 of the Plan, if an employee Participated in a
predecessor plan on July 2, 1988, in accordance with the provisions of
such plan prior to its restatement hereunder, and if the employee is an
Eligible Employee on July 3, 1988, the employee shall be a Participant on
July 3, 1988.
Section 3.7 Leased Employees. A person who is a leased
employee within the meaning of Section 414(n) of the Internal Revenue Code
shall not be eligible to participate in the Plan, but in the event such
person subsequently becomes eligible to participate herein, credit shall
be given for the person's service as a leased employee toward completion
of the Plan's eligibility and vesting requirements.
SECTION 4. EMPLOYEE CONTRIBUTIONS
Section 4.1 Employee Contributions. Employee after tax
contributions to the Plan are neither required nor permitted.
Section 4.2 Rollover Contributions. Any Eligible Employee may
from time to time contribute to the Trust Fund a rollover contribution in
cash. An Eligible Employee making a rollover contribution shall certify
in writing the amount of the proposed rollover contribution and supply a
copy of the most recent determination letter issued by the Internal
Revenue Service covering the trust or annuity contract from which the
property to be contributed to the Trust Fund has been distributed. A
rollover contribution shall be credited to a separate "Rollover
Contribution Account" in the name of such employee as of the date of its
receipt by the Trustee. The amount thereof and the increase or decrease
in the liquidation value of the Trust Fund attributable thereto shall be
separately reflected in such account. The balance of a Participant's
Rollover Contribution Account shall be nonforfeitable for all purposes of
the Plan. Upon Termination of Employment, the balance of an employee's
Rollover Contribution Account shall be distributed pursuant to the
provisions of the Plan.
SECTION 5.
CASH OPTION PROGRAM, COMPANY CONTRIBUTIONS AND FORFEITURES
Section 5.1 Elective Deferrals. Effective upon implementation
by the Committee during the Plan Year ending in 1989, a Participant may
voluntarily elect to have the Participating Company employing the
Participant contribute an amount to the Participant's Cash Option Account
for each Plan Year in lieu of receiving the same amount as current
compensation. Such amounts are hereinafter referred to as "elective
deferrals" to the extent such amounts are not includible in the
Participant's gross income for the taxable year. Such elective deferrals
shall be subject to the following paragraphs:
(a) Such election may be as to any whole percentage of Eligible
Compensation from one percent (1%) to ten percent (10%). A Participant
may, effective June 28, 1992, designate (in increments of one percent
(1%)) up to the first three percent (3%) of Eligible Compensation
contributed as elective deferrals under this Section 5.1 as being eligible
for incentive matching contributions, as described in Section 5.3.
Notwithstanding the upper limit of ten percent (10%) on deferral
elections, all elective deferrals shall be required to be tax deductible
by the Participating Company in the year in which made. Accordingly, the
Committee shall take into account any contributions made to all profit
sharing plans (and other qualified plans) sponsored by the Participating
Company for the same group of employees and periodically advise
Participants as to the effective upper limits on contribution elections.
Such upper limit may be adjusted by the Committee if the general
limitations applicable to elective deferrals will not then be exceeded, so
long as all similarly situated employees are provided with a
nondiscriminatory opportunity to make proportionately the same elective
deferrals.
(b) Elective deferrals under this Section 5 shall be credited
to a "Cash Option Account" in the name of the electing Participant as of
the date of their receipt by the Trustee. The amount thereof and the net
earnings attributable thereto shall be separately reflected in such
account.
(c) The balance of an employee's Cash Option Account shall be
nonforfeitable for all purposes of the Plan. Upon Termination of
Employment, the balance of an employee's Cash Option Account shall be
distributed pursuant to the provisions of the Plan.
(d) Notwithstanding any other provision of the Plan, a
Participant's elective deferrals for any calendar year, when combined with
amounts deferred under other plans or arrangements described in Sections
401(k), 403(b) or 408(k) of the Internal Revenue Code, shall not exceed
the limit set forth in Section 402(g)(1) of the Internal Revenue Code (or
such amount as adjusted for changes in the cost of living pursuant to
Section 402(g)(5) of the Internal Revenue Code).
(e) In addition, the Plan is subject to the limitations of
Internal Revenue Code Section 401(k) which are incorporated herein by this
reference. Accordingly, the actual deferral percentage for highly
compensated employees as defined in subsection (f), below, shall not
exceed the greater of:
(1) the actual deferral percentage of the nonhighly
compensated employees multiplied by one and
twenty-five hundredths (1.25), or
(2) the lesser of (i) the actual deferral percentage
of the nonhighly compensated employees plus two
(2) percentage points, or (ii) the actual
deferral percentage of the nonhighly compensated
employees multiplied by two (2.0),
subject to such other applicable limit as may be prescribed by the
Secretary of the Treasury to prevent the multiple use of this alternative
limitation. In order to ensure the favorable tax treatment of elective
deferrals hereunder pursuant to Code Section 401(k) or to ensure
compliance with Code Sections 402(g) or 415, the Committee in its
discretion may prospectively decrease the rate of elective deferrals of
any Participant at any time and, to the extent permitted by applicable
regulations, may direct the Trustee to refund elective deferrals to any
Participant. Any excess contributions, determined (i) after application
of the family aggregation rules, any recharacterization of deferrals as
after tax contributions if applicable and use of qualified nonelective
contributions and/or qualified matching contributions as helpful in the
actual deferral percentage test, and (ii) by leveling the highest deferral
ratios until the test is satisfied, and excess deferrals shall be
distributed including applicable income determined pursuant to applicable
regulations, including gap period income, together with any applicable
matching contribution. Such distributions shall be made during the Plan
Year following the year the excess contributions were made, and the amount
shall be determined based on the respective portions attributable to each
highly compensated employee and based on compensation as defined in Code
Section 415(c)(3).
(f) A "highly compensated employee" for purposes of this
Section 5.1 and Section 5.3 means both highly compensated active employees
and highly compensated former employees within the meaning of Code Section
414(q). A highly compensated active employee includes any employee who
performs service for a Participating Company during the determination year
and who, during the look-back or determination year: (i) received
compensation from the Participating Company in excess of seventy-five
thousand dollars ($75,000) (as adjusted pursuant to Code Section 415(d));
(ii) received compensation from the Participating Company in excess of
fifty thousand dollars ($50,000) (as adjusted pursuant to Code Section
415(d)) and was a member of the top-paid group for such year; or (iii) was
an officer of the Participating Company and received compensation during
such year that is greater than fifty percent (50%) of the dollar
limitation in effect under Code Section 415(b)(1)(A). The term "highly
compensated employee" also includes employees who are both described in
the preceding sentence if the term "determination year" is substituted for
the term "look-back year" and the employee is one of the one hundred (100)
employees who received the most compensation from the Participating
Company during the determination year employees who are five percent (5%)
owners within the meaning of Code Section 414(q) at any time during the
look-back year or determination year. If no officer has satisfied the
compensation requirement of (iii) above during either a determination year
or look-back year, the highest paid officer for such year shall be treated
as a highly compensated employee. The determination year shall be the
Plan Year and the look-back year shall be the twelve-month period
immediately preceding the determination year. A highly compensated former
employee includes any employee who separated from service (or was deemed
to have separated from service) prior to the determination year, performs
no service for the Participating Company during the determination year,
and was a highly compensated active employee for either the separation
year or any determination year ending on or after the employee's
fifty-fifth (55th) birthday. If an employee is, during a determination
year or look-back year, a family member (within the meaning of Code
Section 414(q)(6)) of either a five percent (5%) owner who is an active or
former employee or a highly compensated employee who is one of the ten
(10) most highly compensated employees ranked on the basis of compensation
paid by the Participating Company during such year, then the family member
and the five percent (5%) owner or top-ten highly compensated employee
shall be aggregated. In such case, the family member and five percent
(5%) owner or top-ten highly compensated employee shall be treated as a
single employee receiving compensation and Plan contributions or benefits
equal to the sum of such compensation and contributions or benefits of the
family member and five percent (5%) owner or top-ten highly compensated
employee. For this purpose, family member includes the spouse, lineal
ascendants and descendants of the employee or former employee and the
spouses of such lineal ascendants and descendants. The determination of
who is a highly compensated employee, including the determinations of the
number and identity of employees in the top-paid group, the top one
hundred (100) employees, the number of employees treated as officers and
the compensation that is considered, will be made in accordance with Code
Section 414(q).
Section 5.2 Contribution Election Procedures. A contribution
election (or change or revocation) shall be in writing, signed by the
Participant, and on such form as the Committee shall prescribe. The
Committee may, from time to time, adopt policies or rules governing such
elections so that the Plan may be conveniently administered. Elections
shall be effective as of the dates determined by the rules of the
Committee. The Committee may change the frequency of effective dates, in
its discretion, provided such changes are uniformly applied to all
Participants.
Section 5.3 Participating Company Matching Contributions.
Participating Company matching contributions required to be made hereunder
shall be a fixed commitment of each Participating Company under the Plan
and shall be deemed to be a money purchase pension contribution for
purposes of the Internal Revenue Code. Only the first five percent (5%)
of Eligible Compensation contributed as elective deferrals by a
Participant for a Plan Year shall be taken into account for purposes of
determining any required matching contribution of a Participating Company.
Such matching contributions shall be directly allocated to the Company
Matching Accounts of contributing Participants. Each Participating
Company shall contribute for each Plan Year the amount sufficient to
provide the matching contributions described in paragraphs (a) and (b),
below, subject to the limitations described in paragraph (c) below:
(a) Basic Matching Contributions. The basic matching
contribution is an amount sufficient to provide twenty-five percent (25%)
matching of the first five percent (5%) of Eligible Compensation
contributed, during the period for which the match is deposited, as
elective deferrals by each Participant who is entitled to share in the
allocation of the Company contributions for that Plan Year. The basic
matching contribution is not awarded by the Plan for elective deferrals
which receive incentive matching amounts under paragraph (b), below.
(b) Incentive Matching Contribution. The incentive matching
contribution is an amount sufficient to provide one hundred percent (100%)
matching on the first one percent (1%), two percent (2%), or three percent
(3%) of Eligible Compensation contributed, during the period for which the
match is deposited, as elective deferrals by each Participant who is
entitled to share in the allocation of the Company contributions for that
Plan Year. Such contributions may be made by a Participating Company in
cash or in Manitowoc Stock. Elective deferrals which are awarded
incentive matching amounts under this paragraph (b) are not eligible for
basic matching contributions under paragraph (a), above. The following
requirements must be satisfied in order for elective deferral amounts to
receive the incentive matching contribution:
(1) Elective deferrals entering the Plan subject to
incentive matching shall be invested in the
Manitowoc Stock Fund at all times while the
Participant is an employee of a Participating
Company or any Affiliated Company.
(2) All incentive matching contributions shall be
invested in the Manitowoc Stock Fund at all times
while the Participant is an employee of a
Participating Company or any Affiliated Company.
(c) In addition, the Plan is subject to the limitations of
Internal Revenue Code Section 401(m) which are incorporated herein by
this reference. Accordingly, the actual contribution percentage of
Participating Company matching contributions for highly compensated
employees as defined in Section 5.1(f) shall not exceed the greater of:
(i) the actual contribution percentage of the
nonhighly compensated employees multiplied
by one and twenty-five hundredths (1.25), or
(ii) the lesser of (1) the actual contribution
percentage of the nonhighly compensated
employees plus two percentage points, or (2)
the actual contribution percentage of the
nonhighly compensated employees multiplied
by two (2.0),
subject to such other applicable limit as may be prescribed by the
Secretary of the Treasury to prevent the multiple use of this alternative
limitation. In order to ensure compliance with Code Section 401(m), any
excess aggregate contributions, determined (i) after application of the
family aggregation rules, any recharacterization of deferrals as after tax
contributions if applicable and use of qualified nonelective contributions
and/or qualified matching contributions as helpful in the actual deferral
percentage test, and (ii) by leveling the highest contribution ratios
until the test is satisfied, shall be distributed if vested or forfeited
if forfeitable, including applicable income determined pursuant to
applicable regulations, including gap period income, together with any
applicable matching contribution. Such distributions shall be made during
the Plan Year following the year the excess aggregate contributions were
made, and the amount shall be determined based on the respective portions
attributable to each highly compensated employee as defined in Code
Section 414(q) and based on compensation as defined in Code Section
415(c)(3).
Section 5.4 Participating Company Variable Profit Sharing
Contributions. The amount of the variable Profit Contributions of each
Participating Company shall be calculated pursuant to the formula set
forth on Exhibit A attached hereto, as may be amended from time to time,
and by this reference incorporated herein. Each Participating Company
shall make the variable Profit Sharing Contribution to the Trust Fund for
each Plan Year determined for it according to this Section. Variable
Profit Sharing Contributions shall be allocated pursuant to Section 5.8 to
the Profit Sharing Account--Variable of each Participant.
Section 5.5 Participating Company Fixed Profit Sharing
Contributions. For each Plan Year beginning after July 2, 1988, each
Participating Company shall contribute to the Trust Fund on behalf of each
Participant entitled to receive such allocation an amount equal to three
percent (3%) of such Participant's Eligible Compensation for the Plan
Year. Such contributions shall be a fixed commitment of each Participating
Company under the Plan and shall be deemed to be a money purchase pension
contribution for purposes of the Internal Revenue Code. Such Company
contributions shall be allocated directly to the Profit Sharing
Account--Fixed of each such Participant.
Section 5.6 Timing of Contributions. In order that
contributions for a Plan Year shall be deductible, each Participating
Company shall make its contribution, for a Plan Year to the Trustee not
later than the time, including extensions thereof, prescribed by law for
filing the federal income tax return of the Participating Company for its
fiscal year ending within or on the last day of the Plan Year. For
purposes of the Plan, however, contributions shall be deemed to have been
made as of the last day of the fiscal year of the Participating Company
which ends within or on the last day of the Plan Year. The Trustee shall
be under no duty, expressed or implied, either to determine the amount of
or to force the collection of any contribution to the Trust Fund.
Section 5.7 Employees Entitled to Share. With respect to each
Plan Year, an employee who was a Participant at any time during the Plan
Year shall be entitled to an allocation to the employee's Profit Sharing
Account--Variable and Profit Sharing Account--Fixed from the Company
contributions made to the Trust Fund during the Plan Year if the employee
meets the requirements of either of the following paragraphs:
(a) The employee was an Eligible Employee of a Participating
Company on the last day of the Plan Year; or
(b) The employee had a Termination of Employment while an
Eligible Employee prior to the last day of such Plan Year and was fully
vested under the vesting schedule of the Plan.
The requirements of this Section 5.7 shall not apply to determine
entitlement to any portion of the Company contributions which are deemed
to be matching contributions pursuant to Section 5.3 unless such
requirement is specified by the Company prior to the beginning of the Plan
Year for which such matching contribution is made.
Section 5.8 Allocation Formula for Variable Profit Sharing
Contributions. For each Plan Year, the variable profit sharing
contributions to the Trust Fund shall be allocated to the Profit Sharing
Accounts--Variable of those employees entitled to share therein pursuant
to the following paragraphs:
(a) Variable profit sharing contributions of any Profit Center
for any Plan Year shall only be allocated among Participants who are
employees assigned to that Profit Center as of the last day of that Plan
Year, or, for persons entitled to share by reason of Section 5.7(b), who
are employees assigned to that Profit Center as of the last day worked.
(b) One-half (1/2) of the amount of the variable profit sharing
contributions for a Profit Center shall be allocated to the Profit Sharing
Accounts--Variable of those employees entitled to share therein in the
proportion that the Eligible Compensation of each employee employed in
such Profit Center bears to the aggregate of the Eligible Compensation of
all such employees for the Plan Year.
(c) The remaining one-half (1/2) of the variable profit sharing
contributions for a Profit Center shall be allocated to the Profit Sharing
Accounts Variable of those employees entitled to share therein in the
proportion that the Eligible Compensation of each employee employed in
such Profit Center in excess of the Integration Level bears to the
Eligible Compensation for the Plan Year in excess of the Integration Level
of all such employees. For Plan Years commencing on or after January 1,
1984, and prior to January 1, 1989, the maximum amount allocable to the
Profit Sharing Account--Variable of any employee under this paragraph in
any Plan Year shall not exceed the OASDI employer tax rate (excluding
Medicare contributions) in effect at the beginning of the Plan Year
multiplied by such employee's Eligible Compensation in excess of the
Integration Level. For Plan Years commencing on and after July 2, 1989,
the maximum amount allocable to the Profit Sharing Account--Variable of
any employee of a Profit Center under this paragraph in any Plan Year
shall not exceed the lesser of (1) two hundred percent (200%) of the Base
Contribution Percentage for such Profit Center or (2) the sum of (A) the
Base Contribution Percentage for such Profit Center plus (B) the greater
of (i) five and seven-tenths (5.7) percentage points or (ii) the
percentage rate of tax under Section 3111(a) of the Internal Revenue Code
in effect as of the beginning of the Plan Year which was attributable to
the Old Age Insurance portion of the OASDI.
(d) Any remaining variable profit sharing contributions for a
Profit Center not allocated pursuant to the provisions of paragraphs (b)
and (c) shall be allocated to the Profit Sharing Accounts--Variable of
those employees entitled to share therein in the proportion that the
Eligible Compensation of each employee employed in such Profit Center
bears to the aggregate of the Eligible Compensation of all such employees
for the Plan Year.
Section 5.9 Allocation of Forfeitures. Aggregate forfeitures
declared for a Plan Year as to the Profit Sharing Account--Variable of all
Participants shall be allocated to the Profit Sharing Accounts--Variable
of the Participants entitled to share therein. Forfeitures shall be
allocated for a Plan Year as if the aggregate of such amounts were an
additional variable profit sharing contribution to the Trust Fund for the
Plan Year under Section 5.4. Aggregate forfeitures declared for a Plan
Year as to the Profit Sharing Account--Fixed and the Company Matching
Account of all Participants shall be applied to reduce the fixed
obligations of the Participating Companies to make contributions to such
accounts under the Plan for the year for which such forfeitures are
declared final and subsequent years until fully applied.
Section 5.10 Maximum Additions. Notwithstanding any provision
of this Section 5 to the contrary, the annual additions to each
Participant's accounts in the Plan for any Plan Year shall not exceed the
limitations of Internal Revenue Code Section 415 and Section 10 of the
Plan.
Section 5.11 Contributions for Omitted Participants. If, for
any Plan Year, after the Company contributions made to the Trust Fund for
that year have been allocated, it should appear that, through oversight or
a mistake of fact or law, an employee who should have been entitled to
share in such contributions received no allocation, received an allocation
which was less than the employee should have received, or was otherwise
omitted, the Participating Company, at its election, and in lieu of
reallocating such contributions, may make a special allocation in an
amount equal to the amount that would have been allocated to such
employee's account had such error not been made. Such special allocation
may be funded with a special contribution from the Participating Company
for such purpose or out of current earnings in the Trust Fund, as
determined by the Company and the Committee.
Section 5.12 Securities Law Compliance.
(a) The price at which the Plan shall acquire newly-issued
shares from the Company shall be the average of the high and low sales
prices, carried to four (4) decimal places, of Manitowoc Stock as reported
in The Wall Street Journal (Midwest Edition) under "NASDAQ Over-the-
Counter-Markets--National Market Issues" on the date immediately prior to
the date of purchase. If no trading occurs on the NASDAQ National Market
System in Manitowoc Stock on the date immediately prior to the date of
purchase, the price will be determined with reference to the next
preceding date on which Manitowoc Stock is traded on the NASDAQ National
Market System. The price at which the Plan shall be deemed to have
acquired outstanding shares of Manitowoc Stock either in open market
purchases or through privately negotiated transactions shall be the
average price for such shares purchased at any time the Plan makes one or
more purchases to invest available funds in Manitowoc Stock. In the event
investment under the Plan is made both in newly-issued and outstanding
shares, the shares purchased shall be allocated proportionately among the
accounts of all Participants for whom funds are being invested at that
time.
(b) Any formula by which any Participating Company
contributions are determined and allocated to the accounts of Participants
under the Plan may not be amended more frequently than once in any six (6)
month period other than to comport with changes in ERISA or the Code, or
the rules thereunder.
(c) Purchases of Manitowoc Stock by the Plan shall be made in
compliance with ERISA and applicable securities laws including without
limitation Rule 10b-6 and Rule 10b-18 under the Securities Exchange Act of
1934, as such rules are in effect from time to time.
(d) The Committee is specifically authorized to adopt and
promulgate such rules as it deems necessary to preserve all liability
exemptions for "insiders" within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, and the rules thereunder, as
such rules are in effect from time to time. Any rules so promulgated
shall be uniformly administered in a nondiscriminatory manner as to all
affected participants, who shall be fully advised of such Plan rules as in
effect from time to time.
SECTION 6. INVESTMENT ELECTIONS AND VALUATION OF ACCOUNTS
Section 6.1 Investment Elections. The funding policy of the
Plan provides for the direction of investment by all Participants,
including retired Participants. Participants are permitted to direct
separately the investment of their Profit Sharing Accounts and their RSVP
Accounts. Such separate investment funds shall be made available for
investment by employed Participants as may be determined according to the
terms of the Plan and Trust Agreement. Different investment fund
alternatives may be provided by the Committee for Profit Sharing Accounts
and RSVP Accounts. The following paragraphs shall apply to Participant
investment instructions:
(a) An investment election shall be in writing, signed by the
Participant, and on such form as the Committee shall prescribe. Such form
shall be filed with the Participating Company employing the Participant in
accordance with its instructions. Each Participant shall, upon enrollment
in the Plan, file an investment election form directing the investment of
the Participant's accounts in the Plan in the investment funds then
currently available. The Committee may permit elections to change a
Participant's investment mix which are not governing as to new
contributions subsequently being added to the Participant's accounts. Such
investment elections shall be as to any integral multiple of the
Participant's accounts, including all contributions and credits to such
accounts, as specified by the Committee. Each Participant may, thereafter,
file a new investment election form changing an investment election in
accordance with Committee rules and procedures which shall permit changes
to be made in investment elections at least once each year.
(b) A Participant making investment elections and changes in
accordance with this Section thereby assumes full responsibility for such
exercise of control over assets in the Participant's accounts. No person
who is otherwise a fiduciary shall be liable for any loss, or by reason of
any breach, which may result from such person's exercise of such control.
Section 6.2 Account Adjustments to Reflect Net Worth of the
Trust Fund.
(a) As of each Valuation Date the accounts maintained in each
separate investment fund within the Trust Fund (including those accounts
not yet fully distributed) shall be adjusted, before the crediting of
Company contributions but after the crediting of cash option contributions
through the current Valuation Date, upward or downward, pro rata, so that
such adjusted balances will equal the net worth of that investment fund as
of that date, using fair market values as determined by the Trustee and
reported to the Committee, after such net worth has been reduced by (i)
any advance Company contributions present in such fund not yet allocated
to individual accounts; (ii) forfeitures which have been declared to be
final but which have not yet been reallocated; and (iii) any expenses
chargeable to that investment fund which have been incurred but not yet
paid from that investment fund. The period between Valuation Dates is
referred to as the "allocation period." A further adjustment shall be
made so as to take into account an average balance of matching
contributions, cash option contributions, and loan repayments of principal
and interest deposited during the allocation period, using reasonable
methods applied in a uniform manner to all accounts. After these
adjustments are made, if such Valuation Date is the last day of the Plan
Year, the Company contributions which are to be allocated to individual
accounts in the investment fund as of that date shall be credited to such
accounts.
(b) Notwithstanding the foregoing, if a Participant has a
Termination of Employment and receives payment of his Vested Balance, the
Nonvested Balance of such Participant's Company Contribution Account shall
not be considered a part of such account as of any subsequent Valuation
Date, but shall be considered a fixed liability of the Trust Fund, to
which net earnings shall not be allocated, until such amount is either
restored to the Participant or it is declared to be a forfeiture as
provided in Section 7.3.
(c) The accounting for a Participant's interest in the
Manitowoc Stock Fund shall be done on an allocated share basis such that
(except with respect to dividends on previously allocated shares, which
dividends are credited directly to the Participant's account to which such
shares are allocated) shares of Manitowoc Stock acquired by the Manitowoc
Stock Fund during any allocation period shall be allocated among the
accounts of Participants in proportion to the value of each Participant's
account which is not then attributable to allocated stock and dividends
thereon, and the individual accounts of Participants shall be adjusted
accordingly. Dividends received with respect to shares of Manitowoc Stock
other than previously allocated shares, and income, expenses, gains and
losses on assets other than Manitowoc Stock held in the Manitowoc Stock
Fund shall be credited or charged to the accounts of Participants as of
each Valuation Date pro rata on the basis of the value of that portion of
each Participant's account which is not then attributable to allocated
stock and dividends thereon. The Manitowoc Stock Fund may utilize more
frequent Valuation Dates (including daily valuations) than other
investment funds maintained hereunder.
Section 6.3 Net Worth. The net worth of a separate investment
fund within the Trust Fund for any period shall be determined based on the
Trustee's judgment of the fair market value of each of the assets of the
investment fund using generally accepted accounting principles of trust
accounting. Any determination made by the Trustee and the Committee with
respect to the value of accounts shall be conclusive and binding upon all
persons having an interest under the Plan.
Section 6.4 Certain Segregated Accounts. Account balances
which are part of the Trust Fund but which are segregated pursuant to the
directions of the Committee shall be valued according to the terms of the
investment medium funding such account, using generally accepted
accounting principles of trust accounting.
Section 6.5 Responsibility to Maintain Account Balances. The
responsibility to maintain account balances Pursuant to the provisions of
this Section 6 shall be discharged by the Committee. The Committee shall
keep separate accounts for each Participant's accrued benefits under the
Plan, showing the manner in which it has determined the entries made to
each such account. Following the close of each Plan Year, the Committee
shall make arrangements for the delivery to each Participant of a
statement showing, as of the close of the Plan Year, each Participant's
credited balance to each of his accounts and the extent to which such
balances are vested.
Section 6.6 Voting and Tender Rights as to Manitowoc Stock.
(a) Shares of Manitowoc Stock held by the Manitowoc Stock Fund
are allocated to Participants' accounts in that investment fund as of each
Valuation Date. Shares which have been so allocated are referred to as
allocated shares.
(b) Voting rights with respect to allocated shares as to which
the Trustee receives written instructions from the Participants to whom
the shares are allocated shall be voted by the Trustee as directed by such
Participants or not voted if so directed by a Participant. At the time of
the mailing to stockholders of the notice of any stockholders' meeting of
the Company, the Company, in conjunction with the Committee and the
Trustee, shall use its reasonable best efforts to cause to be delivered to
each such Participant such notices and informational statements as are
furnished to the Company's stockholders in respect of the exercise of
voting rights, together with forms by which the Participant may
confidentially instruct the Trustee, or revoke such instruction, with
respect to the voting of allocated shares. Upon timely receipt of
directions, the Trustee shall vote the allocated shares on each matter as
directed by the Participant. The Trustee shall vote or not vote all
Manitowoc Stock held by the Manitowoc Stock Fund that is not allocated to
any Participant's account and all Manitowoc Stock allocated to a
Participant's account which is not voted by the Participant because the
Participant has not directed (or has not timely directed) the Trustee as
to the manner in which such Manitowoc Stock is to be voted, in the same
proportion as those shares of the Manitowoc Stock for which the Trustee
has received proper direction on such matter. All such voting rights,
instructions, and directions received by the Trustee from a Participant
shall be held in confidence by the Trustee and shall not be divulged or
released to any person, including directors, officers, and employees of
the Company or any Participating Company or Affiliated Company.
(c) Notwithstanding any provisions of the Plan, if there is a
tender offer for, or a request or invitation for tenders, of shares of
Manitowoc Stock held by the Manitowoc Stock Fund, the Committee shall
furnish either to the Trustee, which shall then furnish to each
Participant, or directly to Participants at the Trustee's request, prompt
notice of any such tender offer for, or request or invitation for tenders
of, such shares of Manitowoc Stock and the Trustee shall request from each
Participant instructions as to the tendering of such Participant's
allocated shares (which may include instructions to refuse to tender).
The Trustee shall tender only such shares of Manitowoc Stock for which the
Trustee has received (within the time specified in the notification)
tender instructions. With respect to shares of Manitowoc Stock which are
held by the Manitowoc Stock Fund, but which are not allocated shares, and
shares of Manitowoc Stock for which no instructions are received, the
Trustee shall tender such shares of Manitowoc Stock in the same proportion
as the number of such shares of Manitowoc Stock for which instructions to
tender are received bears to the total number of such shares of Manitowoc
Stock for which instructions (whether or not to tender) from Participants
have been received. All such tender instructions received by the Trustee
from a Participant shall be held in confidence by the Trustee and shall
not be divulged or released to any person, including directors, officers,
and employees of the Company, or any Participating Company or Affiliated
Company, or any person making the offer.
SECTION 7. DISTRIBUTION OF BENEFITS AND VESTING
Section 7.1 Retirement, Disability and Death Benefits. Upon
Termination of Employment by reason of Normal Retirement, Disability
Retirement or death, the entire balance of each of the accounts of a
Participant shall be distributable pursuant to the provisions of the Plan.
Such account balances shall be determined as of the Valuation Date
immediately preceding their distribution except that any portion of such
accounts invested in the Manitowoc Stock Fund shall remain invested until
distributed or transferred to another investment fund pursuant to the
Plan.
Section 7.2 Vested Benefits. Upon Termination of Employment
prior to Normal Retirement or Disability Retirement and for a reason other
than death, the Vested Balance of a Participant's Profit Sharing
Account--Variable, Profit Sharing Account--Fixed, and Company Matching
Account, and the entire balance of the Participant's Cash Option Account
and Rollover Contribution Account, if any, shall be distributable pursuant
to the provisions of the Plan. Such account balances shall be determined
as of the Valuation Date immediately preceding their distribution except
that any portion of such accounts invested in the Manitowoc Stock Fund
shall remain invested until distributed or transferred to another
investment fund pursuant to the Plan. The following paragraphs shall also
be applicable:
(a) The Vested Balance of a Participant's Profit Sharing
Account--Variable, Profit Sharing Account--Fixed, and Company Matching
Account shall be a percentage of that account, based upon his years of
Vesting Service. Unless the Plan is a top-heavy plan within the meaning
of Section 11 such that the vesting schedule is deemed to be amended to be
the vesting schedule set forth in Section 11, the Vested Balance of a
Participant in such accounts shall be as set forth in the following
schedules:
(1) For Terminations of Employment effective prior to
April 1, 1989, the Vested Balance of a
Participant shall be determined in accordance
with the following schedule:
Years of Vesting Service Percentage
Less than 1 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
(2) For Terminations of Employment effective on and
after April 1, 1989, the Vested Balance of a
Participant's accounts shall be determined in
accordance with the following schedule:
Years of Vesting Service Percentage
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
(b) For purposes of applying the foregoing vesting schedule,
all of an employee's years of Vesting Service shall be taken into account.
(c) Notwithstanding the foregoing paragraphs, a Participant's
Vested Balance shall be one hundred percent (100%) upon his attainment of
Normal Retirement Age.
(d) No amendment to the Plan changing the Plan's vesting
schedule shall reduce the Vested Balance provided by such schedule
determined for each Participant as of the day preceding the adoption or
the effective date of such amendment, whichever is later.
(e) If an amendment to the Plan changes the Plan's vesting
schedule, each Participant having not less than three (3) years of Vesting
Service shall be entitled to have his Vested Balance for his future
service under the Plan computed without regard to such amendment. Any
such election will not be effective unless made after the amendment is
adopted but prior to sixty (60) days after the later of (i) the date the
amendment was adopted, (ii) the effective date of the amendment, or (iii)
the date the employee was given written notice of the amendment. Such
election shall be made in writing by filing with the Committee, within
said period, such form as the Committee may prescribe for this purpose.
For purposes of this paragraph, an employee shall be considered to have
completed three (3) years of Vesting Service if he has completed three (3)
such years prior to the expiration of the election period described above.
Section 7.3 Forfeitures. The Nonvested Balance of a
Participant's Profit Sharing Account--Fixed, Profit Sharing
Account--Variable, and Company Matching Account shall immediately be
declared a forfeiture when the Participant incurs a Termination of
Employment and receives payment of his Vested Balance. Declared
forfeitures shall be reallocated, or otherwise applied, as of the last day
of the Plan Year coincident with or immediately following such
declaration. As of any subsequent Valuation Date, before a forfeiture is
reallocated or otherwise applied, such amount shall not be considered to
be a part of such Participant's accounts. Rather, such Nonvested Balance
(the Participant's "prior Nonvested Balance") shall be considered to be a
fixed liability of the Trust Fund, to which net earnings shall not be
allocated until such funds are reallocated or otherwise applied pursuant
to this Section and Section 5.9. Notwithstanding the foregoing, a
Participant whose vested balance has been distributed or who has no vested
interest shall be deemed cashed out from the Plan. The following
paragraphs shall also be applicable:
(a) If the Participant is rehired after five (5) or more
consecutive twelve (12) month periods have elapsed after the employee's
Termination of Employment, the Participant has no rights to restoration of
the Participant's prior Nonvested Balance. If such Participant has, upon
such rehire, a Vested Balance remaining in the Plan and the Participant's
vested percentage is less than one hundred percent (100%), then such
Vested Balance shall be accounted for separately from any additions to the
Participant's accounts which shall accrue to the Participant after such
rehire. The purpose of this separate accounting is to assure that the
Plan's vesting schedule is only applied to additions to the Participant's
accounts following such rehire. Such separate accounting is not required
when a Participant's vested percentage has reached one hundred percent
(100%).
(b) If the Participant is rehired before five (5) or more
consecutive twelve (12) month periods have elapsed after the employee's
Termination of Employment, the Participant has restoration rights to the
Participant's prior Nonvested Balance as follows:
(1) If the Participant has not received a
distribution upon Termination of Employment from
the Participant's accounts, then, upon rehire the
amount of his prior Nonvested Balance shall be
restored to the appropriate Participant's
accounts out of, in the following order of
priority, forfeitures, earnings, or Company
contributions.
(2) If the Participant has received a distribution
upon Termination of Employment from the
Participant's accounts, then, upon rehire, the
amount of his prior Nonvested Balance shall be
restored to the Participant's accounts out of, in
the following order of priority, forfeitures,
earnings, or Company contributions to the Plan,
only if the Participant makes repayments to the
Plan, before the earlier of (i) the fifth
anniversary of the Participant's date of rehire,
or (ii) the close of a period of five (5)
consecutive breaks in service, as described in
Section 3.3, commencing after the distribution.
The required repayment is the full amount
previously distributed to the Participant from
all such accounts upon Termination of Employment.
The repayment period expires upon the death of
the Participant.
Section 7.4 When Distribution of Accounts Shall Commence.
(a) Unless the Participant consents to a later payment
permitted by the Plan, the distribution of benefits to a Participant under
the Plan shall commence as soon as administratively practicable after
Termination of Employment, but in no event later than sixty (60) days
after the Plan Year in which occurs the later of the following events:
(1) The Participant's attainment of Normal Retirement
Age; or
(2) The Participant's Termination of Employment.
However, if the amount of the payment to be made to
the Participant cannot be determined by the later of
such dates, a payment retroactive to such date may be
made no later than sixty (60) days after the earliest
date upon which the amount of such payment can be
ascertained.
(b) A Participant may provide the required consent and elect,
in accordance with Committee procedures, to have the distribution of the
Participant's accounts commence as soon as administratively practicable
following the Valuation Date coincident with or following the first to
occur of the Participant's Termination of Employment or attainment of
Normal Retirement Age, but in no event later than one year after
Termination of Employment. If such election is not made by a Participant,
or if any required spousal consent is not provided, then the Committee
shall direct that payment be made in the normal form under the Plan
through purchase of an annuity contract. Notwithstanding this
requirement, however, a Participant who has reached age fifty-five (55)
upon Termination of Employment shall have the further right to elect to
have his accounts held in the Plan's general investment program until
distribution is required to commence to be made under Plan rules.
Distribution in any form other than a Qualified Joint and Survivor Annuity
shall not commence prior to a Participant's Normal Retirement Age unless
the Participant's spouse consents to the distribution except as provided
by the small account distribution rule in Section 7.5(e).
(c) Payment of a Participant's accounts distributable due to
death shall be made as soon as administratively practicable after the
Valuation Date following the Participant's date of death or, if elected by
the Participant's Beneficiary, and if the Participant had reached age
fifty-five (55) at the time of death, in accordance with the extended
distribution period described in Section 7.5, including the availability
of installment payments as an optional form of payment.
(d) Lump sum payment of portions of a Participant's Vested
Balance authorized to be paid pursuant to a Qualified Domestic Relations
Order is specifically authorized hereunder, without regard to the age or
employment status of the Participant.
(e) Effective April 1, 1990, in no event shall payment of the
accounts of a Participant who attains age seventy and one-half (70-1/2)
commence later than the April 1 following the calendar year in, which the
Participant attains age seventy and one-half (70-1/2), even if the
Participant is still employed, unless a TEFRA transitional rule election
described in Section 7.6(i), below, shall be in effect, or the Participant
attained such age before January 1, 1988, and was not a five percent (5%)
owner within the meaning of Code Section 416(i)(1) during any Plan Year
after the Plan Year ending with or within the calendar year in which such
Participant attained age sixty-five and one-half (65-1/2).
Section 7.5 How Accounts are to be Distributed. Accounts
distributed under the Plan shall be paid in accordance with the following
paragraphs:
(a) Rules if Participant is Living. The normal form of
distribution to a married Participant shall be a Qualified Joint and
Survivor Annuity for Plan Years beginning after December 31, 1984. A
Participant who has no surviving spouse, who has established that the
spouse cannot be located, or who has made a valid election, with spousal
consent, to waive the normal form of payment, may receive payment in
another form permitted under the Plan and described in paragraph (c),
below; provided, however, that payment shall be in the form of an annuity
for the life of such Participant unless an optional form of payment is
elected. Married Participants who have not received credit for one (1)
Hour of Service on or after August 23, 1984, shall be exempt from the
first sentence of this paragraph.
(b) Rules if Participant is Dead. The normal form of
distribution upon the death of a married Participant shall be as to fifty
percent (50%) of such Participant's accounts a Qualified Preretirement
Survivor Annuity upon deaths of Participants who have received credit for
one (1) Hour of Service on or after August 23, 1984. The spouse shall
have the right to select an optional form of distribution, described
below, as permitted by applicable regulations. The remainder of such
Participant's accounts not distributed in the normal form shall be
distributed in accordance with the terms of the Plan as described in the
following sentence. The accounts of a Participant who has no surviving
spouse, who has established that a spouse cannot be located, or who has
made a valid election, with spousal consent, to waive the normal form of
payment, may be distributed in another form permitted under the Plan and
described in paragraph (c), below.
(c) Optional Forms of Distribution. Optional forms of
distribution under the Plan include:
(1) A lump sum, including where previously arranged,
direct transfer to an individual retirement
account or successor qualified Plan designated by
the Participant. Section 7.7 describes the rules
regarding in-kind distributions of Manitowoc
Stock.
(2) Installment payments satisfying the minimum
distribution requirements of the Plan.
Installment payments may only be elected by
Participants who have reached age fifty-five (55)
at the time of their Termination of Employment.
(3) Purchase of a single premium nontransferable
immediate or deferred annuity contract from a
life insurance company, the terms of which
satisfy the required distribution rules of the
Plan. The Trustee shall be the initial owner of
such a contract. Ownership shall be transferred
to the Participant by the Committee promptly
following purchase.
(d) Determination of the Form of Distribution. Accounts shall
be distributed in accordance with the requests of Participants and
Beneficiaries; provided, however, that applicable rules or regulations
shall not be violated. The Participant and, if married, the Participant's
spouse shall receive a written explanation of available benefit distribution
alternatives between thirty (30) and ninety (90) days before the date
payments are to commence and before their required consent is obtained.
Such consent shall be obtained before a distribution is made at any time
in a form other than a Qualified Joint and Survivor Annuity, except as
provided in Section 7.5(e). Spousal consent shall be made in accordance
with Section 7.8 of the Plan.
(e) Cash Outs of Small Accounts. Notwithstanding the request
of a Participant or Beneficiary, in the event that the amount of a
Participant's accounts has never exceeded three thousand five hundred
dollars ($3,500) prior to the date distribution is to commence, the
Committee shall direct the Trustee to distribute the Participant's
accounts in a lump sum as soon as administratively practical following the
Valuation Date coincident with or immediately following the Participant's
Termination of Employment. Section 7.7 describes the rules regarding in-
kind distributions of Manitowoc Stock. After the date distribution is to
commence Participant consent, and, if the Participant is married, spousal
consent which meets the requirements of Section 7.8(b) of the Plan, is
required within the ninety (90) day period prior to such distribution.
Section 7.6 Required Distribution Rules. All distributions
from the Plan shall be made in accordance with the required distribution
rules of Section 401(a)(9) of the Internal Revenue Code and the rules
provided in the applicable Treasury regulations which are incorporated
herein by reference. The provisions of the Plan governing distributions
are intended to apply in lieu of any default provisions prescribed in the
regulations; provided, however, that Code Section 401(a)(9) overrides any
distribution options in the Plan inconsistent with such provisions. The
following paragraphs, which describe certain of these rules, shall also
apply:
(a) Before Death. If payment in installments commences to a
Participant before death, the payment period shall not exceed one of the
following maximum payment periods: (i) life of the Participant; (ii)
joint lives of the Participant and the Participant's Beneficiary; or (iii)
a period certain not extending beyond the life expectancy of the
Participant or the joint life expectancy of the Participant and the
Participant's Beneficiary.
(b) After Death. If distribution has commenced to a
Participant and the Participant dies before all of the Participant's
account balances has been distributed, then the entire remaining interest
of the Participant in the Plan shall be distributed at least as rapidly as
under the method of distribution in effect, within the limitation of the
preceding paragraph (a), as of the date of death of the Participant. If
such distribution has not commenced to a Participant at the time of the
death of the Participant, then the entire interest of the Participant
shall be distributed within one (1) year of the date of the death of the
Participant. The one (1) year maximum distribution period shall not apply
if the surviving spouse is the designated Beneficiary of the Participant's
account balances. In such event, the account balances shall be
distributed (in accordance with regulations) over the life of the
surviving spouse (or over a period not extending beyond the life
expectancy of the surviving spouse), provided such distributions begin on
or before the later of (1) December 31 of the calendar year immediately
following the calendar year in which the Participant died, or (2)
December 31 of the calendar year in which the Participant would have
attained age seventy and one-half (70-1/2).
(c) Death of Surviving Spouse Before Distributions Begin. If
the Participant's surviving spouse is the designated Beneficiary of the
Participant's account balances in the Plan and such spouse dies after the
Participant but before distributions to the spouse have begun, the account
balances of the Participant shall be distributed in accordance with all
applicable requirements as if the Participant's death occurred on the date
of death of the surviving spouse. However, this Section shall not apply
to the distribution of account balances to the spouse of the Beneficiary.
(d) Distributions Treated as Commenced. For purposes of
paragraphs (b) and (c), above, distributions are not treated as having
commenced until the required beginning date of the Participant (or the
date that distributions are required to commence to the Participant's
surviving spouse, if applicable), unless distributions have irrevocably
commenced prior to the Participant's required beginning date in the form
of an annuity.
(e) Minimum Payments to Participants. The minimum amount to be
distributed each calendar year, commencing with the calendar year in which
payments are required to commence hereunder, shall not be less than the
quotient obtained by dividing the Participant's benefit in the Plan by the
applicable life expectancy. The term "applicable life expectancy" means
the life expectancy (or joint and last survivor expectancy) determined by
use of the expected return multiples in Tables V and VI of Treasury
Regulation Section 1.72-9, reduced by one for each calendar year which has
elapsed since the life expectancy (or joint and last survivor expectancy)
was calculated; where life expectancy is recalculated, the term
"applicable life expectancy" means the life expectancy as so recalculated.
The following paragraphs also apply:
(1) Life expectancies are calculated using the
Participant's attained age (or Beneficiary's
attained age) as of the date determined in
accordance with applicable regulations.
(2) The life expectancy of the Participant or the
Participant's spouse (or the joint life and last
survivor expectancy of the Participant and the
Participant's spouse) shall be recalculated
annually in accordance with applicable
regulations for purposes of determining all
distributions required under Section 401(a)(9) of
the Internal Revenue Code.
(f) Participant's Benefit in the Plan. The Participant's
benefit in the Plan used in determining the minimum distribution for a
calendar year in which a distribution is required to be made is the
Participant's account balance in the Plan as of the last Valuation Date in
the calendar year immediately preceding any calendar year in which a
distribution is required to be made, adjusted in accordance with
applicable regulations.
(g) Rollovers and Transfers to the Plan. The application of
the required distribution rules to amounts in a Participant's accounts
rolled over to the Plan or transferred to the Plan shall be determined
under applicable regulations.
(h) Incidental Benefit Requirement. Distributions under the
Plan in each calendar year shall satisfy the minimum distribution
incidental benefit requirement, as provided under applicable regulations.
Any distribution required under the incidental death benefit requirements
of Section 401(a) of the Internal Revenue Code shall be treated as a
distribution required under this Section 7.6.
(i) TEFRA Transitional Election Rule. An employee may
designate, in writing placed on file with the Committee prior to January
1, 1984, a distribution method which does not meet the requirements of
Internal Revenue Code Section 401(a)(9), as summarized in paragraphs
(a)-(e), above, but which would not have caused the Plan and Trust to be
disqualified under such Code Section as in effect before January 1, 1984.
The Committee may adopt policies to be uniformly applied regarding such
designations and the extent to which Participant-designated distribution
methods shall be implemented. Such designated distribution methods shall
be implemented by the Committee except to the extent it is determined by
the Committee, in its sole discretion, that such implementation is
contrary to the best interests of the Plan and its Participants. Such
designated distributions may be revoked by the Participant after the
Participant's required beginning date; provided, however, the Plan shall
distribute any amounts which would have been required to be distributed
under Internal Revenue Code Section 401(a)(9) had the designation not been
made by the end of the calendar year following the calendar year in which
the revocation occurs and the Plan shall continue such distributions in
accordance with Section 401(a)(9).
(j) Transitional Minimum Distribution Calculations. The
minimum amount required to be distributed for calendar years 1985 and 1986
(and with respect to certain Participants for 1987) shall be determined
under applicable regulations. The Committee shall determine which
available method shall be used to calculate such required distributions,
as specified in regulations, provided the same method and rules for
crediting previously distributed amounts are applied to all Participants
in the Plan.
Section 7.7 Distributions of Manitowoc Stock. Any distribution
of account balances held in the Manitowoc Stock Fund, due to be made under
the provisions of this Section 7 upon a Participant's Termination of
Employment for any reason, which are payable to a former Participant in a
single lump sum amount, shall be made in the form of shares of Manitowoc
Stock provided the Participant has at least one hundred (100) shares of
such stock allocated to his account in the Manitowoc Stock Fund. Lump sum
distributions of account balances in the Manitowoc Stock Fund comprising
fewer than one hundred (100) shares, and distributions to Beneficiaries
upon the death of a Participant or to alternate payees pursuant to a
Qualified Domestic Relations Order shall be made in cash, except to the
extent the Participant (or Beneficiary or alternate payee, if applicable)
specifically elects to take such distribution in shares of Manitowoc
Stock. Plan accounts in the Manitowoc Stock Fund shall remain invested in
such stock until distributed. The Committee may revise the foregoing
rules, in its discretion, to permit additional flexibility to make cash
distributions more generally available.
Section 7.8 Election to Waive Survivor Benefits. Each married
Participant may elect at any time during the applicable election period to
waive the Qualified Joint and Survivor Annuity form of benefit or the
Qualified Preretirement Survivor Annuity form of benefit (or both), and
may revoke any such election at any time during the applicable election
period. The following paragraphs shall also apply:
(a) Applicable Election Period. The applicable election period
is separately defined for each survivor benefit, as follows:
(1) For the Qualified Joint and Survivor Annuity form
of benefit, it is the ninety (90) day period
ending on the first day of the first period for
which an amount is payable as an annuity, or in
the case of a benefit not payable in the form of
an annuity, the first day on which all events
have occurred which entitle the Participant to
such benefit;
(2) For the Qualified Preretirement Survivor Annuity
form of benefit, it is the period beginning on
the first day of the Plan Year in which the
Participant attains age thirty-five (35) and
ending on the date of the Participant's death.
In the case of a Participant who incurs a
Termination of Employment the applicable election
period for the Qualified Preretirement Survivor
Annuity form of benefit shall not begin later
than the date of such Participant's Termination
of Employment.
(b) Requirement of Spousal Consent. An election not to take a
Qualified Joint and Survivor Annuity or Qualified Preretirement Survivor
Annuity is not effective unless the Participant's spouse consents in
writing to such election, such election designates a Beneficiary (or a
form of benefits) which may not be changed without spousal consent (or the
consent of the spouse expressly permits designations by the Participant
without any requirement of further consent by the spouse), and the
spouse's consent acknowledges the effect of such election and is witnessed
by a Plan representative or a notary public. Spousal consent is not
required if it is established that there is no spouse, that the spouse
cannot be located, that the prior consent of the spouse expressly permits
the Participant to change a Beneficiary designation without any
requirement of further consent by the spouse, or that consent is not
required under such other circumstances as may be prescribed by applicable
regulations. Any consent by a spouse, or establishment that such consent
is not required, shall be effective only with respect to such spouse.
Revocations of spousal consent during the applicable election period shall
be in the same form as is required for spousal consent and shall be
effective for all purposes of the Plan.
Section 7.9 Nonalienation of Benefits. The account balances
payable under this Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind, either voluntary or
involuntary, prior to actually being received by the person entitled to
the benefit under the terms of the Plan; and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge or otherwise
dispose of any right to benefits payable hereunder, shall be void. The
Trust Fund shall not in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements or torts of any person entitled
to benefits hereunder. The creation, assignment, or recognition of a
right to any benefit payable with respect to a Participant pursuant to a
Qualified Domestic Relations Order shall not be treated as an assignment
or alienation under this Section.
Section 7.10 Procedures on Receipt of a Domestic Relations
Order. If the plan receives a domestic relations order which creates,
assigns, or recognizes any right to a benefit payable with respect to a
Participant, the following procedures shall be followed:
(a) The Committee shall determine whether such order is a
Qualified Domestic Relations Order in accordance with written uniform
rules that comply with Section 206(d)(3)(G)(ii) of ERISA;
(b) The Committee shall notify the Participant and each
alternate payee under the order as to the receipt of the order, the
procedures for determining whether the order is qualified and the final
determination within a reasonable period of time, or such period as may be
specified in applicable regulations;
(c) During the period of determining whether the order is
qualified, the Committee shall separately account for any amounts that
would be payable to the alternate payee during such period if the order
had been determined to be a Qualified Domestic Relations Order. Such
separate accounting is not required for amounts that would not otherwise
be paid during the determination period.
If within the eighteen (18) month period beginning with the date on which
the first payment would be required to be made under the order, the order
is determined to be a Qualified Domestic Relations Order, the amounts
specified in the order as payable shall be paid to the alternate payee in
the method specified in such order, or if none, in the method selected by
the alternate payee provided such method has the same effect on the Plan
as a lump sum payment of such amount. If the payment method specified in
such order does not have the effect on the Plan of a lump sum payment,
then such amount shall not be distributable until all of the necessary
conditions for payment of Section 7 have been satisfied. If the order is
not determined to be qualified, or the determination is not resolved
within such eighteen (18) month period, the Committee shall pay such
benefits that have been separately accounted for (plus interest) to the
Participant, or Beneficiary, if any, who would otherwise have received
such benefits if the order had not been issued. Any amounts that would be
payable to an alternate payee designated in the order, except that such
alternate payee cannot be located, shall be allocated to the accounts of
all Participants and considered as forfeited amounts. Such forfeited
amounts shall be paid to the alternate payee from the Trust Fund, out of
future forfeitures and/or earnings if such alternate payee is later
located. The Plan shall not be treated as failing to meet the
requirements of subsection (a) or (k) of Section 401 of the Internal
Revenue Code which prohibit payment of benefits before Termination of
Employment solely by reason of payments to an alternate payee pursuant to
a Qualified Domestic Relations Order.
Section 7.11 Payment of Taxes. The Committee may direct the
Trustee to deduct, withhold, and transmit to the proper tax authorities
any tax which may be permitted or required to be deducted and withheld,
and the balance of the account in such case shall be correspondingly
reduced. In addition, the Committee, as a condition of directing the
payment of any account balance, may require the Participant or the
Participant's Beneficiary, as the case may be, to furnish it with proof of
payment, or such reasonable indemnity therefor as the Committee may
specify, of all income, inheritance, estate, transfer, legacy and/or
succession taxes, and all other taxes of any different type or kind that
may be imposed under or by virtue of any law upon the payment, transfer,
descent or distribution of said benefit and for the payment of which
either the Company, the Trust Fund or the Committee, in the judgment of
the Committee, may be directly or indirectly liable.
Section 7.12 Incompetent Payee. If any Participant or
Beneficiary entitled to receive benefits hereunder is, in the judgment of
the Committee based upon a physician's examination, unable to take care of
his affairs because of mental condition, illness, or accident, any payment
due such person may (unless prior claim therefor shall have been made by a
qualified guardian or other legal representative) be paid for the benefit
of such Participant to his spouse, child, parent, brother or sister, or
other person who in the opinion of the Committee has incurred expense for,
or is maintaining, or has custody of such Participant. The Committee
shall not be required to see to the proper application of any such payment
made to any person pursuant to the provisions of this Section, and any
such payment so made shall be a complete discharge of the liability of the
Trust Fund, the Committee and the Participating Company therefor.
Section 7.13 Notice, Place and Manner of Payment. Any payments
due hereunder shall be made on demand at such office as the Trustee may
maintain; provided, however, that any person from time to time entitled to
such payments may by notice in writing to the Trustee specify a Post
Office address to which such payment shall be remitted.
Section 7.14 Source of Benefits. All benefits to which persons
shall become entitled hereunder shall be provided only out of the Trust
Fund. No benefits are provided under the Plan except those expressly
described herein.
Section 7.15 Hardship Withdrawals. Withdrawals by a
Participant while still employed by a Participating Company may be
authorized by the Committee in the event of the financial hardship of the
Participant. The amount subject to withdrawal shall not exceed the amount
of the Participant's elective contributions credited to his Cash Option
Account. A request for withdrawal shall be in writing, signed by the
Participant, on such form as the Committee shall provide for this purpose,
and subject to the following paragraphs:
(a) A distribution shall be deemed to be on account of
financial hardship only if the distribution is made on account of an
immediate and heavy financial need of the Participant and is necessary to
satisfy such financial need, in accordance with the following paragraphs.
(b) The following expenses are the only categories of financial
hardship which shall be deemed immediate and heavy financial needs:
(1) Medical expenses, described in Section 213(d) of
the Internal Revenue Code, previously incurred by
the Participant, the Participant's spouse, or any
dependents of the Participant (as defined in
Section 152 of the Internal Revenue Code), or
amounts necessary to obtain such medical care;
(2) Costs (excluding mortgage payments) directly
related to purchase of a principal residence for
the Participant;
(3) Payment of tuition and related educational fees
for the next twelve (12) months of post-secondary
education for the Participant, the Participant's
spouse, children, or dependents;
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's residence or
foreclosure on the mortgage of the Participant's
principal residence; or
(5) Such other financial needs which the Commissioner
of Internal Revenue deems to be immediate and
heavy financial needs through the publication of
revenue rulings, notices, and other documents of
general applicability rather than of a particular
application to a certain individual.
(c) A Participant shall provide evidence of the necessity to
receive a hardship distribution by written certification of the
Participant (and spouse, if any) together with photostatic copies of
material establishing the nature and amount of such hardship. This
evidence may include, but is not limited to, invoices for health care
services, accepted offers to purchase a principal residence, invoices from
post-secondary educational institutions, eviction notices, or demand
notices for housing expenses.
(d) The Participant shall make a written representation to the
Committee that the financial need cannot be relieved:
(1) Through reimbursement or compensation by
insurance or otherwise;
(2) By reasonable liquidation of the Participant's
assets, to the extent such liquidation would not
itself cause an immediate and heavy financial
need;
(3) By cessation of elective contributions or
employee contributions under the Plan; or
(4) By other distributions or nontaxable (at the time
of the loan) loans from plans (including this
Plan) maintained by the Company or by any other
employer, or by borrowing from commercial sources
on reasonable commercial terms. For purposes of
this Section 7.15(d), the Participant's resources
shall be deemed to include those assets of the
Participant's spouse and minor children that are
reasonably available to the Participant. Thus,
for example, property owned by the Participant
and the Participant's spouse, whether as
community property, joint tenants, tenants by the
entirety, or tenants in common, will be deemed a
resource of the Participant. Property held for
the Participant's child, however, under an
irrevocable trust or under the Uniform Gifts to
Minors Act will not be treated as a resource of
the Participant.
(e) The amount of the distribution shall be deemed necessary to
meet such needs provided (i) the distribution is not (after taxes and
penalties) in excess of the amount of the immediate and heavy financial
need; (ii) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently available (if
any) under all plans (including this Plan) maintained by the Company; and
(iii) the Participant has satisfied any other requirements which the
Commissioner of Internal Revenue publishes in revenue rulings, notices,
and other documents of general applicability rather than of a particular
application to a certain individual.
(f) During the twelve-month (12-month) period following the
Participant's receipt of the hardship distribution, the Participant may
not make any elective deferrals or employee contributions to this Plan or
any other tax-qualified or nonqualified deferred compensation plans of a
Participating Company, if any. The preceding sentence does not apply to
any health or welfare benefit plan or to the mandatory employee
contribution portion of a defined benefit plan of a Participating Company,
if any.
(g) During the taxable year following the taxable year of the
hardship distribution, the Participant may not make a contribution to the
Participant's Cash Option Account in excess of the limitation described in
Section 5.1(a) minus the amount which the Participant contributed to such
Cash Option Account in the taxable year of the hardship distribution.
(h) A hardship distribution shall not be permitted unless the
Participant's spouse executes a written consent to such distribution which
consent shall be witnessed by a Plan representative or a notary public.
Spousal consent is not required if it is established that there is no
spouse or that the spouse cannot be located.
(i) Hardship distributions shall be made on a prorata basis
from the accounts of the Participant in investment funds other than the
Manitowoc Stock Fund, first, and then from the Manitowoc Stock Fund as
needed to complete the distribution.
Section 7.16 Voluntary Withdrawals. A Participant shall have
the right to request a withdrawal from his Cash Option Account if the
Participant has attained at least age fifty-nine and one-half (59-1/2).
Such a request need not satisfy the test for a hardship distribution and
may include the entire amount in such account. If a Participant makes a
withdrawal pursuant to this Section 7.16, such Participant shall not be
eligible to make another voluntary withdrawal under this Section until he
has completed at least sixty (60) months of Plan participation after the
date of the previous withdrawal. A voluntary withdrawal shall not be
permitted unless the Participant's spouse executes a written consent as
described in Section 7.15(h). Distributions pursuant to this Section 7.16
shall be made on a prorata basis from the accounts of the Participant in
investment funds other than the Manitowoc Stock Fund, first, and then from
the Manitowoc Stock Fund (drawing last on amounts in such Fund that are
not subject to Participant investment direction) as needed to complete the
distribution.
Section 7.17. Loans to Participants. Effective on and after
April 1, 1992, upon the written application of a Participant filed with
the Committee, the Committee shall direct the Trustee to make a loan or
loans to such Participant out of the Participant's Cash Option Account.
No loans are permitted from Company Matching Accounts and Profit Sharing
Accounts in the Plan. The following paragraphs shall also be applicable:
(a) This Section applies only to an employee of a Participating
Company who has a Cash Option Account in the Plan attributable (i) to his
own participation herein or (ii) to the participation of a deceased
Participant of whom the employee is a Beneficiary. An employee in either
of these two categories shall be referred to as a "borrower." With
respect to an employee who is in both of these categories, the limitations
in subparagraph (b), below, shall apply in the aggregate to all of his
Cash Option Account balances in the Plan. In addition, this loan program
shall also be extended to Participants who are not employees of a
Participating Company and who qualify as parties in interest with respect
to the Plan, as defined in ERISA 3(14), and who have Cash Option Accounts
in the Plan.
(b) Upon filing a proper written application with the
Committee, an eligible borrower may borrow against his Cash Option
Account. The maximum loan amount, when added to the total of all loans to
any eligible borrower and interest accrued on outstanding loans at the
time of the granting of a new loan from such account, shall not exceed
one-half (1/2) the value of his vested interest in his account as of the
last day of the month immediately preceding such written application; or,
if less, fifty thousand dollars ($50,000) reduced by the excess (if any)
of the highest outstanding balance of all loans in the preceding one (1)
year period over the outstanding loan balance on the date of the current
loan. Minimum loan size shall be one thousand dollars ($1,000) and a
borrower shall maintain no more than one (1) loan at any time.
(c) All loans shall bear interest commensurate with the rate
which would be charged by commercial lenders for similar loans in
accordance with Department of Labor Regulation Section 2550.408b-1 as
determined by the Committee. The duration of the loan shall be such
period as may be agreed upon by the borrower and the Committee but in no
event shall the term exceed five (5) years in duration. All loans shall
be due and payable in accordance with the terms of the loan, upon an event
of default described below, or if earlier, when a taxable distribution is
made (i) in the case of a borrower employed by a Participating Company or
an Affiliated Company when the loan is entered into, after termination of
employment, or (ii) in the case of a borrower not employed by a
Participating Company or an Affiliated Company when the loan is entered
into, after the death of the borrower. The amount otherwise payable to
the Participant or his spouse or other Beneficiary shall be offset by any
unpaid principal and interest on the loan.
(d) Each loan shall require regular amortization of principal
and interest by payroll deduction, if applicable, but in no event less
frequently than on a quarterly basis. The terms and conditions of each
loan shall be incorporated in a promissory note executed by the borrower.
Every borrower shall receive a clear statement of the charges involved in
each loan transaction, which shall include the dollar amount and annual
interest rate of the finance charge.
(e) Amounts loaned to a borrower shall be withdrawn
proportionately from the investment funds in which the borrower's Cash
Option Account is invested other than the Manitowoc Stock Fund, first, and
then from the Manitowoc Stock Fund (drawing last on amounts in such Fund
that are not subject to Participant investment direction) as needed to
provide the full proceeds of the loan, and such borrowed amounts shall not
thereafter share in fund earnings, but shall be investments for the
benefit of the borrower's account to be treated as a segregated loan
account. All loans shall be secured by the borrower's segregated loan
account which shall consist of the borrower's indebtedness plus accrued
interest. Amounts repaid to a borrower's segregated loan account shall be
deposited monthly to the Plan's investment funds pursuant to the
investment election then in effect for the borrower's Cash Option Account
except that the portion of the loan repayment of principal and interest
that is attributable to proceeds taken from the portion of the
Participant's account in the Manitowoc Stock Fund that is not subject to
Participant investment direction (as determined at the time of origination
of the loan) shall first be redeposited to the Manitowoc Stock Fund.
(f) If a Participant defaults in the making of any payments on
a loan when due and such default continues for sixty (60) days thereafter,
or in the event of the Participant's bankruptcy, impending bankruptcy,
insolvency or impending insolvency, the loan shall be deemed to be in
default, and the entire unpaid balance with accrued interest shall become
due and payable. The Trustee may pursue collection of the debt by any
means generally available to a creditor where a promissory note is in
default, or, if the entire amount due is not paid within thirty (30) days
following the default, the Trustee may apply the balance in the
Participant's account in satisfaction of the unpaid principal and accrued
interest at such time as determined by the Administrator which will not
risk disqualification of the Plan.
(g) Notwithstanding the foregoing, the Committee may adopt
rules and procedures for deferring payments for limited time periods, not
to exceed six (6) months, during which the borrower is absent from work
due to Leave of Absence or maternity or paternity leave. The Committee
may impose such other rules, requirements or restrictions relating to
loans as it shall determine to be necessary or appropriate from time to
time. Notwithstanding any other provision to the contrary, special costs
and fees associated with a borrower's loan may be charged directly to the
borrower's account.
(h) Notwithstanding the Plan's hardship withdrawal provisions,
a Participant shall be permitted to make withdrawals from his Cash Option
Account only if, and to the extent, that such withdrawals do not reduce
the Participant's account balance below the outstanding balance of any
loans made pursuant to this Section including accrued interest thereon.
In the event that the borrowing Participant's account becomes
distributable before repayment in full of all principal and interest on
outstanding loans, the note evidencing any outstanding loan may be
distributed to the Participant in full satisfaction of the remaining
indebtedness.
(i) All loans shall be subject to the consent of the
Participant making the loan, and if married, to the spouse of the
Participant. Such consent shall be provided to the Plan within the ninety
(90) day period prior to the making of the loan. Such consent shall
acknowledge the possible reduction in Plan benefits which may occur in the
event of a distribution resulting from default, as described above.
Section 7.18. Direct Transfer of Eligible Rollover
Distributions.
(a) This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under this
section, a distributee may elect, at the time and in the manner prescribed
by the Committee to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover as such terms are defined herein.
(b) An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except
that an eligible rollover distribution does not include: any distribution
that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(c) An eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described
in Section 403(a) of the Code, or a qualified trust described in Section
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(d) A distributee includes an employee or former employee. In
addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest
of the spouse or former spouse.
(e) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
SECTION 8. PLAN ADMINISTRATION
Section 8.1 The Administrative Committee. The Plan shall be
administered by an Administrative Committee (the "Committee") pursuant to
the following paragraphs:
(a) The Committee shall be the Company or such member or
members who shall be appointed by and serve at the pleasure of the Board
of Directors. Upon the death, resignation, removal or inability to serve
of any Committee member, the Board of Directors may, but need not, name
his successor. Any member of the Committee may resign at any time by
delivering written notice of such resignation to the Company. The Board
of Directors shall have the right at any time, with or without cause or
notice, to remove any member of the Committee.
(b) Members of the Committee shall not be entitled to
compensation for performing their duties as Committee members, but shall
be entitled to reimbursement for any expenses reasonably incurred in
connection with the administration of the Plan which are not otherwise
paid by the Company.
(c) The Committee shall be the Plan administrator and shall
control and manage the operation and administration of the Plan, including
the following:
(1) The Committee shall from time to time certify in
writing to the Trustee the names of retired,
terminated or deceased Participants, the payment
method selected with respect to any account
balances payable to such persons and the date
such payments shall commence and terminate, all
in accordance with the Plan. Any such notice
from the Committee shall be deemed adequate by
the Trustee if signed by any member of the
Committee or the Committee's duly authorized
agent.
(2) The Committee shall file such reports with
governmental authorities as may be required by
law and which are not filed by the Trustee.
(3) The Committee may adopt and promulgate such rules
and regulations, not inconsistent with the terms
and provisions hereof, for the administration of
the Plan as it deems necessary. From time to
time, the Committee may amend or supplement any
such rules or regulations. The Committee shall
decide any questions of eligibility,
participation, benefit payments and any other
questions of interpretation relating to the Plan.
(4) The Committee shall review claims for benefits in
accordance with the Plan's claims procedures.
(5) The Committee shall prescribe procedures to be
followed and forms to be used in electing any
alternatives available under the Plan and to
apply for benefits under the Plan.
(6) The Committee shall prepare and distribute, in
such manner as the Committee determines
appropriate, information explaining the Plan.
(7) The Committee shall receive from the Company and
from Participants such information as shall be
necessary for the proper administration of the
Plan. The Committee shall be entitled to rely on
any such information so received.
(8) The Committee shall have no power to add to,
subtract from or modify any of the terms of the
Plan, or to change or add to any benefits
provided by the Plan, or to waive or fail to
apply any requirements of eligibility for
benefits under the Plan.
(d) A majority of the members of the Committee shall constitute
a quorum. The approval of such a quorum, expressed from time to time by a
vote at a meeting, or in writing without a meeting, shall constitute the
action of the Committee and shall be valid and effective for all purposes
of this Plan. The acts and determinations of the Committee made in good
faith within the powers conferred upon it by this Plan shall be valid and
final and conclusive (subject only to change pursuant to the provisions of
this Plan) for all purposes of the Plan.
(e) Discretionary actions of the Committee shall be made in a
manner which does not discriminate in favor of shareholders, officers or
highly compensated employees. In the event the Committee is to exercise
any discretionary authority with respect to a Participant who is a member
of the Committee, such discretionary authority shall be exercised solely
and exclusively by those members of the Committee other than such
Participant. If the Participant is the sole member of the Committee, such
discretionary authority shall be exercised solely and exclusively by the
Board of Directors.
(f) By unanimous vote, members of the Committee may allocate
specific responsibilities among themselves. Also by unanimous vote, the
Committee may delegate to persons other than members of the Committee some
or all of its discretionary authority to control and manage the operation
and administration of the Plan. However, the Committee may not delegate
its power to review claims under the Plan's claims procedures.
(g) The Committee may appoint such advisors, agents and
representatives as it shall deem advisable and may also employ such
clerical, legal, and medical counsel as it deems necessary. Any action
taken by a properly authorized agent of the Committee shall be deemed
taken by the Committee.
(h) The Company shall indemnify and hold harmless each
Committee member and employee against all liabilities, losses, costs and
expenses, including reasonable attorney's fees, incurred or suffered by
any such member or employee in connection with such person's management or
administration, at any time, of this Plan; provided, however, that such
indemnity shall not extend to the willful misconduct or gross negligence
of any such person.
Section 8.2 Agent for Legal Process. The Company shall
designate, by action of its Board of Directors, an agent for service of
legal process with respect to any matter concerning the Plan.
Section 8.3 Beneficiary Designations. At any time and from
time to time, each Participant having an entitlement to benefits under the
Plan which will continue after his death shall have an unrestricted right
to designate one or more Beneficiaries or contingent Beneficiaries to whom
payment of any account balances described in this Plan to which such
Participant was entitled shall be paid in the event of the Participant's
death. Each such designation shall be evidenced by a written instrument
in a form acceptable to the Committee, signed by the Participant and filed
with the Committee. A Participant may designate different Beneficiaries
at any time by filing a new beneficiary designation with the Committee.
The last effective designation filed with the Committee shall supersede
all prior designations. No beneficiary designation filed after the death
of a Participant shall be valid. The following paragraphs shall also be
applicable:
(a) If a Participant fails to designate a Beneficiary, or if no
designated Beneficiary survives a Participant, or if a beneficiary
designation is invalid, the following persons in the order named shall be
deemed to be such Beneficiary:
(1) Surviving spouse of the Participant, if any.
(2) If there is no surviving spouse, then the
children surviving the Participant (in equal
shares) and the descendants then living of any
deceased children, by right of representation.
(3) If the Participant shall leave neither spouse nor
descendants surviving, then the executors or
administrators of the Participant's estate.
(b) A Participant may designate both primary and contingent
Beneficiaries, as well as to whom benefits shall be distributed in the
event of the death of a Beneficiary.
(c) Any designation of a Beneficiary by a Participant (who has
been credited with an Hour of Service on or after August 23, 1984), other
than the Participant's spouse, if any, shall not be effective as to fifty
percent (50%) of the Participant's accounts unless (i) consented to by the
spouse, (ii) the consent of the spouse expressly permits such designations
by the Participant without any requirement of further consent by the
spouse, or (iii) it has been established to the satisfaction of the
Committee that there is no spouse or that the spouse cannot be located.
(d) Whenever rights of a Participant are stated or limited by
the Plan, the rights of his Beneficiaries shall be deemed to be similarly
stated or limited hereunder.
Section 8.4 Claims Procedures. Claims made for benefits under
the Plan shall be processed in accordance with the following paragraphs:
(a) Claims for benefits shall be made in writing to the
Committee.
(b) If a claim made for benefits by a Participant or
Beneficiary ("claimant") is not approved in its entirety, the claimant
shall be so notified in writing by the Committee or its duly authorized
agent within ninety (90) days. Notice wholly or partially denying a claim
shall be written in a manner calculated to be understood by the claimant
and contain: (i) the specific reason or reasons for the denial, (ii)
specific reference to the pertinent Plan provisions on which the denial is
based, (iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
such material or information is necessary, and (iv) an explanation of the
review procedure set forth in the following paragraphs (c) and (d). If
such written notice of denial is not furnished within the prescribed time,
the claim shall be deemed denied for purposes of proceeding to the review
stage described below.
(c) A claimant whose claim for benefits hereinunder has been
wholly or partially denied, or his duly authorized representative, may
request a review of such denial by the Committee. A request for review
shall be made in writing to the Committee within sixty (60) days after
receipt by the claimant of written notification of denial of such claim
and may contain issues and comments with respect to the claim. A claimant
who submits a request for review shall be entitled to access documents
pertinent to his claim.
(d) Upon receipt of a request for review of a denial of a
claim, the Committee shall, within sixty (60) days, review in detail the
nature and foundations of the claim, including any issues and comments
submitted by the claimant or his duly authorized representative and the
reasons for the prior denial of the claim. After a full and fair review,
the Committee shall render its decision in writing to the claimant. The
decision on review shall include the specific reasons for the decision, be
written in a manner calculated to be understood by the claimant, and shall
include specific references to the pertinent Plan provisions on which the
decision is based. The Committee shall have discretionary authority to
determine eligibility for benefits and to construe the terms of the Plan.
Any such determination or construction shall be final and binding on all
parties unless arbitrary and capricious.
Section 8.5 Records. Each Participating Company and each other
person performing any functions in the operation or administration of the
Plan or the management or control of the assets of the Plan shall keep
such records as may be necessary or appropriate in the discharge of their
respective functions hereunder, including records required by the Employee
Retirement Income Security Act or any other applicable law. Records shall
be retained as long as necessary for the proper administration of the Plan
and at least for any period required by said Act or other applicable law.
Section 8.6 Correction of Errors. It is recognized that in the
operation and administration of the Plan certain mathematical and
accounting errors may be made or mistakes may arise by reason of factual
errors in information supplied to the Trustee, a Participating Company or
the Committee. Each such party shall have power to cause such equitable
adjustments to be made to correct such errors as they, in their
discretion, consider appropriate. Such adjustments shall be final and
binding on all persons.
Section 8.7 Evidence. Evidence required of anyone under this
Plan may be by certificate, affidavit, document, or other instrument which
the person acting in reliance thereon considers to be pertinent and
reliable and to be signed, made, or presented by the proper party.
Section 8.8 Bonding. Plan officials and fiduciaries shall be
bonded to the extent required by ERISA. Premiums for such bonding may, in
the sole discretion of a Participating Company, be paid in whole or in
part from the Trust Fund. A Participating Company may provide by
agreement with any person that the premium for required bonding shall be
paid by such person.
Section 8.9 Waiver of Notice. Any notice required hereunder
may be waived by the person entitled thereto.
SECTION 9. TRUST FUND
Section 9.1 Composition. All sums of money and all securities
and other property received by the Trustee for purposes of the Plan,
together with all investments made therewith, the proceeds thereof, and
all earnings and accumulations thereon, and the part from time to time
remaining shall constitute the "Trust Fund." The Trust Fund shall be held
in trust pursuant to the terms of this Plan. The Trust Fund shall be
segregated from the assets of the Company.
Section 9.2 The Trust Agreement. In order to implement the
Plan, the Company has previously entered into The Manitowoc Company
Employees' Profit-Sharing Trust. The selection and appointment of the
Trustee of the Trust Fund shall be made by the Board of Directors. The
Board of Directors shall have the right at any time to remove a Trustee
and appoint a successor thereto, subject only to the terms of the Trust
Agreement. The Board of Directors shall have the right to determine the
form and substance of the Trust Agreement, subject only to the requirement
that the terms are not inconsistent with the provisions of the Plan.
Section 9.3 Compensation, Reimbursement. The Trustee, other
than a Trustee who is also a Participant under the Plan or an employee of
a Participating Company, shall be entitled to receive reasonable
compensation for services as Trustee in such amount as may be agreed upon
from time to time between the Participating Company and the Trustee. The
Trustee shall be entitled to reimbursement for all expenses reasonably
incurred by the Trustee in the performance of services. Such compensation
and reimbursements shall be paid from the Trust Fund unless paid by a
Participating Company.
Section 9.4 No Diversion. The Trust Fund shall be maintained
for the exclusive purpose of providing benefits to Participants under the
Plan and their Beneficiaries and defraying reasonable expenses of
administering the Plan. No part of the corpus or income of the Trust Fund
may be used for, or diverted to, purposes other than for the exclusive
benefit of Plan Participants or their Beneficiaries. Notwithstanding the
foregoing, the following paragraphs shall apply:
(a) The establishment of the Plan by the Participating
Companies is contingent upon obtaining initial approval of the Internal
Revenue Service of the Plan. In the event that the Internal Revenue
Service fails to approve the Plan, the Trustee shall promptly proceed to
return all contributions made by the Company with respect to Plan Years
after the effective date of the Plan hereunder to those Participating
Companies in the proportions in which such contributions were made. In no
event shall the amounts described in the preceding sentence be returned
later than one (1) year after the date of the final denial of
qualification of the Plan, including the final resolution of any appeals
before the Internal Revenue Service or the courts.
(b) If a contribution is made by reason of mistake of fact,
then such contribution shall be returned to the Participating Companies in
the proportions in which such contributions were made within one (1) year
after the payment was made.
(c) All contributions to the Plan are conditioned on their
deductibility. To the extent that a deduction is disallowed such
contribution shall be returned to the Participating Companies in the
proportions in which such contributions were made within one (1) year
after the disallowance thereof.
(d) In the case of a termination of the Plan as to a
Participating Company, any residual assets attributable to such
Participating Company which are held in suspense pursuant to Section
10.1(d) shall be returned to the Participating Company.
SECTION 10. MAXIMUM ADDITIONS TO PARTICIPANT ACCOUNTS
Section 10.1 Maximum Limitations on Annual Additions.
(a) The annual additions to a Participant's accounts for any
Plan Year, which shall be considered the "limitation year" for purposes of
Section 415 of the Internal Revenue Code, when added to the Participant's
annual addition for that Plan Year under any other qualified defined
contribution plan of the Participating Company or an Affiliated Company,
shall not exceed the lesser of: $30,000 (or, if greater, one-fourth (1/4)
of the dollar limitation in effect under Section 415(b)(1)(A) of the
Internal Revenue Code), or twenty-five percent (25%) of the Participant's
compensation for the Plan Year.
(b) For purposes of this Section 10, the term "annual
additions" means the sum, credited to a Participant's accounts for any
Plan Year, of
(1) Company Contributions;
(2) Employee contributions, if any; and
(3) Forfeitures (and income, if any, attributable to
such forfeitures).
(c) For purposes of this Section 10, employee contributions
under subparagraph (b)(2) do not include any qualified employee
contributions. Further, the term "annual additions" does not include
amounts distributed from the Plan which are subsequently repaid to the
Plan or the direct transfer of employee contributions from one qualified
plan to another.
(d) If, as a result of the allocation of forfeitures, a
reasonable error in estimating a Participant's annual compensation, or
under other facts and circumstances as authorized by the Secretary of the
Treasury, the annual additions for a Participant would cause the
limitation of Section 415 of the Internal Revenue Code applicable to that
Participant for the limitation year to be exceeded, the excess amounts
shall not be deemed annual additions in that Plan Year if the excess
amounts in the Participant's accounts attributable to Company
contributions and/or forfeitures are used to reduce Company contributions
for the next Plan Year (and succeeding Plan Years, as necessary) for that
Participant if that Participant is covered by the Plan as of the end of
the Plan Year. However, if that Participant is not covered by the Plan as
of the end of the Plan Year, then the excess amounts must be held
unallocated in a suspense account for the Plan Year and allocated and
reallocated in the next Plan Year to all of the remaining Participants.
Furthermore, the excess amounts must be used to reduce Company
contributions for the next Plan Year (and succeeding Plan Years, as
necessary) for all of the remaining Participants. For purposes of this
subparagraph, excess amounts may not be distributed to Participants or
former Participants. If the Plan terminates before such suspense account
is fully allocated, such account shall be allocated among the accounts of
Participants who are actively employed by the Company on the last day of
the month preceding such termination.
(e) The annual addition for any Plan Year beginning before
January 1, 1987, shall not be recomputed to treat all employee
contributions as an annual addition.
Section 10.2 Compensation. For purposes of determining the
maximum limitation on annual additions, "compensation" with respect to any
Plan Year shall be determined in accordance with applicable regulations of
the Secretary of the Treasury under Section 415 of the Internal Revenue
Code and shall include the Participant's wages, salaries, fees for
professional services, and other amounts received for personal services
actually rendered in the course of employment with the employer
(including, but not limited to, commissions paid salesmen, compensation
for services on the basis of percentage of profits, commissions on
insurance premiums, tips, and bonuses). Compensation for this purpose
shall not include: contributions made by the employer to a plan of
deferred compensation to the extent that, before the application of
Section 415 of the Internal Revenue Code, the contributions are not
includable in the gross income of the employee for the taxable year in
which contributed; any distributions from such plan, provided, however,
that any amounts received by an employee pursuant to an unfunded
nonqualified deferred compensation plan may be considered as compensation
in the year such amounts are includable in the gross income of the
employee; employer contributions made on behalf of an employee to a
simplified employee pension plan to the extent such contributions are
deductible by the employee; amounts realized from the exercise of a
nonqualified stock option or when restricted property vests or becomes
freely transferable or is no longer subject to a substantial risk of
forfeiture pursuant to Section 83 of the Internal Revenue Code; amounts
realized from the disposition of stock acquired under a qualified stock
option; other amounts which receive special tax benefits, such as the
premiums for group term life insurance that are not includable in income.
Compensation in a Plan Year shall be the compensation actually paid or
made available to a Participant within a Plan Year.
Section 10.3 Adjustments of Dollar Limitations. The maximum
dollar limitations referenced in the Plan shall be adjusted, as permitted
by law, for increases in the cost of living under regulations prescribed
by the Secretary of the Treasury. The adjusted dollar limitations
applicable to a particular Plan Year shall be determined as of the last
day of such Plan Year, based on the dollar limitations in effect as of the
January 1 of the calendar year with or within which the Plan Year ends.
Section 10.4 Aggregation of Plans. All qualified defined
benefit plans (whether or not terminated) ever maintained by the employer
shall be treated as one defined benefit plan for purposes of applying the
limitations of this Section 10. All qualified defined contribution plans
(whether or not terminated) ever maintained by the employer shall be
treated as one defined contribution plan for purposes of applying the
limitations of this Section 10.
Section 10.5. Change in Limitation Year. The limitation year
for purposes of Code Section 415 is changed to the calendar year beginning
January 1, 1995. The limitations of Code Section 415 shall also apply to
the "limitation period" beginning July 3, 1994, and ending December 31,
1994, for purposes of which the dollar limitation under Section 10.1(a)
shall be $15,000.
SECTION 11. SPECIAL RULES FOR TOP-HEAVY PLANS
Section 11.1 Top-Heavy Restrictions. Notwithstanding any
provision to the contrary herein, in accordance with Internal Revenue Code
Section 416, if the Plan is a top-heavy plan for any Plan Year, then the
provisions of this Section shall be applicable. The Plan is "top-heavy"
for a Plan Year if as of its "determination date" (i.e. the last day of
the preceding Plan Year or the last day of the Plan's first Plan Year,
whichever is applicable), the total present value of the accrued benefits
of key employees (as defined in Code Section 416(i)(1) and applicable
regulations) exceeds sixty percent (60%) of the total present value of the
accrued benefits of all employees under the plan (excluding those of
former key employees and employees who have not performed any services
during the preceding five (5) year period) (as such amounts are computed
pursuant to Code Section 416(g) and applicable regulations using a five
percent (5%) interest assumption and a 1971 GAM mortality assumption)
unless such plan can be aggregated with other plans maintained by the
applicable controlled group in either a permissive or required aggregation
group and such group as a whole is not top-heavy. Any nonproportional
subsidies for early retirement and benefit options are counted assuming
commencement at the age at which they are most valuable. In addition, a
plan is top-heavy if it is part of a required aggregation group which is
top-heavy. Any plan of a controlled group may be included in a permissive
aggregation group as long as together they satisfy the Code Section
401(a)(4) and 410 discrimination requirements. Plans of a controlled
group which must be included in a required aggregation group include any
plan in which a key employee participates or participated at any time
during the determination period (regardless of whether the plan has
terminated) and any plan which enables such a plan to meet the Code
Section 401(a)(4) or 410 discrimination requirements. The present values
of aggregated plans are determined separately as of each plan's
determination date and the results aggregated for the determination dates
which fall in the same calendar year. A "controlled group" for purposes
of this Section includes any group of employers aggregated pursuant to
Code Sections 414(b), (c) or (m). The calculation of the present value
shall be done as of a valuation date which for a defined contribution plan
is the determination date and for a defined benefit plan is the date as of
which funding calculations are generally made within the twelve month
period ending on the determination date. Solely for the purpose of
determining if the Plan, or any other plan included in a required
aggregation group of which this Plan is a part, is top-heavy (within the
meaning of Code Section 416(g)) the accrued benefit of an employee other
than a key employee (within the meaning of Code Section 416(i)(1)) shall
be determined under (i) the method, if any, that uniformly applies for
accrual purposes under all plans maintained by the affiliates, or (ii) if
there is no such method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the fractional accrual rate of
Code Section 411(b)(1)(C).
Section 11.2 Minimum Top-Heavy Benefits. If a defined
contribution plan is top-heavy in a Plan Year, non-key employee
participants who have not separated from service at the end of such Plan
Year will receive allocations of employer contributions and forfeitures at
least equal to the lesser of three percent (3%) of compensation (as
defined in Code Section 415) for such year or the percentage of
compensation allocated on behalf of the key employee for whom such
percentage was the highest for such year (including any salary reduction
contributions). If a defined benefit plan is top-heavy in a Plan Year and
no defined contribution plan is maintained, the employer-derived accrued
benefit on a life only basis commencing at the normal retirement age of
each non-key employee shall be at least equal to a percentage of the
highest average compensation for five (5) consecutive years, excluding any
years after such Plan permanently ceases to be top-heavy, such percentage
being the lesser of (i) twenty percent (20%) or (ii) two percent (2%)
times the years of service after December 31, 1983 in which a Plan Year
ends in which the Plan is top-heavy. If the controlled group maintains
both a defined contribution plan and a defined benefit plan which cover
the same non-key employee, such employee will be entitled to the defined
benefit plan minimum and not to the defined contribution plan minimum.
Section 11.3 Combined Plan Limitations. If the controlled
group maintains a defined benefit plan and a defined contribution plan
which both cover one or more of the same key employees, and if such plans
are top-heavy, then the limitation stated in a separate provision of this
Plan with respect to the Code Section 415(e) maximum benefit limitations
shall be amended so that a one (1.0) adjustment on the dollar limitation
applies rather than a one and twenty-five hundredths (1.25) adjustment.
This provision shall not apply if the Plan is not "super top-heavy" and if
the minimum benefit requirements of this Section are met when two percent
(2%) is changed to three percent (3%) and twenty percent (20%) is changed
to an amount not greater than thirty percent (30%) which equals twenty
percent (20%) plus one percent (1%) for each year such plan is top-heavy.
A plan is "super top-heavy" if the ratio referred to in subsection (a)
above results in a percentage in excess of ninety percent (90%) rather
than a percentage in excess of sixty percent (60%).
Section 11.4 Top-Heavy Vesting Requirements. If the Plan is
top-heavy in a Plan Year, the vesting schedule shall automatically be
amended for any employee employed on the first day of such year or
thereafter so that the vested percentage for employer-derived benefits is
equal to the greater of the vesting provided under other provisions of the
Plan or the following schedule:
Years of Service Nonforfeitable Percentage
1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
where "years of service" means the years credited for vesting purposes
under the Plan or, if greater, the years required to be counted under Code
Section 411 and applicable regulation thereto. If the Plan thereafter
ceases to be top-heavy for a Plan Year, the vesting schedule above shall
be disregarded and the original schedule applied, except with respect to
any Participant with three (3) or more years of service and except that no
Participant's vested percentage as of the end of the prior year shall be
decreased. Any nonvested Participant who acquires a vested interest in
the employer-derived benefit by operation of the amended vesting schedule
shall not be subject thereafter to a cancellation of service.
Notwithstanding anything in this Section to the contrary, the amendment of
the vesting schedule pursuant to this subsection shall not affect the
calculation of benefit amounts or the determination of benefit
commencement dates hereunder.
SECTION 12. ADOPTION, AMENDMENT, TERMINATION AND MERGER
Section 12.1 Adoption of Plan by Additional Company. The Board
of Directors may extend the Plan to employees of any Affiliated Company
and their participation shall be effective upon appropriate action being
taken by such Company necessary to adopt the Plan. In that event, or if
any persons become Eligible Employees of a Participating Company as the
result of merger or consolidation or as the result of acquisition of all
or part of the assets or business of another company, the Board of
Directors shall determine to what extent, if any, previous service with
such company shall be recognized under the Plan. The following paragraphs
shall also be applicable:
(a) Each adopting Company shall participate in the Trust Fund
hereunder.
(b) The Trustee may, but shall not be required to, commingle
and hold as one Trust Fund all contributions made by all adopting
Companies.
(c) The Board of Directors shall have the sole authority to
amend the Plan and Trust and the Committee shall have the sole authority
to administer the Plan.
(d) Any company participating in the Plan may terminate its
participation in the Plan and Trust by appropriate action. In that event
the funds held on account of the employees of the terminating company, and
unpaid balances of former employees of such company, shall be segregated
to a separate trust, pursuant to certification by the Committee to the
Trustee to do so, continuing the Plan as a separate plan for the employees
of that company under which the board of directors of that company shall
succeed to all of the powers and duties of the Board of Directors,
including appointment of the members of the committee of that separate
plan. Alternatively, upon certification by the Committee to the Trustee,
other appropriate disposition of the terminating company's Plan assets
shall be made.
Section 12.2 Amendment. Subject to the nondiversion provisions
of Section 9, the Board of Directors may amend the Plan at any time and,
from time to time, with respect to all Participating Companies. No
amendment of the Plan shall have the effect of changing the rights, duties
and liabilities of the Trustee without its written consent. No amendment
shall divest a Participant or Beneficiary of benefits accrued prior to the
amendment or eliminate any optional form of benefit. The Company agrees
that promptly upon adoption of any amendment to the Plan, it will furnish
a copy of the amendment together with a certificate evidencing its due
adoption, to the Trustee then acting and to any other Participating
Companies. No amendment necessary to comply with any applicable law,
regulation, or order of the Internal Revenue Code or ERISA or any other
provision of law shall be considered prejudicial to the rights of any
employee or his Beneficiaries.
Section 12.3 Reorganizations of Participating Companies. In the
event two (2) or more Participating Companies shall be consolidated or
merged, or in the event one (1) or more Participating Companies shall
acquire the assets of another Participating Company, the Plan shall be
deemed to have continued, without termination and without a complete
discontinuance of contributions, as to all of the Participating Companies
involved in such reorganization and their employees, except that employees
whose Termination of Employment shall occur at the time of and because of
such reorganization shall be entitled to benefits as in the case of a
termination of the Plan. In such event, in administering the Plan, the
corporation resulting from the consolidation, the surviving corporation in
the merger, or the employer acquiring all of the assets shall be
considered as a continuation of the Participating Companies involved in
the reorganization.
Section 12.4 Termination. The Plan may be terminated by the
Company in full or in part. An employer which has discontinued its sole
participation in the Plan with the other Participating Companies shall
also have the right to terminate its separate plan which resulted from
such discontinuance at any time by action of its board of directors. Any
such voluntary termination of the Plan, or separate plan, shall be made in
compliance with all applicable provisions of law.
Section 12.5 Discontinuance of Contributions. Whenever a
Participating Company determines that it is impossible to or not advisable
to make further contributions as provided in the Plan, its board of
directors may, without discontinuing its participation in the Plan, adopt
an appropriate resolution permanently discontinuing all further
contributions to the Plan. A certified copy of such resolution shall be
delivered to the Committee and the Trustee. Thereafter, the Committee and
the Trustee shall continue to administer all provisions of the Plan which
are necessary and remain in force, other than provisions relating to
contributions by such Participating Company.
Section 12.6 Rights Upon Termination, Partial Termination and
Discontinuance of Contributions. Notwithstanding any other provisions of
this Plan, the Vested Balance of the Profit Sharing Account and Retirement
Savings Account of each Participant shall become one hundred percent
(100%) upon termination or partial termination of the Plan as to a
Participating Company, either as provided in Section 12.5 or by operation
of law, or upon a discontinuance of contributions to the Plan by a
Participating Company, either as provided in Section 12.6 or by operation
of law.
Section 12.7 Deferral of Distributions. In the event of a
complete or partial termination of the Plan, the Committee or the Trustee
may defer any distribution of benefit payments to Participants and
Beneficiaries with respect to which such termination applies until after
the following have occurred:
(a) Receipt of a final determination from the Treasury
Department or any court of competent jurisdiction regarding the effect of
such termination on the qualified status of the Plan under Section 401(a)
of the Internal Revenue Code.
(b) Appropriate adjustments of the Trust Fund to reflect taxes,
costs and expenses, if any, incident to such termination.
Section 12.8 Merger, Consolidation or Transfer of Plan Assets.
In the case of any merger or consolidation of the Plan with any other
plan, or in the case of the transfer of assets or liabilities of the Plan
to any other plan, provision shall be made so that each Participant and
Beneficiary would (if such other plan then terminated) receive a benefit
immediately after the merger, consolidation or transfer which is equal to
or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if the Plan had
then terminated).
SECTION 13. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section 13.1 Fiduciaries. The Board of Directors, the
Committee, any investment manager, and the Trustee shall be deemed to be
the only fiduciaries, named and otherwise, of the Plan and Trust Fund for
all purposes of ERISA. No named fiduciary designated in this Section 13.1
shall be required to give any bond or other security for the faithful
performance of its duties and responsibilities with respect to the Plan
and/or Trust Fund, except as may be required from time to time under
ERISA.
Section 13.2 Allocation of Fiduciary Responsibilities. The
fiduciary responsibilities (within the meaning of ERISA) allocated to each
named fiduciary designated in Section 13.1 hereof shall consist of the
responsibilities, duties, authority and discretion of such named fiduciary
which are expressly provided herein and in any related documents. Each
such named fiduciary may obtain the services of such legal, actuarial,
accounting and other assistants as it deems appropriate, any of whom may
be assistants who also render services to any other named fiduciary, the
Plan and/or the Participating Companies; provided, however, that where
such services are obtained, the named fiduciary shall not be deemed to
have delegated any of its fiduciary responsibilities to any such assistant
but shall retain full and complete authority over and responsibility for
any activities of such assistant. The Board of Directors, Trustee, any
investment manager, Committee and any individual members thereof shall not
be responsible for any act or failure to act of any other one of them
except as may be otherwise specifically provided under ERISA.
Section 13.3 General Limitation on Liability. Neither the
Board of Directors, the Committee, the Trustee, any investment manager nor
any other person or entity, including the Company and its shareholders,
directors and employees, guarantees the Trust Fund in any manner against
loss or depreciation and none of them shall be jointly or severally liable
for any act or failure to act or for anything whatever in connection with
the Plan and the Trust Fund, or the administration thereof, except and
only to the extent of liability imposed because of a breach of fiduciary
responsibility specifically prohibited under ERISA.
Section 13.4 Multiple Fiduciary Capacities. Any person or
group of persons may serve in more than one fiduciary capacity with
respect to the Plan and/or the Trust Fund.
Section 13.5 Responsibility of Insurance Companies. No
insurance company issuing contracts upon the application of the Trustee or
the Company or any Participating Company shall be deemed to be a party to
the Plan nor shall it be responsible for its validity. The issuing
insurance company shall not be required to look into the terms of the Plan
nor be responsible to see that any action of the Committee is authorized
by its terms. No issuing insurance company shall be obligated to see to
the distribution or further application of any monies paid by it pursuant
to any direction of the Committee.
IN WITNESS WHEREOF, The Manitowoc Company, Inc. has caused these
presents to be executed as of the 1st day of November , 1994.
THE MANITOWOC COMPANY, INC.
By: /s/ Fred M. Butler
Its: President and Chief Executive
Officer
IN WITNESS WHEREOF, The Manitowoc Company, Inc. has caused these
presents to be executed by its officers thereunto duly authorized as of
the 23rd day of June , 1989.
THE MANITOWOC COMPANY, INC.
By /s/ P. Ralph Helm
P. Ralph Helm, President
[Corporate Seal]
Attest:
/s/ Frank E. Stevens
Frank E. Stevens, Secretary
<PAGE>
EXHIBIT A, AS AMENDED, TO
THE MANITOWOC COMPANY, INC.
RSVP PROFIT SHARING PLAN
(Includes Amendments to February 26, 1996)
PROFIT CENTER CONTRIBUTIONS
I. DEFINITIONS.
Capitalized terms not defined in this Exhibit A shall have the
meanings ascribed to them in the Plan.
1.1. "AEC" means the Aggregate Eligible Compensation for the
Plan Year of all active Participants assigned to a Profit Center as of the
last day of the Plan Year for which the variable profit sharing
contribution is made. For purposes of this Exhibit an active Participant
is one who is entitled to receive an allocation of the variable profit
sharing contribution because the requirements of section 5.7 of the Plan
have been satisfied for the Plan Year.
1.2. "AEEC" means the Aggregate Excess Eligible Compensation for
the Plan Year of all active Participants assigned to a Profit Center as of
the last day of the Plan Year for which the variable profit sharing
contribution is made, i. e., the aggregate compensation of such
Participants that is in excess of the Integration Level.
1.3. "BCP" means the Base Contribution Percentage.
1.4. "BSC" means Bay Shipbuilding Company, a division of MCI.
1.5. "BSCOE" means BSC's Operating Earnings for the Plan Year
for which the variable profit sharing contribution is made. BSCOE shall
be computed according to BSC's accounting policies and procedures in
effect for the Plan Year for which the variable profit sharing
contribution is made and shall take into account the operating earnings of
BSC.
1.6. "BSCS" means BSC's net Sales during the Plan Year for which
a variable profit sharing contribution is made; sales to include those
made directly by BSC and those made indirectly through Manitowoc
International Corp., but excluding intercompany or interdivisional sales.
1.7. "C" means the variable profit sharing contribution for a
Profit Center.
1.8. "CEBT" means the Consolidated net Earnings Before Taxes of
MCI for the Plan Year for which the variable profit sharing contribution
is made. CEBT shall be computed according to the accounting policies and
procedures of MCI in effect for the Plan Year for which the variable
profit sharing contribution is to be made, after deduction of all related
expenses but before deduction of any attributable Federal and State income
taxes and before deduction of any contributions to be made to the Plan for
such Plan Year, including variable and fixed profit sharing contributions
and matching contributions. The operating earnings of foreign
subsidiaries are taken into account when determining CEBT for MCI but are
not taken into account in the determination of the operating earnings
applicable to other Profit Centers. Furthermore, MCI Profit Center's
contributions to the Plan for a Plan Year, including fixed and variable
profit sharing contributions and matching contributions are also not taken
into account as a deduction of an expense when determining the operating
earnings of other Profit Centers hereunder.
1.9. "CS" means MCI's Consolidated net Sales during the Plan
Year for which a variable profit sharing contribution is made. The sales
of foreign subsidiaries are taken into account when determining CS for MCI
but are not included in the determination of sales of other Profit
Centers.
1.10. "Divisions" means MEC, MEW, BSC, and OMD.
1.11. "EC" means the Eligible Compensation of an active
Participant.
1.12. "EEC" means the Excess Eligible Compensation of an
active Participant, i. e., such Participant's Eligible Compensation in
excess of the Integration Level.
1.13. "IL" means the Integration Level.
1.14. "MCI" means The Manitowoc Company, Inc.
1.15. "MEC" means Manitowoc Engineering Co., a division of
MCI, including Manitowoc MEC, Inc.
1.16. "MECOE" means MEC's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MECOE
shall be computed according to MEC's accounting policies and procedures in
effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions. Such computation shall take
into account the operating earnings of MEC.
1.17. "MECS" means MEC's Sales during the Plan Year for
which a variable profit sharing contribution is made; sales to include
those made directly by MEC, and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.18. "MEW" means Manitowoc Equipment Works, a division of
MCI, including Manitowoc Equipment Works, Inc.
1.19. "MEWOE" means MEW's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MEWOE
shall be computed according to MEW's accounting policies and procedures in
effect for the Plan Year for which the variable profit sharing
contribution is to be made before deduction of any contributions to be
made to the Plan for such Plan Year, including variable and fixed profit
sharing contributions and matching contributions.
1.20. "MEWS" means MEW's net Sales during the Plan Year for
which a variable profit sharing contribution is made; sales to include
those made directly by MEW and those made indirectly through Manitowoc
International Corp. but excluding intercompany or interdivisional sales.
1.21. "MFC" means The Manitowoc-Forsythe Corp., a wholly-
owned subsidiary of MCI.
1.22. "MFCOE" means MFC's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MFCOE
shall be computed according to MFC's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.23. "MFCS" means MFC's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MFC and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.24. "MNI" means Manitowoc Nevada, Inc., a wholly-owned
subsidiary of MCI.
1.25. "MNIOE" means MNI's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MNIOE
shall be computed according to MNI's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.26. "MNIS" means MNI's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MNI and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.27. "MIT" means Manitex, Inc., a wholly-owned subsidiary
of MCI.
1.28. "MITOE" means MIT's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MITOE
shall be computed according to MIT's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.29. "MITS" means MIT's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MIT and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.30. "MMA" means Manitowoc Mid-Atlantic, Inc., a wholly-
owned subsidiary of MCI.
1.31. "MMAOE" means MMA's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MMAOE
shall be computed according to MMA's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.32. "MMAS" means MMA's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MMA and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.33. "MRC" means Manitowoc Re-Manufacturing, Inc., a
wholly-owned subsidiary of MCI.
1.34. "MRCOE" means MRC's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MRCOE
shall be computed according to MRC's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.35. "MRCS" means MRC's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MRC and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.36. "MSE" means Manitowoc Southeastern Company, Inc., a
wholly-owned subsidiary of MCI.
1.37. "MSEOE" means MSE's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MSEOE
shall be computed according to MSE's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.38. "MSES" means MSE's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MSE and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.39. "MWE" means The Manitowoc Western Company, Inc., a
wholly-owned subsidiary of MCI.
1.40. "MWEOE" means MWE's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MWEOE
shall be computed according to MWE's accounting policies and procedures in
effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.41. "MWES" means MWE's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by MWE and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.42. "NCC" means The North Central Crane & Excavator Sales
Corp., a wholly-owned subsidiary of MCI.
1.43. "NCCOE" means NCC's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. NCCOE
shall be computed according to NCC's accounting policies and procedures in
effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.44. "NCCS" means NCC's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by NCC and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.45. "OMD" means the Orley-Meyer Division, a division of
MCI.
1.46. "OMDOE" means OMD's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. OMDOE
shall be computed according to OMD's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.47. "OMDS" means OMD's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by OMD and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.48. "Plan" means The Manitowoc Company, Inc. RSVP Profit
Sharing Plan, as effective July 3, 1988.
1.49. "R" means 7%.
1.50. "Subsidiaries" means MIT, MRC, MLC, NCC, MFC, MWC,
MSE, and MMA, and the divisions thereof with respect to each Subsidiary,
but does not include foreign subsidiaries.
1.51. "WMI" means West Manitowoc, Inc., a wholly-owned
subsidiary of MCI.
1.52. "WMIOE" means WMI's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. WMIOE
shall be computed according to WMI's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.53. "WMIS" means WMI's Sales for the Plan Year for which
the variable profit sharing contribution is made; sales to include those
made directly by WMI and those made indirectly through Manitowoc
International Corporation, but excluding intercompany or interdivisional
sales.
1.54. "MCOE" means MCI's Operating Earnings for the Plan
Year for which the variable profit sharing contribution is made. MCIOE
shall be computed according to MCI's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
1.55. "MCIGA" means MCI's Goodwill Amortization for the Plan
Year for which the variable profit sharing contribution is made. MCIGA
shall be computed according to MCI's accounting policies and procedures
in effect for the Plan Year for which the variable profit sharing
contribution is made before deduction of any contributions to be made to
the Plan for such Plan Year, including variable and fixed profit sharing
contributions and matching contributions.
II. PROFIT SHARING CONTRIBUTIONS.
Profit Sharing Contributions shall be separately determined for
each Profit Center hereunder for all contribution, deduction, and
allocation purposes of the Plan.
2.1. Profit Center: MCI
Eligible Employees: Eligible Employees of MCI, excluding
employees of the Divisions and the Subsidiaries.
Contribution Formula: Profit Sharing Contribution =
AEC x ((MCIOE + MCIGA) - R + 1%)
Allocation Formula Per Active Participant: As set forth
in Section 5.8 of the Plan.
2.2. Profit Center: MEC
Eligible Employees: Eligible Employees of MEC.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MECOE divided by MECS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.3. Profit Center: MEW
Eligible Employees: Eligible Employees of MEW.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MMWOE divided by MEWS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.4. Profit Center: BSC
Eligible Employees: Eligible Employees of BSC.
Contribution Formula: Profit Sharing Contribution = AEC
x ((BSCOE divided by BSCS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.5. Profit Center: MRC
Eligible Employees: Eligible Employees of MRC.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MRCOE divided by MRCS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.6. Profit Center: NCC
Eligible Employees: Eligible Employees of NCC.
Contribution Formula: Profit Sharing Contribution = AEC
x ((NCCOE divided by NCCS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.7. Profit Center: MFC
Eligible Employees: Eligible Employees of MFC.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MFCOE divided by MFCS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.8. Profit Center: MWE
Eligible Employees: Eligible Employees of MWE.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MWEOE divided by MWES) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.9. Profit Center: MSE
Eligible Employees: Eligible Employees of MSE.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MSEOE divided by MSES) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.10. Profit Center: MMA
Eligible Employees: Eligible Employees of MMA.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MMAOE divided by MMAS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.11. Profit Center: MIT
Eligible Employees: Eligible Employees of MIT.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MITOE divided by MITS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.12. Profit Center: OMD
Eligible Employees: Eligible Employees of OMD.
Contribution Formula: Profit Sharing Contribution = AEC
x ((OMDOE divided by OMDS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.13. Profit Center: MNI.
Effective Date: April 1, 1992.
Eligible Employees: Eligible Employees of MNI.
Contribution Formula: Profit Sharing Contribution = AEC
x ((MNIOE divided by MNIS) - R).
Allocation Formula: As set forth in Section 5.8 of the
Plan.
2.14. Profit Center: Femco
Eligible Employees: Eligible Employees of Manitowoc
Acquisition, Inc. d/b/a Femco
Machine Company.
Contribution Formula: Pursuant to Section 1.9 of Plan.
Allocation Formula: Pursuant to Section 1.9 of Plan.
2.15. Profit Center: WMI
Eligible Employees: Eligible Employees of WMI
Contribution Formula: Profit Sharing Contribution = AEC
x ((WMIOE divided by WMIS) - R)
Allocation Formula: As set forth in Section 5.8 of the
Plan
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
WRITER'S DIRECT LINE
September 10, 1996
The Manitowoc Company, Inc.
500 South 16th Street
Manitowoc, Wisconsin 54220
Ladies and Gentlemen:
We have acted as special counsel for The Manitowoc Company,
Inc., a Wisconsin corporation (the "Company"), in connection with the
preparation of a Form S-8 Registration Statement (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 150,000 shares of the Company's Common Stock, $.01 par
value (the "Common Stock"), the associated rights to purchase shares of
Common Stock accompanying each share of Common Stock (the "Rights"), and
interests in The Manitowoc Company, Inc. RSVP Profit Sharing Plan, as
amended (the "Plan"), which may be issued or acquired pursuant to the
Plan. The terms of the Rights are as set forth in that certain Rights
Agreement, dated as of September 5, 1986, as amended as of August 12,
1988, by and between the Company and Morgan Shareholder Services Trust
Company (the "Rights Agreement").
We have examined: (a) the Plan; (b) signed copies of the
Registration Statement; (c) the Company's Amended and Restated Articles of
Incorporation and Restated Bylaws; (d) the Rights Agreement; (e)
resolutions of the Company's Board of Directors relating to the Plan and
the issuance of securities thereunder; and (f) such other proceedings,
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Common
Stock to be acquired by the Plan will be purchased either in the open
market or directly from the Company or other private sources. To the
extent that the shares of Common Stock acquired by the Plan constitute
shares issued by and purchased from the Company, such shares of Common
Stock, when issued pursuant to the terms and conditions of the Plan, and
as contemplated in the Registration Statement, will be validly issued,
fully paid and nonassessable, except with respect to wage claims of, or
other debts owing to, employees of the Company, as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law and judicial
interpretations thereof.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of The Manitowoc Company, Inc. on Form S-8 (File No. 0-6645) of our report
dated February 6, 1996, on our audits of the consolidated financial
statements and financial statement schedule of The Manitowoc Company, Inc.
as of December 31, 1995 and 1994, and for the year ended December 31,
1995, and the period from July 3, 1994 to December 31, 1994, which report
is incorporated by reference in this Form S-8.
/s/ Coopers & Lybrand, L.L.P.
Milwaukee, Wisconsin
September 3, 1996
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of The Manitowoc Company, Inc. on Form S-8 (File No. 0-6645) of our report
dated May 9, 1996, on our audits of the financial statements of The
Manitowoc Company, Inc. RSVP Profit Sharing Plan as of December 31, 1995
and 1994, and for the year ended December 31, 1995, and the period from
July 3, 1994 to December 31, 1994, which report is incorporated by
reference in this Form S-8.
/s/ Coopers & Lybrand, L.L.P.
Milwaukee, Wisconsin
August 30, 1996
Exhibit 23.2
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 July 28, 1994 included in The Manitowoc Company Inc.'s Form 10-K for
the year ended December 31, 1995 and our report dated October 3, 1994
included in The Manitowoc Company Inc. RSVP Profit Sharing Plan's Form 11-
K for the year ended December 31, 1995 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
September 3, 1996
