THE MANITOWOC COMPANY, INC.
RETIREMENT SAVINGS PLAN
(As Restated Effective January 1, 2000)
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THE MANITOWOC COMPANY, INC.
RETIREMENT SAVINGS PLAN
Table of Contents
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Section 1. GENERAL 1
Section 1.1 Name of Plan.......................................1
Section 1.2 Purpose............................................1
Section 1.3 Effective Date.....................................1
Section 1.4 Construction and Applicable Law....................1
Section 1.5 Severability.......................................1
Section 2. DEFINITIONS....................................................2
Section 2.1 Affiliated Company.................................2
Section 2.2 Beneficiary........................................2
Section 2.3 Board of Directors.................................2
Section 2.4 Cash Option Account................................2
Section 2.5 Committee..........................................2
Section 2.6 Company............................................2
Section 2.7 Eligible Compensation..............................2
Section 2.8 Eligible Employee..................................3
Section 2.9 ERISA..............................................3
Section 2.10 Internal Revenue Code; Code........................3
Section 2.11 Leave of Absence...................................3
Section 2.12 Normal Retirement..................................3
Section 2.13 Manitowoc Stock; Manitowoc Stock Fund..............3
Section 2.14 Normal Retirement Age..............................4
Section 2.15 Participant........................................4
Section 2.16 Participating Company..............................4
Section 2.17 Participating Group................................4
Section 2.18 Plan Year..........................................4
Section 2.19 Termination of Employment..........................4
Section 2.20 Trustee, Trust Agreement, Trust Fund...............4
Section 2.21 Valuation Date.....................................4
Section 3. PLAN PARTICIPATION.............................................5
Section 3.1 Commencement of Participation......................5
Section 3.2 Transfers to/from Eligible Employee Status.........5
Section 3.3 Rehire After Termination of Employment.............5
Section 3.4 Election to Become a Contributing Participant......5
Section 3.5 No Guaranty of Employment..........................5
Section 4. EMPLOYEE CONTRIBUTIONS.........................................6
Section 4.1 Employee Contributions.............................6
Section 4.2 Rollover Contributions.............................6
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Section 4.3 Plan-to-Plan Transfers to the Plan.................6
Section 5. CASH OPTION PROGRAM............................................7
Section 5.1 Elective Deferrals.................................7
Section 5.2 Contribution Election Procedures..................10
Section 5.3 Timing of Contributions...........................10
Section 5.4 Maximum Additions.................................10
Section 5.5 Special Rules Applicable to Returning Veterans....10
Section 5.6 Minimum Employer Contribution.....................11
Section 5.7 Securities Law Compliance.........................12
Section 6. INVESTMENT ELECTIONS AND VALUATION OF ACCOUNTS................13
Section 6.1 Investment Elections..............................13
Section 6.2 Account Adjustments to Reflect Net Worth of
the Trust Fund................................13
Section 6.3 Net Worth.........................................14
Section 6.4 Certain Segregated Accounts.......................14
Section 6.5 Responsibility to Maintain Account Balances.......14
Section 6.6 Voting and Tender Rights as to Manitowoc Stock....14
Section 7. DISTRIBUTION OF BENEFITS AND VESTING..........................16
Section 7.1 Termination of Employment.........................16
Section 7.2 When Distribution of Accounts Shall Commence......16
Section 7.3 How Accounts Are to Be Distributed................17
Section 7.4 Required Distribution Rules.......................18
Section 7.5 Nonalienation of Benefits.........................19
Section 7.6 Procedures on Receipt of a Domestic
Relations Order...............................19
Section 7.7 Payment of Taxes..................................21
Section 7.8 Incompetent Payee.................................21
Section 7.9 Notice, Place and Manner of Payment...............21
Section 7.10 Source of Benefits................................21
Section 7.11 Voluntary Withdrawals.............................21
Section 7.12 Loans to Participants.............................21
Section 7.13 Direct Transfer of Eligible Rollover
Distributions.................................24
Section 7.14 Distributions of Manitowoc Stock..................25
Section 8. PLAN ADMINISTRATION...........................................26
Section 8.1 The Administrative Committee......................26
Section 8.2 Agent for Legal Process...........................28
Section 8.3 Claims Procedures.................................28
Section 8.4 Records...........................................28
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Section 8.5 Correction of Errors..............................29
Section 8.6 Evidence..........................................29
Section 8.7 Bonding...........................................29
Section 8.8 Waiver of Notice..................................29
Section 9. TRUST FUND....................................................30
Section 9.1 Composition.......................................30
Section 9.2 The Trust Agreement...............................30
Section 9.3 Compensation, Reimbursement.......................30
Section 9.4 No Diversion......................................30
Section 10. ADOPTION, AMENDMENT, TERMINATION AND MERGER...................32
Section 10.1 Adoption of Plan by Additional Company............32
Section 10.2 Amendment.........................................32
Section 10.3 Reorganizations of Participating Companies........32
Section 10.4 Termination.......................................33
Section 10.5 Discontinuance of Contributions...................33
Section 10.6 Rights Upon Termination, Partial Termination
and Discontinuance of Contributions............33
Section 10.7 Deferral of Distributions.........................33
Section 10.8 Merger, Consolidation or Transfer of Plan Assets..33
Section 11. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES................35
Section 11.1 Fiduciaries.......................................35
Section 11.2 Allocation of Fiduciary Responsibilities..........35
Section 11.3 General Limitation on Liability...................35
Section 11.4 Multiple Fiduciary Capacities.....................35
Section 11.5 Responsibility of Insurance Companies.............35
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SECTION 1. GENERAL
Section 1.1 Name of Plan. The name of the Plan is The Manitowoc
Company, Inc. Retirement Savings Plan. It is sometimes referred to as the
"Plan."
Section 1.2 Purpose. The Plan has been established to provide eligible
employees with a 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 Plan is a profit sharing plan with a pretax savings
feature under Internal Revenue Code Section 401(k).
Section 1.3 Effective Date. The effective date of the Plan for any
Participating Group is the date provided for that Group in Appendix A to the
Plan which is incorporated herein by this reference.
Section 1.4 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 1.5 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.
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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 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 balance in the
Plan. A Participant shall designate his Beneficiary on the form and in the
manner prescribed by the Committee and such designation may be changed or
withdrawn by the Participant at any time. The most recent valid designation on
file with the Committee at the time of the Participant's death shall be the
Beneficiary. Notwithstanding the foregoing, in the event the Participant is
married at the time of his death, the beneficiary shall be the Participant's
spouse at such time unless such spouse consented in writing to the designation
of an alternative Beneficiary after notice of the spouse's rights and such
consent was witnessed (i) by a Plan representative or (ii) by a notary public.
In the event no valid designation of a Beneficiary is on file with the Committee
at the date of death or no designated Beneficiary survives him, the
Participant's spouse shall be deemed the Beneficiary; in the further event the
Participant is unmarried or his spouse does not survive him, the Participant's
estate shall be deemed to be his Beneficiary. Notwithstanding the foregoing, in
the event of the Participant's divorce, the former spouse shall cease to be a
Beneficiary unless after such divorce the Participant completes a new
designation naming such individual as a Beneficiary.
Section 2.3 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 2.4 Cash Option Account. "Cash Option Account" means the
account maintained for each Participant 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.
Section 2.5 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 2.6 Company. "Company" means The Manitowoc Company, Inc., a
Wisconsin corporation, and any successors and assigns thereto.
Section 2.7 Eligible Compensation. "Eligible Compensation" shall
include wages, salary, overtime pay, commissions, cash bonuses or incentive pay,
and amounts subject
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to any salary reduction election made pursuant to Sections 125 or 401(k) of the
Internal Revenue Code. 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. Eligible Compensation does not include compensation received while
an employee is not a Participant.
Section 2.8 Eligible Employee. An "Eligible Employee" is an employee
of a Participating Company (i) whose job is covered by a collective bargaining
agreement between the Participating Company and a union representing employees
of the Participating Company and (ii) who is included in a Participating Group.
The Committee shall determine, in its sole discretion, whether any individual is
an Eligible Employee.
Section 2.9 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 2.10 Internal Revenue Code; 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 2.11 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 2.12 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 2.13 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.
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Section 2.14 Normal Retirement Age. "Normal Retirement Age" means age
sixty-five (65).
Section 2.15 Participant. A "Participant" is a person who has been or
who is an Eligible Employee in a Participating Group who is admitted to
participation in the Plan pursuant to Section 3, and who continues to be
entitled to benefits under the Plan.
Section 2.16 Participating Company. A "Participating Company" is the
Company and any Affiliated Company currently employing Eligible Employees who
are members of a Participating Group. Appendix A to the Plan identifies each
Participating Company and the effective date of participation in the Plan of
each Participating Group.
Section 2.17 Participating Group. A "Participating Group" is a group
of Eligible Employees designated by the Committee as being covered by the Plan
as of a designated effective date. Each Participating Group shall be identified
in Appendix A to the Plan.
Section 2.18 Plan Year. The "Plan Year" is the calendar year and is
the year on which records of the Plan are kept.
Section 2.19 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 2.20 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 pursuant to the terms of such Trust Agreement. The
"Trust Fund" means the fund established pursuant to the Trust Agreement.
Section 2.21 Valuation Date. The "Valuation Date" means the date as of
which the Trust Fund and accounts are valued as provided by the Plan. Prior to
April 1, 1999, each of the following is a Valuation Date: The last day of each
Plan Year and 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. Effective
April 1, 1999, or as soon thereafter as administratively convenient, Plan
accounts shall be valued on a daily basis.
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SECTION 3. PLAN PARTICIPATION
Section 3.1 Commencement of Participation. An Eligible Employee shall
be eligible to become a contributing Participant on the earliest date on which
(i) the employee is a member of a Participating Group and (ii) the employee has
completed any probationary employment period applicable to the employee pursuant
to the collective bargaining agreement covering the employee's job with the
Participating Company, or if shorter, six (6) months of employment with the
Company or any Affiliated Company.
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,
the employee shall be eligible to become a contributing Participant upon
transfer when all of the requirements of Section 3.1 are satisfied. 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 no
later than the third payroll period commencing after such transfer.
Section 3.3 Rehire After Termination of Employment. If a former
Participant is rehired as an Eligible Employee and is a member of a
Participating Group, such person shall be eligible immediately to become a
contributing Participant.
Section 3.4 Election to Become a Contributing Participant. An Eligible
Employee shall complete an enrollment form in accordance with Committee rules in
order to become a contributing Participant. The enrollment form, which shall
also contain any contribution election agreement of the contributing
Participant, shall be in such form as shall be prescribed by the Committee. An
Eligible Employee may enroll when first eligible to do so or as of any
subsequent enrollment dates. The Committee shall determine the frequency of
enrollment dates in its discretion. Enrollments shall be effective as of dates
determined by Committee rules which afford reasonable time periods convenient to
the operation of the Plan. Each Participating Company shall advise its Eligible
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.
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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 rules of the Plan applicable to
other Participant accounts in the Plan.
Section 4.3 Plan-to-Plan Transfers to the Plan. In the sole discretion
of the Committee transfers of amounts held for the benefit of Eligible Employees
by other tax-qualified employee pension benefit plans may be made to the Plan,
subject to the requirements of Code Section 411(d)(6), including its requirement
that distribution options associated with such transferred amounts are to be
preserved after the transfer to this Plan. A transferred amount shall be
credited to a separate "transfer 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 transfer contribution account shall be nonforfeitable for all
purposes of the Plan. Upon Termination of Employment, the balance of an
employee's transfer contribution account shall be distributed pursuant to the
rules of the Plan applicable to other Participant accounts in the Plan.
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SECTION 5. CASH OPTION PROGRAM
Section 5.1 Elective Deferrals. Effective upon implementation of the
Plan by the Committee with respect to a Participating Group, an Eligible
Employee including the Participating Group may, when eligible to participate as
provided in Section 3.1, 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, subject to the limitations of this Section 5.1 and Section 5.5.
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 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. Elective deferrals shall be promptly
remitted by a Participating Company to the Trustee in accordance with applicable
rules.
(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) The Plan is subject to the limitations of Code Section 401(k),
which are incorporated herein by this reference, including the statutory
requirements, the regulatory requirements of Treas. Reg. Section 1.401(k)-1, and
all subsequent Internal Revenue Service guidance issued under the applicable
Code provisions. Accordingly, the average deferral percentage for any Plan Year
for the group of highly compensated employees as defined in subsection (l) below
who are eligible to participate in the Plan ("Highly Compensated Participants")
shall not exceed the greater of:
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(1) one hundred twenty-five percent (125%) of the average deferral
percentage for the preceding Plan Year for all employees who were eligible to
participate in the Plan in such Plan Year other than highly compensated
employees for such year ("Non-highly Compensated Participants"); or
(2) the lesser of (A) the average deferral percentage for the group of
Non-highly Compensated Participants for the preceding Plan Year plus two
percent; or (B) two times the average deferral percentage for the group of
Non-highly Compensated Participants for the preceding Plan Year.
(f) The deferral percentage for any Non-highly Compensated Participant
is calculated by dividing the amount of the Participant's elective deferrals for
the preceding Plan Year by the Participant's compensation (as defined in Code
Sections 414(q)(4) and 415(c)(3)) for such Plan Year. The deferral percentage
for any Highly Compensated Participant is calculated by dividing the amount of
the Participant's elective deferrals for the current Plan Year by the
Participant's compensation (as defined in Code Sections 414(q)(4) and 415(c)(3))
for such Plan Year. The average deferral percentage for the group of Highly
Compensated Participants and the group of Non-highly Compensated Participants is
the average of the deferral percentages calculated for each member of the
applicable group. In accordance with rules promulgated by the Internal Revenue
Service, the Committee, in calculating a Participant's deferral percentage, may
elect to treat qualified elective contributions and qualified non-elective
contributions (if any) as if they were elective deferrals.
(g) The Committee may from time to time establish limits (and as
appropriate, modify any such limit) on the amount or percentage of elective
deferrals that may be made by or on behalf of Highly Compensated Participants
for the Plan Year. In addition, the Committee may prospectively decrease the
rate of elective deferrals of any Participant at any time, if the Committee
determines that such action is necessary or desirable to enable the Plan to
comply or to ensure compliance with the average deferral percentage limitations
or the requirements of Code Sections 401(k), 402(g), 415 or other applicable
provisions.
(h) If the average deferral percentage of Highly Compensated
Participants for any Plan Year exceeds the applicable deferral percentage
limitation for such year, each affected Highly Compensated Participant shall
receive a distribution of the amount of his excess elective deferrals, together
with income on such elective deferrals for the Plan Year in which the
contributions were made. Such distribution shall be made on or before the last
day of the Plan Year following the Plan Year to which the excess elective
deferrals relate; provided that the relevant Participating Company will be
subject to an excise tax if excess elective deferrals are not distributed within
two and one-half months following the close of the Plan Year in which they were
made. The aggregate amount of elective deferrals to be refunded shall be
determined by reducing (or leveling) the maximum allowable level of elective
deferrals to a percentage determined by the Committee that, if applied to all
Highly Compensated Participants with a deferral percentage above that level,
would result in the average deferral percentage test being satisfied. The
aggregate amount required to be refunded shall be allocated among (and
distributed to) Highly Compensated Participants by reducing (or
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leveling) the maximum dollar amount of elective deferrals for the Plan Year to
an amount determined by the Committee that, if applied to all Highly Compensated
Participants with elective Deferrals above that level, would result in a refund
of elective deferrals equal to the aggregate amount of excess elective deferrals
calculated in accordance with the preceding sentence. The amount required to be
distributed to any Highly Compensated Participant shall be reduced by the amount
of excess elective deferrals (if any) previously distributed to the Participant
in order to comply with Code Section 402(g)(5).
(i) To the extent that elective deferrals refunded to a Highly
Compensated Participant in accordance with subsection (h) above resulted in
Company matching contributions being allocated to the Participant's account,
such matching contributions, together with all income on such matching
contributions for the Plan Year to which the matching contributions relate (but
not including any gap period income) shall be forfeited. This forfeiture shall
occur notwithstanding the vesting schedule otherwise applicable to matching
contributions.
(j) In the event that the Committee determines that Code Section
401(k) (including the regulations thereunder) may be applied in a manner
different than that prescribed in this Section, the Committee, in its
discretion, may make appropriate adjustments and such adjustments shall be an
effective amendment of this section. In addition, the Committee may promulgate
such further rules and procedures as it may deem necessary for the proper
application of this Section.
(k) Following the application of this Section and the average
contribution requirements below, the Committee shall make further adjustments as
necessary to comply with the "multiple use" test of Code Section 401(m)(9) and
the regulations thereunder.
(l) "Highly compensated employee" means an employee who satisfies
either of the following conditions:
(1) The employee was at any time during the current or
immediately preceding Plan Year a five percent (5%) owner within the
meaning of Code Sections 414(q) and 416(i), including deemed ownership
resulting from application of the constructive ownership rules of Code
Section 318; or
(2) The employee received "compensation" during the
preceding Plan Year from the Company or any affiliate of the Company
under Code Sections 414(b), (c), (m) or (o) that, in the aggregate,
exceeded eighty thousand dollars ($80,000) as indexed in accordance
with Code Section 414(q) for cost-of-living adjustments. For purposes
of determining whether an employee is a highly compensated employee,
"compensation" shall mean the employee's compensation within the
meaning of Code Section 415(c)(3), plus to the extent not otherwise
included under Section 415(c)(3), any amount paid by an Employer or an
affiliate of a Company under Code Sections 414(b), (c), (m) or (o)
during the Plan Year as a pretax employee contribution to any plan
maintained by the Company or an affiliate of the Company under Code
Sections 414(b), (c), (m) or (o) if such contribution is excluded from
the gross income of the employee in accordance with Code Sections 125,
402(e)(3) or 402(h).
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Section 5.2 Contribution Election Procedures. A contribution election
(or change or revocation) shall be in 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 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.
Notwithstanding the foregoing, elective deferral contributions shall be remitted
by the Company to the Trustee as soon as administratively convenient following
the withholding of such amounts from Participant payrolls, but in no later than
the fifteenth (15th) day of the month following the month in which the Company
receives such contributions.
Section 5.4 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 which are incorporated herein by this reference.
Section 5.5 Special Rules Applicable to Returning Veterans
(a) This Section 5.4 applies to a Participant who is absent from
active employment with any Participating Company on account of military service
and who returns from such military service to active employment with any
Participating Company under terms and conditions that entitle the Participant to
the protections of the Uniformed Services Employment and Reemployment Rights Act
of 1994, as amended.
(b) The Participant may elect (either in lieu of or in addition to the
elective deferral contributions that the Participant may elect to make with
respect to Eligible Compensation earned on and after the Participant's
reemployment) to make elective deferral; contributions, with respect to the
Participant's period of eligible military service ("make-up contributions"). The
Participant may elect to contribute make-up contributions during the period that
begins on the date of the Participant's reemployment after covered military
service and extends (i) for five (5) years from the date of reemployment, or
(ii) for a period equal to three (3) times the Participant's period of covered
military service. The make-up contributions may not exceed the maximum amount of
elective deferral contributions that would have been permitted under the Plan
and applicable Code provisions had the Participant been continuously employed by
the Company during the period of military service, reduced by the amount of
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elective deferral contributions (if any) actually made by the Participant during
the period of military service.
(c) For purposes of determining the amount of the maximum amount of
make-up contributions permissible under Section 5.1, the Participant's
compensation during the period of eligible military service shall be deemed to
equal the rate of pay that the Participant would have received from the Company
but for the military service; provided that if such compensation cannot be
determined with reasonable certainty, the Participant's compensation for the
period of military service shall be deemed to equal the Participant's average
compensation from the Company for the twelve (12) month period immediately
preceding the Participant's military service (or if the Participant was employed
for less than the full twelve (12) month period immediately preceding such
military service, the Participant's average compensation from the Company for
the Participant's entire period of employment with the Company preceding the
Participant's military service).
(d) No adjustment shall be made to a Participant's account to reflect
the gain or loss that would have been credited (charged) to the Participant's
account had the base contributions and make-up contributions described in this
Section 5.4 been made during the period of military service rather than
following the Participant's return to active employment.
Section 5.6 Minimum Employer Contribution.
The Chief Financial Officer of the Company shall specify in writing
the amount of the "minimum employer contribution" for each Plan Year. The
following paragraphs shall also apply:
(a) "Minimum employer contribution" means, for purposes of this
Section 5.6, the amount of elective deferral contributions under Section 5.1
designated for the Plan Year by the Chief Financial Officer of the Company as
the minimum employer contribution for the Plan Year. The minimum employer
contribution must be contributed by Participating Companies for a Plan Year and
such amounts may not revert to the Company.
(b) The requirement to make the minimum employer contribution
designated for a Plan Year is satisfied as soon as the total contributions to
the Plan for a Plan Year by the Participating Companies, made pursuant to
Section 404 of the Internal Revenue Code, equals or exceeds the minimum employer
contribution amount for the Plan Year. Minimum employer contributions shall be
made within the time requirements described in Section 5.3.
(c) Minimum employer contributions shall be held in an unallocated
deposit account in the investment fund selected for this purpose by the Chief
Financial Officer of the Company until allocated on or before the end of the
Plan Year in accordance with this Section 5.6. All gains, losses, and income
attributable to such account shall be applied to reduce Plan expenses otherwise
payable by the Company and, thereafter, to reduce and offset Company
contributions to the Plan.
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(d) The minimum employer contribution for a Plan Year shall be
allocated first, as elective deferral contributions under Section 5.1; and
second, as qualified nonelective contributions pursuant to Section
401(k)(3)(D)(II); provided, however, that allocations in excess of the
limitations of Section 415 of the Internal Revenue Code are not authorized
hereunder and such amounts, if any, are subject to Section 5.4 of the Plan.
Section 5.7 Securities Law Compliance.
(a) The price at which the Plan shall acquire newly-issued shares from
the Company shall be for any day the last sale price at which a share of
Manitowoc Stock traded as reported on the composite tape by the New York Stock
Exchange on the business day immediately preceding such day, or, if there were
no trades of Shares on the composite tape on such business day, on the most
recent preceding business day on which there were trades. Or, if shares of
Manitowoc Stock are not listed or admitted to trading on the New York Stock
Exchange when the determination of fair market value is to be made, such price
per share shall be the mean between the highest and lowest reported sales prices
of shares of Manitowoc Stock on that date on the principal exchange on which the
shares are then listed. If the shares are not listed on any national exchange
the price shall be the amount determined in good faith by the Committee to be
the fair market value of a share of Manitowoc Stock at the relevant time. 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) 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.
(c) 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.
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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 Participants who are employed by a
Participating Company or an Affiliated Company. 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; provided,
however, that Participants in this Plan shall have no access to an investment
fund in the Trust Fund holding primarily the common stock of the Company unless
this Plan is registered in accordance with applicable rules of the Securities
and Exchange Commission. The following paragraphs shall apply to the investment
instructions of Participants:
(a) An investment election shall be in such form as the Committee
shall prescribe. Such form shall be filed with the Participating Company
employing the Participant in accordance with Committee instructions. Each
Participant shall, upon enrollment in the Plan, file an investment election
directing the investment of the Participant's account 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 account. 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 calendar year quarter.
(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 account. 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, after the crediting of elective deferrals
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 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 elective deferrals deposited during the allocation
period, using reasonable methods applied in a uniform manner to all accounts,
unless the Plan is then utilizing daily account valuation.
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(b) 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 a
separate account for each Participant's accrued benefits under the Plan, showing
the manner in which it has determined the entries made to 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 his account.
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,
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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.
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SECTION 7. DISTRIBUTION OF BENEFITS AND VESTING
Section 7.1 Termination of Employment. Upon Termination of Employment
the entire balance of the account of a Participant shall be distributable
pursuant to the provisions of the Plan. Such account balance shall be determined
as of the Valuation Date immediately preceding its 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 When Distribution of Accounts Shall Commence.
(a) The distribution of benefits to a Participant under the Plan shall
generally 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 Participant's attainment of Normal Retirement Age
or 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 must provide written consent to the distribution of
his or her account if the value of such account exceeds five thousand dollars
($5,000) at the time distribution is to commence and the distribution date is
before the latest distribution date described in subparagraph (a), above. A
Participant may provide the required consent and elect, in accordance with
Committee procedures, to receive the distribution of the Participant's accounts
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. If such election is not made
by the Participant by the close of the Plan Year following the Plan Year in
which his Termination of Employment occurs, payment shall be deferred for
payment until the latest distribution date permitted under subparagraph (a),
above. During such payment deferral period and any installment payment period,
if applicable, such account balance shall be held and invested in the Capital
Appreciation Fund (as such term is defined in the Trust Agreement).
(c) Notwithstanding the preceding subparagraph (b), payment of a
Participant's account 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
provided the Participant had reached age fifty-five (55) at the time of death,
in accordance with the extended distribution period described in Section 7.3,
including the availability of installment payments as an optional form of
payment.
(d) Lump sum payment of portions of a Participant's account 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.
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(e) Distribution of a Participant's accounts shall commence no later
than the Participant's "required beginning date." In the case of a Participant
who is a five percent (5%) owner, as defined in Code Section 414(q), the
required beginning date is April 1 following the calendar year in which the
Participant attains age seventy and one-half (70 1/2). In the case of any
Participant who is not a five percent (5%) owner but who attained age seventy
and one-half (70 1/2) on or before December 31, 1998, the required beginning
date is April 1 following the calendar year in which the Participant attains age
seventy and one-half (70 1/2); provided that any such Participant who attained
age seventy and one-half (70 1/2) during 1996, 1997 or 1998 may elect to defer
distribution until a date not later than April 1 following the calendar year in
which occurs the later of the Participant's retirement or attainment of age
seventy and one-half (70 1/2). In the case of any other Participant, the
required beginning date is April 1 following the calendar year in which occurs
the later of the Participant's attainment of age seventy and one-half (70 1/2)
or the Participant's retirement.
Section 7.3 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 Participant shall be a single lump sum payment. Section 7.14 describes the
rules regarding in-kind distributions of Manitowoc Stock. A Participant may
receive payment in another form permitted under the Plan and described in
paragraph (c), below.
(b) Rules if Participant is Dead. The normal form of distribution upon
the death of a Participant shall be a single lump sum payment to the
Participant's Beneficiary. Section 7.14 describes the rules regarding in-kind
distributions of Manitowoc Stock. A Beneficiary shall have the right to select
an optional form of distribution under circumstances, described below, as
permitted by applicable regulations.
(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 7.14 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.
(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 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 the required consent is obtained. The
thirty (30) day notice requirement may be waived so long as
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distribution does not commence until seven (7) days have elapsed since the
Participant has received such written explanation. Any required consent shall be
obtained before a distribution is made at any time.
(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 does not exceed five thousand dollars ($5,000) at the time 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 7.14 describes the rules
regarding in-kind distributions of Manitowoc Stock.
Section 7.4 Required Distribution Rules.
(a) 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.
(b) The minimum amount to be distributed each calendar year under any
installment payment method hereunder, 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 ss.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.
(3) 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.
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(c) 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 7.4.
Section 7.5 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 or any offset of benefits against an amount a participant is
ordered to pay in connection with a violation of ERISA fiduciary duties to the
Plan, as permitted by Code Section 401(a)(13)(C), shall not be treated as an
assignment or alienation under this Section.
Section 7.6 Procedures on Receipt of a Domestic Relations Order.
(a) 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 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 then 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.
(d) 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
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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.
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Section 7.7 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 7.8 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 7.9 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 7.10 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 7.11 Voluntary Withdrawals. A Participant shall have the right
to request a withdrawal from his account balance if the Participant has attained
at least age fifty-nine and one-half (59-1/2). Such a request need not be due to
financial hardship and may include the entire amount in such account. If a
Participant makes a withdrawal pursuant to this Section 7.11, such Participant
shall not be eligible to make another voluntary withdrawal under this Section
7.11 until he has completed at least sixty (60) months of Plan participation
after the date of the previous withdrawal. Distributions pursuant to this
Section 7.11 shall be made on a prorata basis from the investment funds utilized
by the Participant's account.
Section 7.12 Loans to Participants. Upon the written application of a
Participant filed with the Committee which demonstrates financial hardship, the
Committee
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shall direct the Trustee to make a loan to such Participant out of the
Participant's account balance in the Plan. The following paragraphs shall also
be applicable:
(a) This Section 7.12 applies only to an employee of a Participating
Company who has an account balance 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 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 account balances in
the Plan.
(b) Upon filing a proper written application with the Committee, which
shall include demonstration of financial hardship, an eligible borrower may
borrow against his account balance. The maximum loan amount shall not exceed
one-half (1/2) the value of his account balance as of the Valuation Date
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) "Financial hardship," for this purpose, means that the loan
proceeds are needed by the borrower to satisfy an immediate and heavy financial
need of the borrower. 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
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revenue rulings, notices, and other documents of general applicability
rather than of a particular application to a certain individual.
(d) 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 ss. 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.
(e) 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.
(f) Amounts loaned to a borrower shall be withdrawn proportionately
from the investment funds in which the borrower's account balance is invested
other than from the Manitowoc Stock Fund, first, and then from the Manitowoc
Stock Fund, 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 to the maximum extent
permitted by law by the borrower's account balance in the Plan. Amounts repaid
to a borrower's segregated loan account shall be deposited to the Plan's
investment funds pursuant to the investment election then in effect for the
borrower.
(g) If a Participant defaults in the making of any payments on a loan
when due and such default continues until the end of the calendar year quarter
following the calendar year quarter in which the required payment was due, 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
by the end of the grace period described above, 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.
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(h) 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.
(i) 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.
(j) All loans shall be subject to the consent of the Participant which
is deemed to be provided upon the making of the loan.
Section 7.13 Direct Transfer of Eligible Rollover Distributions.
(a) 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; effective after December 31, 1998, any hardship withdrawal
hereunder; and the portion of any distribution that is not includable 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
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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 7.14 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.
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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.
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(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.
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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 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 hereunder 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 8.4 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
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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 8.5 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 8.6 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 8.7 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 8.8 Waiver of Notice. Any notice required hereunder may be
waived by the person entitled thereto.
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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.
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(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 Code Section 415 shall be returned to the
Participating Company.
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SECTION 10. ADOPTION, AMENDMENT, TERMINATION AND MERGER
Section 10.1 Adoption of Plan by Additional Company. The Committee may
extend the Plan to Eligible Employees of any Affiliated Company and the
participation of such Participating Group shall be effective upon appropriate
action being taken by such Affiliated Company necessary to adopt the Plan. 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 Committee shall determine to what
extent, if any, Plan coverage is to be extended to such merged, acquired, or
consolidated employees. 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 10.2 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 10.3 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
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discontinuance of contributions, as to all of the Participating Companies
involved in such reorganization and their Eligible 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 10.4 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 10.5 Discontinuance of Contributions. Whenever a Participating
Company determines that it is impossible to or not advisable to allow 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 10.6 Rights Upon Termination, Partial Termination and
Discontinuance of Contributions. Notwithstanding any other provisions of this
Plan, the account balance of each affected Participant shall remain one hundred
percent (100%) vested upon termination or partial termination of the Plan as to
such Participant.
Section 10.7 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 10.8 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
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benefit he would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had then terminated).
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SECTION 11. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section 11.1 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 11.1 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 11.2 Allocation of Fiduciary Responsibilities. The fiduciary
responsibilities (within the meaning of ERISA) allocated to each named fiduciary
designated in Section 11.1 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 11.3 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 11.4 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 11.5 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.
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IN WITNESS WHEREOF, The Manitowoc Company, Inc. has caused these
presents to be executed as of the ____ day of _______________, 2000.
THE MANITOWOC COMPANY, INC.
By:____________________________________
Its:___________________________________
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APPENDIX A TO
THE MANITOWOC COMPANY, INC.
RETIREMENT SAVINGS PLAN
Participating Group Effective Name of
Description Date Participating Company
------------------- -------------- ---------------------
Manitowoc Cranes, Inc. 4/1/96 Manitowoc Cranes, Inc.
Bargaining Unit Employees
Manitowoc Ice, Inc. Bargaining 4/1/97 Manitowoc Ice, Inc.
Unit Employees
Manitowoc Marine Group, LLC 1/1/98 Manitowoc Marine Group, LLC
(formerly Manitowoc Marine
Group, Inc.) Bargaining Unit
Employees
KMT Refrigeration, Inc. 1/1/00 KMT Refrigeration, Inc.
Bargaining Unit Employees
Multiplex, Inc. 4/1/00 Multiplex, Inc.
Bargaining Unit Employees
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