<PAGE>
As filed with the Securities and Exchange Commission on April 9, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALLEGHENY LUDLUM CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1364894
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
1000 SIX PPG PLACE, PITTSBURGH, PENNSYLVANIA 15222-5479
(Address of principal executive offices) (Zip code)
40l(k) SAVINGS ACCOUNT PLAN ("Plan")
(Full title of the plan)
Jon D. Walton, Esquire
Vice President - General Counsel
and Secretary
Allegheny Ludlum Corporation
1000 Six PPG Place
Pittsburgh, Pennsylvania 15222
(Name and address of agent for service)
(412) 394-2800
(Telephone number, including area code,
of agent for service)
Copies to:
Charles M. Grimstad, Esquire
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount
Title of Amount Offering Aggregate of
Securities to be to be Price Offering Registration
Registered(1) Registered per Share(2) Price(2) Fee
Common Stock
par value $0.10 100,000
per share shares $1,750,000 $1,750,000 $603.45
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
(2) Estimated pursuant to Securities and Exchange Commission
Rule 457(c) only for the purpose of calculating the registration fee;
<PAGE>
based on the average of the high and low price per share of Common
Stock of Allegheny Ludlum Corporation on April 8, 1996, as published
in the NYSE-Composite Transactions quotations.
EXHIBIT INDEX APPEARS ON PAGE II-11
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Allegheny Ludlum Corporation
(the "Company") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference in this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995.
2. The description of the Company's Common Stock, par
value $0.10 per share (the "Common Stock"), contained
in the Company's Registration Statement filed under
Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including all amendments
and reports updating such description.
The consolidated financial statements incorporated in this
Registration Statement by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, have been so
incorporated in reliance on the report of Ernst & Young LLP,
independent auditors, given on the authority of said firm as experts
in auditing and accounting.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Registration Statement, but prior
to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered by this
Registration Statement have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated
by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of
the filing of such document with the Commission until the information
contained therein is superseded or updated by any subsequently filed
document which is incorporated by reference into this Registration
Statement or by any document which constitutes part of the prospectus
relating to the Allegheny Ludlum Corporation 401(k) Plan (the "Plan")
meeting the requirements of Section 10(a) of the Securities Act of
1933, as amended.
Item 4. Description of Securities.
-------------------------
The class of securities to be offered under this Registration
Statement is registered under Section 12 of the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The legality of the Common Stock to which this Registration
Statement relates has been passed upon for the Company by Jon D.
Walton, Vice President-General Counsel and Secretary. Mr. Walton is
paid a salary by the Company and participates in benefit plans of the
Company other than the plan being registered hereunder, and
beneficially owns 65,364 shares of Common Stock, including presently
exercisable options to purchase 27,500 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Sections 1741 and 1742 of the Pennsylvania Business Corporation
Law (the "BCL") provide that a business corporation shall have the
power to indemnify any person who was or is a party, or is threatened
to be made a party, to any proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such proceeding, if such person
acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation, and, with
respect to any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful. In the case of an action by or in the right
of the corporation, such indemnification is limited to expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action,
except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable
to the corporation unless, and only to the extent that, a court
determines upon application that, despite the adjudication of
liability but in view of all the circumstances, such person is fairly
and reasonably entitled to indemnity for the expenses that the court
deems proper.
BCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the indemnitee
has met the applicable standard of conduct. Such determination shall
be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding;
or
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(2) if such a quorum is not obtainable, or if obtainable and
a majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the
extent a director, officer, employee or agent of a business
corporation is successful on the merits or otherwise in defense of any
proceeding referred to above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
BCL Section 1745 provides that expenses (including attorneys'
fees) incurred by a director, officer, employee or agent of a business
corporation in defending any such proceeding may be paid by the
corporation in advance of the final disposition of the proceeding upon
receipt of an undertaking to repay the amount advanced if it is
ultimately determined that the indemnitee is not entitled to be
indemnified by the corporation.
BCL Section 1746 provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, the
foregoing provisions is not exclusive of any other rights to which a
person seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise, and that indemnification may be granted under any law,
agreement, vote of shareholders or directors or otherwise for any
action taken or any failure to take any action whether or not the
corporation would have the power to indemnify the person under any
other provision of law and whether or not the indemnified liability
arises or arose from any action by or in the right of the corporation,
provided, however, that no indemnification may be made in any case
where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful
misconduct or recklessness.
Section 1 of Article VIA of the Registrant's By-Laws, as amended,
provides that the Registrant shall indemnify, to the fullest extent
permitted by law, each director or officer (including each former
director or officer) of the Registrant who was or is made a party to
or a witness in or is threatened to be made a party to or a witness in
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of
the fact that he is or was an authorized representative of the
Registrant, against all expenses (including attorneys' fees and
disbursements), judgments, fines (including excise taxes and
penalties) and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding.
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Section 2 of Article VIA of the Registrant's By-Laws, as amended,
further provides that the Registrant shall pay expenses (including
attorneys' fees and disbursements) incurred by a director or officer
of the Registrant referred to in Section 1 of such Article in
defending or appearing as a witness in any civil or criminal action,
suit or proceeding described in Section 1 of such Article in advance
of the final disposition of such action, suit or proceeding. The
expenses incurred by such director or officer shall be paid by the
Registrant in advance of the final disposition of such action, suit or
proceeding only upon receipt of an undertaking by or on behalf of such
director or officer to repay all amounts advanced if it shall
ultimately be determined that he is not entitled to be indemnified by
the Registrant.
The Registrant's By-Laws provide that the rights of
indemnification and advancement of expenses provided for therein shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may otherwise be entitled.
The Registrant has entered into indemnification agreements with
each of its directors in which the Registrant agrees to indemnify each
of its directors to the fullest extent permitted by law both as to
action in his official capacity and as to action in another capacity
and agrees to purchase and maintain insurance on the terms and
conditions described therein.
BCL Section 1747 permits a Pennsylvania business corporation to
purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against
any liability asserted against such person and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify the person against
such liability under the provisions described above.
Section 5 of Article IVA of the Registrant's By-Laws, as amended,
provides that, except in the circumstances set forth in Section 5, the
Registrant shall purchase and maintain insurance on behalf of each
director and officer against any liability asserted against or
incurred by such officer or director in any capacity, or arising out
of such director's or officer's status as such, whether or not the
Registrant would have the power to indemnify such person against such
liability under the provisions of Article IVA.
The Registrant maintains directors' and officers' liability
insurance covering its directors and officers with respect to
liabilities, including liabilities under the Securities Act of 1933,
as amended, which they may incur in connection with their serving as
such. Such insurance provides coverage for the directors and officers
against certain liabilities even though such liabilities may not be
covered by the foregoing By-Law indemnification provision.
As permitted by BCL Section 1713, the By-Laws of the Registrant
provide that no director shall be personally liable for monetary
damages for any action taken, or failure to take any action, except
to the extent that such elimination or limitation of liability is
II-4
PAGE
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expressly prohibited by the act of November 28, 1986 (P. L. No. 145)
as in effect at the time of the alleged action or failure to take
action by the director. The BCL states that this exculpation from
liability does not apply where the director has breached or failed to
perform the duties of his office and the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness, and does
not apply to the responsibility or liability of a director pursuant to
any criminal statute or the liability of a director for payment of
taxes pursuant to Federal, state or local law. It may also not apply
to liabilities imposed upon directors by the Federal securities laws.
Item 7. Exemption for Registration Claimed.
----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Exhibit
Number Description
------- -----------
4(a) Restated and Amended Articles of Incorporation, incorporated
by reference to Exhibit 4 to the Company's Quarterly Report
on Form 10-Q for the quarter ended July 3, 1994.
4(b) By-Laws, as amended, incorporated by reference to Exhibit
3(b) to the Company's Annual Report on Form 10-K for the
year ended January 1, 1995.
4(c) 401(k) Savings Account Plan
5 Opinion of Jon D. Walton, Vice President - General Counsel
and Secretary of the Company relating to the legality of the
shares registered under the Plan. The registrant will
submit the Plan and any amendment thereto to the Internal
Revenue Service (IRS) in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
23(a) Consent of Jon D. Walton is contained in the Opinion of
Counsel filed as Exhibit 5
23(b) Consent of Ernst & Young LLP
24 Power of Attorney (included on page II-8)
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
-------- -------
(a)(1)(ii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
* * *
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
II-6
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<PAGE>
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-7
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pittsburgh,
Commonwealth of Pennsylvania, on the 9th day of April, 1996.
ALLEGHENY LUDLUM CORPORATION
(Registrant)
By: /s/ James L. Murdy
--------------------------
James L. Murdy
Senior Vice President-Finance
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. L. Murdy, J. D. Walton, and
M. W. Snyder and each of them, his or her true and lawful attorneys-
in-fact and agents, with full power of substitution and revocation,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration
Statement, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents,
or any of them, or their or his substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 9th day of April, 1996.
Signature Title
--------- -----
/s/ Arthur H. Aronson
------------------------- President and Chief Executive Officer
Arthur H. Aronson and Director
/s/ James L. Murdy
------------------------- Senior Vice President-Finance and
James L. Murdy Chief Financial Officer and
Director
/s/ Richard R. Roeser
------------------------- Vice President-Controller and
Richard R. Roeser Chief Accounting Officer
II-8
PAGE
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/s/ Richard P. Simmons
------------------------- Chairman of the Board and Director
Richard P. Simmons
/s/ Robert P. Bozzone
------------------------- Vice Chairman and Director
Robert P. Bozzone
/s/ Paul S. Brentlinger
------------------------- Director
Paul S. Brentlinger
/s/ C. Fred Fetterolf
------------------------- Director
C. Fred Fetterolf
/s/ Thomas Marshall
------------------------- Director
Thomas Marshall
/s/ W. Craig McClelland
------------------------- Director
W. Craig McClelland
/s/ Richard K. Pitler
------------------------- Director
Richard K. Pitler
/s/ Anne Pol
------------------------- Director
Anne Pol
/s/ Charles J. Queenan, Jr.
------------------------- Director
Charles J. Queenan, Jr.
/s/ James E. Rohr
------------------------- Director
James E. Rohr
/s/ George W. Tippins
------------------------- Director
George W. Tippins
/s/ Steven C. Wheelwright
------------------------- Director
Steven C. Wheelwright
II-9
PAGE
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40l(k) SAVINGS ACCOUNT PLAN
---------------------------
Pursuant to the requirements of the Securities Act of 1933, the
401(k) Savings Account Plan has caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Pittsburgh, Commonwealth of Pennsylvania, on the 9th
day of April, 1996.
401(k) SAVINGS ACCOUNT PLAN
By: /s/ Bruce A. McGillivray
--------------------------
Title: Plan Administrator
II-10
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EXHIBIT INDEX
Exhibit
Number Item
------- ----
4(c) 401(k) Savings Account Plan
5 Opinion of Jon D. Walton, Vice President - General Counsel
and Secretary of the Company relating to the legality of the
shares registered under the Plan
23(a) Consent of Jon D. Walton is contained in the Opinion of
Counsel filed as Exhibit 5
23(b) Consent of Ernst & Young LLP
II-11
Exhibit 4(c)
401(K) SAVINGS ACCOUNT PLAN
for Employees of the Washington Plant
Pursuant to Agreement Between
Allegheny Ludlum Corporation
and the
United Steelworkers of America
for the benefit of members of
Local Unions 1141, 3891 and Guard Union 502
Effective April 1, 1996
<PAGE>
TABLE OF CONTENTS
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . 3
ARTICLE II EFFECTIVE DATE . . . . . . . . . . . . . 12
ARTICLE III
ELIGIBILITY AND ENROLLMENT . . . . . . . 12
3.1 Participation in the Plan . . . . . . . . 12
3.2 Enrollment . . . . . . . . . . . . . . . 13
3.3 Cessation of Participation . . . . . . . 13
ARTICLE IV PARTICIPANT CONTRIBUTIONS . . . . . . . . 14
4.1 Deferred Savings . . . . . . . . . . . . 14
4.2 Change in Deferred Savings Rate . . . . . 16
4.3 Limitation on Deferred Savings . . . . . 16
4.4 Return of Excess Deferred Savings . . . . 17
4.5 Limits of Actual Deferral Percentage . . 18
4.6 Reduction of Deferred Savings . . . . . . 18
4.7 Rollover Contributions and
Trustee-to-Trustee Transfers . . . . . . 19
ARTICLE V EMPLOYER CONTRIBUTIONS . . . . . . . . . 20
ARTICLE VI ACCOUNTS AND ALLOCATIONS . . . . . . . . 20
6.1 Accounts . . . . . . . . . . . . . . . . 20
6.2 Determination of Value . . . . . . . . . 21
6.3 Credits to Participant 401(k)
Savings Accounts . . . . . . . . . . . . 22
6.4 Debits to Participant 401(k)
Savings Accounts . . . . . . . . . . . . 23
6.5 Allocation Limitations . . . . . . . . . 23
ARTICLE VII VESTING . . . . . . . . . . . . . . . . . 26
ARTICLE VIII INVESTMENTS . . . . . . . . . . . . . . . 26
8.1 Investment of 401(k) Savings Accounts . . 26
8.2 Investment Directions . . . . . . . . . . 28
8.3 Voting of Company Stock . . . . . . . . . 29
8.4 Account Statements . . . . . . . . . . . 29
ARTICLE IX WITHDRAWALS WHILE EMPLOYED . . . . . . . 29
9.1 Withdrawals from 401(k) Savings
Accounts . . . . . . . . . . . . . . . . 29
9.2 Withdrawals While Loan Outstanding . . . 31
9.3 Timing and Payment of Withdrawals . . . . 31
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9.4 No Replacement . . . . . . . . . . . . . 31
9.5 Participant Loans . . . . . . . . . . . . 31
ARTICLE X DISTRIBUTION UPON RETIREMENT
OR TERMINATION OF EMPLOYMENT . . . . . . 35
10.1 Retirement or Termination of
Employment . . . . . . . . . . . . . . . 35
10.2 Method of Distribution . . . . . . . . . 35
10.3 Form of Distribution . . . . . . . . . . 35
10.4 Time of Distribution . . . . . . . . . . 36
10.5 Distributions at Age 70-1/2 . . . . . . . 37
10.6 Beneficiary . . . . . . . . . . . . . . . 38
ARTICLE XI ADMINISTRATION OF THE PLAN . . . . . . . 39
11.1 Board of Directors' Responsibilities . . 39
11.2 Employer's Duties . . . . . . . . . . . . 40
11.3 Trustee's Duties . . . . . . . . . . . . 41
11.4 Delegation of Fiduciary Responsibility . 41
11.5 Administrative Bonding . . . . . . . . . 42
11.6 Expenses of the Plan . . . . . . . . . . 43
11.7 Indemnification . . . . . . . . . . . . . 43
ARTICLE XII AMENDMENT AND TERMINATION . . . . . . . . 43
12.1 Authority . . . . . . . . . . . . . . . . 43
12.2 Distribution Upon Termination . . . . . . 44
ARTICLE XIII DIRECT ROLLOVERS . . . . . . . . . . . . 44
13.1 Direct Rollovers . . . . . . . . . . . . 44
ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . 46
14.1 Incapacity of Recipient of Benefits . . . 46
14.2 Merger, Consolidation or Discontinuance . 47
14.3 Merger or Consolidation of the Plan . . . 47
14.4 Assets in Trust Fund Owned by Trustee . . 47
14.5 Employment Rights Not Affected by the
Plan . . . . . . . . . . . . . . . . . . 48
14.6 Trust Fund for Sole Benefit of
Participants and Beneficiaries . . . . . 48
14.7 Information to be Furnished by the
Employer . . . . . . . . . . . . . . . . 49
14.8 Service of Process . . . . . . . . . . . 49
14.9 Appeals Procedure . . . . . . . . . . . . 49
14.10 Governing Law . . . . . . . . . . . . . . 49
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The 401(K) SAVINGS ACCOUNT PLAN
for EMPLOYEES OF the WASHINGTON PLANT
PREAMBLE
________
The 401(k) Savings Plan for Employees of the Washington
Plant (the "Plan") is a defined contribution plan within the
meaning of Section 3(34) of the Employee Retirement Income
Security Act of 1974, as amended (the "Act"), and is adopted by
Allegheny Ludlum Corporation (the "Employer") effective April 1,
1996 pursuant to an agreement between the Employer and the United
Steelworkers of America with respect to Employees of the
Washington Plant who are members of Local Unions 1141, 3891 and
Guard Union 502.
The Plan is a collectively bargained plan which
includes a cash or deferred arrangement under section 401(k) of
the Internal Revenue Code of 1986, as amended (the "Code"). It
is intended to qualify under the Code, initially and thereafter,
as a combination profit sharing and stock bonus plan so that
contributions to the Plan as well as earnings thereon are not
taxable to participants until distributed. The Plan, as well as
appropriate forms, schedules and demonstrations, have been
submitted to the Internal Revenue Service together with a request
for an determination letter with respect to the Plan's qualified
status.
The purpose of the Plan is to assist eligible employees
to accumulate a fund to supplement retirement income and to
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encourage employee thrift by permitting eligible employees to
defer receipt, on a voluntary basis, of a part of their
compensation from the Employer and direct that contributions be
made to this Plan in the amount of such deferrals.
The Plan is intended to reflect all applicable
provisions of the Act and the Code as in effect on the Effective
Date of the Plan.
- 2 -
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ARTICLE I
DEFINITIONS
___________
In this Plan, whenever the context so indicates, the
singular or plural and the masculine, feminin<<MARK>>>e or neuter
gender shall each be deemed to include the others; the terms
"he", "his", and "him" shall refer to an Employee or a
Participant; references to the Act or the Code shall include any
subsequent amendments to such sections and any regulations
promulgated thereunder; and the capitalized terms shall have the
following meanings:
1.1 "Account" shall mean the 401(k) Savings Account
established for each Participant.
1.2 "Account Balance" shall mean, as of any Valuation
Date, the amount in a Participant's 401(k) Savings Account.
1.3 "Act" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.4 "Actual Deferral Percentage" shall mean for any
specified group of employees for any Plan Year, the average of
the following ratios, calculated separately for each Eligible
Employee in the group: (i) Deferred Savings, if any, made by or
on behalf of the Eligible Employee for the Plan Year, to (ii) the
Eligible Employee's Section 415 Compensation for the Plan Year.
1.5 "Affiliated Employer" shall mean any corporation
or other entity that is a member of a controlled group of
corporations or other entities within the meaning of sections
- 3 -
<PAGE>
414(b), 414(c), and 414(m) of the Code or as described in
Treasury Regulations issued pursuant to section 414(o) of the
Code of which the Employer is a component member; provided that
no such corporation or other entity shall be considered as an
Affiliated Employer at any time prior to or subsequent to the
period of time during which it satisfies such definition.
1.6 "Annual Addition" shall mean the sum of the
Employer Contributions and Deferred Savings made on the
Participant's behalf or allocated to his or her Accounts for such
Plan Year and Employer Contributions, employee contributions and
forfeitures allocated to a Participant's accounts under all other
defined contribution plan maintained by Employer or an Affiliated
Employer.
1.7 "Basic Agreement" shall mean a labor agreement
between the Employer and the United Steelworkers of America (or
any other group of represented employees whose members agree to
accept participation in this Plan on the same terms and
conditions as the United Steelworkers of America) covering rates
of pay, hours of work, and other basic terms and conditions of
employment which is in effect from time to time and is applicable
to Local Unions 1141, 3891 and Guard Union 502 and such other
bargaining unit listed in Exhibit A, which is attached hereto and
made a part hereof; and where used with respect to an Employee
such term shall mean the Basic Agreement applicable to him.
1.8 "Board of Directors" shall mean the Board of
Directors of Allegheny Ludlum Corporation.
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1.9 "Code" shall mean the Internal Revenue Code of
1986, as the same may be amended from time to time.
1.10 "Committee" shall mean the person or persons
designated by the Board of Directors to serve as the Employer
pursuant to Article XI.
1.11 "Company Stock" shall mean common stock, $0.10
par value, of the Employer.
1.12 "Company Stock Fund" shall mean the investment
fund provided for in Section 8.1.
1.13 "Deferred Savings" shall mean the payments an
Eligible Employee elects to make pursuant to Section 4.1 hereof
which may be excluded from the Eligible Employee's gross income
for federal income tax purposes pursuant to section 401(k) of the
Code.
1.14 "Deferred Savings Portion" shall mean, as of any
Valuation Date, the then current value, determined in accordance
with Section 6.2 hereof, of a Participant's Deferred Savings and
earnings thereon credited to the Participant's 401(k) Savings
Account.
1.15 "Diversified Fund" shall mean the investment fund
provided for in Sections 8.1.
1.16 "Effective Date" shall be the date specified in
Article II.
1.17 "Eligible Employee" shall mean any Employee who
has satisfied the eligibility requirements for making Deferred
Savings contributions set forth in Section 3.1, whether or not
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such Employee has elected to make Deferred Savings contributions
to the Plan pursuant to Article IV.
1.18 "Eligible Pay" shall mean the total regular
compensation paid by an Employer to a Participant for each Plan
Year, including overtime, shift differentials, profit sharing
payments and bonuses (excluding, however, payments under the
Employer's Longevity Incentive Payment Plan) but exclusive of
gifts, gratuities, expense allowances and Employer contributions
under this Plan or any other deferred compensation plan, or under
any other employee benefit plan as defined in the Act. For the
purposes of Section 4.1 hereof, "Eligible Pay" shall be the pay
of a Participant prior to any reduction for amounts deferred into
this Plan or any other salary reduction plan or arrangement of
the Employer. Notwithstanding the foregoing, the aggregate
Eligible Pay taken into account for any Employee under this Plan
for any Plan Year shall not exceed $150,000, subject to such
adjustments as may be made from time to time pursuant to sections
401(a)(17)(B) and 415(d) of the Code (the "OBRA '93 Limit"). In
determining the Eligible Pay of a Participant for purposes of the
$150,000 limitation, the rules of section 414(q)(6) of the Code
shall apply; provided that the term "family" used in section
414(q)(6) shall include only the Participant's spouse and lineal
descendants who have not attained age 19 before the end of the
Plan Year. The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months,
over which compensation is determined (determination period)
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beginning in such calendar year. If a determination period
consists of fewer than 12 months, the OBRA '93 Limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which
is 12. Any reference in this Plan to the limitation under
Section 401(a)(17) of the Code shall mean the OBRA '93 Limit set
forth herein.
1.19 "Employee" shall mean any common law employee of
the Employer who from time to time during the term of this Plan
shall be in any bargaining unit covered by a Basic Agreement.
The term Employee shall exclude any salaried employee and any
hourly employee of the Employer who is not a member of such
bargaining units. No Leased Employee shall become an Employee
for purposes of this Plan until such time as such Leased Employee
becomes a common law employee of the Employer and a member of a
collective bargaining unit covered by a Basic Agreement,
regardless of whether he or she is covered by a safe harbor plan
within the meaning of Treasury Regulation section 1.414(n)-2.
1.20 "Employer" shall mean Allegheny Ludlum
Corporation, and any Affiliated Employer which has adopted the
Plan.
1.21 "Employer Contributions" shall mean the Employer
contributions made pursuant to Article V.
1.22 "Employment Commencement Date" shall mean the
date on which an Employee first performs an Hour of Service.
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1.23 "Equity Fund" shall mean the investment fund
provided for in Sections 8.1.
1.24 "401(k) Savings Account" shall mean the account
established for each Participant pursuant to Section 6.1 hereof
to which Deferred Savings and Rollover Contributions are
credited. If a Rollover Contribution has been made, a
Participant's 401(k) Savings Account shall consist of a Deferred
Savings Portion and a Rollover Portion.
1.25 "Fixed Income Fund" shall mean the investment
fund provided for in Sections 8.1.
1.26 "Funds" shall mean the Diversified Fund, Stock
Index Fund, Equity Fund, Fixed Income Fund and the Company Stock
Fund.
1.27 "Highly Compensated Employee" shall mean any
Employee who is a "highly compensated employee" within the
meaning of section 414(q) of the Code.
1.28 (a) "Hour of Service" shall mean each hour for
which the Employee is paid, or entitled to payment, by the
Employer for the performance of duties for the Employer. Hours
of Service hereunder shall be calculated and credited in
accordance with 29 C.F.R. section 2530.200b, which is
incorporated herein by this reference.
(b) The number of an Employee's Hours of Service and
the Plan Year or other computation period to which they are to be
credited shall be determined in accordance with sections
2530.200b-2(b) and (c) of the Rules and Regulations for Minimum
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Standards for Employee Pension Benefit Plans, which sections are
incorporated herein by this reference.
(c) If a Leased Employee shall become an Employee
pursuant to Section 1.19, he or she shall be credited with all
Hours of Service previously performed for the Employer as a
Leased Employee.
1.29 "Hour Worked" shall mean actual hours worked for
the Employer and for the United Steelworkers of America;
provided, however, that an hour worked for the United
Steelworkers of America shall be considered an "Hour Worked" only
if it has reimbursed the Employer for the contribution resulting
from the "Hour Worked."
1.30 "Leased Employee" shall mean any individual
(other than a common law employee of an Employer) who (i)
performs services for an Employer pursuant to an agreement
between the Employer and any other person which is a leasing
organization within the meaning of Treasury Regulation section
1.414(n)-1 or any successor regulation, (ii) who has performed
such services for the Employer on a substantially full-time basis
for a period of at least one year, provided that (iii) such
services are of a type historically performed, in the Employer's
industry, by common law employees. For this purpose, an
individual will be considered to have performed services for an
Employer on a substantially full-time basis during any twelve
consecutive month period if he or she has completed a number of
Hours of Service for the Employer at least equal to the lesser of
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(a) 1,500 Hours of Service or (b) 75% of the median number of
Hours of Service completed by Employees (other than Leased
Employees) of the Employer in equivalent positions during such
twelve month period.
1.31 "Normal Retirement Date" shall mean the last day
of the month in which the Participant attains age 65.
1.32 "Non-Highly Compensated Employee" shall mean and
Employee who is not a Highly Compensated Employee.
1.33 "Participant" shall mean (i) any individual who
has satisfied the eligibility requirements of Section 3.1,
including any individual who is an Eligible Employee and has
elected to make Deferred Savings pursuant to Section 3.3, and
(ii) any other individual who has an amount credited to his or
her Accounts.
1.34 "Permanent Disability" shall mean a disability by
bodily injury or disease, either occupational or nonoccupational
in cause, preventing a Participant, on the basis of medical
evidence, from engaging in any occupation or employment with the
Employer. If any difference shall arise between the Employer and
any Participant as to whether such Participant is or continues to
have a Permanent Disability, such difference shall be resolved as
under the following procedure. The Participant shall be examined
by a physician appointed for the purpose by the Employer and by a
physician appointed for the purposes by the duly authorized
representative of the United Steelworkers of America. If they
shall disagree concerning whether the participant is permanently
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incapacitated, that question shall be submitted to a third
physician selected by such two physicians. The medical opinion
of the third physician, after examination of the participant and
consultation with the other two physicians, shall decide such
question. The fees and expenses of the third physician shall be
shared equally by the Employer and the United Steelworkers of
America.
1.35 "Plan" shall mean the 401(k) Savings Account
Plan for Employees of the Washington Plant, as amended and
supplemented from time to time.
1.36 "Plan Administrator" shall mean the person or
persons, if any, designated by the Employer to serve as the Plan
Administrator pursuant to Article XI.
1.37 "Plan Year" shall mean each twelve (12) month
period ending on December 31st.
1.38 "Retirement" shall mean a Participant's
retirement from employment by the Employer in accordance with the
terms and conditions of the Employer's pension plan covering such
Participant.
1.39 "Rollover Contribution" shall mean any amounts
transferred to a Participant's 401(k) Savings Account pursuant to
Section 4.7 hereof.
1.40 "Rollover Portion" shall mean, as of any
Valuation Date, the then current value of a Participant's
Rollover Contributions, detemined in acorrdance with section
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6.02, and earnings thereon credited to the Participant's 401(k)
Savings Account.
1.41 "Section 415 Compensation" shall mean
compensation as defined in section 415(c)(3) of the Code.
1.42 "Trustee" shall mean the trustee or trustees of
the Trust Fund appointed by the Board of Directors pursuant to
Section 11.1(b) hereof, and any and all successors to such
trustee or trustees.
1.43 "Trust Agreement" shall mean the agreement of
trust by and between the Trustee and the Employer.
1.44 "Trust Fund" shall mean the trust fund or trust
funds established pursuant to the Trust Agreement, for purposes
of receiving and holding in trust the assets held under the Plan.
1.45 "Valuation Date" shall mean the last day of each
calendar month, or such other date occurring more frequently than
monthly if determined feasible by the Plan Administrator, on
which the Trustee determines the fair market value of the Trust
Fund determined in accordance with Section 6.02.
ARTICLE II
EFFECTIVE DATE
______________
The Effective Date of the Plan is April 1, 1996.
ARTICLE III
ELIGIBILITY AND ENROLLMENT
__________________________
3.1 Participation in the Plan.
(a) Deferred Savings. Each Employee who had completed
his or her probationary period under the Basic Agreement (which
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shall not in any event exceed a calendar year period in which the
employee renders 1,000 Hours of Service) shall be eligible to
make Deferred Savings to the Plan on the Effective Date. Each
other Employee shall be eligible to make Deferred Savings to the
Plan upon satisfying the requirements of Section 3.1 and upon
completing one year of continuous service consisting of a period
of twelve consecutive months of employment with the Employer
following his or her Employment Commencement Date or in any Plan
Year thereafter, including the Plan Year in which occurs the
first anniversary of his or her Employment Commencement Date, in
which the Employee completes one thousand (1,000) Hours of
Service.
(b) Rollover Contributions. Each Employee shall be
eligible to make Rollover Contributions to the Plan upon becoming
an Employee. Rollover Contributions may be made prior to the
time an Employee is eligible to enroll for Deferred Savings. No
enrollment is required to make Rollover Contributions. Rollover
Contributions must be accompanied by a form approved for such
purpose by the Plan Administrator and such other information as
may be reasonably requested by the Plan Administrator.
3.2 Enrollment. Each Eligible Employee may elect to
begin Deferred Savings by completing and returning an enrollment
form to the Employer not later than thirty (30) days before the
beginning of the first payroll period next following or
coincident with the Valuation Date on which he or she desires to
have Deferred Savings begin.
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3.3 Cessation of Participation. A Participant shall
cease to be a Participant if he or she ceases to be an Employee
for any reason. However, a former Participant with an Account
Balance in the Plan shall be credited with his or her share of
any income and gains of his or her Accounts pursuant to Section
6.3, and shall be debited with withdrawals and distributions
from, and with his or her share of any losses of his or her
Accounts pursuant to Section 6.4. A former Participant who
ceases to be an Employee due to promotion to salaried employment
shall retain all rights of a Participant hereunder (except the
right to receive Employer Contributions and to make Deferred
Savings) and shall have the right, at his or her discretion, to
have his or her Account Balance in this Plan transferred to the
defined contribution plan covering such employee after the
transfer.
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
_________________________
4.1 Deferred Savings.
(a)(i) Deferrals of Eligible Pay. A Participant may
elect to defer and designate as his or her Deferred Savings a
portion of the Eligible Pay payable to the Participant for each
pay period in whole percentage amounts of not less than one
percent (1%) and not more than eighteen percent (18%) of such
Eligible Pay. Such Deferred Savings shall be deducted from the
Participant's Eligible Pay each payroll period and paid to the
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Trustee no later than fifteen (15) days after the last day of the
month in which such payroll is paid.
(a)(ii) Deferrals of Longevity Incentive Payment Plan
and Profit Sharing Amounts. A Participant may elect to defer and
designate as his or her Deferred Savings all or any portion, in
whole percentage amounts, of amounts payable to the Participant
under the Longevity Incentive Payment Plan and/or Profit Sharing.
Any Deferred Savings elected to be deferred under this Section
4.1(a)(ii) shall be deducted from the amounts otherwise payable
to the Participant under the Longevity Incentive Payment Plan
and/or Profit Sharing, and shall be paid to the Trustee no later
than fifteen (15) days after the last day of the month in which
such payroll is paid. An election to defer amounts payable from
the Longevity Incentive Payment Plan or Profit Sharing must be
made each year and such elections shall not carry over from year
to year. For any year in which the Participant does not make an
election to defer Longevity Incentive Payment Plan amounts or
Profit Sharing amounts, the Participant shall be deemed to have
elected not to defer amounts received in such year. An election
to defer Longevity Incentive Payment Plan amounts shall be made
separately from an election to defer Profit Sharing amounts, and
both of such elections shall be made separately from a
Participant's election to defer Eligible Pay amounts.
(b) Notwithstanding the foregoing, no Participant
shall be permitted to have Deferred Savings contributed to his or
her 401(k) Savings Account during any one calendar year which are
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in excess of $9,240 (or such other amount as may be in effect for
such calendar year as a result of cost-of-living adjustments to
this limit pursuant to sections 402(g)(5) and 415(d) of the
Code), including elective deferrals (within the meaning of
section 402(g)(3) of the Code) made during such calendar year on
the Participant's behalf under any other plan or annuity
contract, whether sponsored by the Employer or any other
employer.
4.2 Change in Deferred Savings Rate. Not more than
once each calendar month, a Participant may, upon not less than
thirty (30) days' prior written notice, elect to increase or
decrease (in whole percentage amounts) the percentage of Eligible
Pay designated as Deferred Savings as of the beginning of the
first payroll period next following or coincident with any
subsequent Valuation Date. At any time, a Participant may elect
to suspend or discontinue Deferred Savings by written notice.
Such suspension shall be effective as of the first payroll period
of the month following receipt of such written notice. A
Participant who has suspended or discontinued Deferred Savings
from his or her Eligible Pay may, upon not less than thirty (30)
days prior written notice, resume Deferred Savings from his or
her Eligible Pay as of the beginning of the first payroll period
next following or coincident with any subsequent Valuation Date.
4.3 Limitation on Deferred Savings. For any Plan Year
the amount of a Participant's Deferred Savings may be limited by
the application of Sections 4.5 and 6.5 hereof. In addition,
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Deferred Savings may be made by a Participant only to the extent
that such contributions will be permitted as a federal income tax
deduction for the Employer pursuant to Section 404 of the Code.
4.4 Return of Excess Deferred Savings. In the event
that a Participant has, during a calendar year, contributed
Deferred Savings to the Plan which, when aggregated with all
other elective deferrals (within the meaning of section 402(g) of
the Code) made by or on behalf of the Participant under any plan
maintained by any employer during such calendar year, exceed
$9,240 (or such cost-of-living adjustments to this limit as may
be made by the Secretary of the Treasury pursuant to sections
402(g)(5) and 415(d) of the Code), the Participant may request a
corrective distribution from the Plan by filing a written
statement with the Employer on or before March 1st of the next
calendar year. Such written notice shall:
(i) state that the Participant has had elective
deferrals made on his or her behalf for the calendar
year in excess of the maximum permitted annual amount;
(ii) specify the total amount of such excess
elective deferrals; and
(iii) specify the amount of the portion of such
total excess deferrals, not in excess of the
Participant's Deferred Savings under the Plan for the
calendar year, which the Participant will allocate to
the Plan.
If the Employer receives such a notice, in proper form from the
Participant on or before March 1st of the next calendar year, the
Plan shall distribute to the affected Participant the amount of
excess Deferred Savings designated in such notice as allocated to
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the Plan, plus any earnings attributable thereto, not later than
April 15 of such calendar year. Such distribution may be made
without regard to any other provisions of this Plan. In addition
to the distribution permitted above, in the event it is
reasonably expected that Deferred Savings for any Participant,
when added to any amounts required to be aggregated with Deferred
Savings for such purpose, will exceed the limitation described
above as then in effect, the Employer may reduce or suspend the
amount of Deferred Savings such Participant is permitted to make
for the remainder of such year in order to prevent the limitation
set forth in this Section 4.4 from being exceeded.
4.5 Limits of Actual Deferral Percentage. The Actual
Deferral Percentage for Highly Compensated Employees may not
exceed the greater of:
(i) One hundred twenty-five (125%) of the Actual
Deferral Percentage for Non-Highly Compensated
Employeess, or
(ii) The lesser of two hundred percent (200%) of
the Actual Deferral Percentage for Non-Highly
Compensated Employees or the Actual Deferral Percentage
for Non-Highly Compensated Employees plus two (2)
percentage points. (The limit set forth in this
paragraph (ii) shall be adjusted in accordance with
Treasury Regulation section 1.401(m)-2, as necessary,
to avoid duplicative use of this limit for any Highly
Compensated Employee in violation of section 401(m)(9)
of the Code.)
4.6 Reduction of Deferred Savings. In the event that
it is determined for any Plan Year that the Actual Deferral
Percentage for the Highly Compensated Employees exceeds or may be
reasonably expected to exceed the limits set forth in Section 4.5
hereof, then the Deferred Savings of those Participants in the
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Plan who are Highly Compensated Employees shall be reduced by, in
the discretion of the Employer, either or both of the following
methods: (i) distribution of the excess Deferred Savings to
Highly Compensated Employees on the basis of the respective
portions of the excess Deferred Savings attributable to each of
such employees in a manner determined by the Employer and
consistent with Code section 401(k)(8) and any Treasury
Regulations thereunder, so that the limits of Section 4.5 are
satisfied; or (ii) reduction or suspension, as directed by the
Employer, of the amount of Deferred Savings which may be made by
a Highly Compensated Employee for the remainder of such year.
4.7 Rollover Contributions and Trustee-to-Trustee
Transfers. Any Participant may at any time file a written
petition with the Employer requesting that the Trustee accept
into the Trust Fund a Rollover Contribution from such Participant
or a direct transfer from the trustee of another qualified plan.
The Employer, in its sole discretion, shall determine whether
such Participant shall be permitted to contribute a Rollover
Contribution or have an amount transferred from another qualified
plan to the Trust Fund. Any written petition filed pursuant to
this Section 4.7 with respect to a Rollover Contribution shall
set forth the amount of such Rollover Contribution and a
statement, satisfactory to the Employer, that such contribution
constitutes a Rollover Contribution as defined in this Plan. In
the event a Rollover Contribution or other transfer is accepted,
the Employer shall account for such amount separately and take
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such other actions as may be required by law or be deemed
advisable by the Employer.
ARTICLE V
EMPLOYER CONTRIBUTIONS
______________________
Within forty-five (45) days following each calendar
month, the Employer shall contribute on behalf of each
Participant an amount indicated in the schedule of Employer
Contributions in Exhibit B for each Hour Worked by the
Participant during such payroll month. Such Employer
Contributions shall be made only from current income or
accumulated earnings of the Employer.
ARTICLE VI
ACCOUNTS AND ALLOCATIONS
________________________
6.1 Accounts. The Employer shall create and maintain
a separate account for each Participant with adequate records to
disclose the interest in the Trust Fund of each Participant.
Such account shall be the Participant's 401(k) Savings Account
and shall reflect each Participant's Deferred Savings and
Rollover Contributions, if any. Such records shall reflect the
balance in each Participant's Account, and credits and debits
shall be made to such Account in the manner herein described.
When appropriate, a Participant's 401(k) Savings Account shall
accurately reflect a Deferred Savings Portion and a Rollover
Portion. The maintenance of separate accounts and portions
thereof is only for accounting purposes, and a segregation of the
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assets of the Trust Fund for any such account shall not be
required.
6.2 Determination of Value. Except for Company Stock,
at each Valuation Date, the Trustee shall determine or cause to
be determined the fair market value of all assets comprising the
Trust Fund. The Trustee shall determine the fair market value of
Company Stock held in the Company Stock Fund as of the last day
of each Plan Year and at such other times as the Employer may
direct. For purposes of determining the value of Company Stock
in respect of (i) a transfer pursuant to Section 8.2(b), (ii) a
withdrawal pursuant to Section 9.1 or (iii) a distribution
pursuant to Section 10.1, Company Stock shall be valued at the
net amount actually received by the Trustee upon sale of the
shares of Company Stock, after deduction of reasonable expenses,
including brokerage commissions, attributable to such sale;
provided, however, the Trustee may be directed to offset the
number of shares, in whole or in part, otherwise to be sold upon
such transfer, withdrawal or distribution against the number of
shares, in whole or in part, which would otherwise be purchased
in respect to amounts contributed and allocated to the Company
Stock Fund or transferred to the Company Stock Fund and, in such
event, the shares so offset shall be valued at the trading price
of Company stock on the date of such offset and no brokerage
commission shall be charged. In the event that all shares of
Company Stock to be sold, purchased or offset upon such the
occurence of such events may not be sold, purchased or offset at
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a single time or on a single trading date, all shares of Company
Stock comprising such transactions shall be valued at the
weighted average of the net amount realized or paid upon all such
sales, purchases and/or offsets. In the event the Trustee is
directed to sell shares of Company Stock, the Trustee shall sell
such shares as soon as practical, but shall use its discretion in
the timing of such sales considering such factors as market
conditions and trading volume of such stock.
6.3 Credits to Participant 401(k) Savings Accounts.
As of each Valuation Date, each Participant's 401(k) Savings
Account shall be credited with (i) any Deferred Savings pursuant
to Section 4.1 hereof and any Rollover Contributions pursuant to
Section 4.7 hereof made by or on behalf of the Participant for
the preceding calendar month, and (ii) the Participant's share of
the investment income and any realized and unrealized capital
gains of the Funds for the period commencing on the immediately
preceding Valuation Date and ending on the then current Valuation
Date. The respective share of the investment income and realized
and unrealized capital gains of each Fund which shall be credited
to each Participant's 401(k) Savings Account shall be that
portion of the total investment income and realized and
unrealized capital gains of the respective Fund which bears the
same ratio to such total investment income and realized and
unrealized capital gains that the balance of each such
Participant's 401(k) Savings Account invested in such Fund bears
to the total of the balances of all 401(k) Savings Accounts
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invested in that respective Fund on the immediately preceding
Valuation Date.
6.4 Debits to Participant 401(k) Savings Accounts. As
of each Valuation Date, each Participant's 401(k) Savings Account
shall be debited with any amount withdrawn by such Participant
pursuant to Section 9.2, and with any amount distributed to such
Participant pursuant to Section 10.1 in the preceding calendar
month or deemed distributed in connection with a default under a
loan as described in Section 9.6. Amounts so withdrawn or
distributed shall be allocated among the Deferred Savings Portion
and the Rollover Portion in accordance with the provisions of the
Plan. Each Participant's 401(k) Savings Account shall also be
debited as of each Valuation Date with the Participant's share of
any realized or unrealized capital losses of the Funds for the
period commencing on the prior Valuation Date and ending on the
then current Valuation Date. The respective share of each Fund's
realized and unrealized capital losses which shall be debited to
each Participant's 401(k) Savings Account shall be determined in
the manner specified for allocating income and gains in Section
6.3(b).
6.5 Allocation Limitations.
(a) For each Plan Year, the Annual Addition to a
Participant's Account under this Plan, when added to any
contributions made by a Participant or the Employer to a
Participant's account for such Plan Year under any other defined
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<PAGE>
contribution plan maintained by the Employer, shall not exceed
the lesser of:
(i) $30,000, or such other amount as may then be
permitted under Treasury Regulations prescribed under
section 415(d) of the Code or any successor provision;
or
(ii) twenty-five percent (25%) of such
Participant's Section 415 Compensation during such Plan
Year.
(b) In the event that it is determined that the Annual
Addition which would otherwise be allocated to a Participant's
Accounts for any Plan Year would exceed the limits set forth in
Section 6.5(a), the amount the Participant may contribute to this
Plan as Deferred Savings for the remainder of such Plan Year
shall be reduced by an amount necessary to reduce the
Participant's Annual Addition for such Plan Year to an amount
which would be consistent with Section 6.5(a) hereof, before any
reduction of Employer Contributions by or on behalf of the
Participant is made under this Plan or under any other defined
contribution plan of the Employer.
(c) Combined Limitations. In the event a Participant
in the Plan is or was covered by a defined benefit plan to which
the Employer contributes, the sum of the Participant's defined
benefit plan fraction (as defined in section 415(e)(2) of the
Code) and the Participant's defined contribution plan fraction
(as defined in section 415(e)(3) of the Code) may not exceed 1.0
in any Plan Year. If, in any Plan Year, the sum of the
Participant's defined benefit plan fraction and the Participant's
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<PAGE>
defined contribution plan fraction will exceed 1.0, the rate of
Annual Additions permitted for such Plan Year under this Plan
will be reduced so that the sum of the fractions equals 1.0.
(d) Application of Limitations. If for any Plan Year
as a result of a reasonable error in estimating a Participant's
annual Section 415 Compensation, or such other facts and
circumstances which the Internal Revenue Service will permit, a
Participant's Annual Addition exceeds the limits set forth in
Section 6.5(a) for such Plan Year, such excess (called the
"Excess Addition") shall not be allocated to such Participant's
Accounts but shall be treated in the following manner:
(1) The Participant's Annual Addition (if any) from
Deferred Savings, including earnings thereon, to the Plan shall
be returned to the Participant and not allocated to the extent
necessary to reduce the Excess Addition to zero.
(2) If after the application of the above paragraph an
Excess Addition remains, the Excess Addition will be held
unallocated in a suspense account. The suspense account will be
allocated and reallocated among Participants in the next Plan
Year, and each succeeding Plan Year, if necessary, in the manner
provided in Section 6.3.
(3) No Employer Contributions or Deferred Savings will
be made to the Plan so long as amounts remain credited to the
suspense account.
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(4) If a suspense account is in existence at any time
during a Plan Year, it will not participate in the allocation of
the Trust Fund's investment gains and losses for such year.
(5) If upon termination of the Plan there remains any
amount properly allocated to the suspense account, such amount
shall be allocated to the Participants in the same proportion
that their account balance bears to all account balances.
ARTICLE VII
VESTING
_______
A Participant shall at all times have a fully vested
and nonforfeitable interest in his or her 401(k) Savings Account.
ARTICLE VIII
INVESTMENTS
___________
8.1 Investment of 401(k) Savings Accounts. Each
Participant's 401(k) Savings Account shall be invested by the
Trustee as directed by the Participant pursuant to Section 8.2,
in increments of 1%, in one or more of the following investment
funds:
(i) Fixed Income Fund. A fund invested
principally in investment contracts (both simple and
compound interest contracts) issued by insurance
companies (sometimes referred to as "GICs"), investment
contracts issued by banks ("BICs"), structured or
synthetic contracts issued by banks and insurance
companies and other issuers ("SICs") and securities
supporting such SICs, and other similar instruments
which are intended to maintain a constant net asset
value while permitting participant initiated benefit
withdrawals. Fund assets not invested in GICs, BICs or
SICs pending investment or distribution will be
invested in high quality, short term liquid
investments.
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(ii) Equity Fund. An equity fund, or a fund of
common stock or a commingled trust fund established for
the collective investment of funds of employee benefit
plans qualified under Section 401(a) of the Code,
designed to invest primarily in growth-oriented common
stock.
(iii) Diversified Fund. A diversified fund, or a
fund of common or preferred capital stocks, bonds,
notes and/or debentures or a commingled trust fund
established for the collective investment of funds of
employee benefit plans qualified under Section 401(a)
of the Code, excluding, however, any stocks or other
securities of the Corporation, or any affiliated
company designed to provide a balance between growth-
oriented securities and income-oriented securities.
(iv) Company Stock Fund. A fund comprised of
Company Stock.
(v) Stock Index Fund. A fund invested in
securities representing one or more of the commonly
available and utilized indexes of stock market
performance.
(vi) Other. Such other investment Fund or Funds
as the Board of Directors may determine and announce to
the Participants.
The Employer may change the investment funds available
under this Plan for investment from time to time on sixty (60)
days' written notice to the Participants. Earnings or gains
experienced with respect to any investment fund shall be
reinvested in that investment fund. In the absence of
Participant direction, the Trustee shall invest a Participant's
Account Balance in the Fixed Income Fund as provided in Section
8.2(a). In the event of contributions, withdrawals or transfers
in or out of a particular fund as of a certain date, the
Administrator may debit amounts attributable to Participant(s)
who have elected withdrawals or transfer out of such fund to a
Participant(s) who has elected a contribution to or transfer to
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<PAGE>
such fund without selling assets attributable to such fund and
use the amount of cash contributed to fund the withdrawal or
transfer as directed by such other Participants; provided,
however, all such debits and credits shall be at fair market
value and no commission shall be paid to any party.
8.2 Investment Directions.
(a) Investment of Contributions. As of the time his
or her participation in the Plan commences, each Participant
shall file with the Employer a written direction in a form
approved by the Employer (and the Employer shall inform the
Trustee), setting forth the investment fund or funds, in
increments of 1%, in which amounts contributed to his or her
401(k) Savings Account shall be invested in the funds and in the
manner described in Section 8.1. Thereafter, each Participant
may change or amend such direction, if elected by the
Participant, as often as once each month by filing with the
Employer a written direction no later than thirty (30) days
before the last day of the month, effective as of the first day
of the month next following timely receipt by the Employer of
such written direction, in a form approved for such purpose,
setting forth the investment fund or funds, in increments of 1%,
in which his or her Accounts are to be invested. In the event a
Participant fails to file a written direction or if, for any
reason such direction is deemed to be ineffective, the
Participant shall be deemed to have elected to direct that all
amounts contributed be invested in the Fixed Income Fund.
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(b) Change in Investment of Amounts Previously
Contributed. A Participant may, as often as once each month and
effective as of the first day of the month next following timely
receipt by the Employer of a written direction (which must be
received by the Employer no later than thirty (30) days before
the last day of the month), elect to transfer, in increments of
1%, amounts previously credited to 401(k) Savings Account from
any of the funds described in Section 8.1 to any other of the
funds described in Section 8.1.
8.3 Voting of Company Stock. The Trustee shall have
the right to exercise all rights relating to Company Stock held
in the Company Stock Fund. However, each Participant shall have
the right to direct the Trustee concerning the manner of exercise
of voting and other rights (including, but not limited to, with
respect to a merger) pertaining to whole shares of Company Stock,
vested and unvested, allocated to his or her Account. The
Administrator shall set uniform procedures for securing
directions of Participants under this Section 8.3.
8.4 Account Statements. Quarterly, the Plan
Administrator shall provide each Participant with an individual
statement showing the Participant's Account Balance. Such
statement shall be delivered as soon as practicable following the
end of each quarter.
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ARTICLE IX
WITHDRAWALS WHILE EMPLOYED
__________________________
9.1 Withdrawals from 401(k) Savings Accounts.
(a) Withdrawals After Age 59-1/2. Subject to Section
9.2, a Participant who is age 59-1/2 or older may withdraw any
amount from his or her 401(k) Savings Account, upon written
request to the Employer.
(b) Withdrawals Before Age 59-1/2. Subject to Section
9.2, at the discretion of the Employer, a Participant who has not
attained age 59-1/2 may withdraw any amount from the Deferred
Savings Portion of his or her 401(k) Savings Account, in the
event of financial hardship. Financial hardship will be deemed
to exist when the following conditions are satisfied:
(i) the withdrawal will be used to pay immediate
and heavy financial needs, including (A) deductible
medical expenses incurred by the Participant, his or
her spouse or any dependents; (B) down payment on the
principal residence of the Participant; (C) tuition for
the next twelve months of post-secondary education for
the Participant, his or her spouse, or any dependents;
(D) to prevent eviction of the Participant from his or
her principal residence or foreclosure on the mortgage
of the Participant's principal residence; or (E) such
other events of immediate and heavy financial need
properly established and meeting the criteria of
applicable law;
(ii) the amount withdrawn, less any income and
penalty taxes, must be less than or equal to the amount
identified by the Participant as required for the above
financial needs;
(iii) the Participant must have represented to
the Employer that the financial need cannot be relieved
through other resources reasonably available to the
Participant; and
(iv) the Participant will be ineligible and must
acknowledge that he or she is ineligible to make
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Deferred Savings or any pre-tax or after-tax
contributions under this or any other plan maintained
by the Employer: (A) for twelve (12) months from the
date of a hardship withdrawal pursuant to this Section
9.1(b); and (B) such that the sum of any Deferred
Savings made in the calendar year in which such
hardship withdrawal is made pursuant to this Section
9.1(b) plus any Deferred Savings made in the calendar
year after the calendar year in which the hardship
withdrawal is made is less than or equal to the limit
set forth in Code section 402(g)(1) as applicable in
the calendar year after the calendar year in which such
hardship withdrawal is made.
9.2 Withdrawals While Loan Outstanding. No withdrawal
shall be permitted under Sections 9.1 by a Participant who has a
loan outstanding pursuant to Section 9.5 if such withdrawal would
result in the amount of the loan outstanding exceeding one-half
of the balance in the Participant's Account.
9.3 Timing and Payment of Withdrawals. All
withdrawals shall be made as of the first business day of the
calendar month next following the forty-fifth (45th) day after
written application for withdrawal is received. The amount of
any withdrawal shall be paid in a single lump sum payment.
9.4 No Replacement. A Participant may not replace by
subsequent repayment to the Plan any amounts withdrawn from the
Participant's Accounts under Section 9.1 hereof. Notwithstanding
the preceding sentence, a Participant's right to make Deferred
Savings contributions shall not be impaired by any withdrawal
from his or her Account under Sections 9.1.
9.5 Participant Loans. A Participant who is a
"party-in-interest", as defined in Section 3(14) of ERISA (a
"Party-in-Interest"), may apply for a loan in accordance with the
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terms contained in this Section 9.5. A Participant is generally
a Party-in-Interest if he or she is (a) a current employee of the
Employer, (b) a former employee of the Employer who is a director
or 10% stockholder of the Employer, or (c) a former employee of
the Employer who is an officer, director or 10% stockholder of a
corporation or partnership owned 50% or more by the Employer.
Each loan shall be treated as an investment earmarked to the
borrower's Account in the Plan.
A Party-in-Interest who wishes to borrow money under
this Section 9.5 must obtain from the Plan Administrator a loan
application (the "Loan Application"), which contains, among other
things, the eligibility criteria that must be satisfied to obtain
a loan. A Party-in-Interest who satisfies the eligibility
requirements described in the Loan Application may apply for a
loan by completing the Loan Application and returning it to the
Plan Administrator. The Plan Administrator shall review the Loan
Application and shall approve or deny a loan, in its sole
discretion, in a uniform and nondiscriminatory manner in
accordance with the standards contained in the Loan Application.
If approved, the loan shall be documented by a promissory note, a
payroll withholding authorization and certain other forms
executed by the Party-in-Interest, which are described in the
Loan Application. The Loan Application may also contains the
following information:
(a) the person authorized to administer loans
made under this Section;
(b) the procedure for applying for loans;
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(c) the basis on which loans will be approved or
denied;
(d) limitations on the types and amount of loans
available;
(e) how the interest rate will be determined;
(f) the collateral required for a loan; and
(g) events constituting a default and the action
that will be taken by the Plan in the event
of a default.
The Plan Administrator is authorized to amend the Loan
Application and the other forms used to document and secure loans
in such manner and at such times as the Plan Administrator, in
its discretion, deems necessary or appropriate. The Loan
Application is incorporated herein by reference and deemed to be
a part of this Plan.
Loans shall be available from a Party-in-Interest's
401(k) Savings Account. Each loan shall be in an initial
principal amount of no less than $500.00. The minimum monthly
repayment (attributable to two (2) bi-monthly pay periods or four
(4) weekly pay periods) shall be no less than $50.00. In no
event shall a loan exceed the lesser of one-half of a
Party-in-Interest's Account Balance in his or her Accounts or
$50,000. A loan shall be secured by the Account Balance in the
Plan, which security shall give the Trustee a first lien in such
entire Account Balance (including all amounts that become part of
such Account Balance before the loan is repaid) to the extent of
the entire outstanding amount of such loan, unpaid interest
thereon, and all costs of collection. A Party-in-Interest who
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<PAGE>
receives a loan against his or her Account shall not be permitted
to make withdrawals if such withdrawals would cause the amount of
the loan outstanding to exceed one-half of the
Party-in-Interest's Account Balance. In the event of a default
on the loan, as described in the Loan Application, any balance
due on the loan shall immediately be due and payable and shall be
repaid out of the Party-in-Interest's Balance, and his or her
Account Balance shall be reduced accordingly; provided, however,
that no recourse shall be available against his or her Accounts
in the event of a default until distribution of such Account is
permitted by law.
As described in the Loan Application, each Party-in-
Interest who makes an application for a loan from the Plan must
execute and deliver to the Plan Administrator, by the end of the
month in which a loan is requested, a written consent
acknowledging that the Participant and his or her spouse, if any,
are consenting to the loan and agreeing that a default on the
loan may reduce the amount of any benefits payable to the
Participant and his or her spouse, if any, under the Plan. Such
consent must be notarized by a notary public.
In addition to the limitations contained in the Loan
Application, the Plan Administrator may further limit the amount
of a loan made to any Party-in-Interest in order to maintain a
reserve chargeable against his or her Account Balance for income
taxes which may have to be withheld by the Trustee if the loan
becomes a deemed distribution to the Party-in-Interest. Any such
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<PAGE>
taxes required to be withheld by the Trustee (whether or not such
a reserve has been created) shall be charged to and shall reduce
the Party-in-Interest's Account Balance to the extent possible,
and any excess tax shall be treated as an administrative expense
of the Plan which shall be reimbursed by the Party-in-Interest in
question.
ARTICLE X
DISTRIBUTION UPON RETIREMENT
OR TERMINATION OF EMPLOYMENT
____________________________
10.1 Retirement or Termination of Employment.
(a) A Participant whose employment with the Employer
terminates by reason of death, Permanent Disability, Retirement,
or any other reason shall be entitled to receive a distribution
of such Participant's entire Account Balance in the manner
described in Section 10.2 hereof.
(b) A Participant will not be deemed to have a
termination of employment for the purpose of Section 10.1(a) as
long as such Participant is an employee of an Employer, whether
as an Employee or otherwise. If an Employee ceases to be an
Employee by reason of a transfer, but becomes eligible to
participate in another defined contribution plan maintained by
the Employer which accepts direct trustee to trustee transfers,
then such employee may request the Company to transfer his or her
Account Balance to the trustee of such other defined contribution
plan.
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<PAGE>
10.2 Method of Distribution. Any amount distributable
under the Plan shall be paid in a single lump-sum payment.
10.3 Form of Distribution. Distributions shall be
paid in cash, except that distributions from amounts invested in
the Company Stock Fund shall be in the form, at the election of
the Participant, of either (i) an amount of cash equal to the
fair market value, determined as of the distribution date, of the
shares of Company Stock distributable to the Participant, or (ii)
a certificate or certificates representing the number of whole
shares of Company Stock distributable to the Participant and an
amount of cash equal to the fair market value, determined as of
the distribution date, of any fractional shares of Company Stock
so distributable.
10.4 Time of Distribution.
(a) Amounts shall be paid as soon as practicable after
they become payable under Section 10.1 but no later than the
sixtieth (60th) day after the close of the Plan Year in which
such amounts become distributable. The amount to be paid shall
be determined as of the Valuation Date coinciding with or
immediately preceding the date of distribution. A Participant
may elect to defer receipt of his or her distribution to a time
in the future but no later than the date described for
commencement of distributions under Section 10.5 hereof. In the
event a Participant elects to defer distribution, he or she may
cause the amount to be distributed to him or her in a single lump
sum (but only a single lump sum) by filing a withdrawal request
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<PAGE>
in writing no less than ninety (90) days before the proposed
distribution date.
(b) During any period between the date on which a
Participant first becomes entitled to a distribution under
Section 10.1 and the time at which the final distribution from
the Participant's Accounts is made, the Participant's Accounts
shall continue to be credited on each Valuation Date with its
proportionate share of the investment income or loss and capital
gains or losses of the Plan in accordance with Sections 6.3
and 6.4.
(c) Notwithstanding the foregoing, unless a
Participant elects to defer payment of his or her Account Balance
to a later date pursuant to Section 10.4(a), distribution of a
Participant's Account Balance shall begin not later than the
sixtieth (60th) day after the end of the Plan Year which includes
the latest of:
(i) the date on which the Participant attains his
or her Normal Retirement Date;
(ii) the tenth (10th) anniversary of the date on
which the Participant commenced participation in the
Plan; or
(iii) the date of the Participant terminates his
or her service with the Employer.
(d) Notwithstanding any provision of this Plan to the
contrary, if the value of a Participant's Account Balance is in
excess of $3,500, including all prior distributions, distribution
of such Account Balance shall not be made prior to age sixty-five
(65) unless (i) the Participant has consented in writing to such
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distribution, or (ii) the distribution is by reason of the
Participant's death.
10.5 Distributions at Age 70-1/2. Notwithstanding any
other provision in this Article I, (i) the entire Account Balance
of a Participant who had then or previously retired shall be
distributed in a single lump sum on the date the Participant
attains age 70 1/2; and (ii) the account balance of a participant
who has not then retired will be distributed or commence to be
distributed in an annual amount no less than necessary to satisfy
Section 401(a)(9) of the Code no later than the first day of
April of the calendar year which follows the calendar year in
which the Participant attains age 70-1/2, regardless of whether
such Participant has then retired from his or her service with
the Employer or not.
10.6 Beneficiary.
(a) A Participant may file with the Employer a written
designation of a beneficiary or beneficiaries with respect to the
assets in the Accounts of the Participant. The written
designation of a beneficiary filed with the Employer may be
changed or revoked by the sole action of the Participant. Upon
the death of a Participant, the assets in his or her Accounts
shall be distributed to the beneficiary or beneficiaries so
designated. In the absence of a designation, the beneficiary of
a Participant shall be his or her surviving spouse, if any;
otherwise his or her surviving children and issue of deceased
children, if any; otherwise his or her personal representative,
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if any; and if none, those persons entitled to his or her estate
under intestate laws of the state in which the Participant is
domiciled at the time of his or her death. All beneficiary
designations filed with the Employer pursuant to the Prior Plan
shall remain in effect, notwithstanding the amendment and
restatement of the Prior Plan, until changed or revoked by the
sole action of the Participant who filed such designation.
(b) Notwithstanding any provision of this Plan to the
contrary, any beneficiary designation or change by a Participant
which would result in the designation of a beneficiary other than
the Participant's spouse shall not be effective unless the
Participant's spouse consents in writing. The spouse's consent
must be witnessed by a notary public. If the Participant
establishes to the satisfaction of the Employer that such written
consent cannot be obtained because there is no spouse or the
spouse cannot be located, the written consent of the Participant
will be deemed sufficient. A consent will be valid only with
respect to the spouse who signs the consent, or in the event of a
deemed consent, the designated spouse. A revocation of a prior
non-spouse designation or change may be made by the Participant
without the consent of the spouse at any time before the
commencement of benefits. The number of revocations shall not be
limited.
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ARTICLE XI
ADMINISTRATION OF THE PLAN
__________________________
11.1 Board of Directors' Responsibilities.
(a) The Board of Directors shall have overall
responsibility for the establishment, amendment, termination,
administration and operation of the Plan, which responsibility it
may discharge by the appointment of "named fiduciaries" pursuant
to Section 11.1(b).
(b) The Board of Directors shall discharge its
responsibility by the appointment and removal (with or without
cause) of:
(i) The Employer, to which is delegated the
overall responsibility for the administration and
operation of the Plan, and
(ii) The Trustee, to which is delegated the
responsibility for the investment and safekeeping of
the assets of the Plan.
11.2 Employer's Duties. The Employer on behalf of the
Participants and all other beneficiaries of the Plan and the
Trust Fund shall enforce the Plan and the Trust Agreement in
accordance with the terms of the Plan and the Trust Agreement
and, in its sole and absolute discretion, shall have all powers
necessary to accomplish that purpose, including, but not by way
of limitation, the following:
(i) To issue rules and regulations necessary for
the proper administration of the Plan and to change,
alter, or amend such rules and regulations;
(ii) To construe the Plan and Trust Agreement;
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(iii) To determine all questions arising in the
administration of the Plan, including those relating to
eligibility, rights of Participants and their
beneficiaries, and entitlement to payment of Accounts;
(iv) To compute and certify to the Trustee,
unless delegated to the Trustee, the amount of benefits
payable to Participants or their beneficiaries;
(v) To authorize all disbursements of the Trustee
from the Trust Fund in accordance with the provisions
of the Plan;
(vi) To employ and suitably compensate such
accountants, attorneys and other persons to render
advice, and clerical employees, as it may deem
necessary to the performance of its duties;
(vii) To disseminate to Employees information
concerning Plan standards and requirements, including
those concerning eligibility, and to notify the
Employer whenever Employees become eligible to
participate in the Plan;
(viii) To keep records relating to Participants
and other matters applicable to the Plan, provided that
the Company may, with the consent of the Trustee, by a
separate written agreement, delegate such duty to the
Trustee and/or Plan Administrator;
(ix) To make available to Participants, upon
request for examination during business hours, such
records as pertain exclusively to the examining
Participant;
(x) To prescribe procedures to be followed by
Participants and beneficiaries in claiming benefits;
(xi) To develop and make available forms for use
by Participants and beneficiaries for making elections
provided by the Plan;
(xii) To make available for inspection and to
provide upon request at such charge as may be permitted
and determined by the Company, documents and
instruments required to be disclosed by the Act; and
(xiii) To determine, from time to time, the
investment funds available under the Plan.
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<PAGE>
11.3 Trustee's Duties. The powers, duties and
responsibilities of a Trustee shall be as stated in the Trust
Agreement, subject to any limitations imposed by this Plan, the
Act, or other applicable law.
11.4 Delegation of Fiduciary Responsibility.
(a) The Company and the Trustee shall have the
authority to delegate, from time to time, by written instrument,
all or any part of their responsibilities under the Plan to such
person or persons or other entities as they may deem advisable
and in the same manner to revoke any such delegation of
responsibility. Upon such delegation, any action of the
delegatee in the exercise of such delegated responsibilities
shall have the same force and effect for all purposes hereunder
as if such action had been taken by the Company or Trustee, as
the case may be. Neither the Company nor the Trustee shall be
liable for any acts or omissions of any such delegatee. In
particular, the Company may delegate the authority, power and
duty regarding day to day administration of the Plan to a person
or group (who may be employees of the Company) and, if such is
delegated, such person or persons shall be referred to as the
Plan Administrator. In the absence of such delegation, the
Company shall be the Plan Administrator. The delegatee shall
report periodically to the Company or the Trustee, as the case
may be, concerning the discharge of the delegated
responsibilities.
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(b) Fiduciary duties and responsibilities which have
been delegated pursuant to the terms of the Plan or Trust or
paragraph (a) above are intended to limit the liability of the
Company and Trustee in accordance with the provisions of section
405(c)(2) of the Act.
11.5 Administrative Bonding. The Employer and Trustee
(and the Plan Administrator, if appointed) shall serve without
bond (except as otherwise required by federal law) and without
compensation for their services as such (provided that any member
of the Employer, the Plan Administrator or the Trustee who is not
employed by an Employer on a substantially full-time basis may be
compensated).
11.6 Expenses of the Plan. The expenses incurred by
the Company, Plan Administrator and/or the Trustee in the
administration of the Plan shall be paid from the Trust Fund,
except to the extent that the Employer, in its discretion,
decides to pay such expenses.
11.7 Indemnification. To the extent permitted by the
Act, the Employer shall indemnify the members of the Employer,
the Plan Administrator and Trustee (other than a trustee who is
not an Employee of an Employer) against any liabilities incurred
by them in the exercise and performance on their powers and
duties under the Plan and Trust Agreement by the purchase of
insurance or otherwise. The indemnification which may be
provided under this Section 11.7 shall not be deemed exclusive of
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any other rights to which the members of the Employer, the Plan
Administrator or Trustee may be entitled under law or any by-law
or agreement.
ARTICLE XII
AMENDMENT AND TERMINATION
_________________________
12.1 Authority. The Board of Directors shall have the
right to amend or terminate this Plan at any time; provided,
however, that, subject to the following sentence, no such action
shall be effective to permit any part of the corpus or income of
the Trust Fund established in connection herewith to be used for,
or diverted to, purposes other than the exclusive benefit of the
Participants and their beneficiaries, and defraying the
reasonable expenses of administering the Plan. The Employer
retains the right to amend, suspend or terminate the Plan at any
time, retroactively in effect if necessary, to obtain an initial
qualification letter that the Plan meets the requirements of
section 401(a) of the Code, and that the Trust Fund meets the
requirements of section 501(a) of the Code, so that the Plan and
the Trust Fund are qualified and exempt, respectively, or to meet
any of the requirements of the Act, or the corresponding
provisions of any subsequent or amendatory Federal legislation
which is applicable.
12.2 Distribution Upon Termination. In the event that
the Plan shall be completely or partially terminated, the Company
shall, after making proper governmental notification required by
the Act and subject to the requirements of the Act, direct either
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(i) that the Trustee continue to hold the Account of each
Participant in the Trust Fund in accordance with the provisions
of this Plan without regard to such termination until the entire
Account Balance of each Participant has been distributed in
accordance with such provisions, or (ii) that the Trustee
immediately distribute to each Participant their respective
Account Balance as a lump sum.
ARTICLE XIII
DIRECT ROLLOVERS
________________
13.1 Direct Rollovers. This Article applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the
Company, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
For the purposes of this Article, the following
capitalized terms shall have the following meanings:
(a) "Direct Rollover" means a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
(b) "Distributee" means an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
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<PAGE>
Code, are Distributees with regard to the interest of the spouse
or former spouse.
(c) "Eligible Retirement Plan" means 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 plan or individual retirement annuity.
(d) "Eligible Rollover Distribution" means 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 life (or life expectancy) of the Distributee
or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated Beneficiary, or for
a specified period of ten years or more; any distribution to the
extent such distribution is required under Section 401(a)(9) of
the Code; and the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
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ARTICLE XIV
MISCELLANEOUS
_____________
14.1 Incapacity of Recipient of Benefits. If any
person entitled to receive benefits shall be physically or
mentally incapable of receiving or acknowledging receipt of any
payment of benefits, the Trustee, upon the receipt of
satisfactory evidence that such incapacitated person is so
incapacitated and that another person or institution is
maintaining him and that no guardian or committee has been
appointed for him, may provide for such payment of benefits
hereunder to such person or institution so maintaining him, and
any such payments so made shall be deemed for every purpose to
have been made to such incapacitated person.
14.2 Merger, Consolidation or Discontinuance. In the
event that the Employer shall at any time become insolvent, or in
the event of the dissolution of, or a merger or consolidation
involving the Employer, without any provision being made for the
continuance of the Plan, the Plan and the Trust Fund thereunder
shall terminate and the Trustee shall proceed in the manner
provided herein in the event of a termination of the Plan. In
the event of a dissolution, merger or consolidation involving the
Employer, provisions may be made by the Employer's successor, if
any, for the continuance of the Plan. In such event, said
successor shall be substituted hereunder in place of the Employer
by proper action of such successor.
- 47 -
<PAGE>
14.3 Merger or Consolidation of the Plan. In the case
of any merger or consolidation of the Plan with, or transfer of
assets or liabilities of the Plan to, any other plan, each
Participant or beneficiary in the Plan shall (if the Plan had
then terminated) receive a benefit hereunder immediately after
such merger, consolidation or transfer which is no less than the
benefit he or she would have been entitled to receive immediately
before such merger, consolidation or transfer (if the Plan had
then terminated).
14.4 Assets in Trust Fund Owned by Trustee. Nothing
contained herein shall be deemed to give any Participant or his
or her beneficiary any interest in any specific property of the
Trust Fund or any right in the Trust Fund, other than the right
to receive distributions as are expressly provided for in this
Plan.
14.5 Employment Rights Not Affected by the Plan.
Participation in this Plan shall not give any right to any
Employee to be retained in the employ of the Employer nor shall
it interfere with the right of the Employer to discharge any
Employee and to deal with him without regard to the existence of
this Plan and without regard to the effect that such treatment
might have upon him as a Participant in this Plan.
14.6 Trust Fund for Sole Benefit of Participants and
Beneficiaries. The income and principal of the Trust Fund are
for the sole use and benefit of the Participants and
beneficiaries of this Plan, and, to the extent permitted by law,
- 48 -
<PAGE>
shall be free, clear, and discharged of and from, and are not to
be in any way liable for, debts, contracts or agreements, now
contracted or which may hereafter be contracted, and from all
claims and liabilities now or hereafter incurred by any
Participant or beneficiary. Other than as permitted by the Act,
and as expressly set forth in the Plan, no contributions made by
Employer to the Trust Fund under the Plan shall at any time
revert to the Employer. No Participant or beneficiary of a
Participant under this Plan shall have the right to commute,
withdraw, surrender, encumber, alienate or assign any of the
income or principal of the Trust Fund or any of the benefits to
become due unto any person or persons under the agreement of
trust or this Plan except as specifically provided by the terms
of the Trust Agreement or this Plan. The limitations contained
in this Section 13.6 shall apply to the creation, assignment or
recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order unless such
order is determined to be a qualified domestic relations order as
defined in section 414(p) of the Code, or is a domestic relations
order entered before January 1, 1985.
14.7 Information to be Furnished by the Employer. The
Employer shall furnish to the Employer and the Trustee such
information in the Employer's possession as the Employer and the
Trustee shall require from time to time to perform their duties
under the Plan and the Trust Agreement.
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<PAGE>
14.8 Service of Process. The Employer is the
designated agent of the Plan for the service of process in
connection with all matters affecting the Plan.
14.9 Appeals Procedure. Any dispute between the
Employer and a Participant as to a Participant's eligibility for
an allocation or the amount of his or her Accounts, is to be
resolved by the Employer and the United Steelworkers of America,
or the Employer and the United Steelworkers of America may submit
it to arbitration.
14.10 Governing Law. This Plan shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania to the extent that any of such laws have not been
preempted by the Act or other Federal law.
- 50 -
Exhibit 5
[ALLEGHENY LUDLUM CORPORATION LOGO]
Jon D. Walton
Vice President -
General Counsel and Secretary
412-394-2836
April 9, 1996
Allegheny Ludlum Corporation
1000 Six PPG Place
Pittsburgh, PA 15222-5479
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am Vice President - General Counsel and Secretary of
Allegheny Ludlum Corporation, a Pennsylvania corporation
(the "Company") and in such capacity, I have acted as counsel for
the Company in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission in connection with the
registration pursuant to the Securities Act of 1933, as amended
(the "Act") of the issuance of up to 100,000 shares (the
"Shares") of Common Stock, par value $0.10 per share, of the
Company, pursuant to the 401(k) Savings Account Plan (the
"Plan"). I am furnishing this opinion for use in accordance with
Item 601(b)(5) of Regulation S-K promulgated under the Act, for
filing as Exhibit 5 to the Registration Statement.
In preparation for this opinion, I have examined
(a) the Plan, (b) the Registration Statement and (c) the
corporate documents of the Company. I am familiar with the
proceedings taken by the Company in connection with the
authorization, registration, issuance and sale of the Shares
pursuant to the Plan.
Based on the foregoing, I am of the opinion that the
Shares have been duly authorized for issuance and sale pursuant
to the Plan, and when issued and delivered by the Company
pursuant to the Plan, the Shares will be validly issued, fully
paid and nonassessable.
<PAGE>
Allegheny Ludlum Corporation
April 9, 1996
Page 2
This opinion is rendered as of the date hereof, and I
have not undertaken to supplement this opinion with respect to
factual matters or changes in the law that may occur hereafter.
I consent to the use of this opinion as an Exhibit to
the Registration Statement and to the reference to the
undersigned in the Registration Statement.
Very truly yours,
/s/ Jon D. Walton
Jon D. Walton
JDW/pt
MEM978.b
Exhibit 23(b)
We consent to the reference to our firm under the caption "Item 3.-
Incorporation of Documents by Reference" in the Registration Statement
on Form S-8 of Allegheny Ludlum Corporation for the registration of
100,000 shares of its common stock and to the incorporation by
reference therein of our report dated January 30, 1996, with respect
to the consolidated financial statements of Allegheny Ludlum
Corporation incorporated by reference in its Form 10-K for the fiscal
year ended December 31, 1995 and the related financial statement
schedules included therein, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Pittsburgh, Pennsylvania
April 9, 1996
