Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
LADISH CO., INC.
(Exact name of registrant as specified in its charter)
Wisconsin 31-1145953
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5481 South Packard Avenue 53110
Cudahy, Wisconsin (Zip Code)
(Address of principal executive offices)
Ladish Co., Inc. Savings and Deferral Investment Plan
Ladish Co., Inc. Hourly Employees Savings and Deferral Investment Plan
(Full title of the plan)
Wayne E. Larsen Copy to:
Vice President Law/Finance and Secretary
Ladish Co., Inc. John M. Olson
5481 South Packard Avenue Foley & Lardner
Cudahy, Wisconsin 53110 777 East Wisconsin Avenue
(414) 747-2611 Milwaukee, Wisconsin 53202
(Name, address and telephone number, (414) 271-2400
including area code, of agent for
service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities to Amount Offering Aggregate Amount of
be to be Price Offering Registration
Registered Registered Per Share Price Fee
Common Stock,
$.01 par 500,000
value shares $14.09375(1) $7,046,875(1) $2,078.83
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on
the average of the high and low prices of the Common Stock as
reported by The Nasdaq National Market on May 27, 1998.
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 plans
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission ("Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Ladish
Co., Inc. (the "Company") or the Ladish Co., Inc. Savings and Deferral
Investment Plan or the Ladish Co., Inc. Hourly Employees Savings and
Deferral Investment Plan (collectively, the "Plans") with the Commission
and are incorporated herein by reference:
(a) The Company's latest Prospectus, dated March 9, 1998,
included in the Company's Registration Statement on Form S-1 (Registration
No. 333-43011), filed pursuant to Rule 424(b) under the Securities Act of
1933, which includes audited financial statements as of and for the year
ended December 31, 1997.
(b) All other reports filed by the Company or the Plans
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since December 31, 1997.
(c) The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, dated
December 23, 1997, with the Commission pursuant to Section 12 of the
Exchange Act, and any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company or the Plans
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the
Company is required to indemnify a director or officer, to the extent that
such person is successful on the merits or otherwise in the defense of a
proceeding, for all reasonable expenses incurred in the proceeding if such
person was a party because he or she was a director or officer of the
Company. In all other cases, the Company is required by Section
180.0851(2) to indemnify a director or officer against liability
incurred in a proceeding to which such a person was a party because he or
she was a director or officer of the Company, unless it is determined that
he or she breached or failed to perform a duty owed to the Company and the
breach or failure to perform constitutes:
(i) a willful failure to deal fairly with the Company or
its shareholders in connection with a matter in which the
director or officer has a material conflict of interest;
(ii) a violation of criminal law, unless the director or
officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct was
unlawful;
(iii) a transaction from which the director or officer
derived an improper personal profit; or
(iv) willful misconduct.
Section 180.0858(1) provides that, subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a
director or officer may have under the Company's articles of
incorporation, by-laws, a written agreement or a resolution of the Board
of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance to the extent required to be permitted
under Sections 180.0850 to 180.0858 of the WBCL, for any liability
incurred in connection with a proceeding involving a federal or state
statute, rule or regulation regulating the offer, sale or purchase of
securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders,
or any person asserting rights on behalf of the corporation or its
shareholders, for damages, settlements, fees, fines, penalties or other
monetary liabilities arising from a breach of or failure to perform, any
duty resulting solely from his or her status as a director, unless the
person asserting liability proves that the breach or failure to perform
constitutes any of the four exceptions to mandatory indemnification under
Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the Company
against whom claims are asserted with respect to the declaration of
improper dividends or distributions to shareholders or certain other
improper acts which they approved are entitled to contribution from other
directors who approved such actions and from shareholders who knowingly
accepted an improper dividend or distribution, as provided therein.
Article XIII of the By-Laws of the Registrant provides for
indemnification of directors, to the maximum extent allowed or mandated by
the laws of the State of Wisconsin and of officers and employees to the
maximum extent allowed or mandated by the laws of the State of Wisconsin
except that no indemnification shall be made in respect to any issue or
matter as to which such officer or employee shall have been adjudged to be
liable for negligence or misconduct in the performance of duty to the
corporation unless the court in which such action or suit is brought shall
determine that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) Ladish Co., Inc. Savings and Deferral Investment
Plan, as amended
(4.2) Ladish Co., Inc. Hourly Employees Savings and
Deferral Investment Plan, as amended
(5) Opinion of Foley & Lardner
(23) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Cudahy, and
State of Wisconsin, on this 27th day of May, 1998.
LADISH CO., INC.
By: /s/ Wayne E. Larsen
Wayne E. Larsen
Vice President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints Kerry L. Woody and Wayne E. Larsen,
and each of them individually, his or her true and lawful attorney-in-fact
and agent, 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 (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
/s/ Kerry L. Woody President, Chief May 27, 1998
Kerry L. Woody Executive Officer
(Principal Executive
Officer) and Director
/s/ Wayne E. Larsen Vice President May 27, 1998
Wayne E. Larsen Law/Finance, Secretary
(Principal Financial
Officer and Accounting
Officer) and Director
/s/ Robert W. Sullivan Director May 29, 1998
Robert W. Sullivan
_______________________ Director May __, 1998
Lawrence W. Bianchi
________________________ Director May __, 1998
Charles W. Finkl
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act
of 1933, Ladish Co., Inc., which administers the Plans, has duly caused
this Registration Statement to be signed on behalf of the Plans by the
undersigned, thereunto duly authorized, in the City of Cudahy, and State
of Wisconsin, on this 27th day of May, 1998.
LADISH CO., INC. SAVINGS AND
DEFERRAL INVESTMENT PLAN
By: /s/ Wayne E. Larsen
Wayne E. Larsen
Vice President Law/Finance
Ladish Co., Inc.
LADISH CO., INC. HOURLY
EMPLOYEES SAVINGS AND
DEFERRAL INVESTMENT PLAN
By: /s/ Wayne E. Larsen
Wayne E. Larsen
Vice President Law/Finance
Ladish Co., Inc.
<PAGE>
EXHIBIT INDEX
LADISH CO., INC.
SAVINGS AND DEFERRAL INVESTMENT PLANS
Sequentially
Exhibit No. Exhibit Numbered Page
(4.1) Ladish Co., Inc. Savings and
Deferral Investment Plan
(4.2) Ladish Co., Inc. Hourly
Employees Savings and Deferral
Investment Plan
(5) Opinion of Foley & Lardner
(23) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to
subsequent amendments (included
on the signature page to this
Registration Statement) -
Exhibit 4.1
LADISH CO., INC. SAVINGS AND DEFERRAL INVESTMENT PLAN
(Effective as of April 1, 1987)
<PAGE>
LADISH CO., INC. SAVINGS AND DEFERRAL INVESTMENT PLAN
(Effective as of April 1, 1987)
TABLE OF CONTENTS
Article Section Page
I The Plan
1.1 Establishment of the Plan 1
1.2 Applicability of the Plan 1
1.3 Purpose of the Plan 1
II Definitions
2.1 Definitions 2
2.2 Gender and Number 7
III Participation and Service
3.1 Participation 8
3.2 Duration of Participation 8
3.3 Service 8
3.4 Severance from Service 9
3.5 One-Year Period of Severance 10
3.6 Hours of Service 11
3.7 Leased Employees 11
3.8 Special Provisions for Participants
Who Enter the Armed Forces 11
IV Contributions
4.1 Before-Tax, After-Tax, and Matching
Contributions 12
4.2 Application of Forfeitures 14
4.3 Limitations on Before-Tax Contributions 15
4.4 Limitations on After-Tax and Matching
Contributions 16
4.5 Limitations on Annual Account Additions 17
4.6 Rollover Contributions 19
V Vesting in Accounts
5.1 Before-Tax, After-Tax, and Rollover
Accounts 21
5.2 Matching Contributions Accounts 21
VI Distributions and Withdrawals
6.1 Distribution Upon Retirement, Death,
or Disability 22
6.2 Distribution Upon Termination of
Employment for Reasons Other Than
Retirement, Death, or Disability 22
6.3 Forfeitures 22
6.4 Commencement of Distributions 24
6.5 Method of Distribution 24
6.6 In-Service Withdrawals 24
6.7 Required Distributions 27
6.8 Withholding Taxes 29
VII Investment Elections
7.1 Investment of Contributions 30
7.2 Investment Elections 30
7.3 Investment Transfers 30
7.4 Transfer of Assets 30
VIII Accounts and Records of the Plan
8.1 Accounts and Records 32
8.2 Trust Fund 32
8.3 Valuation and Allocation of Expenses 32
8.4 Allocation of Earnings and Losses 32
IX Financing
9.1 Financing 34
9.2 Contributions 34
9.3 Nonreversion 34
9.4 Rights in the Trust Fund 35
X Administration
10.1 Plan Administrator and Fiduciary 36
10.2 Expenses 36
10.3 Administration 36
10.4 No Enlargement of Employee Rights 37
10.5 Appeals from Denial of Claims 37
10.6 Notice of Address and Missing Persons 38
10.7 Data and Information for Benefits 38
10.8 Indemnity for Liability 39
10.9 Effect of a Mistake 39
XI Amendment and Termination
11.1 Amendment and Termination 40
11.2 Limitations on Amendments 40
11.3 Bankruptcy and Other Contingencies 41
XII Top-Heavy Provisions
12.1 Application of Top-Heavy Provisions 42
12.2 Definitions 42
12.3 Minimum Contribution 45
12.4 Limit on Annual Additions:
Combined Plan Limit 46
12.5 Collective Bargaining Agreements 46
XIII Participation In and Withdrawal
From the Plan by an Employer
13.1 Participation in the Plan 47
13.2 Withdrawal from the Plan 48
XIV Miscellaneous
14.1 Beneficiary Designation 49
14.2 Incompetency 50
14.3 Nonalienation 50
14.4 Applicable Law 51
14.5 Severability 51
14.6 No Guarantee 51
14.7 Merger, Consolidation, or Transfer 51
14.8 Internal Revenue Service Approval 51
<PAGE>
LADISH CO., INC. SAVINGS AND DEFERRAL INVESTMENT PLAN
(Effective as of April 1, 1987)
Article I. The Plan
1.1 Establishment of the Plan. Ladish Co., Inc. (hereinafter
referred to as the "Company") established effective as of April 1, 1987
and presently maintains the Ladish Co., Inc. Savings and Deferred
Investment Plan (the "Plan"), a savings plan for the benefit of its
eligible Employees and eligible Employees of participating Affiliates.
The Plan is amended and restated in its entirety as set forth herein
effective as of April 1, 1987.
1.2 Applicability of the Plan. The provisions set forth herein are
applicable only to Employees in the employ of an Employer on or after the
Effective Date.
1.3 Purpose of the Plan. The Plan is intended to be a profit
sharing plan qualified under Code section 401(a) with a cash-or-deferred
arrangement qualified under Code section 401(k).
Article II. Definitions
2.1 Definitions. Whenever used in the Plan, the following terms
shall have the respective meanings set forth below unless otherwise
expressly provided herein, and when the defined meaning is intended the
term is capitalized.
(a) "Account" means the separate account maintained for each Member
which represents his total proportionate interest in the Trust
Fund as of any Valuation Date and which consists of the sum of
the following subaccounts:
(1) "After-Tax Contributions Account" means that portion of the
Member's Account which evidences the value of the After-Tax
Contributions made by the Member, including any gains and
losses of the Trust Fund attributable thereto;
(2) "Before-Tax Contributions Account" means that portion of
the Member's Account which evidences the value of the
Before-Tax Contributions made on his behalf by an Employer,
including any gains and losses of the Trust Fund
attributable thereto;
(3) "Matching Contributions Account" means that portion of the
Member's Account which evidences the value of the Matching
Contributions made on his behalf by an Employer, including
any gains and losses of the Trust Fund attributable
thereto; and
(4) "Rollover Account" means that portion of the Member's
Account which evidences the value of the Rollover
Contributions, if any, made by the Employee, including any
gains and losses of the Trust Fund attributable thereto.
(b) "Act" means the Employee Retirement Income Security Act of 1974,
as amended.
(c) "Affiliate" means--
(1) any corporation which is a member of the same controlled
group of corporations (within the meaning of Code section
414(b)) as the Company;
(2) any trade or business (whether or not incorporated) which
is under common control with the Company (within the
meaning of Code section 414(c)),
(3) any organization which is a member of an affiliated service
group (within the meaning of Code section 414(m)) of which
the Company is also a member, and
(4) any other organization required to be aggregated with the
Company pursuant to regulations under code section 414(o)."
(d) "After-Tax Contributions" means the contributions made by a
Participant pursuant to the Participant's election to contribute
to the Plan as described in section 4.1(b) or pursuant to a
reduction of the Participant's Before-Tax Contributions as
described in section 4.4.
(e) "Before-Tax Contributions" means the contributions made by an
Employer on behalf of a Participant pursuant to the
Participant's election to reduce Compensation as described in
section 4.1(a).
(f) "Board" means the Board of Directors of the Company.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Company" means Ladish Co., Inc.
(i) "Compensation" means base pay, except that for purposes of the
"actual deferral percentage" tests referred to in sections 4.4
and 4.5, Compensation shall mean W-2 pay plus Before-Tax
Contributions and any other amounts contributed on an Employee's
behalf pursuant to a salary reduction under section 401(k) or
section 125 of the Code. For Plan Years beginning after 1988
and prior to January 1,1994, the Compensation of each Employee
that may be taken into account under this subsection shall not
exceed the first $200,000 of an Employee's Compensation (as
adjusted by the Secretary of the Treasury under Code section
415(d)). Effective January 1, 1994, the compensation of each
Employee that may be taken into account under this subsection
shall not exceed the first $150,000 of an Employee's
Compensation (as adjusted by the Secretary of the Treasury under
Code section 401(a)(17)). In determining the compensation of an
Employee for purposes of the limitation in this subsection, the
rules of Code section 414(q)(6) shall apply, except in applying
such rules, "family" shall include only the employee's spouse
and any lineal descendants of the Employee who have not attained
age 19 before the close of the Plan Year.
(j) "Disability" means a physical or mental injury or disease which
causes an Employee to be permanently incapable of engaging in
any occupation or employment for which the Employee is qualified
or may reasonably become qualified with training, education, or
experience, as determined by the Plan Administrator under rules
consistently and uniformly applied to all Employees.
(k) "Effective Date" means April 1, 1987.
(l) "Eligible Employee" means any salaried Employee who is employed
by an Employer in the United States. "Eligible Employee" shall
not include any person who is covered by a Collective Bargaining
Agreement between employee representatives and the Company or an
Affiliate if retirement benefits were the subject of good faith
bargaining, unless such collective bargaining agreement provides
for participation in the Plan and, shall not include employees
who are in the Administrative and Technical Group at the
Company's plant in Russellville, Arkansas.
(m) "Employee" means any person who is employed by the Company or an
Affiliate.
(n) "Employer" means, individually or collectively (as the context
indicates), the Company and any Affiliate which elects to become
a party to the Plan, with the approval of the Company, by
adopting the Plan for the benefit of its eligible Employees in
the manner described in Article XIII.
(o) "Employment Commencement Date" means the day on which an
Employee first performs an Hour of Service for an Employer or
nonparticipating Affiliate or, if applicable, the first day
following a Break in Service, on which an Employee performs an
Hour of Service for an Employer or nonparticipating Affiliate.
(p) "Highly Compensated Employee" means, with respect to any Plan
Year, any Employee who at any time during the 12-month period
immediately preceding such Plan Year --
(1) received compensation, as defined under Code section
414(q)(7), from the Employer and all Affiliates in excess
of $75,000 (as effective January 1, 1987 and adjusted by
the Secretary of the Treasury under Code section 415(d)),
(2) received compensation, as defined under Code section
414(q)(7), from the Employer and all Affiliates in excess
of $50,000 (as effective January 1, 1987 and adjusted by
the Secretary of the Treasury under Code section 415(d))
and was in the top-paid 20 percent of Employees,
(3) was an officer who received compensation, as defined under
Code section 414(q)(7), in excess of one-half the limit
under Code section 415(b)(1)(A), or
(4) was a 5-percent owner.
Highly Compensated Employee also means, with respect to a Plan
Year, any Employee who, at any time during such Plan Year, met
the descriptions contained in paragraph (1), (2), or (3) and was
among the top-paid 100 Employees or any Employee who was a 5-
percent owner. A former Employee or a family member of a Highly
Compensated Employee shall be treated as a Highly Compensated
Employee to the extent required by section 414(q)(6) or (9) of
the code and the regulations thereunder.
In determining who is a Highly Compensated Employee, the
following rules shall apply:
(A) For purposes of determining the number of Employees in the
top-paid 20 percent, the following employees are excluded:
(i) Employees who have not completed six months of
service;
(ii) Employees who normally work less than 17 1/2
hours per week;
(iii) Employees who normally work during not ore than
six months during any Plan Year;
(iv) Employees who have not attained age 21; and
(v) to the extent allowable under Treasury regulation
section 1.414(q)-1T, Employees covered by a
collective bargaining agreement between employee
representatives and the Employer or an Affiliate.
(B) The number of officers is limited to 50 (or, if lesser, the
greater of three Employees or 10 percent of Employees),
excluding those Employees described in (A)(i), (ii), (iii),
(iv) and (v) above.
(C) When no officer has compensation in excess of the dollar
limit described in (3) above (as adjusted for increases in
the cost of living as prescribed by the Secretary of the
Treasury), the highest paid officer is treated as highly
compensated.
(D) A Highly Compensated Employee shall include a former
Employee who separated from service prior to the Plan Year
and who was an active Highly Compensated Employee for
either --
(i) the year the Employee separated from service, or
(ii) any Plan Year ending on or after the Employee's fifty-
fifth birthday.
Alternatively, the simplified identification of Highly
Compensated Employees under section 4 of Revenue Procedure 93-42
may be used, including the use of a snapshot day if applicable."
(q) "Hour of Service" means a period of employment, as defined in
section 3.6.
(r) "Investment Fund" means any investment vehicle selected by the
Plan Administrator including but not limited to the following;
guaranteed investment contracts, pooled funds, treasury
securities, bonds, notes, fixed income mutual funds, common
stocks, and equity mutual funds, in accordance with the
provisions of the Trust Agreement.
(s) "Matching Contributions" means the contributions made by an
Employer on behalf of a Participant, conditioned on the making
of After-Tax and/or Before-Tax Contributions, as described in
section 4.1(c).
(t) "Member" means a Participant, or a former Participant who still
has a balance in his Account.
(u) "One-Year Period of Severance" means a period of absence from
employment, as described in section 3.5.
(v) "Participant" means any Employee of an Employer who has met and
continues to meet the eligibility requirements of the Plan as
set forth in section 3.1.
(w) "Plan" means this Ladish Co., Inc. Savings and Investment
Deferral Plan.
(x) "Plan Administrator" means the entity which has been designated
as the "plan administrator" as provided in section 10.1.
(y) "Plan Quarter" means the three-month period ending each March
31, June 30, September 30, and December 31.
(z) "Plan Year" shall mean the calendar year.
(aa) "Rollover Contributions" means the contributions, if any, made
by an Eligible Employee pursuant to section 4.6.
(bb) "Service" means a period or periods of employment of an Employee
with an Employer or a nonparticipating Affiliate as described in
section 3.3.
(cc) "Severance from Service" means an absence from employment, as
described in section 3.4.
(dd) "Trust Agreement" means (1) any agreement establishing a trust
or (2) any insurance contract, which forms part of the Plan, to
receive, hold, invest, and dispose of the Trust Fund.
(ee) "Trustee" means the corporation, insurance carrier, or
individual or individuals, or combination thereof, acting as
trustee under the Trust Agreement at any time of reference.
(ff) "Trust Fund" means the assets of every kind and description held
under the Trust Agreement.
(gg) "Valuation Date" means any day that the New York Stock Exchange
is open for business or any other date mutually agreed to by the
Plan Administrator and the Trustee.
(hh) "Plan Month" shall mean the calendar month.
2.2 Gender and Number. Unless the context clearly requires
otherwise, the masculine pronoun whenever used shall include the feminine
and neuter pronoun, and the singular shall include the plural.
Article III. Participation and Service
3.1 Participation.
(a) Each Eligible Employee on the Effective Date who, on that date,
has completed six months of Service as an Eligible Employee
shall be eligible to participate in the Plan as of the Effective
Date. Each other Employee who was or becomes an Eligible
Employee of an Employer before, on, or after the Effective Date
shall be eligible to participate in the Plan after the Effective
Date on the first January 1, April 1, July 1 or October 1
coinciding with or next following the later or the date he
becomes an Eligible Employee and the completion of three months
of service. Provided, however, that any Employee who has
previously been a Participant in a profit sharing plan under
Code Section 401(a) established and maintained by the Company
will be eligible to participate in the Plan as of the first day
of service as an eligible employee. An Employee of an Employer
shall be eligible to make a Rollover Contribution before becoming
eligible to participate.
(b) Each Employee who is eligible to participate in accordance with
subsection (a) shall become a Participant by making the election
to have Before-Tax Contributions made on his behalf in
accordance with section 4.1(a) or to make After-Tax
Contributions in accordance with section 4.1(b). Such election
must be made upon first becoming eligible to participate,
otherwise it can only be made as of the first day of any
subsequent January, April, July, or October.
3.2 Duration of Participation. A Participant shall continue to be a
Participant until he terminates his employment with all Employers;
thereafter, he shall be a Member for as long as he has an Account.
3.3 Service. An Employee shall be credited for Service for his
period of employment with an Employer and each nonparticipating Affiliate,
determined as follows:
(a) Service shall be determined in completed years, months, and
days.
(b) An Employee shall receive credit for Service from his Employment
Commencement Date until his Severance from Service.
(c) If an Employee who has had a Severance from Service is
subsequently reemployed as an Employee--
(1) If he is reemployed before a One-Year Period of Severance
occurs after such Severance from Service, the Service he
had at such Severance shall be reinstated upon his
reemployment and, if such Severance from Service resulted
from quit, discharge, or retirement, he shall receive
credit for Service for the period between his Severance
from Service and his reemployment.
(2) If he is reemployed after a One-Year Period of Severance
occurs after such Severance from Service, he shall be
considered a new Employee for purposes of the Plan except--
(A) if at such Severance from Service he had a vested
interest in any portion of his Matching Contributions
Account, the Service he had at such Severance from
Service shall be reinstated upon his reemployment.
(B) If subparagraph (A) is not applicable, and if the
number of consecutive One-Year Periods of Severance is
less than five, the years of Service he had at such
Severance from Service shall be reinstated upon his
reemployment.
3.4 Severance from Service. Severance from Service means the
earlier of (a) or (b) below:
(a) the date the Employee quits, retires, is discharged, or dies, or
(b) the first anniversary of the first day of an Employee's absence
from employment with an Employer or nonparticipating Affiliate
(with or without pay) for any reason other than in (a) above,
such as vacation, sickness, leave of absence, layoff, or
military service (except as otherwise provided in section 3.8).
An Employee who fails to return to employment at the expiration
of an absence shall be deemed to have had a Severance from
Service on the first to occur of the expiration of his absence
or the first anniversary of the first day of his absence.
3.5 One-Year Period of Severance.
(a) A One-Year Period of Severance means each 12-consecutive-month
period beginning on the date an Employee incurs a Severance from
Service and ending on each anniversary of such date, provided
that the Employee does not perform an Hour of Service for the
Company or any Affiliate during such period.
(b) Solely for purposes of determining whether a One-Year Period of
Severance has occurred, in the case of an Employee who is absent
from work beyond the first anniversary of the first date of an
absence and the absence is for an approved leave for maternity
or paternity reasons, the date the Employee incurs a Severance
from Service shall be the second anniversary of the Employee's
absence from employment. The period between the first and
second anniversary of the first date of absence will not
constitute Service. For purposes of this subsection, an absence
from work for maternity or paternity reasons means an absence
(1) by reason of pregnancy of the individual, (2) by reason of
the birth of a child of the individual, (3) by reason of the
placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes
of caring for such child for a period beginning immediately
following such birth or placement.
3.6 Hours of Service. An Employee shall receive credit for each
hour for which the Employee is paid, or is entitled to payment, for the
performance of duties for the Company or an Affiliate. Hours of Service
shall be credited in accordance with the rules of Department of Labor
regulation 2530.200b-2.
3.7 Leased Employees. A person who is not an Employee of an
Employer or nonparticipating Affiliate and who performs services for an
Employer or a nonparticipating Affiliate pursuant to an agreement between
the Employer or nonparticipating Affiliate and a leasing organization
shall be considered a "leased employee" if such person performed the
services for a year and the services are of a type historically performed
by employees. A person who is considered a "leased employee" of an
Employer or nonparticipating Affiliate shall not be considered an Employee
for purposes of the Plan. If such a person participates in the Plan as a
result of subsequent employment with an Employer or nonparticipating
Affiliate, he shall receive Service for his employment as a leased
employee.
3.8 Special Provisions for Participants Who Enter the Armed Forces.
If a Participant is absent from employment for voluntary or involuntary
military service with the armed forces of the United States and returns to
employment within the period required under the law pertaining to
veterans' reemployment rights, he shall receive Service for the period of
his absence from employment.
Article IV. Contributions
4.1 Before-Tax, After-Tax, and Matching Contributions. For each
Plan Quarter, each Employer shall contribute to the Plan on behalf of that
Employer's Participants an amount equal to the sum of (a) Before-Tax
Contributions, (b) After-Tax Contributions, and (c) Matching
Contributions. The amount of Before-Tax Contributions, After-Tax
Contributions, and Matching Contributions is determined as follows:
(a) Before-Tax Contributions. Each Participant may elect, on a form
provided by the Plan Administrator, to reduce his Compensation
by 1 to 10 percent, in whole percentages, and to have the amount
by which his Compensation is reduced contributed on his behalf
by his Employer as a Before-Tax Contribution to the Plan.
Effective October 1, 1995, each Participant may elect, on a form
provided by the Plan Administrator, to reduce his Compensation
by one to fifteen percent, in whole percentages, and to have the
amount by which his Compensation is reduced contributed on his
behalf by his Employer as a Before-Tax Contribution to the Plan.
Such election must be made effective as of the Effective Date
or, if later, the January 1, April 1, July 1, or October 1
immediately after becoming eligible to participate; otherwise
such election can only be made effective as of the first day of
any subsequent January, April, July, or October upon reasonable
prior notice to the Plan Administrator.
Such Participant may elect, no more than four times each Plan
Year, on a form provided by the Plan Administrator, to increase
or decrease his Compensation reductions (within the percentage
limits stated above) upon reasonable prior notice to the Plan
Administrator as of any January 1, April 1, July 1, or October
1. Such elections shall be effective only with respect to
Compensation not yet earned as of the effective dates of such
elections.
A Participant may elect on a form provided by the Plan
Administrator to cease future Compensation reductions as of the
first day of any month with reasonable prior notice to the Plan
Administrator. After ceasing future Compensation reductions, an
election to again reduce Compensation may be made as of any
following January 1, April 1, July 1, or October 1.
The Plan Administrator may adopt rules concerning the
administration of this subsection. The Before-Tax Contributions
made on behalf of each Participant shall be paid by each
Employer to the Trustee as soon as practicable after the end of
every Plan Month and allocated to the Participant's Before-Tax
Contributions Account as of the end of the Plan Month.
(b) After-Tax Contributions. Each Participant may elect, on a form
provided by the Plan Administrator, to contribute, by payroll
deduction, an amount equalling from 1 to 10 percent of his
Compensation, in whole percentages, as an After-Tax Contribution
to the Plan, provided that the Participant's combined Before-Tax
Contributions and After-Tax Contributions for any Plan Year
shall not exceed 10 percent of his Compensation for that Plan
Year. Effective October 1, 1995, each Participant may elect, on
a form provided by the Plan Administrator, to contribute by
payroll deduction, an amount equalling from one to fifteen
percent of his Compensation, in whole percentages, provided that
the Participant's combined Before-Tax Contribution and After-Tax
Contribution shall not exceed fifteen percent of his
Compensation. Such election must be made effective as of the
Effective Date or, if later, the January 1, April 1, July 1, or
October 1 immediately after becoming eligible to participate;
otherwise such election can only be made effective as of the
first day of any subsequent January, April, July, or October
upon reasonable prior notice to the Plan Administrator.
Such Participant may elect, no more than four times each Plan
Year, on a form provided by the Plan Administrator, to increase
or decrease his After-Tax Contributions (within the percentage
limits stated above) upon reasonable prior notice to the Plan
Administrator as of any January 1, April 1, July 1, or
October 1.
A Participant may elect, on a form provided by the Plan
Administrator, to cease future After-Tax Contributions as of the
first day of any month with reasonable prior notice to the Plan
Administrator. After ceasing future After-Tax Contributions, an
election to resume After-Tax Contributions may be made as of any
following April 1 or October 1.
The Plan Administrator may adopt rules concerning the
administration of this subsection. The After-Tax Contributions
made by each Participant shall be paid by each Employer to the
Trustee as soon as practicable after the end of every Plan Month
and allocated to the Participant's After-Tax Contributions
Account as of the end of the Plan Month.
(c) Matching Contributions. The Matching Contributions shall be
paid by each Employer to the Trustee as soon as practical after
the end of every Plan Month and allocated, as of the end of the
Plan Month, to the Matching Contributions Account of each
Participant who made Before-Tax Contributions or After-Tax
Contributions during the Plan Month, in the proportion that the
sum of the Participant's Before-Tax Contributions and After-Tax
Contributions for the Plan Month bears to the sum of the Before-
Tax Contributions and After-Tax Contributions of all
Participants for the Plan Month.
4.2 Application of Forfeitures. Forfeitures occurring during any
Plan Year in the Account of a Member shall be used to reduce future
Matching Contributions due from the Employer of that Member. At the
direction of the Plan Administrator, forfeitures may also be used to pay
the costs and expenses incurred in connection with the general
administration of the Plan and Trust.
4.3 Limitations on Before-Tax Contributions. Notwithstanding
section 4.1(a), in no event shall any Employer make Before-Tax
Contributions for any Plan Year that would result in the actual deferral
percentage of the group of Highly Compensated Employees exceeding the
actual deferral percentage of the group of all other eligible Employees by
more than the greater of--
(a) one and one-quarter times; or
(b) the lesser of (1) two times or (2) two percentage points.
The deferral percentage of each group of eligible Employees for any Plan
Year shall be the average of the ratios (calculated separately for each
eligible Employee in each group) of (A) the Before-Tax Contributions made
on behalf of each eligible Employee for such Plan Year to (B) such
eligible Employee's Compensation for such Plan Year. To the extent
necessary to conform to such limitation, the Plan Administrator shall
reduce Before-Tax Contributions made on behalf of Highly Compensated
Employees in the following manner: First, the Before-Tax Contribution
made on behalf of each eligible Employee who elected 10 percent during
such Plan Year shall be reduced to 9 percent; next, the Before-Tax
Contribution made on behalf of each eligible Employee who elected 9 or 8
percent during such Plan Year shall be reduced first to 8 and then 7
percent. This process shall be continued until such limitation is met.
Any such reduction in the Before-Tax Contributions made on behalf of any
Participant (and any income allocable thereto) shall be distributed to the
Participant as soon as reasonably practicable or shall be considered to be
an After-Tax Contribution and shall be credited to his After-Tax
Contributions Account, pursuant to the Participant's election and to the
extent permitted by the Code and applicable regulations or rulings.
In addition to the preceding limitations on Before-Tax Contributions, in
no event shall any Employer make Before-Tax Contributions for any Plan
Year on behalf of any Participant that would result in a Before-Tax
Contribution in excess of $7,000 or such greater limit as may be provided
in section 402(g)(5) of the Code. To the extent that Before-Tax
Contributions may inadvertently exceed such limitation or, when added to
other elective deferrals (as that term is defined in section 402(g)(3) of
the Code), do exceed such limit, any Participant who incurs such excessive
deferrals in a Plan Year shall be permitted to identify the excess
deferrals by the next following March 1. If any such excess deferrals are
allocated to this Plan, the excess deferrals (and any income allocable
thereto) shall be distributed to the Participant by the next following
April 15 as provided in rules adopted by the Plan Administrator at the
time and in accordance with the provisions of section 402(g) of the Code.
4.4 Limitations on After-Tax and Matching Contributions.
Notwithstanding section 4.1(b) and (c), in no event shall After-Tax
Contributions and Matching Contributions for any Plan Year be made to the
extent that such contributions, in the aggregate, would result in the
actual deferral percentage of the group of Highly Compensated Employees
exceeding the actual deferral percentage of the group of all other
eligible Employees by more than the greater of--
(a) one and one-quarter times; or
(b) the lesser of (1) two times or (2) two percentage points.
The deferral percentage of each group of eligible Employees for any Plan
Year shall be the average of the ratios (calculated separately for each
eligible Employee in each group) of (A) the After-Tax Contributions and
Matching Contributions made by and on behalf of each eligible Employee to
(B) such eligible Employee's Compensation for such Plan Year. To the
extent necessary to conform to such limitation, the Plan Administrator
shall first reduce After-Tax Contributions and Matching Contributions made
by and on behalf of Highly Compensated Employees in the following manner:
First, the After-Tax Contributions and Matching Contributions made on
behalf of each Eligible Employee who elected to defer and/or contribute 10
percent of Compensation during such Plan Year shall be reduced to After-
Tax Contributions and Matching Contributions based upon 9 percent of
Compensation; next, the After-Tax Contributions and Matching Contributions
made on behalf of each Eligible Employee who elected to defer and/or
contribute 9 or 8 percent of Compensation during such Plan Year shall be
reduced first to After-Tax Contributions and Matching Contributions based
upon 8 percent and then 7 percent of Compensation. This process shall be
continued until such limitation is met. In this process, an Eligible
Employee's After-Tax Contributions shall be reduced before his Before-Tax
Contributions are reduced.
Any such reduction in the After-Tax Contributions made by any Participant
(and any income allocable to such reduced amount) shall be refunded to him
as soon as administratively possible, as provided in rules adopted by the
Plan Administrator at the time and in accordance with the provisions of
section 401(m) of the Code. Any such reduction in the Matching
Contributions made on behalf of any Participant (and any income allocable
to such reduced amount) shall be treated as a forfeiture and used to
reduce the Employer's Matching Contributions for that Plan Year and (to
the extent not used in that Plan Year) the following Plan Year. At the
direction of the Plan Administrator, forfeitures may be used to pay the
costs and expenses incurred in connection with the general administration
of the Plan and Trust
4.5 Limitations on Annual Account Additions.
(a) Annual Account Addition. "Annual Account Addition" means for
any Participant for any Plan Year, which shall also be the
limitation year, the sum of--
(1) Employer contributions made for him under any defined
contribution plan for such Plan Year;
(2) Participant's contributions to any defined contribution
plan;
(3) forfeitures allocated to him under any defined contribution
plan for such Plan Year; and
(4) contributions allocated on his behalf to any individual
medical account under sections 401(h)(6) and 419A(d) of the
Code.
"Any defined contribution plan" means all defined contribution
plans of the Company and Affiliates considered as one plan. For
purposes of this section, "Affiliate" shall have the meaning
prescribed in section 2.1(c), except that the phrase "more than
50%" shall be substituted for the phrase "at least 80%" each
place it appears in Code section 1563(a)(1).
A restored forfeiture pursuant to section 6.3(c) or a rollover
contribution pursuant to section 4.6 or any similar provision
shall not be included as part of any Participant's Annual
Account Addition.
(b) Limitation. A Participant's Annual Account Addition for any
Plan Year shall not exceed the lesser of--
(1) $30,000, or such higher annual amount as may be determined
under regulations issued by the Secretary of the Treasury
to reflect increases in the cost of living; or
(2) 25 percent of such Participant's compensation (as defined
in section 1.415-2(d) of the Treasury regulations) for such
Plan Year.
(c) Additional Limitation. If in any Plan Year a Member is covered
both under any defined contribution plan and under any defined
benefit plan, the sum of the defined benefit plan fraction (as
defined in Code section 415(e)(2)) and the defined contribution
plan fraction (as defined in Code section 415(e)(3)) for such
Plan Year shall not exceed one. It is intended to reduce the
benefits payable under any defined benefit plan to the extent
necessary to prevent the sum of such fractions for any Plan Year
from exceeding one before reducing contributions to any defined
contribution plan. "Any defined benefit plan" means all defined
benefit plans of the Company and Affiliates considered as one
plan.
(d) Reduction in Annual Account Additions. If in any Plan Year a
Participant's Annual Account Addition exceeds the limitation
determined under subsection (b) above, such excess shall not be
allocated to his accounts in any defined contribution plan but
shall be handled in the following manner and order until such
excess is eliminated:
(1) his After-Tax Contributions shall be returned to him;
(2) his portion of the allocation of Matching Contributions or
any part thereof shall be placed in a suspense account; and
(3) his portion of the allocation of Before-Tax Contributions
or any part thereof shall be refunded to him.
The amount held in such suspense account may be used to pay the
cost and expenses incurred in connection with the general
administration of the Plan and Trust. The amount held in such
suspense account shall be used to reduce contributions by that
Employer for the next following Plan Year.
Such suspense account shall share in the gains and losses of the
Trust Fund on the same basis as other Accounts.
The above reductions shall be applied to this Plan first, and
thereafter to any other defined contribution plan.
4.6 Rollover Contributions. An Employee of an Employer may, in
accordance with procedures approved by the Plan Administrator, contribute
the following amounts as a Rollover Contribution to the Plan:
(a) part or all of a distribution or proceeds from a sale of
distributed property which qualifies as a "qualified total
distribution" either from a trust described in section 401(a)
and exempt from tax under section 501(a) or from a section
403(a) annuity plan, less any amounts considered to be employee
contributions; except that any such distribution must not be
from a trust forming part of a plan under which such a
Participant was either a key employee in a top-heavy plan or an
employee within the meaning of section 401(c)(1) at the time
contributions were made on his behalf under such plan; or
(b) a distribution from an individual retirement account or annuity,
the entire amount of which distribution is from a source
described in (a) above.
A Rollover Contribution must be paid over to the Trustee on or before the
sixtieth day after receipt by the Employee of the distribution and shall
be held in the trust under this Plan as a completely separate Rollover
Account in the name of the Employee whose interest is being held.
Article V. Vesting in Accounts
5.1 Before-Tax, After-Tax, and Rollover Accounts. A Member shall at
all times be fully vested and have a nonforfeitable interest in his
Before-Tax Contributions Account, After-Tax Contributions Account, and
Rollover Account.
5.2 Matching Contributions Accounts.
(a) General. A Member shall have a vested and nonforfeitable
interest in that portion of his Matching Contributions Account
in accordance with the following schedule:
Completed Years of Service Vested Percentage
less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(b) Accelerated Vesting. Notwithstanding subsection (a) above, a
Member shall be fully vested and have a nonforfeitable interest
in his entire Matching Contributions Account if--
(1) his termination of employment as an Employee occurs on or
after attaining age sixty-five, which is the Plan's "normal
retirement age";
(2) he dies or suffers a Disability while an Employee; or
(3) while he is an Employee, contributions to the Plan are
completely discontinued or the Plan is terminated, or the
Plan is partially terminated and the Member is affected by
such partial termination.
Article VI. Distributions, Loans and Withdrawals
6.1 Distribution Upon Retirement, Death, or Disability. Upon a
Member's retirement after attaining age sixty-five or upon a Member's
termination of employment because of his Disability or death, there shall
be distributed to the Member, or to his beneficiary in case of his death,
the Member's Account, determined as of the Valuation Date immediately
preceding the date of distribution, plus any amounts credited to his
Account subsequent to such Valuation Date.
6.2 Distribution Upon Termination of Employment for Reasons Other
Than Retirement, Death, or Disability. Upon the termination of employment
of a Member for any reason other than his retirement after attaining age
sixty-five, death, or Disability, there shall be distributed to him the
full amount of the Member's Before-Tax Contributions Account, After-Tax
Contributions Account, and Rollover Account, if any, and the vested
portion of his Matching Contributions Account, determined as of the
Valuation Date immediately preceding the date of distribution, plus any
amounts credited to his Account subsequent to such Valuation Date.
6.3 Forfeitures.
(a) If a Member's employment terminates and the nonforfeitable
portion of his Account is not greater than $3,500, the Member
will receive a distribution of the value of the nonforfeitable
portion of his Account and the nonvested portion shall be
treated as a forfeiture immediately upon termination of
employment.
(b) If a Member's employment terminates and the nonforfeitable
portion of his Account is greater than $3,500, the Member may
elect to receive a distribution of the value of the
nonforfeitable portion of his Account and the forfeitable
portion of such Account will be treated as a forfeiture on the
last day of the Plan Year during which the termination occurred.
(c) If a Member receives a distribution pursuant to subsection (a)
or (b) which is less than the value of the Member's Account and
is reemployed by any Employer or nonparticipating Affiliate
prior to incurring five consecutive One-Year Periods of
Severance, the portion of such Account forfeited pursuant to
subsections (a) or (b) will be restored if the Member repays to
the Plan the full amount of the distribution.
Such repayment must be made prior to the earlier of the fifth
anniversary of the Member's reemployment date and close of the
first period of five consecutive One-Year Periods of Severance
commencing after the distribution. The source for restoring
forfeitures shall be, first, current forfeitures and, if current
forfeitures are insufficient, an additional contribution by the
Member's Employer. Such additional contribution shall be made
without regard to the existence of profits.
Repaid distributions and restored forfeitures shall be invested
in Investment Funds designated by the Member.
(d) If a Member incurs five consecutive One-Year Periods of
Severance, or if subsection (c) is applicable to the Member but
he fails to make the repayment described in such subsection, he
shall permanently forfeit the portion of his Account that was
not vested pursuant to section 5.2 at the time of his initial
termination of employment.
(e) Forfeitures pursuant to subsections (a) and (b) shall be treated
as though they are Matching Contributions of the Employer whose
Employees created the forfeitures and shall reduce the amount of
the Matching Contributions that would otherwise be required with
respect to such Employer.
6.4 Commencement of Distributions. Subject to the provisions of
this section and sections 6.5 and 6.7--
(a) Distributions pursuant to sections 6.1 and 6.2 shall be made or
commence to the Member as soon as practicable following his
termination of employment; provided, however, that if the
nonforfeitable portion of his Account exceeds $3,500, then such
distribution shall not be made at any time before his sixty-
fifth birthday without the consent of the Member.
(b) Distribution of a Member's Account will begin not later than the
sixtieth day after the later to close of the Plan Year in
which--
(1) he attains his sixty-fifth birthday, or
(2) his termination of employment occurs;
provided that no Member whose termination of employment occurs
on, within a year before, or after his sixty-fifth birthday
shall be required to receive his Account prior to the first
anniversary of his termination of employment except as may be
required under section 6.7.
(c) If a Member dies after his termination of employment but prior
to receiving the full distribution of his Account to which he is
entitled under this Article VI, any unpaid balance thereof at
the time of his death shall be distributed to the Member's
beneficiary in a lump sum, to be distributed as soon as
practicable and permissible under the Code after his death.
6.5 Method of Distribution. All distributions shall be in a lump
sum and in cash. Amounts payable hereunder shall continue to accrue
earnings and losses under section 8.4 pending such payment.
6.6 In-Service Withdrawals.
(a) Normal Withdrawals. Twice each Plan Year, a Participant may
apply for a withdrawal from his After-Tax Contributions Account.
The withdrawal shall be in an amount not less than the lesser of
$1,000 or 100 percent of his After-Tax Contributions Account.
The amount of such a withdrawal shall be paid in cash.
A Participant who receives a withdrawal under this subsection
shall not be permitted to make After-Tax Contributions, or to
have Before-Tax Contributions made on his behalf, until the
January 1, April 1, July 1, or October 1 coincident with or next
following the day that is six months after the date of the
withdrawal.
(b) Hardship Withdrawals. A Participant who has a demonstrated
hardship described in (c) below and who has immediate and heavy
financial need described in (d) below may request a withdrawal
of all or any part of his or her salary conversion contributions
but not the earnings thereon. A Participant shall file a
request for withdrawals no more than twice each Plan Year with
the Plan Administrator on a form provided for such purpose. A
request for a withdrawal shall describe any hardship for which
the withdrawal is requested, specify the immediate and heavy
financial need supporting the withdrawal as well as describe the
means attempted to secure the needed funds other than a
withdrawal hereunder. Hardship withdrawals shall not be
permitted in amounts less than $1,000. The amount of the
withdrawal shall be paid in cash. Effective for Plan Years
beginning after December 31, 1988, earnings on Before-Tax
Contributions shall not be available for hardship withdrawal to
the extent that such a withdrawal would violate the provisions
of Code section 401(k). Earnings on contributions made prior to
January 1, 1989 are available for hardship withdrawal.
(c) Demonstrated Hardship. A hardship withdrawal shall be limited
to the following situations:
(1) expenses for medical care described in Code section 213(d)
previously incurred by a Participant, the Participant's
spouse, or any dependent of the Participant (as defined in
Code section 152) or necessary for these persons to obtain
medical care described in Code section 213(d);
(2) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for a Participant;
(3) payment of tuition and related educational fees for the
next 12 months of post-secondary education for the
Participant, his spouse, children, or dependents (as
defined in Code section 152);
(4) payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on
the mortgage of the Participant's principal residence; or
(5) such other reasons as may be set forth in rulings, notices,
or other documents of general applicability issued by the
Internal Revenue Service.
(d) Immediate and Heavy Financial Need. A withdrawal is necessary
to satisfy an immediate and heavy financial need of a
participant only if all of the following requirements are
satisfied:
(1) The withdrawal does not exceed the amount of the
Participant's immediate and heavy financial need, which may
include any amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to
result from the distribution;
(2) The Participant has obtained all distributions, other than
hardship withdrawals, and all nontaxable loans currently
available under all plans maintained by the Employer;
(3) No Before-Tax Contributions, After-Tax Contributions, or
similar contributions under all other plans of an Employer
shall be permitted by or on behalf of the participant
during the 12-month period after receipt of the hardship
withdrawal; and
(4) The Before-Tax Contributions and elective employee
contributions under other plans of an Employer made by or
on the participant's behalf for the calendar year next
following the calendar year of the hardship withdrawal
shall be limited to the amount by which the maximum limit
under code section 402(g) for that year exceeds the Before-
Tax Contributions (and other elective employee
contributions under other plans of an Employer) made by or
on behalf of the Participant for the calendar year of the
withdrawal.
For purposes of paragraph (3), the phrase "all other plans"
means all qualified and nonqualified plans of deferred
compensation maintained by the Employer. The phrase includes a
stock option, stock purchase, or similar plan, or a cash or
deferred arrangement that is part of a cafeteria plan within the
meaning of Code section 125, but not a health or welfare benefit
plan (including one that is part of a cafeteria plan within the
meaning of Code section 125).
A Participant's request for a hardship withdrawal must be
accompanied or supplemented by such evidence of hardship as the
Plan Administrator may reasonably require. Approval or
disapproval of such withdrawal request shall be within the sole
discretion of the Plan Administrator. The amount of such
withdrawal shall be limited to that amount which the Plan
Administrator determines is necessary to meet the immediate
financial needs created by the hardship, provided that amounts
attributable to earnings on Before-Tax Contributions shall not
be subject to withdrawal for hardship.
After a withdrawal in accordance with this section, amounts
remaining to the credit of the participant, if any, in his or
her Before-Tax Contributions Account and Rollover Account which
exceed the total amount which is withdrawn under this section
shall continue to be held, invested, and adjusted in accordance
with the Plan until such adjusted amounts are distributable in
accordance with Article VI.
(e) Post-Age 59 1/2 Withdrawals. Twice each Plan Year, a
Participant who has withdrawn or is simultaneously withdrawing
the entire amount (if any) in his After-Tax Contributions
Account may apply for a withdrawal from the remainder of the
vested portion of his Account, provided he has reached age 59
1/2. The withdrawal, together with any simultaneous withdrawal
from his After-Tax Contributions Account, shall be in an amount
not less than the lesser of $1,000 or 100 percent of his
Account. The amount of such a withdrawal shall be paid in cash.
A Participant who receives a withdrawal under this subsection
shall not be permitted to make After-Tax Contributions, or to
have Before-Tax Contributions made on his behalf, until the
January 1, April 1, July 1, or October 1 coincident with or next
following the day that is six months after the date of the
withdrawal.
6.7 Required Distributions. Notwithstanding any of the preceding
provisions of this Article--
(a) In no event may the distribution of a Member's benefits commence
later than the April 1 of the calendar year following the year
in which the Member--
(1) reaches age 70 1/2; or
(2) retires, if later;
provided, however, that paragraph (2) shall not apply in the
case of a Member who is a 5-percent owner (as defined in Code
section 416) at any time during the five-calendar-year period
ending in the calendar year in which the Member attains age 70
1/2. If the Member becomes a 5-percent owner during any
subsequent calendar year, the required commencement date shall
be no later than April 1 of the calendar year following the end
of such subsequent calendar year.
(b) Effective on and after January 1, 1989, distribution of a
Member's benefits must commence no later than April 1 of the
calendar year following the calendar year in which the Member
reaches age 70 1/2, except that if the Member has attained age
70 1/2 before January 1, 1988, subsection (a) shall apply to
such Member.
(c) If a Member dies prior to the commencement of the payment of
benefits, the Member's benefits will be distributed within five
years after the death of such Member.
(d) If a distribution is made to a Member who is, or has been, a 5-
percent owner (as that term is used in Code section 416) and the
distribution is made before such Member attains the age of 59
1/2 for any reason other than the Member's becoming disabled
(within the meaning of Code section 72(m)(7)), then such
distribution will be subject to the 10 percent penalty tax of
Code section 72(m)(5) to the extent that such amounts are
attributable to contributions paid on behalf of such Member
while he was a 5-percent owner. The Plan Administrator may, at
its discretion, notify Members who are subject to the penalty of
the applicability of Code section 72(m)(5). Effective on or
after January 1, 1997, the distribution of a Member's benefits
must commence no later than April 1 following the calendar year
the member retires or attains age 70 1/2, whichever occurs last.
(e) Effective on or after January 1, 1997, the distribution of a
Member's benefits must commence no later than April 1 following
the calendar year the member retires or attains age 70 1/2,
whichever occurs last.
6.8 Withholding Taxes. An Employer may withhold from a Member's
compensation and the Trustee may withhold from any payment under this Plan
any taxes required to be withheld with respect to contributions or
benefits under this Plan and such sum as the Employer or Trustee may
reasonably estimate as necessary to cover any taxes for which they may be
liable and which may be assessed with respect to contributions or benefits
under this Plan.
6.9 Direct rollovers of Eligible Distributions.
(a) General. This section applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a
distributee's election under this section, a distributee
may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct
rollover.
(b) Definitions.
(1) Eligible rollover distribution. An eligible rollover
distribution is any distribution of all or any portion
of the balance to the credit of the distributee,
except that an eligible rollover distribution does not
include: any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution is
required under Code section 401(a)(9); and the portion
of any distribution that is not includible in gross
income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
(2) Eligible retirement plan. An eligible retirement plan
is an individual retirement account described in Code
section 408(a), an individual retirement annuity
described in Code section 408(b), an annuity plan
described in Code section 403(a), or a qualified trust
described in Code section 401(a), that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or
individual retirement annuity,.
(3) Distributee. A distributee includes an Employee or
former Employee. In addition, the Employee's or
former Employee's surviving spouse and the Employee's
or former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code section 414(p),
are distributees with regard to the interest of the
spouse or former spouse.
(4) Direct rollover. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by
the distributee.
6.10 Loans To Participants.
(a) Loans shall be made available to all Participants and
Beneficiaries on a reasonably equivalent basis.
A request for a loan shall be made in writing to the Plan
Administrator and shall specify the amount of the loan.
If a Participant's loan request is approved by the Plan
Administrator, the Plan Administrator shall furnish the
Trustee with written instructions to make the loan in a
lump-sum payment, less a reasonably loan fee, to the
Participant.
Loans will be withdrawn from the Participant's account on a
pro-rata basis from each investment fund.
(b) A Participant may not have more than one loan outstanding
at a time, and may not take out a loan more than once in a
twelve month period.
(c) Loans shall not be made available to Highly Compensated
Employees (as defined in section 2.1(p) of the Plan) in an
amount greater than the amount made available to other
employees. No loans will be made to any shareholder-
employee who owns more than five percent of the outstanding
stock of the Company.
(d) Loans must be adequately secured within the meaning of
Section 4975(d) of the Code and shall include a pledge in
the form of a legally binding promissory note executed by
the Participant assigning all of the Participant's right,
title and interest in the Plan.
(e) Loans shall bear a reasonable interest rate which is
commensurate with prevailing interest rates charged by
professional lenders for similarly secured personal loans,
as determined by the Plan Administrator.
(f) The minimum loan amount is $1000. No Participant loan
shall exceed 50 percent of the total vested accrued benefit
of the Participant as of the date of the loan or $50,000,
whichever is less.
(g) A loan to a Participant shall by its terms be required to
be repaid within five years of the date on which the loan
is made. Repayments on any loan shall be made in regular
periodic installments on a schedule prescribed by the Plan
Administrator with payments not less frequently than
quarterly, and shall be applied on a substantially level
amortization basis to reduce principal as well as the
accrued interest of the loan.
The Plan Administrator shall have sole responsibility for
assuring that a Participant makes all loan payments on a
timely basis and shall notify the Trustee in the event of
default by a Participant on a loan repayment. Loan
payments shall be paid to the Trustee and shall be
accompanied by instructions from the Plan Administrator
which identify each Participant on whose behalf a loan
repayment is being made.
(h) In the event of a default by a Participant on a loan
repayment, all remaining payments on the loan shall
immediately be due and payable. The Plan Administrator
shall take any and all actions necessary and appropriate to
enforce collection of the unpaid loan, although foreclosure
on the Participant's promissory note and attachment of the
Plan's security shall not occur until a distributable event
occurs under the Plan.
(i) Prior to making any distribution of benefits from a
Participant's account upon the Participant's separation of
service or death, the Plan Administrator shall direct the
Trustee to deduct the total amount of any outstanding loan
to the Participant, plus any unpaid interest due thereon,
from the Participant's account the Plan in order to satisfy
the amounts due on the loan.
(j) A loan to a Participant from the Plan shall be considered
an investment of the separate accounts of the Participant
from which the loan is made, and all loan repayments by the
Participant shall be credited to such separate accounts and
reinvested in the investments authorized by the Trust
Agreement in accordance with the Plan's investment
provisions.
Article VII. Investment Elections
7.1 Investment of Contributions. Each Member may elect to have his
Account invested in increments of one percent (1%) of the total in any of
the Investment Funds.
7.2 Investment Elections. Each Participant may make investment
elections described in Section 7.1 by filing an election with the Plan
Administrator upon becoming a Participant, pursuant to the procedures
established by the Plan Administrator. To become a Participant in the
Plan, an Employee must make Investment Elections totaling 100 percent, or
the enrollment will be held in abeyance until such elections totaling
100 percent are made.
7.3 Investment Transfers. Each Participant may make investment
elections described in Section 7.1 by filing an election with the Plan
Administrator upon becoming a Participant, pursuant to the procedures
established by the Plan Administrator. Such elections may be changed and
made effective on the Valuation Date coinciding with or next following the
Participant's election.
7.4 Transfer of Assets. The Plan Administrator shall direct the
Trustee to transfer moneys or other property from the appropriate
Investment Fund to the other Investment Fund as may be necessary to carry
out the aggregate transfer transactions after the Plan Administrator has
caused the necessary entries to be made in the Participants' Accounts in
the Investment Funds and has reconciled offsetting transfer elections, in
accordance with uniform rules therefor established by the Plan
Administrator.
Article VIII. Accounts and Records of the Plan
8.1 Accounts and Records. The Accounts and records of the Plan
shall be maintained by the Plan Administrator and shall accurately
disclose the status of the Accounts of each Member or his beneficiary in
the Plan. Each Member shall be advised of the status of his Account at
the end of each quarter.
8.2 Trust Fund. Each Member shall have an undivided proportionate
interest in the Trust Fund which shall be measured by the proportion that
the market value of his Account bears to the total market value of all
Accounts as of the date that such interest is being determined.
8.3 Valuation and Allocation of Expenses. As of each Valuation
Date, the Trustee shall determine the fair market value of the Trust Fund
after first deducting any expenses which have not been paid by the
Employers. Unless paid by the Employers and subject to such limitations
as may be imposed by the Act or other applicable law, all costs and
expenses incurred in connection with the general administration of the
Plan and the Trust shall be chargeable to the Trust Fund.
8.4 Allocation of Earnings and Losses. As of each Valuation
Date, the Plan Administrator, with the assistance of the Trustee, shall
allocate the net earnings and gains or losses of each Investment Fund of
the Trust Fund since the preceding Valuation Date (and attributable to
Before-Tax Contributions, After-Tax Contributions, Matching Contributions,
and Rollover Contributions) to each Member's Before-Tax Contributions
Account, After-Tax Contributions Account, Matching Contributions Account,
and Rollover Account in the same proportion that the market value of such
Accounts in such Investment Fund as of the last day of the Plan Month
bears to the total market value of all Members' Accounts in such
Investment Fund as of the last day of the Plan Month. For the purpose of
allocating earnings and losses, the Plan Administrator shall adopt rules
which conform to applicable law and generally accepted accounting
practices.
Article IX. Financing
9.1 Financing. The Company shall enter into a Trust Agreement in
order to implement and carry out the provisions of the Plan and to finance
the benefits under the Plan. All rights which may accrue to any person
under the Plan shall be subject to all the terms and provisions of such
Trust Agreement. The Company may modify the Trust Agreement in accordance
with the terms of that Agreement from time to time to accomplish the
purposes of the Plan.
9.2 Contributions. The Employers shall make such contributions to
the Trust Fund as are required by the provisions of the Plan, subject to
the right of the Company to amend, modify, or terminate the Plan.
9.3 Nonreversion. No Employer shall have any right, title, or
interest in the contributions made to the Trust Fund, and no part of the
Trust Fund shall revert to any Employer, except that--
(a) If a contribution is made to the Trust Fund by an Employer by a
mistake of fact, then such contribution may be returned to such
Employer within one year after the payment of the contribution.
Contributions are made contingent on their deductibility under
Code section 404. If any part or all of a contribution is
disallowed as a deduction under Code section 404, then to the
extent the contribution is disallowed as a deduction it shall be
returned to such Employer within one year after the
disallowance.
(b) If the Internal Revenue Service initially determines that the
Plan does not meet the requirements of Code section 401, the
Plan shall be null and void from the Effective Date, and any
contributions shall be returned to all contributors within one
year following the determination that the Plan does not meet
such requirements, unless the Company elects to make the changes
to the Plan necessary to receive a determination from the
Internal Revenue Service that the requirements of Code section
401 are met.
9.4 Rights in the Trust Fund. Persons eligible for benefits under
the Plan are entitled to look only to the Trust Fund for the payment of
such benefits and have no claim against any Employer, the Plan
Administrator, or any other person. No person has any right or interest
in the Trust Fund except as expressly provided in the Plan.
Article X. Administration
10.1 Plan Administrator and Fiduciary. The Company shall be the
"administrator" of the Plan within the meaning of section 3(16)(A) of the
Act, a fiduciary with respect to the Plan within the meaning of sections
3(21)(A)(i) and (iii) of the Act, and the named fiduciary under section
402 of the Act. It shall also be the Plan Administrator for purposes of
the Plan.
10.2 Expenses. All expenses incurred in the administration of the
Plan shall be paid for by the Trust Fund to the extent not paid by the
Employers. Such expenses shall include any expenses incident to the
administration of the Plan, including, but not limited to, fees of
actuaries, accountants, counsel, and other specialists.
10.3 Administration. The Company shall be responsible for the
administration of the Plan. The Company shall have all such powers as may
be necessary to carry out the provisions hereof and may, from time to
time, establish rules for the administration of the Plan and the
transaction of the Plan's business. In making any such determination or
rule, the Company shall pursue uniform policies as from time to time
established by the Company and shall not discriminate in favor of or
against any Member. The Company shall have the exclusive right to make
any finding of fact necessary or appropriate for any purpose under the
Plan including, but not limited to, the determination of the eligibility
for and the amount of any benefit payable under the Plan. The Company
shall have the exclusive right to interpret the terms and provisions of
the Plan and to determine any and all questions arising under the Plan or
in connection with the administration thereof, including, without
limitation, the right to remedy or resolve possible ambiguities,
inconsistencies, or omissions, by general rule or particular decision.
The Company shall make, or cause to be made, all reports or other filings
necessary to meet the reporting and disclosure requirements of the Act
which are the responsibility of "plan administrators" under the Act. To
the extent permitted by law, all findings of fact, determinations,
interpretations, and decisions of the Company shall be conclusive and
binding upon all persons having or claiming to have any interest or right
under the Plan.
10.4 No Enlargement of Employee Rights. Nothing contained in the
Plan shall be deemed to give any Employee the right to be retained in the
service of an Employer or to interfere with the right of an Employer to
discharge or retire any Employee at any time.
10.5 Appeals from Denial of Claims. If any claim for benefits under
the Plan is wholly or partially denied, the claimant shall be given notice
in writing within a reasonable period of time after receipt of the claim
by the Plan (not to exceed 90 days after receipt of the claim or, if
special circumstances require an extension of time, written notice of the
extension shall be furnished to the claimant and an additional 90 days
will be considered reasonable) by registered or certified mail of such
denial, written in a manner calculated to be understood by the claimant,
setting forth the following information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(d) an explanation of the Plan's claim review procedure.
The claimant also shall be advised that he or his duly authorized
representative may request a review by the Plan Administrator of the
decision denying the claim by filing with the Plan Administrator, within
60 days after such notice has been received by the claimant, a written
request for such review, and that he may review pertinent documents, and
submit issues and comments in writing within the same 60-day period. If
such request is so filed, such review shall be made by the Plan
Administrator within 60 days after receipt of such request, unless special
circumstances require an extension of time for processing, in which case
the claimant shall be so notified and a decision shall be rendered as soon
as possible, but not later than 120 days after receipt of the request for
review. The Member or beneficiary shall be given written notice of the
decision resulting from such review, which notice shall include specific
reasons for the decision, written in a manner calculated to be understood
by the claimant, and specific references to the pertinent Plan provisions
on which the decision is based.
10.6 Notice of Address and Missing Persons. Each person entitled to
benefits under the Plan must file with the Plan Administrator, in writing,
his post office address and each change of post office address. Any
communication, statement, or notice addressed to such a person at his
latest reported post office address will be binding upon him for all
purposes of the Plan and neither the Plan Administrator nor the Employers,
Trustee, or insurance company shall be obliged to search for or ascertain
his whereabouts. In the event that such person cannot be located, the
Plan Administrator may direct that such benefit and all further benefits
with respect to such person shall be discontinued and all liability for
the payment thereof shall terminate; provided, however, that in the event
of the subsequent reappearance of the Member or beneficiary prior to
termination of the Plan, the benefits which were due and payable and which
such person missed shall be paid in a single sum, and the future benefits
due such person shall be reinstated in full.
10.7 Data and Information for Benefits. All persons claiming
benefits under the Plan must furnish to the Plan Administrator or its
designated agent such documents, evidence, or information as the Plan
Administrator or its designated agent consider necessary or desirable for
the purpose of administering the Plan, and such person must furnish such
information promptly and sign such documents as the Plan Administrator or
its designated agent may require before any benefits become payable under
the Plan.
10.8 Indemnity for Liability. The Company shall indemnify any
individual who is directed by the Company to carry out responsibilities
and duties imposed by this Plan against any and all claims, losses,
damages, and expenses, including counsel fees, approved by the Company,
and any liability, including any amounts paid in settlement with the
Company's approval, arising from the individual's action or failure to
act, in connection with such person's responsibilities and duties under
the Plan, except when the same is judicially determined to be attributable
to the gross negligence or willful misconduct of such person.
10.9 Effect of a Mistake. In the event of a mistake or misstatement
as to the eligibility, participation, or service of any Member, or the
amount of payments made or to be made to a Member or beneficiary, the Plan
Administrator shall, if possible, cause to be withheld or accelerated or
otherwise make adjustment of such amounts of payments as will in its sole
judgment result in the Member or beneficiary receiving the proper amount
of payments under this Plan.
Article XI. Amendment and Termination
11.1 Amendment and Termination.
(a) The Company reserves the right at any time by action of the
Board to amend or terminate the Plan. The Company's right of
amendment or termination shall not require the assent or any
other action by any other Employer, notwithstanding that such
action by the Company may relate in whole or in part to persons
in the employ of another Employer.
(b) While each Employer contemplates carrying out the provisions of
the Plan indefinitely with respect to its Employees, no Employer
shall be under any obligation to maintain the Plan for any
minimum or other period of time.
(c) Upon any termination of the Plan in its entirety, or with
respect to any Employer, the Company shall give written notice
thereof to the Plan Administrator, the Trustee, and any Employer
involved.
(d) Except as provided by law, upon any termination of the Plan, no
Employer with respect to whom the Plan is terminated (including
the Company) shall thereafter be under any obligation to make
any contribution or payment to the Trust Fund, the Plan, any
Member, any beneficiary, or any other person, trust or fund
whatsoever, for any purpose whatsoever under or in connection
with the Plan.
11.2 Limitations on Amendments. The provisions of this Article are
subject to and limited by the following restrictions:
(a) No amendment shall operate either directly or indirectly to give
any Employer any interest whatsoever in any funds or property
held by the Trustee under the terms hereof, or to permit the
corpus or income of the Trust to be used for or diverted to
purposes other than the exclusive benefit of Members or their
beneficiaries.
(b) No such amendment shall operate either directly or indirectly to
deprive any Member of his vested and nonforfeitable interest as
of the time of such amendment.
11.3 Bankruptcy and Other Contingencies. If an Employer terminates
its connection with the Plan, or if an Employer is dissolved, liquidated,
or by appropriate legal proceedings is adjudged bankrupt, if judicial
proceedings of any kind result in the involuntary dissolution of an
Employer, the Plan shall be terminated with respect to such Employer. The
merger, consolidation, or reorganization of an Employer, or the sale by it
of all or substantially all of its assets, shall not terminate the Plan if
there is delivery to such Employer by the Employer's successor or by the
purchaser of all or substantially all of the Employer's assets, of a
written instrument requesting that the successor or purchaser be
substituted for the Employer and agreeing to perform all the provisions
hereof which such Employer is required to perform. Upon the receipt of
said instrument, with the approval of the Company, the successor or the
purchaser shall be substituted for such Employer herein, and such Employer
shall be released from all obligations herein or in any trust agreement
imposed upon it.
Article XII. Top-Heavy Provisions
12.1 Application of Top-Heavy Provisions.
(a) Single Plan Determination. Except as provided in subsection
(b)(2), if as of a Determination Date, the sum of the amount of
the Section 416 Accounts of Key Employees and the beneficiaries
of deceased Key Employees exceeds 60 percent of the amount of
the Section 416 Accounts of all Employees and beneficiaries
(excluding former Key Employees), the Plan is top-heavy and the
provisions of this Article shall become applicable.
(b) Aggregation Group Determination.
(1) If as of a Determination Date this Plan is part of an
Aggregation Group which is top-heavy, the provisions of
this Article shall become applicable. Top-heaviness for
the purpose of this subsection shall be determined with
respect to the Aggregation Group in the same manner as
described in subsection (a) above.
(2) If this Plan is top-heavy under subsection (a), but the
Aggregation Group is not top-heavy, the Plan shall not be
top-heavy and this Article shall not be applicable.
(c) Plan Administrator. The Plan Administrator shall have
responsibility to make all calculations to determine whether
this Plan is top-heavy.
12.2 Definitions.
(a) "Aggregation Group" means this Plan and all other plans
maintained by the Employers and nonparticipating Affiliates
which cover a Key Employee and any other plan which enables a
plan covering a Key Employee to meet the requirements of Code
section 401(a)(4) or section 410. In addition, at the election
of the Plan Administrator, the Aggregation Group may be expanded
to include any other qualified plan maintained by an Employer or
nonparticipating Affiliate if such expanded Aggregation Group
meets the requirements of Code sections 401(a)(4) and 410.
(b) "Determination Date" means the last day of the Plan Year
immediately preceding the Plan Year for which top-heaviness is
to be determined or, in the case of the first Plan Year of a new
plan, the last day of such Plan Year.
(c) "Key Employee" means a Member who for the Plan Year containing
the Determination Date or any of the four preceding Plan Years
is--
(1) an officer of an Employer or nonparticipating Affiliate who
has annual Wages greater than 50 percent of the amount in
effect under Code section 415(b)(l)(A) for such Plan Year;
provided, however, that no more than the lesser of--
(A) 50 Employees, or
(B) the greater of (i) three Employees or (ii) 10 percent
of all Employees,
shall be treated as officers, and such officers shall be
those with the highest annual Wages in the five-year
period;
(2) one of the ten Employees having annual Wages from all
Employers and nonparticipating Affiliates for such Plan
Year greater than the dollar limit specified in Code
section 415(c)(1)(A) and owning both more than a one-half
of 1 percent interest and the largest interests in an
Employer or nonparticipating Affiliate;
(3) a 5-percent owner of an Employer or nonparticipating
Affiliate; or
(4) a 1-percent owner of an Employer or nonparticipating
Affiliate having annual Wages of more than $150,000.
Ownership shall be determined in accordance with Code section
416(i)(l)(B) and (C). For purposes of paragraph (2), if two
Employees have the same ownership interest in an Employer or
nonparticipating Affiliate, the Employee having the greater
annual Wages from the Employers and nonparticipating Affiliates
shall be treated as having a larger interest.
(d) "Section 416 Account" means--
(1) the amount credited as of a Determination Date to a
Member's or beneficiary's account, under the Plan and under
any other qualified defined contribution plan which is part
of an Aggregation Group (including amounts to be credited
as of the Determination Date but which have not yet been
contributed);
(2) the present value of the accrued benefit credited to a
Member or beneficiary under a qualified defined benefit
plan which is part of an Aggregation Group; and
(3) the amount of distributions to the Member or beneficiary
during the five-year period ending on the Determination
Date other than a distribution which is a tax-free rollover
contribution (or similar transfer) that is not initiated by
the Member or that is contributed to a plan which is
maintained by an Employer or nonparticipating Affiliate;
reduced by--
(4) the amount of rollover contributions (or similar transfers)
and earnings thereon credited as of a Determination Date
under the Plan or a plan forming part of an Aggregation
Group which is attributable to a rollover contribution (or
similar transfer) initiated by the Member and derived from
a plan not maintained by an Employer or nonparticipating
Affiliate.
The Account of a Member who was a Key Employee and who
subsequently meets none of the conditions of subsection (c) for
the Plan Year containing the Determination Date is not a Section
416 Account and shall be excluded from all computations under
this Article. Furthermore, if a Member has not received any
earnings from an Employer or nonparticipating Affiliate (other
than benefits under the Plan) during the five year period ending
on the Determination Date, any account of such Member (and any
accrued benefit for such Member) shall not be taken into account
in computing top-heaviness under this Article.
(e) "Wages" means the Member's wages received from all Employers and
nonparticipating Affiliates reportable for federal withholding
tax purposes.
12.3 Minimum Contribution.
(a) General. If this Plan is determined to be top-heavy under the
provisions of section 12.1 with respect to a Plan Year, the sum
of Employer contributions (including contributions under a
salary reduction agreement) and forfeitures under all qualified
defined contribution plans allocated to the accounts of each
Member in the Aggregation Group who is not a Key Employee and is
an Employee on the last day of the Plan Year shall not be less
than 3 percent of such Member's Wages. This section 12.3 shall
not be applicable with respect to a Member who is also covered
under a defined benefit plan maintained by the Company or an
Affiliate which provides the benefit specified by Code section
416(c)(1).
(b) Exception. The contribution rate specified in subsection (a)
shall not exceed the percentage at which Employer contributions
and forfeitures are allocated under the plans of the Aggregation
Group to the account of the Key Employee for whom such
percentage is the highest for the Plan Year. For the purpose of
this subsection (b), the percentage for each Key Employee shall
be determined by dividing the Employer contributions and
forfeitures for the Key Employee by the amount of his total
Wages for the year not in excess of $200,000 (as adjusted by the
Secretary of the Treasury under Code section 416(d)).
12.4 Limit on Annual Additions: Combined Plan Limit.
(a) General. If this Plan is determined to be top-heavy under
section 12.1, section 4.5(c) of this Plan shall be applied by
substituting 1.0 for 1.25 in applying the provisions of Code
section 415(e)(2) and (e)(3).
(b) Exception. Subsection (a) shall not be applicable if--
(1) section 12.3 is applied by substituting "4 percent" (or
"7.5 percent" if the Member is also covered under a top-
heavy defined benefit plan of the Employer or Affiliate)
for "3 percent," and
(2) this Plan would not be top-heavy if "90 percent" is
substituted for "60 percent" in section 12.1.
(c) Transitional Rule. If, but for this subsection (c), subsection
(a) would begin to apply with respect to the Plan, the
application of subsection (a) shall be suspended with respect to
a Member so long as there are--
(1) no Employer contributions, forfeitures, or voluntary
nondeductible contributions allocated to such Member, and
(2) no accruals under a qualified defined benefit plan for such
Member.
12.5 Collective Bargaining Agreements. The requirements of section
12.3 shall not apply with respect to any Employee included in a unit of
Employees covered by a collective bargaining agreement between Employee
representatives and an Employer or nonparticipating Affiliate if
retirement benefits were the subject of good faith bargaining between such
Employee representatives and such Employer or nonparticipating Affiliate.
Article XIII. Participation In and Withdrawal
From the Plan by an Employer
13.1 Participation in the Plan. Any Affiliate which desires to
become an Employer hereunder may elect, with the consent of the Board of
Directors, to become a party to the Plan and Trust Agreement by adopting
the Plan for the benefit of its eligible Employees, effective as of the
date specified in such adoption--
(a) by filing with the Company a certified copy of a resolution of
its board of directors to that effect, and such other
instruments as the Company may require; and
(b) by the Company's filing with the then Trustee a copy of such
resolution, together with a certified copy of resolutions of the
Board of Directors approving such adoption.
The adoption resolution or decision may contain such specific changes and
variations in Plan or Trust Agreement terms and provisions applicable to
such adopting Employer and its Employees as may be acceptable to the
Company and the Trustee. However, the sole, exclusive right of any other
amendment of whatever kind or extent to the Plan or Trust Agreement is
reserved by the Company. The Company may not amend specific changes and
variations in the Plan or Trust Agreement terms and provisions as adopted
by the Employer in its adoption resolution without the consent of such
Employer. The adoption resolution or decision shall become, as to such
adopting organization and its employees, a part of this Plan as then
amended or thereafter amended and the related Trust Agreement. It shall
not be necessary for the adopting organization to sign or execute the
original or then amended Plan and Trust Agreement documents. The coverage
date of the Plan for any such adopting organization shall be that stated
in the resolution or decision of adoption, and from and after such
effective date, such adopting organization shall assume all the rights,
obligations, and liabilities of an individual employer entity hereunder
and under the Trust Agreement. The administrative powers and control of
the Company, as provided in the Plan and Trust Agreement, including the
sole right to amendment, and of appointment and removal of the Plan
Administrator, the Trustee, and their successors, shall not be diminished
by reason of the participation of any such adopting organization in the
Plan and Trust Agreement.
13.2 Withdrawal from the Plan. Any Employer, by action of its board
of directors or other governing authority, may withdraw from the Plan and
Trust Agreement after giving 90 days' notice to the Board, provided the
Board consents to such withdrawal. Distribution may be implemented
through continuation of the Trust Fund, or transfer to another trust fund
exempt from tax under Code section 501, or to a group annuity contract
qualified under Code section 401, or distribution may be made as an
immediate cash payment in accordance with the directions of the Plan Ad-
ministrator; provided, however, that no such action shall divert any part
of such fund to any purpose other than the exclusive benefit of the
Employees of such Employer.
Article XIV. Miscellaneous
14.1 Beneficiary Designation.
(a) Each unmarried Member may designate, on a form provided for that
purpose by the Plan Administrator, a beneficiary or
beneficiaries to receive his interest in the Plan in the event
of his death, but such designation shall not be effective for
any purpose until it has been filed by him during his lifetime
with the Plan Administrator. He may, from time to time during
his lifetime, on a form approved by and filed with the Plan
Administrator, change his beneficiary or beneficiaries.
(b) The beneficiary of each Member who is married shall be the
surviving spouse of such Member, unless such spouse consents in
writing to the designation of another beneficiary or
beneficiaries. Each married Member may, from time to time,
change his designation of beneficiaries; provided, however, that
the Member may not change his beneficiary without the written
consent of his spouse unless, when such spouse first consented
to the designation of a beneficiary other than the spouse, the
spouse also waived the right to reject subsequent changes of
beneficiary.
(c) If a Member fails to designate a beneficiary, or if for any
reason such designation is legally ineffective, or if all
designated beneficiaries predecease him or die simultaneously
with him, distribution shall be made to his spouse; or if none,
to his estate.
(d) The written consent described in subsection (b) shall
acknowledge the effect of such election and shall be witnessed
by a Plan representative designated by the Plan Administrator or
a notary public.
14.2 Incompetency. Every person receiving or claiming benefits under
the Plan shall be conclusively presumed to be mentally competent and of
age until the Plan Administrator receives written notice, in a form and
manner acceptable to it, that such person is incompetent or a minor, and
that a guardian, conservator, or other person legally vested with the care
of his estate has been appointed.
In the event a guardian or conservator of the estate of any person
receiving or claiming benefits under the Plan shall be appointed by a
court of competent jurisdiction, payments shall be made to such guardian
or conservator, provided that proper proof of appointment is furnished in
a form and manner suitable to the Plan Administrator.
To the extent permitted by law, any payment made under the provisions of
this section shall be a complete discharge of liability under the Plan.
14.3 Nonalienation. Except as provided in Code section 401(a)(13),
neither benefits payable at any time under the Plan nor the corpus or
income of the Trust Fund shall be subject in any manner to alienation,
sale, transfer, assignment, pledge, attachment, garnishment, or
encumbrance of any kind. Any attempt to alienate, sell, transfer, assign,
pledge, or otherwise encumber any such benefit, whether presently or
thereafter payable, shall be void. No benefit nor the Trust Fund shall in
any manner be liable for or subject to the debts or liabilities of any
Member or of any other person entitled to any benefit. The Plan
Administrator shall establish procedures to determine whether domestic
relations orders are "qualified domestic relations orders" and to
administer distributions under such qualified domestic relations orders.
14.4 Applicable Law. The Plan and all rights hereunder shall be
governed by and construed in accordance with the laws of the State of
Wisconsin to the extent such laws have not been preempted by applicable
federal law.
14.5 Severability. If a provision of this Plan shall be held illegal
or invalid, the illegality or invalidity shall not affect the remaining
parts of the Plan and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included in this Plan.
14.6 No Guarantee. Neither the Plan Administrator, the Company, the
Employers, nor the Trustee in any way guarantees the Trust Fund from loss
or depreciation nor the payment of any money which may be or become due to
any person from the Trust Fund. Nothing herein contained shall be deemed
to give any Participant, Member, or beneficiary an interest in any
specific part of the Trust Fund or any other interest except the right to
receive benefits out of the Trust Fund in accordance with the provisions
of the Plan and the Trust.
14.7 Merger, Consolidation, or Transfer. In the case of any merger
or consolidation of the Plan with, or in the case of any transfer of
assets or liabilities of the Plan to or from, any other plan, each Member
shall receive a benefit immediately after the merger, consolidation, or
transfer (if the Plan had then terminated) which is equal to or greater
than the benefit he would have been entitled to receive immediately before
the merger, consolidation, or transfer (if the Plan had then terminated).
14.8 Internal Revenue Service Approval. It is the intention of the
Company to obtain a ruling or rulings by the District Director of Internal
Revenue that--
(a) the Plan, as in effect from time to time, with respect to all
Employers, meets the requirements of Code section 401(a); and
(b) any and all contributions made by the Employers under the Plan
are deductible for income tax purposes under section 404(a) or
any other applicable provisions of the Code.
* * * * * * * * * *
IN WITNESS WHEREOF, LADISH CO., INC. has caused this document to be
executed by its duly authorized officers on this ____ day of December,
1988, effective as of April 1, 1987.
LADISH CO., INC.
By: _________________________________
Its ___________________________
ATTEST:
By: ______________________________
Its Secretary
(Seal)
Exhibit 4.2
Ladish Co., Inc. Hourly Employees Savings and Deferral Investment Plan
(Amended and Restated Effective as of January 1, 1992 or Such Other
Dates as Provided Herein or Required By Law)
SUBMITTED TO IRS FOR REVIEW AND DETERMINATION LETTER 3-31-95
<PAGE>
Ladish Co., Inc. Hourly Employees Savings and Deferral Investment Plan
(Amended and Restated Effective as of January 1, 1992 or Such Other
Dates as Provided Herein or Required By Law)
Table of Contents
Section Page
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Article I. The Plan
1.1 Establishment and Amendment of the Plan 1
1.2 Applicability of the Plan 1
1.3 Purpose of the Plan 1
Article II. Definitions
2.1 Definitions 2
2.2 Gender and Number 5
Article III. Participation and Service
3.1 Participation 6
3.2 Duration of Participation 6
3.3 Service 6
3.4 Severance from Service 7
3.5 One-Year Period of Severance 7
3.6 Leased Employees 7
3.7 Special Provisions for Participants Who Enter the Armed Forces 8
Article IV. Contributions
4.1 Before-Tax, After-Tax, and Matching Contributions 9
4.2 Application of Forfeitures 11
4.3 Limitations on Before-Tax Contributions 11
4.4 Limitations on Annual Account Additions 12
4.5 Rollover Contributions 13
Article V. Vesting of Accounts
5.1 Before-Tax, After-Tax, and Rollover Accounts 14
5.2 Matching Contributions Accounts 14
Article VI. Distributions and Withdrawals
6.1 Distribution Upon Retirement, Death, or Disability 15
6.2 Distribution Upon Termination of Employment for
Reasons Other Than Retirement, Death or Disability 15
6.3 Forfeitures 15
6.4 Commencement of Distributions 16
6.5 Method of Distribution 16
6.6 In-Service Withdrawals 16
6.7 Required Distributions 18
6.8 Withholding Taxes 19
6.9 Direct Rollovers of Eligible Distributions 19
Article VII. Investment Elections
7.1 Investment of Contributions 21
7.2 Investment Elections 21
7.3 Investment Transfers 21
7.4 Transfer of Assets 21
Article VIII. Accounts and Records of the Plan
8.1 Accounts and Records 22
8.2 Trust Fund 22
8.3 Valuation and Allocation of Expenses 22
8.4 Allocation of Earnings and Losses 22
Article IX. Financing
9.1 Financing 23
9.2 Contributions 23
9.3 Nonreversion 23
9.4 Rights in the Trust Fund 23
Article X. Administration
10.1 Plan Administrator and Fiduciary 24
10.2 Expenses 24
10.3 Administrator 24
10.4 No Enlargement of Employee Rights 24
10.5 Appeals from Denial of Claims 24
10.6 Notice of Address and Missing Persons 25
10.7 Data and Information for Benefits 25
10.8 Indemnity for Liability 26
10.9 Effect of a Mistake 26
Article XI. Amendment and Termination
11.1 Amendment and Termination 27
11.2 Limitations on Amendments 27
11.3 Bankruptcy and Other Contingencies 27
Article XII. Participation In and Withdrawal From the Plan by an
Employer
12.1 Participation in the Plan 28
12.2 Withdrawal from the Plan 28
Article XIII. Miscellaneous
13.1 Beneficiary Designation 29
13.2 Incompetency 29
13.3 Nonalienation 29
13.4 Applicable Law 30
13.5 Severability 30
13.6 No Guarantee 30
13.7 Merger, Consolidation, or Transfer 30
13.8 Internal Revenue Service Approval 30
<PAGE>
Article I. The Plan
1.1 Establishment and Amendment of the Plan
Ladish Co., Inc. (hereinafter referred to as the "Company") established
effective as of January 1, 1992 and presently maintains the Ladish Co.,
Inc. Hourly Employee Savings and Deferral Investment Plan (the "Plan"), a
savings plan for the benefit of its eligible Employees and eligible
Employees of participating Affiliates. Amendments to comply with the Tax
Reform Act of 1986 and subsequent legislation, adopted December 31, 1994,
are incorporated into this restatement of the Plan.
1.2 Applicability of the Plan
The provisions set forth herein are applicable only to Employees in the
employ of an Employer on or after the Effective Date or as otherwise
specified herein.
1.3 Purpose of the Plan
The Plan is intended to be a profit sharing plan qualified under Code
section 401(a) with a cash-or-deferred arrangement qualified under Code
section 401(k).
Article II. Definitions
2.1 Definitions
Whenever used in the Plan, the following terms shall have the respective
meanings set forth below unless otherwise expressly provided herein, and
when the defined meaning is intended the term is capitalized.
(a) "Account" means the separate account maintained for each Member which
represents his total proportionate interest in the Trust Fund as of
any Valuation Date and which consists of the sum of the following
subaccounts:
(1) "After-Tax Contributions Account" means that portion of the
Member's Account which evidences the value of the After-Tax
Contributions made by the Member, including any gains and losses
of the Trust Fund attributable thereto;
(2) "Before-Tax Contributions Account" means that portion of the
Member's Account which evidences the value of the Before-Tax
Contributions made on his behalf by an Employer, including any
gains and losses of the Trust Fund attributable thereto;
(3) "Matching Contributions Account" means that portion of the
Member's Account which evidences the value of the Matching
Contributions made on his behalf by an Employer, including any
gains and losses of the Trust Fund attributable thereto; and
(4) "Rollover Account" means that portion of the Member's Account
which evidences the value of the Rollover Contributions, if any,
made by the Employee, including any gains and losses of the
Trust Fund attributable thereto.
(b) "Act" means the Employee Retirement Income Security Act of 1974, as
amended.
(c) "Affiliate" means-
(1) any corporation which is a member of the same controlled group
of corporations (within the meaning of Code section 414(b)) as
the Company,
(2) any trade or business (whether or not incorporated) which is
under common control with the Company (within the meaning of
Code section 414(c)),
(3) any organization which is a member of an affiliated service
group (within the meaning of Code section 414(m)) of which the
Company is also a member, and
(4) any other organization required to be aggregated with the
Company pursuant to regulations under Code section 414(o).
(d) "After-Tax Contributions" means the contributions made by a
Participant pursuant to the Participant's election to contribute to
the Plan as described in section 4.1(b) or pursuant to a reduction of
the Participant's Before-Tax Contributions as described in section
4.3.
(e) "Before-Tax Contributions" means the contributions made by an
Employer on behalf of a Participant pursuant to the Participant's
election to reduce Compensation as described in section 4.1(a).
(f) "Board" means the Board of Directors of the Company.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Company" means Ladish Co., Inc.
(i) "Compensation" means, and is limited to, the following: pay for
actual hours worked, including shift premium and overtime premium,
holiday pay, vacation pay, jury duty, bereavement and military leave
pay. For purposes of the "actual deferral percentage" test referred
to in section 4.3, Compensation shall mean W-2 pay plus Before-Tax
Contributions and any other amounts contributed on an Employee's
behalf pursuant to a salary reduction under section 401(k) or section
125 of the Code.
For Plan Years beginning prior to January 1, 1994, the Compensation
of each Employee that may be taken into account under this subsection
shall not exceed the first $150,000 of an Employee's Compensation (as
adjusted by the Secretary of the Treasury under Code section 415(d)).
Effective January 1, 1994, the Compensation of each Employee that may
be taken into account under this subsection shall not exceed the
first $150,000 of an Employee's Compensation (as adjusted by the
Secretary of the Treasury under Code section 415(d)).
In determining the Compensation of an Employee for purposes of the
limitation in this subsection, the rules of Code section 414(q)(6)
shall apply, except in applying such rules, "family" shall include
only the Employee's spouse and any lineal descendants of the Employee
who have not attained age 19 before the close of the Plan Year.
(j) "Disability" means a physical or mental injury or disease which
causes an Employee to be permanently incapable of engaging in any
occupation or employment for which the Employee is qualified with
training, education, or experience, as determined by the Plan
Administrator under rules consistently and uniformly applied to all
Employees.
(k) "Effective Date" means January 1, 1992.
(l) "Eligible Employee" means any Hourly Employee who is employed by an
Employer in the United States and who is covered by a collective
bargaining agreement between employee representatives and the Company
or an Affiliate and such collective bargaining agreement provides for
participation in the plan or employees who are in the Administrative
and Technical Group at the Company's plant in Russellville, Arkansas.
(m) "Employee" means any person who is employed by the Company or an
Affiliate.
(n) "Employer" means, individually or collectively (as the context
indicates), the Company and any Affiliate which elects to become a
party to the Plan, with the approval of the Company, by adopting the
Plan for the benefit of its eligible Employees in the manner
described in Article XII.
(o) "Employment Commencement Date" means the day on which Employee first
performs an Hour of Service for an Employer or nonparticipating
Affiliate or, if applicable, the first day following a Break in
Service, on which an Employee performs an Hour of Service for an
Employer or nonparticipating Affiliate.
(p) "Highly Compensated Employee" means, with respect to any Plan Year,
any Employee who at any time during the 12-month period immediately
preceding such Plan Year-
(1) received compensation, as defined under Code section 414(q)(7),
from the Employer and all Affiliates in excess of $75,000 (as
effective January 1, 1987 and adjusted by the Secretary of the
Treasury under Code section 415(d)),
(2) received compensation, as defined under Code section 414(q)(7),
from the Employer and all Affiliates in excess of $50,000 (as
effective January 1, 1987 and adjusted by the Secretary of the
Treasury under Code section 415(d)) and was in the top-paid 20
percent of Employees,
(3) was an officer who received compensation, as defined under Code
section 414(q)(7), in excess of one-half the limit under Code
section 415(b)(1)(A), or
(4) was a five-percent owner.
Highly Compensated Employee also means, with respect to a Plan Year,
any Employee who, at any time during such Plan Year, met the
descriptions contained in paragraph (1), (2), or (3) and was among
the top-paid 100 Employees or any Employee who was a five-percent
owner. A former Employee or a family member of a Highly Compensated
Employee shall be treated as a Highly Compensated Employee to the
extent required by section 414(q)(6) or (9) of the Code and the
regulations thereunder.
In determining who is a Highly Compensated Employee, the following
rules shall apply:
(A) For purposes of determining the number of Employees in the top-
paid 20 percent, the following Employees are excluded:
(i) Employees who have not completed six months of
service;
(ii) Employees who normally work less than 17 1/2 hours per
week;
(iii) Employees who normally work during not more than six
months during any Plan Year;
(iv) Employees who have not attained age 21; and
(v) to the extent allowable under Treasury regulation
section 1.414(q)-1T, Employees covered by a collective
bargaining agreement between employee representatives
and the Employer or an Affiliate.
(B) The number of officers is limited to 50 (or, if lesser, the
greater of three Employees or 10 percent of Employees),
excluding those Employees described in (A)(i), (ii), (iii), (iv)
and (v) above.
(C) When no officer has compensation in excess of the dollar limit
described in (3) above (as adjusted for increases in the cost of
living as prescribed by the Secretary of the Treasury), the
highest paid officer is treated as highly compensated.
(D) A Highly Compensated Employee shall include a former Employee
who separated from service prior to the Plan Year and who was an
active Highly Compensated Employee for either-
(i) the year the Employee separated from service, or
(ii) any Plan Year ending on or after the Employee's fifty-fifth
birthday.
Alternatively, the simplified identification of Highly
Compensated Employees under section 4 of Revenue Procedure 93-42
may be used, including the use of a snapshot day if applicable.
(q) "Investment Fund" means any investment vehicle selected by the Plan
Administrator including but not limited to the following: guaranteed
investment contracts, pooled funds, treasury securities, bonds,
notes, fixed income mutual funds, common stocks, and equity mutual
funds, in accordance with the provisions of the Trust Agreement.
(r) "Matching Contributions" means the contributions made by an Employer
on behalf of a Participant, conditioned on the making of After-Tax
and/or Before-Tax Contributions, as described in section 4.1(c).
(s) "Member" means a Participant, or a former Participant who still has a
balance in his Account.
(t) "One-Year Period of Severance" means a period of absence from
employment, as described in section 3.5.
(u) "Participant" means any Employee of an Employer who has met and
continues to meet the eligibility requirements of the Plan as set
forth in section 3.1.
(v) "Plan" means this Ladish Co., Inc. Hourly Employee Savings and
Investment Deferral Plan.
(w) "Plan Administrator" means the entity which has been designated as
the "plan administrator" as provided in section 10.1.
(x) "Plan Quarter" means the three-month period ending each March 31,
June 30, September 30, and December 31.
(y) "Plan Year" shall mean the calendar year.
(z) "Rollover Contributions" means the contributions, if any, made by an
Eligible Employee pursuant to section 4.5.
(aa) "Service" means a period or periods of employment of an Employee with
an Employer or a nonparticipating Affiliate as described in section
3.3.
(bb) "Severance from Service" means an absence from employment, as
described in section 3.4.
(cc) "Trust Agreement" means-
(1) any agreement establishing a trust, or
(2) any insurance contract, which forms part of the Plan, to
receive, hold, invest, and dispose of the Trust Fund.
(dd) "Trustee" means the corporation, insurance carrier, or individual or
individuals, or combination thereof, acting as trustee under the
Trust Agreement at any time of reference.
(ee) "Trust Fund" means the assets of every kind and description held
under the Trust Agreement.
(ff) "Valuation Date" means any day that the New York Stock Exchange is
open for business or any other date mutually agreed to by the Plan
Administrator and the Trustee.
2.2 Gender and Number
Unless the context clearly requires otherwise, the masculine pronoun
whenever used shall include the feminine and neuter pronoun, and the
singular shall include the plural.
Article III. Participation and Service
3.1 Participation
(a) Each Eligible Employee on the Effective Date who, on that date, has
completed six months of Service as an Eligible Employee shall be
eligible to participate in the Plan as of the Effective Date. Each
other Employee who was or becomes an Eligible Employee of an Employer
before, on, or after the Effective Date shall be eligible to
participate in the Plan after the Effective Date on the first January
1, April 1, June 1, or October 1 coinciding with or next following
the later of the date he becomes an Eligible Employee and the
completion of six months of Service. Provided, however, that any
Employee who has previously been a Participant in a profit sharing
plan under Code section 401(a) established and maintained by the
Company will be eligible to participate in the Plan as of the first
day of service as an Eligible Employee.
An Employee of an Employer shall be eligible to make a Rollover
Contribution before becoming eligible to participate.
(b) Each Employee who is eligible to participate in accordance with
subsection (a) shall become a Participant by making the election to
have Before-Tax Contributions made on his behalf in accordance with
section 4.1(a) or to make After-Tax Contributions in accordance with
section 4.1(b). Such election must be made upon first becoming
eligible to participate, otherwise it can only be made as of the
first day of any subsequent January, April, July, or October.
3.2 Duration of Participation
A Participant shall continue to be a Participant until he terminates his
employment with all Employers; thereafter, he shall be a Member for as
long as he has an Account.
3.3 Service
An Employee shall be credited for Service for his period of employment
with an Employer and each nonparticipating Affiliate, determined as
follows:
(a) Service shall be determined in completed years, months, and days.
(b) An Employee shall receive credit for Service from his Employment
Commencement Date until his Severance from Service.
(c) If an Employee who has had a Severance from Service is subsequently
reemployed as an Employee-
(1) If he is reemployed before a One-Year Period of Severance occurs
after such Severance from Service, the Service he had at such
Severance shall be reinstated upon his reemployment and, if such
Severance from Service resulted from quit, discharge, or
retirement, he shall receive credit for Service for the period
between his Severance from Service and his reemployment.
(2) If he is reemployed after a One-Year Period of Severance occurs
after such Severance from Service, he shall be considered a new
Employee for purposes of the Plan except-
(A) if at such Severance from Service he had a vested interest
in any portion of his Matching Contributions Account, the
Service he had at such Severance from Service shall be
reinstated upon his reemployment.
(B) If subparagraph (A) is not applicable, and if the number of
consecutive One-Year Periods of Severance is less than
five, the years of Service he had at such Severance from
Service shall be reinstated upon his reemployment.
3.4 Severance from Service
Severance from Service means the date the Employee quits, retires, is
discharged, or dies.
3.5 One-Year Period of Severance
(a) A One-Year Period of Severance means each 12-consecutive-month period
beginning on the date an Employee incurs a Severance from Service and
ending on each anniversary of such date, provided that the Employee
does not perform an Hour of Service for the Company or any Affiliate
during such period.
(b) Solely for purposes of determining whether a One-Year Period of
Severance has occurred, in the case of an Employee who is absent from
work beyond the first anniversary of the first date of an absence and
the absence is for an approved leave for maternity or paternity
reasons, the date the Employee incurs a Severance from Service shall
be the second anniversary of the Employee's absence from employment.
The period between the first and second anniversary of the first date
of absence will not constitute Service.
For purposes of this subsection, an absence from work for maternity
or paternity reasons means an absence-
(1) by reason of pregnancy of the individual,
(2) by reason of the birth of a child of the individual,
(3) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual,
or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
3.6 Leased Employees
A person who is not an Employee of an Employer or nonparticipating
Affiliate and who performs services for an Employer or a nonparticipating
Affiliate pursuant to an agreement between the Employer or
nonparticipating Affiliate and a leasing organization shall be considered
a "leased employee" if such person performed the services for a year and
the services are of a type historically performed by employees. A person
who is considered a "leased employee" of an Employer or nonparticipating
Affiliate shall not be considered an Employee for purposes of the Plan. If
such a person participates in the Plan as a result of subsequent
employment with an Employer or nonparticipating Affiliate, he shall
receive Service for his employment as a leased employee.
3.7 Special Provisions for Participants Who Enter the Armed Forces
If a Participant is absent from employment for voluntary or involuntary
military service with the armed forces of the United States and returns to
employment within the period required under the law pertaining to
veterans' reemployment rights, he shall receive Service for the period of
his absence from employment.
Article IV. Contributions
4.1 Before-Tax, After-Tax, and Matching Contributions
For each Plan Quarter, each Employer shall contribute to the Plan on
behalf of that Employer's Participants an amount equal to the sum of (a)
Before-Tax Contributions, (b) After-Tax Contributions, and (c) Matching
Contributions. The amount of Before-Tax Contributions, After-Tax
Contributions, and Matching Contributions is determined as follows:
(a) Before-Tax Contributions. Effective April 1, 1998, each Participant
may elect, on a form provided by the Plan Administrator, to reduce
his Compensation by one to twenty percent, in whole percentages and
to have the amount by which his Compensation is reduced contributed
on his behalf by his Employer as a Before-Tax Contribution to the
Plan. Such election must be made effective as of the Effective Date
or, if later, the January 1, April 1, July 1, or October 1
immediately after becoming eligible to participate; otherwise such
election can only be made effective as of the first day of any
subsequent January, April, July, or October upon reasonable prior
notice to the Plan Administrator.
Such Participant may elect, no more than four times each Plan Year,
on a form provided by the Plan Administrator, to increase or decrease
his Compensation reductions (within the percentage limits stated
above) upon reasonable prior notice to the Plan Administrator as of
any January 1, April 1, July 1, or October 1. Such elections shall be
effective only with respect to Compensation not yet earned as of the
effective dates of such elections.
A Participant may elect on a form provided by the Plan Administrator
to cease future Compensation reductions as of the first day of any
month with reasonable prior notice to the Plan Administrator. After
ceasing future Compensation reductions, an election to again reduce
Compensation may be made as of any following January 1, April 1, July
1, or October 1.
The Plan Administrator may adopt rules concerning the administration
of this subsection. The Before-Tax Contributions made on behalf of
each Participant shall be paid by each Employer to the Trustee as
soon as practicable after the end of every Plan Quarter and allocated
to the Participant's Before-Tax Contributions Account as of the end
of the Plan Quarter.
(b) After-Tax Contributions. Effective April 1, 1998, each Participant
may elect, on a form provided by the Plan Administrator, to
contribute by payroll deduction, an amount equalling from one to
twenty percent of his Compensation, in whole percentages, provided
that the Participant's combined Before-Tax Contribution and After-Tax
Contribution shall not exceed twenty percent of his Compensation.
Such election must be made effective as of the Effective Date or, if
later, the January 1, April 1, July 1, or October 1 immediately after
becoming eligible to participate; otherwise such election can only be
made effective as of the first day of any subsequent January, April,
July, or October upon reasonable prior notice to the Plan
Administrator.
Such Participant may elect, no more than four times each Plan Year,
on a form provided by the Plan Administrator, to increase or decrease
his After-Tax Contributions (within the percentage limits stated
above) upon reasonable prior notice to the Plan Administrator as of
any January 1, April 1, July 1, or October 1.
A Participant may elect, on a form provided by the Plan
Administrator, to cease future After-Tax Contributions as of the
first day of any month with reasonable prior notice to the Plan
Administrator. After ceasing future After-Tax Contributions, an
election to resume After-Tax Contributions may be made as of any
following January 1, April 1, July 1, or October 1.
The Plan Administrator may adopt rules concerning the administration
of this subsection. The After-Tax Contributions made by each
Participant shall be paid by each Employer to the Trustee as soon as
practicable after the end of every Plan Quarter and allocated to the
Participant's After-Tax Contributions Account as of the end of the
Plan Quarter.
(c) Matching Contributions. For each Plan Quarter, each Employer shall
make a Matching Contribution, in an amount to be determined by the
Board, or specified in the applicable collective bargaining agreement
on behalf of Participants who made Before-Tax Contributions and
After-Tax Contributions during the Plan Quarter.
The Matching Contributions shall be paid by each Employer to the
Trustee as soon as practical after the end of every Plan Quarter and
allocated, as of the end of the Plan Quarter, to the Matching
Contributions Account of each Participant who made Before-Tax
Contributions or After-Tax Contributions during the Plan Quarter, in
the proportion that the sum of the Participant's Before-Tax
Contributions and After-Tax Contributions for the Plan Quarter bears
to the sum of the Before-Tax Contributions and After-Tax
Contributions of all Participants for the Plan Quarter.
4.2 Application of Forfeitures
Forfeitures occurring during any Plan Year in the Account of a Member
shall be used to restore forfeiture amounts pursuant to subsection 6.3(c),
to reduce future Matching Contributions due from the Employer of that
Member, and to pay administrative expenses of the Plan pursuant to section
10.2.
4.3 Limitations on Before-Tax Contributions
Notwithstanding section 4.1(a), in no event shall any Employer make
Before-Tax Contributions for any Plan Year that would result in the actual
deferral percentage of the group of Highly Compensated Employees exceeding
the actual deferral percentage of the group of all other eligible
Employees by more than the greater of;
(a) one and one-quarter times; or
(b) the lesser of;
(1) two times, or
(2) two percentage points.
The deferral percentage of each group of eligible Employees for any Plan
Year shall be the average of the ratios (calculated separately for each
eligible Employee in each group) of-
(A) the Before-Tax Contributions made on behalf of each eligible Employee
for such Plan Year to
(B) such eligible Employee's Compensation for such Plan Year.
To the extent necessary to conform to such limitation, the Plan
Administrator shall reduce Before-Tax Contributions made on behalf of
Highly Compensated Employees in the following manner: First, the Before-
Tax Contributions made on behalf of each Eligible Employee who elected
10 percent during such Plan Year shall be reduced to 9 percent; next, the
Before-Tax Contributions made on behalf of each Eligible Employee who
elected 9 percent shall be reduced to 8 percent. This process shall be
continued until such limitation is met.
Any such reduction in the Before-Tax Contributions made on behalf of any
Participant (and any income allocable thereto) shall be distributed to the
Participant as soon as reasonably practicable or shall be considered to be
an After-Tax Contribution and shall be credited to his After-Tax
Contributions Account, pursuant to the Participant's election and to the
extent permitted by the Code and applicable regulations or rulings.
In addition to the preceding limitations on Before-Tax Contributions, in
no event shall any Employer make Before-Tax Contributions for any Plan
Year on behalf of any Participant that would result in a Before-Tax
Contribution in excess of $7,000 or such greater limit as may be provided
in section 402(g)(5) of the Code. To the extent that Before-Tax
Contributions may inadvertently exceed such limitation or, when added to
other elective deferrals (as that term is defined in section 402(g)(3) of
the Code), do exceed such limit, any Participant who incurs such excessive
deferrals in a Plan Year shall be permitted to identify the excess
deferrals by the next following March 1. If any such excess deferrals are
allocated to this Plan, the excess deferrals (and any income allocable
thereto) shall be distributed to the Participant by the next following
April 15 as provided in rules adopted by the Plan Administrator at the
time and in accordance with the provisions of section 402(g) of the Code.
4.4 Limitations on Annual Account Additions
(a) Annual Account Addition. "Annual Account Addition" means for any
Participant for any Plan Year, which shall also be the limitation
year, the sum of;
(1) Employer contributions made for him under any defined
contribution plan for such Plan Year;
(2) Participant's contributions to any defined contribution plan;
(3) forfeitures allocated to him under any defined contribution plan
for such Plan Year; and
(4) contributions allocated on his behalf to any individual medical
account under sections 401(h)(6) and 419A(d) of the Code.
"Any defined contribution plan" means all defined contribution plans
of the Company and Affiliates considered as one plan. For purposes of
this section, "Affiliate" shall have the meaning prescribed in
section 2.1(c), except that the phrase "more than 50 percent" shall
be substituted for the phrase "at least 80 percent" each place it
appears in Code section 1563(a)(1).
A restored forfeiture pursuant to section 6.3(c) or a rollover
contribution pursuant to section 4.5 or any similar provision shall
not be included as part of any Participant's Annual Account Addition.
(b) Limitation. A Participant's Annual Account Addition for any Plan Year
shall not exceed the lesser of;
(1) $30,000 (or, if greater, one-fourth of the dollar limitation in
effect under Code section 415(b)(1)(A)); or
(2) 25 percent of such Participant's compensation (as defined in
section 1.415-2(d) of the Treasury regulations) for such Plan
Year.
(c) Additional Limitation. If in any Plan Year a Member is covered both
under any defined contribution plan and under any defined benefit
plan, the sum of the defined benefit plan fraction (as defined in
Code section 415(e)(2)) and the defined contribution plan fraction
(as defined in Code section 415(e)(3)) for such Plan Year shall not
exceed one. It is intended to reduce the benefits payable under any
defined benefit plan to the extent necessary to prevent the sum of
such fractions for any Plan Year from exceeding one before reducing
contributions to any defined contribution plan. "Any defined benefit
plan" means all defined benefit plans of the Company and Affiliates
considered as one plan.
(d) Reduction in Annual Account Additions. If in any Plan Year a
Participant's Annual Account Addition exceeds the limitation
determined under subsection (b) above, such excess shall not be
allocated to his accounts in any defined contribution plan but shall
be handled in the following manner and order until such excess is
eliminated:
(1) his After-Tax Contributions shall be returned to him;
(2) his portion of the allocation of Matching Contributions or any
part thereof shall be placed in a suspense account; and
(3) his portion of the allocation of Before-Tax Contributions or any
part thereof shall be refunded to him.
The amount held in such suspense account shall be used to reduce
contributions by that Employer for the next following Plan Year.
Such suspense account shall share in the gains and losses of the
Trust Fund on the same basis as other Accounts.
The above reductions shall be applied to this Plan first, and
thereafter to any other defined contribution plan.
4.5 Rollover Contributions
An Employee of an Employer may, in accordance with procedures approved by
the Plan Administrator, contribute the following amounts as a Rollover
Contribution to the Plan:
(a) part or all of a distribution or proceeds from a sale of distributed
property which, prior to January 1, 1993, qualifies as a "qualified
total distribution" or, after December 31, 1992, an "eligible
rollover distribution" either from a trust described in section
401(a) and exempt from tax under section 501(a) or from a section
403(a) annuity plan, less any amounts considered to be employee
contributions; except that any such distribution must not be from a
trust forming part of a plan under which such a Participant was
either a key employee in a top-heavy plan or an employee within the
meaning of section 401(c)(1) at the time contributions were made on
his behalf under such plan;
(b) a distribution from an individual retirement account or annuity, the
entire amount of which distribution is from a source described in (a)
above;
(c) a trust-to-trust transfer from a prior employer's plan, provided that
the Employee can establish to the satisfaction of the Administrative
Committee that such prior employer's plan meets the qualification
requirements under Code section 401(a).
A Rollover Contribution must be paid over to the Trustee on or before the
sixtieth day after receipt by the Employee of the distribution and shall
be held in the trust under this Plan as a completely separate Rollover
Account in the name of the Employee whose interest is being held.
Article V. Vesting of Accounts
5.1 Before-Tax, After-Tax, and Rollover Accounts
A Member shall at all times be fully vested and have a nonforfeitable
interest in his Before-Tax Contributions Account, After-Tax Contributions
Account, and Rollover Account.
5.2 Matching Contributions Accounts
(a) General. A Member shall have a vested and nonforfeitable interest in
that portion of his Matching Contributions Account in accordance with
the following schedule:
Completed Years of Service Vested Percentage
less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(b) Accelerated Vesting. Notwithstanding subsection (a) above, a Member
shall be fully vested and have a nonforfeitable interest in his
entire Matching Contributions Account if-
(1) his termination of employment as an Employee occurs on or after
attaining age sixty-five, which is the Plan's "normal retirement
age";
(2) he dies or suffers a Disability while an Employee; or
(3) while he is an Employee, contributions to the Plan are
completely discontinued or the Plan is terminated, or the Plan
is partially terminated and the Member is affected by such
partial termination.
Article VI. Distributions and Withdrawals
6.1 Distribution Upon Retirement, Death, or Disability
Upon a Member's retirement after attaining age sixty-five or upon a
Member's termination of employment because of his Disability or death,
there shall be distributed to the Member, or to his beneficiary in case of
his death, the Member's Account, determined as of the Valuation Date
immediately preceding the date of distribution, plus any amounts credited
to his Account subsequent to such Valuation Date.
6.2 Distribution Upon Termination of Employment for Reasons Other Than
Retirement, Death, or Disability
Upon the termination of employment of a Member for any reason other than
his retirement after attaining age sixty-five, death, or Disability, there
shall be distributed to him the full amount of the Member's Before-Tax
Contributions Account, After-Tax Contributions Account, and Rollover
Account, if any, and the vested portion of his Matching Contributions
Account, determined as of the Valuation Date immediately preceding the
date of distribution, plus any amounts credited to his Account subsequent
to such Valuation Date.
6.3 Forfeitures
(a) If a Member's employment terminates and the nonforfeitable portion of
his Account is not greater than $3,500, the Member will receive a
distribution of the value of the nonforfeitable portion of his
Account and the nonvested portion shall be treated as a forfeiture
immediately upon termination of employment.
(b) If a Member's employment terminates and the nonforfeitable portion of
his Account is greater than $3,500, the Member may elect to receive a
distribution of the value of the nonforfeitable portion of his
Account and the forfeitable portion of such Account will be treated
as a forfeiture on the last day of the Plan Year during which the
termination occurred. Earnings on contributions made prior to
January 1, 1989 are available for hardship withdrawal.
(c) If a Member receives a distribution pursuant to subsection (a) or (b)
which is less than the value of the Member's Account and is
reemployed by any Employer or nonparticipating Affiliate prior to
incurring five consecutive One-Year Periods of Severance, the portion
of such Account forfeited pursuant to subsections (a) or (b) will be
restored if the Member repays to the Plan the full amount of the
distribution.
Such repayment must be made prior to the earlier of the fifth
anniversary of the Member's reemployment date, or the close of the
first period of five consecutive One-Year Periods of Severance
commencing after the distribution. The source for restoring
forfeitures shall be, first, current forfeitures and, if current
forfeitures are insufficient, an additional contribution by the
Member's Employer. Such additional contribution shall be made without
regard to the existence of profits. Repaid distributions and restored
forfeitures shall be invested in Investment Funds designated by the
Member.
(d) If a Member incurs five consecutive One-Year Periods of Severance, or
if subsection (c) is applicable to the Member but he fails to make
the repayment described in such subsection, he shall permanently
forfeit the portion of his Account that was not vested pursuant to
section 5.2 at the time of his initial termination of employment.
(e) Forfeitures pursuant to subsections (a) and (b) shall be treated as
though they are Matching Contributions of the Employer whose
Employees created the forfeitures and shall reduce the amount of the
Matching Contributions that would otherwise be required with respect
to such Employer.
6.4 Commencement of Distributions
Subject to the provisions of this section and sections 6.5 and 6.7;
(a) Distributions pursuant to sections 6.1 and 6.2 shall be made or
commence to the Member as soon as practicable following his
termination of employment; provided, however, that if the
nonforfeitable portion of his Account exceeds $3,500, then such
distribution shall not be made at any time before his sixty-fifth
birthday without the consent of the Member.
(b) Distribution of a Member's Account will begin not later than the
sixtieth day after the later to close of the Plan Year in which;
(1) he attains his sixty-fifth birthday, or
(2) his termination of employment occurs;
provided that no Member whose termination of employment occurs on,
within a year before, or after his sixty-fifth birthday shall be
required to receive his Account prior to the first anniversary of his
termination of employment except as may be required under section
6.7.
(c) If a Member dies after his termination of employment but prior to
receiving the full distribution of his Account to which he is
entitled under this Article VI, any unpaid balance thereof at the
time of his death shall be distributed to the Member's beneficiary in
a lump sum, to be distributed as soon as practicable and permissible
under the Code after his death.
6.5 Method of Distribution
All distributions shall be in a lump sum and in cash. Amounts payable
hereunder shall continue to accrue earnings and losses under section 8.4
pending such payment.
6.6 In-Service Withdrawals
(a) Normal Withdrawals. Twice each Plan Year, a Participant may apply for
a withdrawal from his After-Tax Contributions Account. The withdrawal
shall be in an amount not less than the lesser of $1,000 or 100
percent of his After-Tax Contributions Account. The amount of such a
withdrawal shall be paid in cash.
A Participant who receives a withdrawal under this subsection shall
not be permitted to make After-Tax Contributions, or to have Before-
Tax Contributions made on his behalf, until the January 1, April 1,
July 1, or October 1 coincident with or next following the day that
is six months after the date of the withdrawal.
(b) Hardship Withdrawals. A Participant who has a demonstrated hardship
described in (c) below and who has immediate and heavy financial need
described in (d) below may request a withdrawal of all or any part of
his Before-Tax Contributions but not the earnings thereon. A
Participant shall file a request for withdrawals no more than twice
each Plan Year with the Plan Administrator on a form provided for
such purpose. A request for a withdrawal shall describe any hardship
for which the withdrawal is requested, specify the immediate and
heavy financial need supporting the withdrawal as well as describe
the means attempted to secure the needed funds other than a
withdrawal hereunder. Hardship withdrawals shall not be permitted in
amounts less than $1,000. The amount of the withdrawal shall be paid
in cash.
(c) Demonstrated Hardship. A hardship withdrawal shall be limited to the
following situations:
(1) expenses for medical care described in Code section 213(d)
previously incurred by a Participant, the Participant's spouse,
or any dependent of the Participant (as defined in Code section
152) or necessary for these persons to obtain medical care
described in Code section 213 (d);
(2) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for a Participant;
(3) payment of tuition and related educational fees for the next 12
months of post-secondary education for the Participant, his
spouse, children, or dependents (as defined in Code section
152);
(4) payments necessary to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of
the Participant's principal residence; or
(5) such other reasons as may be set forth in rulings, notices, or
other documents of general applicability issued by the Internal
Revenue Service.
(d) Immediate and Heavy Financial Need. A withdrawal is necessary to
satisfy an immediate and heavy financial need of a Participant only
if all of the following requirements are satisfied:
(1) The withdrawal does not exceed the amount of the Participant's
immediate and heavy financial need, which may include any
amounts necessary to pay any federal, state, or local income
taxes or penalties reasonably anticipated to result from the
distribution;
(2) The Participant has obtained all distributions, other than
hardship withdrawals, and all nontaxable loans currently
available under all plans maintained by the Employer;
(3) No Before-Tax Contributions, After-Tax Contributions, or similar
contributions under all other plans of an Employer shall be
permitted by or on behalf of the Participant during the 12-month
period after receipt of the hardship withdrawal; and
(4) The Before-Tax Contributions and elective employee contributions
under other plans of an Employer made by or on the Participant's
behalf for the calendar year next following the calendar year of
the hardship withdrawal shall be limited to the amount by which
the maximum limit under Code section 402(g) for that year
exceeds the Before-Tax Contributions (and other elective
employee contributions under other plans of an Employer) made by
or on behalf of the Participant for the calendar year of the
withdrawal.
For purposes of paragraph (3), the phrase "all other plans" means all
qualified and nonqualified plans of deferred compensation maintained
by the Employer. The phrase includes a stock option, stock purchase,
or similar plan, or a cash or deferred arrangement that is part of a
cafeteria plan within the meaning of Code section 125, but not a
health or welfare benefit plan (including one that is part of a
cafeteria plan within the meaning of Code section 125).
A Participant's request for a hardship withdrawal must be accompanied
or supplemented by such evidence of hardship as the Plan
Administrator may reasonably require. Approval or disapproval of such
withdrawal request shall be within the sole discretion of the Plan
Administrator. The amount of such withdrawal shall be limited to that
amount which the Plan Administrator determines is necessary to meet
the immediate financial needs created by the hardship, provided that
amounts attributable to earnings on Before-Tax Contributions shall
not be subject to withdrawal for hardship.
After a withdrawal in accordance with this section, amounts remaining
to the credit of the Participant, if any, in his or her Before-Tax
Contributions Account and Rollover Account which exceed the total
amount which is withdrawn under this section shall continue to be
held, invested, and adjusted in accordance with the Plan until such
adjusted amounts are distributable in accordance with Article VI.
(e) Post-Age 59 1/2 Withdrawals. Twice each Plan Year, a Participant who
has withdrawn or is simultaneously withdrawing the entire amount (if
any) in his After-Tax Contributions Account may apply for a
withdrawal from the remainder of the vested portion of his Account,
provided he has reached age 59 1/2. The withdrawal, together with any
simultaneous withdrawal from his After-Tax Contributions Account,
shall be in an amount not less than the lesser of $1,000 or 100
percent of his Account. The amount of such a withdrawal shall be paid
in cash.
A Participant who receives a withdrawal under this subsection shall
not be permitted to make After-Tax Contributions, or to have Before-
Tax Contributions made on his behalf, until the January 1, April 1,
July 1, or October 1 coincident with or next following the day that
is six months after the date of the withdrawal.
6.7 Required Distributions
Notwithstanding any of the preceding provisions of this Article;
(a) In no event may the distribution of a Member's benefits commence
later than the April 1 of the calendar year following the year in
which the Member;
(1) reaches age 70 1/2; or
(2) retires, if later;
provided, however, that paragraph (2) shall not apply in the case of
a Member who is a five-percent owner (as defined in Code section 416)
at any time during the five-calendar-year period ending in the
calendar year in which the Member attains age 70 1/ 2. If the Member
becomes a five-percent owner during any subsequent calendar year, the
required commencement date shall be no later than April 1 of the
calendar year following the end of such subsequent calendar year.
(b) Effective on and after January 1, 1989, distribution of a Member's
benefits must commence no later than April 1 of the calendar year
following the calendar year in which the Member reaches age 70 1/2,
except that if the Member has attained age 70 1/2 before January 1,
1988, subsection (a) shall apply to such Member.
(c) If a Member dies prior to the commencement of the payment of
benefits, the Member's benefits will be distributed within five years
after the death of such Member.
(d) If a distribution is made to a Member who is, or has been, a five-
percent owner (as that term is used in Code section 416) and the
distribution is made before such Member attains the age of 59 1/2 for
any reason other than the Member's becoming disabled (within the
meaning of Code section 72(m)(7)), then such distribution will be
subject to the ten percent penalty tax of Code section 72(m)(5) to
the extent that such amounts are attributable to contributions paid
on behalf of such Member while he was a five-percent owner. The Plan
Administrator may, at its discretion, notify Members who are subject
to the penalty of the applicability of Code section 72(m)(5).
(e) Effective on or after January 1, 1997, the distribution of a Member's
benefits must commence no later than April 1 following the calendar
year the member retires or attains age 70 1/2, whichever occurs last.
6.8 Withholding Taxes
An Employer may withhold from a Member's compensation and the Trustee may
withhold from any payment under this Plan any taxes required to be
withheld with respect to contributions or benefits under this Plan and
such sum as the Employer or Trustee may reasonably estimate as necessary
to cover any taxes for which they may be liable and which may be assessed
with respect to contributions or benefits under this Plan.
6.9 Direct Rollovers of Eligible Distributions
(a) General. This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under
this section, a distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
(b) Definitions.
(1) Eligible rollover distribution. An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Code section 401(a)(9); and the
portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(2) Eligible retirement plan. An eligible retirement plan is an
individual retirement account described in Code section 408(a),
an individual retirement annuity described in Code section
408(b), an annuity plan described in Code section 403(a), or a
qualified trust described in Code section 401(a), that accepts
the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee. A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code section 414(p), are
distributees with regard to the interest of the spouse or former
spouse.
(4) Direct rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
Article VII. Investment Elections
7.1 Investment of Contributions
Each Member may elect to have his Account invested in increments of one
percent of the total in any of the Investment Funds.
7.2 Investment Elections
Each Participant may make investment elections described in section 7.1 by
filing an election with the Plan Administrator upon becoming a
Participant, pursuant to the procedures established by the Plan
Administrator. To become a Participant in the Plan, an Employee must make
Investment Election totaling 100 percent, or the enrollment will be held
in abeyance until such elections totaling 100 percent are made.
7.3 Investment Transfers
Each Participant may make investment elections described in Section 7.1 by
filing an election with the Plan Administrator upon becoming a
Participant, pursuant to the procedures established by the Plan
Administrator. Such elections may be changed and made effective on the
Valuation Date coinciding with or next following the participant's
election.
7.4 Transfer of Assets
The Plan Administrator shall direct the Trustee to transfer moneys or
other property from the appropriate Investment Fund to the other
Investment Funds as may be necessary to carry out the aggregate transfer
transactions after the Plan Administrator has caused the necessary entries
to be made in the Participants' Accounts in the Investment Funds and has
reconciled offsetting transfer elections, in accordance with uniform rules
therefor established by the Plan Administrator.
Article VIII. Accounts and Records of the Plan
8.1 Accounts and Records
The Accounts and records of the Plan shall be maintained by the Plan
Administrator and shall accurately disclose the status of the Accounts of
each Member or his beneficiary in the Plan.
Each Member shall be advised from time to time, at least once during each
Plan Year, as to the status of his Account.
8.2 Trust Fund
Each Member shall have an undivided proportionate interest in the Trust
Fund which shall be measured by the proportion that the market value of
his Account bears to the total market value of all Accounts as of the date
that such interest is being determined.
8.3 Valuation and Allocation of Expenses
As of each Valuation Date, the Trustee shall determine the fair market
value of the Trust Fund after first deducting any expenses which have not
been paid by the Employers. Unless paid by the Employers and subject to
such limitations as may be imposed by the Act or other applicable law, all
costs and expenses incurred in connection with the general administration
of the Plan and the Trust shall be chargeable to the Trust Fund.
8.4 Allocation of Earnings and Losses
As of each Valuation Date, the Plan Administrator, with the assistance of
the Trustee, shall allocate the net earnings and gains or losses of each
Investment Fund of the Trust Fund since the preceding Valuation Date (and
attributable to Before-Tax Contributions, After-Tax Contributions,
Matching Contributions, and Rollover Contributions) to each Member's
Before-Tax Contributions Account, After-Tax Contributions Account,
Matching Contributions Account, and Rollover Account in the same
proportion that the market value of such Accounts in such Investment Fund
as of the last day of the Plan Quarter bears to the total market value of
all Members' Accounts in such Investment Fund as of the last day of the
Plan Quarter. For the purpose of allocating earnings and losses, the Plan
Administrator shall adopt rules which conform to applicable law and
generally accepted accounting practices.
Article IX. Financing
9.1 Financing
The Company shall enter into a Trust Agreement in order to implement and
carry out the provisions of the Plan and to finance the benefits under the
Plan. All rights which may accrue to any person under the Plan shall be
subject to all the terms and provisions of such Trust Agreement. The
Company may modify the Trust Agreement in accordance with the terms of
that Agreement from time to time to accomplish the purposes of the Plan.
9.2 Contributions
The Employers shall make such contributions to the Trust Fund as are
required by the provisions of the Plan, subject to the right of the
Company to amend, modify, or terminate the Plan.
9.3 Nonreversion
No Employer shall have any right, title, or interest in the contributions
made to the Trust Fund, and no part of the Trust Fund shall revert to any
Employer, except that;
(a) If a contribution is made to the Trust Fund by an Employer by a
mistake of fact, then such contribution may be returned to such
Employer within one year after the payment of the contribution.
Contributions are made contingent on their deductibility under Code
section 404. If any part or all of a contribution is disallowed as a
deduction under Code section 404, then to the extent the contribution
is disallowed as a deduction it shall be returned to such Employer
within one year after the disallowance.
(b) If the Internal Revenue Service initially determines that the Plan
does not meet the requirements of Code section 401, the Plan shall be
null and void from the Effective Date, and any contributions shall be
returned to all contributors within one year following the
determination that the Plan does not meet such requirements, unless
the Company elects to make the changes to the Plan necessary to
receive a determination from the Internal Revenue Service that the
requirements of Code section 401 are met.
9.4 Rights in the Trust Fund
Persons eligible for benefits under the Plan are entitled to look only to
the Trust Fund for the payment of such benefits and have no claim against
any Employer, the Plan Administrator, or any other person. No person has
any right or interest in the Trust Fund except as expressly provided in
the Plan.
Article X. Administration
10.1 Plan Administrator and Fiduciary
The Company shall be the "administrator" of the Plan within the meaning of
section 3(16)(A) of the Act, a fiduciary with respect to the Plan within
the meaning of sections 3(21)(A)(i) and (iii) of the Act, and the named
fiduciary under section 402 of the Act. It shall also be the Plan
Administrator for purposes of the Plan.
10.2 Expenses
All expenses incurred in the administration of the Plan shall be paid for
by the Trust Fund to the extent not paid by the Employers. Such expenses
shall include any expenses incident to the administration of the Plan,
including, but not limited to, fees of actuaries, accountants, counsel,
and other specialists.
10.3 Administration
The Company shall be responsible for the administration of the Plan. The
Company shall have all such powers as may be necessary to carry out the
provisions hereof and may, from time to time, establish rules for the
administration of the Plan and the transaction of the Plan's business. In
making any such determination or rule, the Company shall pursue uniform
policies as from time to time established by the Company and shall not
discriminate in favor of or against any Member. The Company shall have the
exclusive right to make any finding of fact necessary or appropriate for
any purpose under the Plan including, but not limited to, the
determination of the eligibility for and the amount of any benefit payable
under the Plan. The Company shall have the exclusive right to interpret
the terms and provisions of the Plan and to determine any and all
questions arising under the Plan or in connection with the administration
thereof, including, without limitation, the right to remedy or resolve
possible ambiguities, inconsistencies, or omissions, by general rule or
particular decision. The Company shall make, or cause to be made, all
reports or other filings necessary to meet the reporting and disclosure
requirements of the Act which are the responsibility of "plan
administrators" under the Act. To the extent permitted by law, all
findings of fact, determinations, interpretations, and decisions of the
Company shall be conclusive and binding upon all persons having or
claiming to have any interest or right under the Plan.
10.4 No Enlargement of Employee Rights
Nothing contained in the Plan shall be deemed to give any Employee the
right to be retained in the service of an Employer or to interfere with
the right of an Employer to discharge or retire any Employee at any time.
10.5 Appeals from Denial of Claims
If any claim for benefits under the Plan is wholly or partially denied,
the claimant shall be given notice in writing within a reasonable period
of time after receipt of the claim by the Plan (not to exceed 90 days
after receipt of the claim or, if special circumstances require an
extension of time, written notice of the extension shall be furnished to
the claimant and an additional 90 days will be considered reasonable) by
registered or certified mail of such denial, written in a manner
calculated to be understood by the claimant, setting forth the following
information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on which the denial
is based;
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the Plan's claim review procedure.
The claimant also shall be advised that he or his duly authorized
representative may request a review by the Plan Administrator of the
decision denying the claim by filing with the Plan Administrator, within
60 days after such notice has been received by the claimant, a written
request for such review, and that he may review pertinent documents, and
submit issues and comments in writing within the same 60-day period. If
such request is so filed, such review shall be made by the Plan
Administrator within 60 days after receipt of such request, unless special
circumstances require an extension of time for processing, in which case
the claimant shall be so notified and a decision shall be rendered as soon
as possible, but not later than 120 days after receipt of the request for
review. The Member or beneficiary shall be given written notice of the
decision resulting from such review, which notice shall include specific
reasons for the decision, written in a manner calculated to be understood
by the claimant, and specific references to the pertinent Plan provisions
on which the decision is based.
10.6 Notice of Address and Missing Persons
Each person entitled to benefits under the Plan must file with the Plan
Administrator, in writing, his post office address and each change of post
office address. Any communication, statement, or notice addressed to such
a person at his latest reported post office address will be binding upon
him for all purposes of the Plan and neither the Plan Administrator nor
the Employers, Trustee, or insurance company shall be obliged to search
for or ascertain his whereabouts. In the event that such person cannot be
located, the Plan Administrator may direct that such benefit and all
further benefits with respect to such person shall be discontinued and all
liability for the payment thereof shall terminate; provided, however, that
in the event of the subsequent reappearance of the Member or beneficiary
prior to termination of the Plan, the benefits which were due and payable
and which such person missed shall be paid in a single sum, and the future
benefits due such person shall be reinstated in full.
10.7 Data and Information for Benefits
All persons claiming benefits under the Plan must furnish to the Plan
Administrator or its designated agent such documents, evidence, or
information as the Plan Administrator or its designated agent consider
necessary or desirable for the purpose of administering the Plan, and such
person must furnish such information promptly and sign such documents as
Plan Administrator or its designated agent may require before any benefits
become payable under the Plan.
10.8 Indemnity for Liability
The Company shall indemnify any individual who is directed by the Company
to carry out responsibilities and duties imposed by this Plan against any
and all claims, losses, damages, and expenses, including counsel fees,
approved by the Company, and any liability, including any amounts paid in
settlement with the Company's approval, arising from the individual's
action or failure to act, in connection with such person's
responsibilities and duties under the Plan, except when the same is
judicially determined to be attributable to the gross negligence or
willful misconduct of such person.
10.9 Effect of a Mistake
In the event of a mistake or misstatement as to the eligibility,
participation, or service of any Member, or the amount of payments made or
to be made to a Member or beneficiary, the Plan Administrator shall, if
possible, cause to be withheld or accelerated or otherwise make adjustment
of such amounts of payments as will in its sole judgment result in the
Member or beneficiary receiving the proper amount of payments under this
Plan.
Article XI. Amendment and Termination
11.1 Amendment and Termination
(a) The Company reserves the right at any time by action of the Board to
amend or terminate the Plan. The Company's right of amendment or
termination shall not require the assent or any other action by any
other Employer, notwithstanding that such action by the Company may
relate in whole or in part to persons in the employ of another
Employer.
(b) While each Employer contemplates carrying out the provisions of the
Plan indefinitely with respect to its Employees, no Employer shall be
under any obligation to maintain the Plan for any minimum or other
period of time.
(c) Upon any termination of the Plan in its entirety, or with respect to
any Employer, the Company shall give written notice thereof to the
Plan Administrator, the Trustee, and any Employer involved.
(d) Except as provided by law, upon any termination of the Plan, no
Employer with respect to whom the Plan is terminated (including the
Company) shall thereafter be under any obligation to make any
contribution or payment to the Trust Fund, the Plan, any Member, any
beneficiary, or any other person, trust or fund whatsoever, for any
purpose whatsoever under or in connection with the Plan.
11.2 Limitations on Amendments
The provisions of this Article are subject to and limited by the following
restrictions:
(a) No amendment shall operate either directly or indirectly to give any
Employer any interest whatsoever in any funds or property held by the
Trustee under the terms hereof, or to permit the corpus or income of
the Trust to be used for or diverted to purposes other than the
exclusive benefit of Members or their beneficiaries.
(b) No such amendment shall operate either directly or indirectly to
deprive any Member of his vested and nonforfeitable interest as of
the time of such amendment.
11.3 Bankruptcy and Other Contingencies
If an Employer terminates its connection with the Plan, or if an Employer
is dissolved, liquidated, or by appropriate legal proceedings is adjudged
bankrupt, if judicial proceedings of any kind result in the involuntary
dissolution of an Employer, the Plan shall be terminated with respect to
such Employer. The merger, consolidation, or reorganization of an
Employer, or the sale by it of all or substantially all of its assets,
shall not terminate the Plan if there is delivery to such Employer by the
Employer's successor or by the purchaser of all or substantially all of
the Employer's assets, of a written instrument requesting that the
successor or purchaser be substituted for the Employer and agreeing to
perform all the provisions hereof which such Employer is required to
perform. Upon the receipt of said instrument, with the approval of the
Company, the successor or the purchaser shall be substituted for such
Employer herein, and such Employer shall be released from all obligations
herein or in any trust agreement imposed upon it.
Article XII. Participation In and Withdrawal From the Plan by an
Employer
12.1 Participation in the Plan
Any Affiliate which desires to become an Employer hereunder may elect,
with the consent of the Board of Directors, to become a party to the Plan
and Trust Agreement by adopting the Plan for the benefit of its eligible
Employees, effective as of the date specified in such adoption;
(a) by filing with the Company a certified copy of a resolution of its
board of directors to that effect, and such other instruments as the
Company may require; and
(b) by the Company's filing with the then Trustee a copy of such
resolution, together with a certified copy of resolutions of the
Board of Directors approving such adoption.
The adoption resolution or decision may contain such specific changes and
variations in Plan or Trust Agreement terms and provisions applicable to
such adopting Employer and its Employees as may be acceptable to the
Company and the Trustee. However, the sole, exclusive right of any other
amendment of whatever kind or extent to the Plan or Trust Agreement is
reserved by the Company. The Company may not amend specific changes and
variations in the Plan or Trust Agreement terms and provisions as adopted
by the Employer in its adoption resolution without the consent of such
Employer. The adoption resolution or decision shall become, as to such
adopting organization and its employees, a part of this Plan as then
amended or thereafter amended and the related Trust Agreement. It shall
not be necessary for the adopting organization to sign or execute the
original or then amended Plan and Trust Agreement documents. The coverage
date of the Plan for any such adopting organization shall be that stated
in the resolution or decision of adoption, and from and after such
effective date, such adopting organization shall assume all the rights,
obligations, and liabilities of an individual employer entity hereunder
and under the Trust Agreement. The administrative powers and control of
the Company, as provided in the Plan and Trust Agreement, including the
sole right to amendment, and of appointment and removal of the Plan
Administrator, the Trustee, and their successors, shall not be diminished
by reason of the participation of any such adopting organization in the
Plan and Trust Agreement.
12.2 Withdrawal from the Plan
Any Employer, by action of its board of directors or other governing
authority, may withdraw from the Plan and Trust Agreement after giving 90
days' notice to the Board, provided the Board consents to such withdrawal.
Distribution may be implemented through Continuation of the Trust Fund, or
transfer to another trust fund exempt from tax under Code section 501, or
to a group annuity contract qualified under Code section 401, or
distribution may be made as an immediate cash payment in accordance with
the directions of the Plan Administrator; provided, however, that no such
action shall divert any part of such fund to any purpose other than the
exclusive benefit of the Employees of such Employer.
Article XIII. Miscellaneous
13.1 Beneficiary Designation
(a) Each unmarried Member may designate, on a form provided for that
purpose by the Plan Administrator, a beneficiary or beneficiaries to
receive his interest in the Plan in the event of his death, but such
designation shall not be effective for any purpose until it has been
filed by him during his lifetime with the Plan Administrator. He may,
from time to time during his lifetime, on a form approved by and
filed with the Plan Administrator, change his beneficiary or
beneficiaries.
(b) The beneficiary of each Member who is married shall be the surviving
spouse of such Member, unless such spouse consents in writing to the
designation of another beneficiary or beneficiaries. Each married
Member may, from time to time, change his designation of
beneficiaries; provided, however, that the Member may not change his
beneficiary without the written consent of his spouse unless, when
such spouse first consented to the designation of a beneficiary other
than the spouse, the spouse also waived the right to reject
subsequent changes of beneficiary.
(c) If a Member fails to designate a beneficiary, or if for any reason
such designation is legally ineffective, or if all designated
beneficiaries predecease him or die simultaneously with him,
distribution shall be made to his spouse; or if none, to his estate.
(d) The written consent described in subsection (b) shall acknowledge the
effect of such election and shall be witnessed by a Plan
representative designated by the Plan Administrator or a notary
public.
13.2 Incompetency
Every person receiving or claiming benefits under the Plan shall be
conclusively presumed to be mentally competent and of age until the Plan
Administrator receives written notice, in a form and manner acceptable to
it, that such person is incompetent or a minor, and that a guardian,
conservator, or other person legally vested with the care of his estate
has been appointed.
In the event a guardian or conservator of the estate of any person
receiving or claiming benefits under the Plan shall be appointed by a
court of competent jurisdiction, payments shall be made to such guardian
or conservator, provided that proper proof of appointment is furnished in
a form and manner suitable to the Plan Administrator.
To the extent permitted by law, any payment made under the provisions of
this section shall be a complete discharge of liability under the Plan.
13.3 Nonalienation
Except as provided in Code section 401(a)(13), neither benefits payable at
any time under the Plan nor the corpus or income of the Trust Fund shall
be subject in any manner to alienation, sale, transfer, assignment,
pledge, attachment, garnishment, or encumbrance of any kind. Any attempt
to alienate, sell, transfer, assign, pledge, or otherwise encumber any
such benefit, whether presently or thereafter payable, shall be void. No
benefit nor the Trust Fund shall in any manner be liable for or subject to
the debts or liabilities of any Member or of any other person entitled to
any benefit. The Plan Administrator shall establish procedures to
determine whether domestic relations orders are "qualified domestic
relations orders" and to administer distributions under such qualified
domestic relations orders.
13.4 Applicable Law
The Plan and all rights hereunder shall be governed by and construed in
accordance with the laws of the State of Wisconsin to the extent such laws
have not been preempted by applicable federal law.
13.5 Severability
If a provision of this Plan shall be held illegal or invalid, the
illegality or invalidity shall not affect the remaining parts of the Plan
and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included in this Plan.
13.6 No Guarantee
Neither the Plan Administrator, the Company, the Employers, nor the
Trustee in any way guarantees the Trust Fund from loss or depreciation nor
the payment of any money which may be or become due to any person from the
Trust Fund. Nothing herein contained shall be deemed to give any
Participant, Member, or beneficiary an interest in any specific part of
the Trust Fund or any other interest except the right to receive benefits
out of the Trust Fund in accordance with the provisions of the Plan and
the Trust.
13.7 Merger, Consolidation, or Transfer
In the case of any merger or consolidation of the Plan with, or in the
case of any transfer of assets or liabilities of the Plan to or from, any
other plan, each Member shall receive a benefit immediately after the
merger, consolidation, or transfer (if the Plan had then terminated) which
is equal to or greater than the benefit he would have been entitled to
receive immediately before the merger, consolidation, or transfer (if the
Plan had then terminated).
13.8 Internal Revenue Service Approval
It is the intention of the Company to obtain a ruling or rulings by the
District Director of Internal Revenue that;
(a) the Plan, as in effect from time to time, with respect to all
Employers, meets the requirements of Code section 401(a); and
(b) any and all contributions made by the Employers under the Plan are
deductible for income tax purposes under section 404(a) or any other
applicable provisions of the Code.
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
EXHIBIT 5
May 27, 1998
Ladish Co., Inc.
5481 South Packard Avenue
Cudahy, Wisconsin 53110
Ladies and Gentlemen:
We have acted as counsel for Ladish Co., Inc., a Wisconsin
corporation (the "Company"), in connection with the preparation of a
Form S-8 Registration Statement (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
500,000 shares of the Company's Common Stock, $.01 par value per share
(the "Common Stock"), and interests in each of the Ladish Co., Inc.
Savings and Deferral Investment Plan and the Ladish Co., Inc. Hourly
Employees Savings and Deferral Investment Plan (the "Plans") which may be
issued or acquired pursuant to the Plans.
In this regard, we have examined: (a) the Plans; (b) signed
copies of the Registration Statement; (c) the Company's Articles of
Incorporation and Bylaws, as amended to date; (d) resolutions of the
Company's Board of Directors relating to the Plans; and (e) such other
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Common
Stock to be acquired by the Plans will be purchased either in the open
market or directly from the Company or other private sources. To the
extent that the shares of Common Stock acquired by the Plans shall
constitute shares issued by and purchased from the Company, such shares of
Common Stock, when issued pursuant to the terms and conditions of the
Plans, and as contemplated in the Registration Statement, will be validly
issued, fully paid and nonassessable, except with respect to wage claims
of, or other debts owing to, employees of the Company for services
performed, but not exceeding six months' service in any one case, as
provided by Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law and judicial interpretations thereof.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated February 16, 1998 included in the Ladish Co., Inc. Form S-1 dated
March 9, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
May 26, 1998
