<PAGE>
Draft--October 2, 1995
As filed with the Securities and Exchange Commission on November 13, 1995
Registration No. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
BW/IP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0270574
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 OCEANGATE BOULEVARD
SUITE 900
LONG BEACH, CALIFORNIA 90802
(Address of Principal Executive Offices
including Zip Code)
BWIP Holding, Inc. Non-Employee Directors' Stock Option Plan
BW/IP International, Inc. 1992 Long-Term Incentive Plan
(Full title of the Plans)
JOHN D. HANNESSON, ESQ.
VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
BW/IP, INC.
200 OCEANGATE BOULEVARD
SUITE 900
LONG BEACH, CALIFORNIA 90802
(310) 435-3700
(Address of Principal Executive Offices)
(Name, address and telephone number of agent for service)
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- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount of Offering Aggregate Amount of
securities to be shares to be Price Per Offering Registration
registered registered(1) Share Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BWIP Holding, Inc. Non-Employee Directors' Stock Option Plan (2)
------------------------------------------------------------
Common Stock, 75,000 $16.50 (3) $1,237,500 $426.72
par value $0.01 50,000 $20.605 (4) $1,030,250 $355.26
per share
BW/IP International, Inc. 1992 Long-Term Incentive Plan
-------------------------------------------------------
Common Stock, 54,250 $16.50 (3) $895,125 $308.66
par value $0.01 945,750 $20.1975(4) $19,101,786 $6,586.82
per share
TOTAL 1,125,000 $22,264,661 $7,677.46
================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement shall be deemed to register an indeterminate
number of shares to be offered or sold pursuant to the employee benefit
plans described herein. Consists of shares of BW/IP, Inc. Common Stock,
par value $.01 ("Common Stock"), to be issued upon exercise of options
granted pursuant to the BWIP Holding, Inc. Non-Employee Directors' Stock
Option Plan and the BW/IP International, Inc. 1992 Long-Term Incentive
Plan. Such indeterminate number of additional shares of Common Stock as
may be issuable pursuant to the operation of the recapitalization
provisions of the plans or other similar adjustments in the number of
outstanding Common Stock contemplated under the plans are hereby also
registered.
(2) The name of the registrant was changed from BWIP Holding, Inc. to BW/IP,
Inc. on May 11, 1994.
(3) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the registration fee. The price of these shares, which are
not subject to outstanding but unexercised options, is based upon the
average of the high and low prices of Common Stock on November 8, 1995,
as reported on the National Association of Securities
Dealers Automated Quotation ("NASDAQ") National Market System.
(4) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
registration fee. The price of these shares, which are subject to
outstanding but unexercised options, is computed on the basis of the
exercise price.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are the
following documents heretofore filed by BW/IP, Inc. or its predecessor, BWIP
Holding, Inc., (the "Company") with the Securities and Exchange Commission (the
"SEC") pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"):
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report referred to in (a) above; and
(c) The description of the Common Stock, par value $.01 per share
(the "Common Stock"), contained in a registration statement filed
under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment indicating that all securities offered hereby have been sold
or which deregisters all such securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Company, as a Delaware corporation, is empowered by Section 145 of
the General Corporation Law of the State of Delaware (the "DGCL"), subject to
the procedures and limitations stated therein, to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such person
is made a party by reason of his being or having been a director, officer,
employee or agent of the Company, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation. The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors, or otherwise. Article VI of the Company's By-Laws
provides for indemnification by the Registrant of its directors and officers to
the full extent permitted by the DGCL. Pursuant to Section 145 of the DGCL, the
Company has purchased insurance on behalf of its present and former directors
and officers against any liability asserted against or incurred by them in such
capacity or arising out of their status as such.
Pursuant to specific authority granted by Section 102 of the DGCL,
Article Fifth of the Company's Third Restated Certificate of Incorporation
contains the following provision regarding limitation of liability of directors
and officers:
"(d) No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his or
her fiduciary duty as a director, provided that nothing contained in this
--------
Third Restated Certificate of Incorporation shall eliminate or limit the
liability of a director (i) for any breach of the director's duty of
-
loyalty to this Corporation or its stockholders, (ii) for acts or omissions
--
not in good faith or which involve intentional misconduct or a knowing
violation of
2
<PAGE>
the law, (iii) under Section 174 of the General Corporation
---
Law of the State of Delaware or (iv) for any transaction from which the
--
director derives an improper personal benefit."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibits Description of Exhibit
- -------- ----------------------
<S> <C>
4a. Form of Third Restated Certificate of Incorporation of BW/IP,
Inc. (formerly BWIP Holding, Inc.) (the "Company" or "BW/IP"),
as filed with the Secretary of State of Delaware. Incorporated
by reference to Appendix A to the Company's Proxy Statement for
the 1994 Annual Meeting of Stockholders dated April 11, 1994 as
filed with the SEC.
4b. Bylaws of the Company, as amended and restated on October 19,
1995, (filed herewith).
4c. Bylaws of BW/IP International, Inc., as amended and restated on
October 19, 1995, (filed herewith).
4d. Form of Second Restated Certificate of Incorporation of BW/IP
International, Inc. (formerly Borg-Warner Industrial Products,
Inc.) as filed with the Secretary of State of Delaware.
Incorporated by reference to Exhibit 3c to the Company's
Registration Statement on Form S-1 (Registration No. 33-39721)
as filed on May 17, 1991 with the SEC (the "1991 Form S-1").
4e. Certificate of Designation of Junior Participating Cumulative
Preferred Stock of the Company ("Certificate of Designation of
Junior Participating Cumulative Preferred Stock") as filed with
the Secretary of State of Delaware. Incorporated by reference to
Exhibit 3a to the Company's quarterly report on Form 10-Q for
the
</TABLE>
3
<PAGE>
quarter ended September 30, 1993 as filed with the SEC (the "Company's
September 30, 1993 Quarterly Report on Form 10-Q").
4f. Rights Agreement between the Company and Bank One, Indianapolis, N.A.,
Rights Agent, dated as of July 26, 1993 which includes as Exhibit 8
the form of Right Certificate. Incorporated by reference to Exhibit 4
to the Company's Report on Form 8-K dated July 30, 1993 as filed with
the SEC.
4g. Credit Agreement, dated as of September 20, 1991, between BW/IP
International, Inc. and Citicorp USA, Inc. Incorporated by reference
to Exhibit 4r to BW/IP's Registration Statement on Form S-8
(Registration No. 33-44806) as filed on December 27, 1991 with the SEC
(the "1991 Form S-8").
4h. Credit Agreement, dated as of August 23, 1991 (the "U.S. Credit
Agreement"), among BW/IP International, Inc., the Financial
Institutions named therein and Citicorp USA, Inc., as agent.
Incorporated by reference to Exhibit 4s to the 1991 Form S-8.
4i. First Amendment and Limited Waiver to the U.S. Credit Agreement, dated
May 1, 1992, among BW/IP International, Inc., the Lenders named
therein, and Citicorp USA, Inc., as agent. Incorporated by reference
to Exhibit 10kk to the Company's Registration Statement on Form S-1
(Registration No. 33-53094) as filed on October 29, 1992 with the SEC
(the "October 1992 Form S-1").
4j. Second Amendment and Limited Waiver, dated as of August 12, 1993, to
the U.S. Credit Agreement, among BW/IP International, Inc., the
Lenders named therein, and Citicorp USA, Inc., as agent. Incorporated
by reference to Exhibit 10a to the Company's September 30, 1993
Quarterly Report on Form 10-Q.
4k. Third Amendment, dated as of July 6, 1994, to the U.S. Credit
Agreement, among BW/IP International, Inc., the financial institutions
named therein, and Citicorp USA, Inc., as agent. Incorporated by
reference to Exhibit 10pp to the Company's 1994 Annual Report on Form
10-K.
4
<PAGE>
4l. Fourth Amendment, among BW/IP International, Inc., the financial
institutions named therein, and Citicorp USA, Inc., as agent.
Incorporated by reference to Exhibit 10qq to the Company's 1994 Annual
Report on Form 10-K.
4m. Credit Agreement, dated as of July 5, 1991, between BW/IP
International B.V. and Algemene Bank Nederland N.V. Incorporated by
reference to Exhibit 4t to the 1991 Form S-8.
4n. Credit Agreement, dated as of September 10, 1993, between BW/IP
International B.V. and ABN/AMRO. Incorporated by reference to Exhibit
10dd to the Company's 1993 Annual Report on Form 10-K for the fiscal
year ended December 31, 1993 as filed with the SEC (the "Company's
1993 Annual Report on Form 10-K").
4o. Note Agreement, dated as of April 15, 1992, between BW/IP
International, Inc. and the Note Purchasers named therein, with
respect to $50,000,000 principal amount of 7.92% Senior Notes due May
15, 1999. Incorporated by reference to Exhibit 4a to the Company's
quarterly report on Form 10-Q for the quarter ended June 30, 1992 as
filed with the SEC.
4p. Credit Line (uncommitted), dated October 28, 1991 between NCNB Texas
National Bank and BW/IP International, Inc. Incorporated by reference
to Exhibit 4v to the 1991 Form S-8.
4q. Bond Purchase Agreement, dated January 27, 1995, among BW/IP-New
Mexico, Inc., the City of Albuquerque, New Mexico and BW/IP
International, Inc. (Not filed herewith pursuant to Item
601(b)(4)(iii) of Regulation S-K. The Company hereby agrees to furnish
a copy of such bond purchase agreement to the SEC upon request.)
4r. Guaranty, dated October 9, 1991, by BW/IP International, Inc. to
Algemene Bank Nederland
5
<PAGE>
N.V. Incorporated by reference to Exhibit 4u to the 1991 Form S-8.
4s. Guaranty, dated July 30, 1995, by BW/IP International, Inc. to ABN-
AMRO Bank N.V. (filed herewith).
5. Opinion of John D. Hannesson, Esq., General Counsel to the Company
(filed herewith).
23a. Consent of John D. Hannesson, Esq. (to be included in his opinion
filed as Exhibit 5 to the Registration Statement).
23b. Consent of Price Waterhouse LLP (filed herewith).
23c. Consent of Coopers & Lybrand L.L.P. (filed herewith).
24a. Powers of Attorney (filed herewith).
99a. BWIP Holding, Inc. Non-Employee Directors' Stock Option Plan.
Incorporated by reference to Appendix A to the Company's Proxy
Statement for the 1993 Annual Meeting of Stockholders dated April 16,
1993 as filed with the SEC.
99b. Non-Employee Directors' Charitable Gift Plan. Incorporated by
reference to Exhibit 10kk to the Company's 1992 Annual Report on Form
10-K for the fiscal year ended December 31, 1992 as filed with the SEC
(the "Company's 1992 Annual Report on Form 10-K").
99c. BW/IP International, Inc. 1992 Long-Term Incentive Plan. Incorporated
by reference to Appendix A of the Company's Proxy Statement for the
1992 Annual Meeting of Stockholders, dated April 17, 1992, as filed
with the SEC.
99d. BW/IP International, Inc. Capital Accumulation Plan, amended and
restated as of January 1, 1992 (the "BW/IP International, Inc. Capital
Accumulation Plan"). Incorporated by reference to Exhibit 4w to the
1991 Form S-8.
99e. Amendment Number One to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10ff to the
Company's 1993 Annual Report on Form 10-K.
6
<PAGE>
99f. Amendment Number Two to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10gg to the
Company's 1993 Annual Report on Form 10-K.
99g. Amendment Number Three to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10hh to the
Company's 1993 Annual Report on Form 10-K.
99h. Amendment Number Four to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10ll to the
Company's 1994 Annual Report on Form 10-K.
99i. Amendment Number Five to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10oo to the
Company's 1994 Annual Report on Form 10-K.
99j. Amendment Number Six to the BW/IP International, Inc. Capital
Accumulation Plan (filed herewith).
99k. Amendment Number Seven to the BW/IP International, Inc. Capital
Accumulation Plan (filed herewith).
99l. BW/IP International, Inc. Retirement Plan (as amended and restated as
of January 1, 1993) (filed herewith).
99m. Amendment Number One to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99n. Amendment Number Two to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99o. Amendment Number Three to the BW/IP International, Inc. Retirement
Plan (filed herewith).
99p. Amendment Number Four to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99q. Amendment Number Five to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99r. Supplemental Executive Retirement Plan. Incorporated by reference to
Exhibit 10rrrr to the Company's Registration Statement on Form S-1
7
<PAGE>
(Registration No. 33-45165) as filed February 18, 1992 with the SEC
(the "February 1992 Form S-1").
99s. Amendment Number One to the Supplemental Executive Retirement Plan.
Incorporated by reference to Exhibit 10ee to the Company's 1993 Annual
Report on Form 10-K.
99t. Amendment to the Supplemental Executive Retirement Plan. Incorporated
by reference to Exhibit 10nn to the Company's 1994 Annual Report on
Form 10-K.
99u. BW/IP International, Inc. 1993 Management Incentive Plan. Incorporated
by reference to Exhibit 10jj to the Company's 1992 Annual Report on
Form 10-K.
99v. BW/IP International, Inc. 1994 Management Incentive Plan. Incorporated
by reference to Exhibit 10cc to the Company's 1993 Annual Report on
Form 10-K.
99w. BW/IP International, Inc. 1995 Management Incentive Plan. Incorporated
by reference to Exhibit 10kk to the Company's 1994 Annual Report on
Form 10-K.
99x. Form of letter agreement for Transitional Income Program. Incorporated
by reference to Exhibit 10ii to the Company's 1993 Annual Report on
Form 10-K.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
------------------
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act"), unless the
information is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
8
<PAGE>
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement, unless the information is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change in such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(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) Subsequent Exchange Act Documents. The undersigned Registrant
---------------------------------
hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be deemed
to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for liabilities
---------------
arising under the Securities Act 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
9
<PAGE>
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities 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 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 of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
10
<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 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 Long Beach, State of California, on the 10th day
of November, 1995.
BW/IP, INC.
By: /s/ JOHN D. HANNESSON
______________________________
John D. Hannesson
Vice President,
General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Bernard G. Rethore* President, Chief Executive November 10, 1995
- --------------------------- Officer and Director
Bernard G. Rethore (Principal executive
officer)
/s/ Eugene P. Cross* Vice President - Finance November 10, 1995
- --------------------------- (Principal financial
Eugene P. Cross officer)
/s/ Nancy A. Ludlam Controller (Principal November 10, 1995
- --------------------------- accounting officer)
Nancy A. Ludlam
/s/ Peter C. Valli* Chairman and Director November 10, 1995
- ---------------------------
Peter C. Valli
/s/ James S. Pignatelli* Director November 10, 1995
- ---------------------------
James S. Pignatelli
</TABLE>
11
<PAGE>
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/s/ George D. Leal* Director November 10, 1995
- ---------------------------
George D. Leal
/s/ James J. Gavin, Jr.* Director November 10, 1995
- ---------------------------
James J. Gavin, Jr.
/s/ H. Jack Meany* Director November 10, 1995
- ---------------------------
H. Jack Meany
/s/ William C. Rusnack* Director November 10, 1995
- ---------------------------
William C. Rusnack
/s/ James O. Rollans* Director November 10, 1995
- ---------------------------
James O. Rollans
</TABLE>
*By: /s/ JOHN D. HANNESSON
__________________________
John D. Hannesson
Attorney-in-Fact
The Plans. Pursuant to the requirements of the Securities Act of 1933, the
- ---------
trustees (or other persons who administer the employee benefit plans) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Long Beach, State of
California, on the 10th of November, 1995.
BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan
BW/IP International, Inc. 1992 Long-Term
Incentive Plan
By: /s/ JOHN D. HANNESSON
____________________________
John D. Hannesson
12
<PAGE>
<TABLE>
<CAPTION>
Exhibits Description of Exhibit
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4a. Form of Third Restated Certificate of Incorporation of BW/IP, Inc.
(formerly BWIP Holding, Inc.) (the "BW/IP"), as filed with the
Secretary of State of Delaware. Incorporated by reference to
Appendix A to the Company's Proxy Statement for the 1994 Annual
Meeting of Stockholders dated April 11, 1994 as filed with the SEC.
4b. Bylaws of the Company, as amended and restated on October 19, 1995,
(filed herewith).
4c. Bylaws of BW/IP International, Inc., as amended and restated on
October 19, 1995, (filed herewith).
4d. Form of Second Restated Certificate of Incorporation of BW/IP
International, Inc. (formerly Borg-Warner Industrial Products,
Inc.) as filed with the Secretary of State of Delaware.
Incorporated by reference to Exhibit 3c to the Company's
Registration Statement on Form S-1 (Registration No. 33-39721) as
filed on May 17, 1991 with the SEC (the "1991 Form S-1").
4e. Certificate of Designation of Junior Participating Cumulative
Preferred Stock of the Company ("Certificate of Designation of
Junior Participating Cumulative Preferred Stock") as filed with the
Secretary of State of Delaware. Incorporated by reference to
Exhibit 3a to the Company's quarterly report on Form 10-Q for the
</TABLE>
3
<PAGE>
quarter ended September 30, 1993 as filed with the SEC (the "Company's
September 30, 1993 Quarterly Report on Form 10-Q").
4f. Rights Agreement between the Company and Bank One, Indianapolis, N.A.,
Rights Agent, dated as of July 26, 1993 which includes as Exhibit 8
the form of Right Certificate. Incorporated by reference to Exhibit 4
to the Company's Report on Form 8-K dated July 30, 1993 as filed with
the SEC.
4g. Credit Agreement, dated as of September 20, 1991, between BW/IP
International, Inc. and Citicorp USA, Inc. Incorporated by reference
to Exhibit 4r to BW/IP's Registration Statement on Form S-8
(Registration No. 33-44806) as filed on December 27, 1991 with the SEC
(the "1991 Form S-8").
4h. Credit Agreement, dated as of August 23, 1991 (the "U.S. Credit
Agreement"), among BW/IP International, Inc., the Financial
Institutions named therein and Citicorp USA, Inc., as agent.
Incorporated by reference to Exhibit 4s to the 1991 Form S-8.
4i. First Amendment and Limited Waiver to the U.S. Credit Agreement, dated
May 1, 1992, among BW/IP International, Inc., the Lenders named
therein, and Citicorp USA, Inc., as agent. Incorporated by reference
to Exhibit 10kk to the Company's Registration Statement on Form S-1
(Registration No. 33-53094) as filed on October 29, 1992 with the SEC
(the "October 1992 Form S-1").
4j. Second Amendment and Limited Waiver, dated as of August 12, 1993, to
the U.S. Credit Agreement, among BW/IP International, Inc., the
Lenders named therein, and Citicorp USA, Inc., as agent. Incorporated
by reference to Exhibit 10a to the Company's September 30, 1993
Quarterly Report on Form 10-Q.
4k. Third Amendment, dated as of July 6, 1994, to the U.S. Credit
Agreement, among BW/IP International, Inc., the financial institutions
named therein, and Citicorp USA, Inc., as agent. Incorporated by
reference to Exhibit 10pp to the Company's 1994 Annual Report on Form
10-K.
4
<PAGE>
4l. Fourth Amendment, among BW/IP International, Inc., the financial
institutions named therein, and Citicorp USA, Inc., as agent.
Incorporated by reference to Exhibit 10qq to the Company's 1994 Annual
Report on Form 10-K.
4m. Credit Agreement, dated as of July 5, 1991, between BW/IP
International B.V. and Algemene Bank Nederland N.V. Incorporated by
reference to Exhibit 4t to the 1991 Form S-8.
4n. Credit Agreement, dated as of September 10, 1993, between BW/IP
International B.V. and ABN/AMRO. Incorporated by reference to Exhibit
10dd to the Company's 1993 Annual Report on Form 10-K for the fiscal
year ended December 31, 1993 as filed with the SEC (the "Company's
1993 Annual Report on Form 10-K").
4o. Note Agreement, dated as of April 15, 1992, between BW/IP
International, Inc. and the Note Purchasers named therein, with
respect to $50,000,000 principal amount of 7.92% Senior Notes due May
15, 1999. Incorporated by reference to Exhibit 4a to the Company's
quarterly report on Form 10-Q for the quarter ended June 30, 1992 as
filed with the SEC.
4p. Credit Line (uncommitted), dated October 28, 1991 between NCNB Texas
National Bank and BW/IP International, Inc. Incorporated by reference
to Exhibit 4v to the 1991 Form S-8.
4q. Bond Purchase Agreement, dated January 27, 1995, among BW/IP-New
Mexico, Inc., the City of Albuquerque, New Mexico and BW/IP
International, Inc. (Not filed herewith pursuant to Item
601(b)(4)(iii) of Regulation S-K. The Company hereby agrees to furnish
a copy of such bond purchase agreement to the SEC upon request.)
4r. Guaranty, dated October 9, 1991, by BW/IP International, Inc. to
Algemene Bank Nederland
5
<PAGE>
N.V. Incorporated by reference to Exhibit 4u to the 1991 Form S-8.
4s. Guaranty, dated July 30, 1995, by BW/IP International, Inc. to ABN-
AMRO Bank N.V. (filed herewith).
5. Opinion of John D. Hannesson, Esq., General Counsel to the Company
(filed herewith).
23a. Consent of John D. Hannesson, Esq. (to be included in his opinion
filed as Exhibit 5 to the Registration Statement).
23b. Consent of Price Waterhouse LLP (filed herewith).
23c. Consent of Coopers & Lybrand L.L.P. (filed herewith).
24a. Powers of Attorney (filed herewith).
99a. BWIP Holding, Inc. Non-Employee Directors' Stock Option Plan.
Incorporated by reference to Appendix A to the Company's Proxy
Statement for the 1993 Annual Meeting of Stockholders dated April 16,
1993 as filed with the SEC.
99b. Non-Employee Directors' Charitable Gift Plan. Incorporated by
reference to Exhibit 10kk to the Company's 1992 Annual Report on Form
10-K for the fiscal year ended December 31, 1992 as filed with the SEC
(the "Company's 1992 Annual Report on Form 10-K").
99c. BW/IP International, Inc. 1992 Long-Term Incentive Plan. Incorporated
by reference to Appendix A of the Company's Proxy Statement for the
1992 Annual Meeting of Stockholders, dated April 17, 1992, as filed
with the SEC.
99d. BW/IP International, Inc. Capital Accumulation Plan, amended and
restated as of January 1, 1992 (the "BW/IP International, Inc. Capital
Accumulation Plan"). Incorporated by reference to Exhibit 4w to the
1991 Form S-8.
99e. Amendment Number One to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10ff to the
Company's 1993 Annual Report on Form 10-K.
6
<PAGE>
99f. Amendment Number Two to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10gg to the
Company's 1993 Annual Report on Form 10-K.
99g. Amendment Number Three to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10hh to the
Company's 1993 Annual Report on Form 10-K.
99h. Amendment Number Four to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10ll to the
Company's 1994 Annual Report on Form 10-K.
99i. Amendment Number Five to the BW/IP International, Inc. Capital
Accumulation Plan. Incorporated by reference to Exhibit 10oo to the
Company's 1994 Annual Report on Form 10-K.
99j. Amendment Number Six to the BW/IP International, Inc. Capital
Accumulation Plan (filed herewith).
99k. Amendment Number Seven to the BW/IP International, Inc. Capital
Accumulation Plan (filed herewith).
99l. BW/IP International, Inc. Retirement Plan (as amended and restated as
of January 1, 1993) (filed herewith).
99m. Amendment Number One to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99n. Amendment Number Two to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99o. Amendment Number Three to the BW/IP International, Inc. Retirement
Plan (filed herewith).
99p. Amendment Number Four to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99q. Amendment Number Five to the BW/IP International, Inc. Retirement Plan
(filed herewith).
99r. Supplemental Executive Retirement Plan. Incorporated by reference to
Exhibit 10rrrr to the Company's Registration Statement on Form S-1
7
<PAGE>
(Registration No. 33-45165) as filed February 18, 1992 with the SEC
(the "February 1992 Form S-1").
99s. Amendment Number One to the Supplemental Executive Retirement Plan.
Incorporated by reference to Exhibit 10ee to the Company's 1993 Annual
Report on Form 10-K.
99t. Amendment to the Supplemental Executive Retirement Plan. Incorporated
by reference to Exhibit 10nn to the Company's 1994 Annual Report on
Form 10-K.
99u. BW/IP International, Inc. 1993 Management Incentive Plan. Incorporated
by reference to Exhibit 10jj to the Company's 1992 Annual Report on
Form 10-K.
99v. BW/IP International, Inc. 1994 Management Incentive Plan. Incorporated
by reference to Exhibit 10cc to the Company's 1993 Annual Report on
Form 10-K.
99w. BW/IP International, Inc. 1995 Management Incentive Plan. Incorporated
by reference to Exhibit 10kk to the Company's 1994 Annual Report on
Form 10-K.
99x. Form of letter agreement for Transitional Income Program. Incorporated
by reference to Exhibit 10ii to the Company's 1993 Annual Report on
Form 10-K.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
------------------
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act"), unless the
information is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
8
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EXHIBIT 4(B)
BW/IP, INC.
-----------
BYLAWS
------
AS AMENDED AND RESTATED ON OCTOBER 19, 1995
ARTICLE I
---------
STOCKHOLDERS
------------
SECTION 1.01.1. ANNUAL MEETINGS. The annual meeting of the stockholders
--------------------------------
of the Corporation for the election of directors and for the transaction of such
other business as may properly come before such meeting shall be held at such
place, either within or without the State of Delaware, and at 10:00 a.m. local
time on the last Tuesday in April (or, if such day is a legal holiday, then on
the next succeeding business day), or at such other date and hour, as may be
fixed from time to time by resolution of the board of directors and set forth in
the notice or waiver of notice of the meeting. [Sections 211(a), (b).]*
SECTION 1.01.2. BUSINESS AT ANNUAL MEETINGS. To be properly brought before
----------------------------
an annual meeting, business must be (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the board of directors
pursuant to Section 1.03 of these Bylaws, (b) otherwise properly brought before
the meeting by or at the direction of the board of directors, or (c) otherwise
properly brought before the meeting by a stockholder of the Corporation who was
a stockholder of record at the time of giving of the notice provided for in this
Section 1.01.2, who is entitled to vote on such matters at the meeting and who
complies with the notice procedures set forth in this Section 1.01.2. For
business to be properly brought before an annual meeting by a stockholder, if
such business is related to the election of directors of the Corporation, the
procedures in Section 1.01.3 of these Bylaws must be complied with. If such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary. To be timely, a stockholder's
notice must be delivered or mailed to, and received by, the Secretary at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting of stockholders; provided, however, that in the event that the date of
-------- -------
the annual meeting is advanced by more than 30 days or delayed by more than 60
days from such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the
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BW/IP, INC.
BYLAWS
90th day prior to such annual meeting and not later than the close of business
on the later of the 60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth in writing (i) as to each
matter the stockholder proposes to bring before the annual meeting, (A) a brief
description of the business desired to be brought before the annual meeting, (B)
the reasons for conducting such business at the annual meeting, and (C) any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal
is made, (A) the name and address of such stockholder and such beneficial owner
as they appear on the Corporation's books, and (B) the class and number of
shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner. Notwithstanding anything in these Bylaws
to the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 1.01.2. The presiding
officer of the meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with the provisions of this Section 1.01.2, and if he should so determine, such
presiding officer shall declare to the meeting that any such business not
properly brought before the meeting shall not be transacted.
For the purposes of this Section 1.01.2 and Section 1.01.3 and 1.02 of
these Bylaws, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In addition
to the provisions of this Section 1.01.2, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in these
Bylaws shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
SECTION 1.01.3. NOMINATION OF DIRECTORS. Only persons who are nominated
-----------------------
in accordance with the procedures set forth in this Section 1.01.3 shall be
eligible for election as directors of the Corporation. Nominations of persons
for election to the board of directors of the Corporation may be made at any
annual meeting of stockholders (a) by or at the direction of the board of
directors or (b) by a stockholder of the Corporation who was a stockholder of
record at the time of giving of the notice provided for in this Section 1.01.3,
who is entitled to vote for
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BW/IP, INC.
BYLAWS
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 1.01.3. Any such nomination by a
stockholder shall be made pursuant to timely notice thereof given in writing to
the Secretary. To be timely, a stockholder's notice must be delivered or mailed
to, and received by, the Secretary at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual stockholder meeting; provided,
--------
however, that in the event that the date of the annual meeting is advanced by
- -------
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of business
on the later of the 60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made. Notwithstanding anything in the foregoing sentence to the contrary,
in the event that the number of directors to be elected to the board of
directors of the Corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the increased
board of directors made by the Corporation at least 70 days prior to the first
anniversary of the preceding year's annual meeting of stockholders, a
stockholder's notice required by this Section 1.101.3 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered or mailed to, and received by, the Secretary
at the principal executive offices of the Corporation not later than the close
of business on the 10th day following the day on which such public announcement
is first made by the Corporation. Such stockholder's notice shall set forth in
writing (i) as to each person whom the stockholder and the beneficial owner, if
any, on whose behalf the nomination is made, proposes to nominate for election
or re-election as a director (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the number of shares of stock of the Corporation which are
beneficially owned by such person, and (D) any other information relating to
such person that is required to be disclosed in connection with the solicitation
of proxies for election of directors, or as otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (including, without
limitation, such person's written consent to be named in a proxy statement as a
nominee and to serving as a director if elected); and (ii) as to such
stockholder and such beneficial owner, if any, (A) the name and address of such
stockholder and such beneficial owner as they appear on the Corporation's books,
and (B) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
Nominations of persons for election to the board of directors of the
Corporation may be made at a special meeting of stockholders at which directors
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BW/IP, INC.
BYLAWS
are to be elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the board of directors or (ii) provided that the board of
directors has determined that directors shall be elected at such special
meeting, by a stockholder of the Corporation who was a stockholder of record at
the time of giving of the notice provided for in this Section 1.01.3, who is
entitled to vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Section 1.01.3. In the event the
Corporation calls a special meeting of stockholders for the purpose of election
of one or more directors to the board of directors, any such stockholder may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice shall be delivered or mailed to, and received by, the
Secretary at the principal executive offices of the Corporation not earlier than
the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the board of directors to be
elected at such meeting.
At the request of the board of directors, any person nominated by the board
of directors for election as a director shall furnish to the Secretary that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. Notwithstanding anything in these Bylaws to the
contrary, no persons shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1.01.3. The presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not properly
made in accordance with the provisions of this Section 1.01.3, and if he should
so determine, such presiding officer shall declare to the meeting that any such
nomination not properly made shall be disregarded. In addition to the
provisions of this Section 1.01.3, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein.
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the stockholders for
----------------
any purpose or purposes, unless otherwise prescribed by law or by the
Certificate of Incorporation, may only be called by (a) the Chairman, (b) the
board of directors pursuant to a resolution adopted by a majority of the total
number of authorized directors, or (c) the President or the Secretary (or, in
the event of their absence or disability, any Vice President). Such special
meetings of the stockholders shall be held at such places, within or without the
State of Delaware, and at such times, as shall be specified in the respective
notices or waivers of notice thereof. Any previously scheduled special meeting
of the stockholders
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BW/IP, INC.
BYLAWS
may be postponed by resolution of the board of directors upon public
announcement made on or prior to the date previously scheduled for such
special meeting of the stockholders.
The purpose or purposes of any special meeting of the stockholders shall be
set forth in the notice of meeting, and, except as otherwise required by law or
by the Certificate of Incorporation, no business shall be transacted at any
special meeting of the stockholders other than the items of business stated in
the notice of meeting. The presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
1.02, and if he should so determine, such presiding officer shall declare to the
meeting that any such business not properly brought before the meeting shall not
be transacted. [Section 211(d).]
SECTION 1.03. NOTICE OF MEETINGS; WAIVER. The Secretary shall cause
---------------------------
written notice of the place, date and hour of each meeting of the stockholders,
and, in the case of a special meeting, the purpose or purposes for which such
meeting is called, to be given personally or by mail, not less than 10 nor more
than 60 days prior to the meeting, to each stockholder of record entitled to
vote at such meeting. If such notice is mailed, it shall be deemed to have been
given to a stockholder when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the record
of stockholders of the Corporation, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed to
some other address, then directed to him at such other address. Such further
notice shall be given as may be required by law.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. [Sections 222, 229.]
SECTION 1.04. QUORUM. Except as otherwise required by law or by the
------
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders
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BW/IP, INC.
BYLAWS
shall constitute a quorum for the transaction of business at such meeting.
[Section 216.]
SECTION 1.05. VOTING. If, pursuant to Section 5.05 of these Bylaws, a
------
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of business
on such record date. If no record date has been fixed, then every holder of
record of shares entitled to vote at a meeting of stockholders shall be entitled
to one vote for each share of stock standing in his name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. Except
as otherwise required by law or by the Certificate of Incorporation, the vote of
a majority of the shares represented in person or by proxy at any meeting at
which a quorum is present shall be sufficient for the transaction of any
business at such meeting. [Sections 212(a), 216.]
SECTION 1.06.1. VOTING BY BALLOT. No vote of the stockholders need be
--------------------------------
taken by written ballot, unless otherwise required by law. Any vote which need
not be taken by ballot may be conducted in any manner approved by the meeting.
SECTION 1.06.2. INSPECTORS OF ELECTIONS. Preceding any meeting of the
-----------------------
stockholders, the board of directors shall appoint one or more persons to act as
Inspectors of Elections and make a written report thereof, and may designate one
or more alternate inspectors to replace any inspector who fails to act. In the
event no inspector or alternate is able to act, the presiding officer of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall:
(a) ascertain the number of shares outstanding and the voting power of
each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
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BW/IP, INC.
BYLAWS
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors; and
(e) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist in the
performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, the ballots and the regular books and records of
the Corporation. The inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted in this Section 1.06.2,
the inspectors, at the time they make their certification pursuant to clause (e)
of this Section 1.06.2, shall specify the precise information considered by
them, the person or persons from whom they obtained the information, when the
information was obtained, the means by which the information was obtained, and
the basis for the inspectors' belief that such information is accurate and
reliable. [Section 231(a), (b), (d).]
SECTION 1.06.3. OPENING AND CLOSING OF POLLS. The date and time for the
----------------------------
opening and the closing of the polls for each matter upon which stockholders
will vote at a meeting of stockholders shall be announced at the meeting by the
presiding officer of the meeting. The inspectors of the election shall be
prohibited from accepting any ballots, proxies or votes and any revocations
thereof or changes thereto after the closing of the polls, unless the Court of
Chancery upon application by a stockholder shall determine otherwise. [Section
231(c).]
SECTION 1.07. ADJOURNMENT. If a quorum is not present at any meeting of the
------------
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the adjournment is
-------- -------
for more than 30 days, or, if after the adjournment a new record date for the
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BW/IP, INC.
BYLAWS
adjourned meeting is fixed pursuant to Section 5.05 of these Bylaws, a notice of
the adjourned meeting, conforming to the requirements of Section 1.03 of these
Bylaws, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business
may be transacted on the original date of the meeting. [Section 222(c).]
SECTION 1.08. PROXIES. Any stockholder entitled to vote at any meeting
--------
of the stockholders or to express consent to or dissent from corporate action in
writing without a meeting may, by a written instrument signed by such
stockholder or his attorney-in-fact and filed with the Secretary, authorize
another person or persons to vote at any such meeting and express such consent
or dissent for him by proxy. No such proxy shall be voted or acted upon after
the expiration of three years from the date of such proxy, unless such proxy
provides for a longer period. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except in those cases where applicable law
provides that a proxy shall be irrevocable. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or by filing another duly
executed proxy bearing a later date with the Secretary. [Section 212(b), (c).]
SECTION 1.09. ORGANIZATION; PROCEDURE. At every meeting of stockholders the
------------------------
presiding officer shall be the Chairman or such other officer as is designated
by the board of directors, or in the event of such designated officer's absence
or disability, the President, or in the event of his absence or disability, any
Vice President or, in the event of their absence or disability, a presiding
officer chosen by a majority of the stockholders present in person or by proxy.
The Secretary, or in the event of his absence or disability, the Assistant
Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Secretary, an appointee of the presiding officer, shall act as Secretary of the
meeting. The order of business and all other matters of procedure at every
meeting of stockholders may be determined by such presiding officer.
SECTION 1.10. CONSENT SOLICITATIONS. Unless otherwise provided in the
----------------------
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of the stockholders of the Corporation, or any action which may
be taken at any such annual or special meeting, may be taken, subject to the
provisions of this Section 1.10, without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize to take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation. Prompt notice of the
taking of
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any action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
[Section 228(a), (d).]
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the earliest
dated consent delivered to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the Corporation.
[Section 228(c).]
The record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be fixed by the board of
directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Chairman or the Secretary, request the board of directors to fix a record
date. Upon receipt of such a request, the Chairman or Secretary shall, as
promptly as practicable, call a special meeting of the board of directors to be
held as promptly as practicable, but in any event not more than 10 days
following the date of receipt of such a request. At such a meeting, the board
of directors shall fix a record date which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than 10 days after the date
that the resolution fixing the record date is adopted by the board of directors.
Notice of the record date shall be published in accordance with the rules and
policies of any stock exchange on which securities of the Corporation are then
listed or, if the securities of the Corporation are not listed on a stock
exchange, then notice of the record date shall be published in accordance with
the rules and policies of the National Association of Securities Dealers
Automated Quotation National Market System. If no record date has been so fixed
by the board of directors, the record date for determining the stockholders
entitled to consent to the corporate action in writing without a meeting, where
no prior action by the board of directors is required by the General Corporation
Law of the State of Delaware, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation. If no date has been fixed by the board of directors and prior
action by the board of directors is required by the General Corporation Law of
the State of Delaware, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the board of directors adopts the resolution
taking such prior action.
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In the event of the delivery to the Corporation of a written consent or
consents purporting to represent the requisite voting power to authorize or take
corporate action and/or revocations relating thereto, the Secretary shall
provide for the safekeeping of such consents and revocations and shall, as
promptly as practicable, engage inspectors for the purpose of promptly
performing a ministerial review of the validity of the consents and revocations.
No action by written consent without a meeting shall be effective until such
inspectors have completed their review, determined that the requisite number of
valid and unrevoked consents has been obtained to authorize or take actions
specified in the consents and certified such determination for entry in the
records of the Corporation for the purpose of recording the proceedings of the
meeting of the stockholders.
For the purposes of this Section 1.10, delivery to the Corporation shall be
effected by delivery to its registered office in the State of Delaware, its
principal place of business, or the Secretary at the principal executive offices
of the Corporation. Delivery made to the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt requested.
[Section 228(a).]
ARTICLE II
----------
BOARD OF DIRECTORS
------------------
SECTION 2.01. GENERAL POWERS. Except as may otherwise be provided by law,
---------------
by the Certificate of Incorporation or by these Bylaws, the property, affairs
and business of the Corporation shall be managed by or under the direction of
the board of directors, and the board of directors may exercise all the powers
of the Corporation. [Section 141(a).]
SECTION 2.02. NUMBER AND TERM OF OFFICE. The number of directors
-------------------------
constituting the entire board of directors shall be nine, which number may be
modified from time to time by resolution of the board of directors, but in no
event shall the number of directors be less than one. Each director (whenever
elected) shall hold office until his successor has been duly elected and
qualified, or until his earlier death, resignation or removal. [Section 141(b).]
SECTION 2.03. ELECTION OF DIRECTORS. Except as otherwise provided in
----------------------
Sections 2.12 and 2.13 of these Bylaws, the directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
directors is not held on the date designated therefor, the directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of directors, provided a quorum is present, the
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directors shall be elected by a plurality of the votes validly cast in such
election. [Sections 211(b), (c), 216.]
SECTION 2.04. ANNUAL AND REGULAR MEETINGS. The annual meeting of the
----------------------------
board of directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders.
Notice of such annual meeting of the board of directors need not be given.
The board of directors from time to time may by resolution provide for the
holding of regular meetings and fix the place (which may be within or without
the State of Delaware) and the date and hour of such meetings. Notice of
regular meetings need not be given; provided, however, that if the board of
-------- -------
directors shall fix or change the time or place of any regular meeting, notice
of such action shall be mailed promptly, or sent by telegram, radio or cable, to
each director who shall not have been present at the meeting at which such
action was taken, addressed to him at his usual place of business, or shall be
delivered to him personally. Notice of such action need not be given to any
director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any director who submits a signed waiver of notice, whether
before or after such meeting. [Section 141(g).]
SECTION 2.05. SPECIAL MEETINGS; NOTICE. Special meetings of the board of
-------------------------
directors shall be held whenever called by the Chairman or by the Secretary, or
in the event of their absence or disability, by the President or any Vice
President, at such place (within or without the State of Delaware), date and
hour as may be specified in the respective notices or waivers of notice of such
meetings. Special meetings of the board of directors may be called on 24 hours'
notice, if notice is given to each director personally or by telephone,
facsimile transmission or telegram, or on five days' notice, if notice is mailed
to each director, addressed to him at his usual place of business. Notice of
any special meeting need not be given to any director who attends such meeting
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any director who submits a signed waiver of notice, whether
before or after such meeting, and any business may be transacted thereat.
[Sections 141(g), 229.]
SECTION 2.06. QUORUM; VOTING. At all meetings of the board of directors,
---------------
the presence of a majority of the total authorized number of directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of a majority of the directors present at any meeting
at
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which a quorum is present shall be the act of the board of directors.
[Section 141(b).]
SECTION 2.07. ADJOURNMENT. A majority of the directors present, whether or
------------
not a quorum is present, may adjourn any meeting of the board of directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.05
of these Bylaws shall be given to each director.
SECTION 2.08. ACTION WITHOUT A MEETING. Any action required or permitted
------------------------
to be taken at any meeting of the board of directors may be taken without a
meeting if all members of the board of directors consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of the board
of directors. [Section 141(f).]
SECTION 2.09. REGULATIONS; MANNER OF ACTING. To the extent consistent with
------------------------------
applicable law, the Certificate of Incorporation and these Bylaws, the board of
directors may adopt such rules and regulations for the conduct of meetings of
the board of directors and for the management of the property, affairs and
business of the Corporation as the board of directors may deem appropriate. The
directors shall act only as a board, and the individual directors shall have no
power as such.
SECTION 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the board of
------------------------------------
directors may participate in a meeting of the board of directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting. [Section 141(i).]
SECTION 2.11. RESIGNATIONS. Any director may resign at any time by
-------------
delivering a written notice of resignation, signed by such director, to the
Chairman or the Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery. [Section 141(b).]
SECTION 2.12. REMOVAL OF DIRECTORS. Any director may be removed at any
---------------------
time, either for or without cause, upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such director, given at a special meeting of stockholders
called for the purpose or by consent as contemplated by Section 1.10 of these
Bylaws. Any vacancy in the board of directors caused by any such removal may be
filled at such meeting or by such consent by the stockholders entitled to vote
for the
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election of the director so removed. If such stockholders do not fill
such vacancy at such meeting (or in the written instrument effecting such
removal, if such removal was effected by consent without a meeting), such
vacancy may be filled in the manner provided in Section 2.13 of these Bylaws.
[Section 141(b).]
SECTION 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If any vacancies
------------------------------------------
shall occur in the board of directors, by reason of death, resignation, removal
or otherwise, or if the authorized number of directors shall be increased, the
directors then in office shall continue to act. Such vacancies and newly
created directorships may only be filled by a majority of the directors then in
office, although less than a quorum. [Section 223.]
SECTION 2.14. COMPENSATION. The amount, if any, which each Director shall
-------------
be entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the board of directors. [Section 141(h).]
SECTION 2.15. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director,
----------------------------------------
each member of a committee designated by the board of directors, and each
officer of the Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or employees, or committees or
the board of directors, or by any other person as to matters the directors,
committee member or officer believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation. [Section 141(e).]
ARTICLE III
-----------
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
-----------------------------------------
SECTION 3.01. HOW CONSTITUTED. The board of directors may, by resolution
----------------
adopted by a majority of the whole board, designate one or more Committees,
including an Executive Committee, an Audit Committee and a Compensation and
Benefits Committee, each such Committee to consist of such number of directors
as from time to time may be fixed by the board of directors. The board of
directors may designate one or more directors as alternate members of any such
Committee, who may replace any absent or disqualified member or members at any
meeting of such Committee. Thereafter, members (and alternate members, if any)
of each such Committee may be designated at the annual meeting of the board of
directors. Any such Committee may be abolished or re-designated from
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time to time by the board of directors. Each member (and each alternate member)
of any such Committee (whether designated at an annual meeting of the board of
directors or to fill a vacancy or otherwise) shall hold office until his
successor shall have been designated or until he shall cease to be a director,
or until his earlier death, resignation or removal. The Executive Committee, the
Audit Committee and the Compensation and Benefits Committee shall have, and any
such other Committee may be granted by the board of directors, power to
authorize the seal of the Corporation to be affixed to any or all papers which
may require it. [Section 141(c).]
SECTION 3.02. POWERS.
-------
SECTION 3.02.1 EXECUTIVE COMMITTEE. During the intervals between the
--------------------
meetings of the board of directors, the Executive Committee, except as otherwise
provided in this Section 3.02.1, shall have and may exercise all the powers and
authority of the board of directors in the management of the property, affairs
and business of the Corporation, including the power to declare dividends, to
authorize the issuance of stock and to adopt a certificate of ownership and
merger. Each such other Committee, except as otherwise provided in this Section
3.02.1, shall have and may exercise such powers of the board of directors as may
be provided in these Bylaws or by resolution or resolutions of the board of
directors. Neither the Executive Committee nor any such other Committee shall
have the power or authority:
(a) to amend the Certificate of Incorporation (except to the extent
permitted by the Delaware General Corporation Law),
(b) to adopt an agreement of merger or consolidation,
(c) to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets,
(d) to recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or
(e) to amend these Bylaws.
SECTION 3.02.2. AUDIT COMMITTEE. The Audit Committee shall have and may
-----------------
exercise the power to review and approve the scope and results of the
Corporation's outside audit, and the fees therefor, review, consider and act
upon
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all matters concerning auditing and accounting matters and the selection of
outside auditors.
SECTION 3.02.3. COMPENSATION AND BENEFITS COMMITTEE. The Compensation and
------------------------------------
Benefits Committee shall have and may exercise the power to review, consider and
act upon matters of salary and other compensation and benefits of all officers
and other employees of the Corporation, as well as act upon all matters
concerning benefits and retirement or pension plans, and exercise such authority
as is delegated to it under the provisions of, any benefit, retirement or
pension plan.
SECTION 3.03. PROCEEDINGS. Each such Committee may fix its own rules of
------------
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall
report such proceedings to the board of directors at the meeting of the board of
directors next following any such proceedings.
SECTION 3.04. QUORUM AND MANNER OF ACTING. Except as may be otherwise
----------------------------
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such Committee.
Any action required or permitted to be taken at any meeting of any such
Committee may be taken without a meeting, if all members of such Committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such. [ Section 141(c).]
SECTION 3.05. ACTION BY TELEPHONIC COMMUNICATIONS. .Members of any
------------------------------------
Committee designated by the board of directors may participate in a meeting of
such Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting. [Section 141(i).]
SECTION 3.06. ABSENT OR DISQUALIFIED MEMBERS. In the absence or
-------------------------------
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board of
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directors to act at the meeting in the place of any such absent or disqualified
member. [Section 141(c).]
SECTION 3.07. RESIGNATIONS. Any member (and any alternate member) of any
-------------
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the Secretary. Unless otherwise
specified therein, such resignation shall take effect upon delivery. [Section
141(b).]
SECTION 3.08. REMOVAL. Any member (and any alternate member) of any
--------
Committee may be removed at any time, either for or without cause, by resolution
adopted by majority of the whole board of directors.
SECTION 3.09. VACANCIES. If any vacancy shall occur in any Committee, by
----------
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the board of directors.
ARTICLE IV
----------
OFFICERS
--------
SECTION 4.01. NUMBER. The officers of the Corporation shall be chosen by
-------
the board of directors and shall be a Chairman, a President, one or more Vice
Presidents and a Secretary. The board of directors also may elect a Chief
Financial Officer, a Treasurer and one or more Assistant Secretaries and
Assistant Treasurers in such numbers as the board of directors may determine.
Any number of offices may be held by the same person. No officer need be a
director of the Corporation. [Section 142(a), b).]
SECTION 4.02. ELECTION. Unless otherwise determined by the board of
--------
directors, the officers of the Corporation shall be elected by the board of
directors at the annual meeting of the board of directors, and shall be elected
to hold office until the next succeeding annual meeting of the board of
directors. In the event of the failure to elect officers at such annual
meeting, officers may be elected at any regular or special meeting of the board
of directors. Each officer shall hold office until his successor has been
elected and qualified, or until his earlier death, resignation or removal.
[Section 142(b).]
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SECTION 4.03. SALARIES. The salaries of all officers and agents of the
---------
Corporation shall be fixed by the Compensation and Benefits Committee or, in the
absence of such a Committee, by the board of directors.
SECTION 4.04. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be
-----------------------------------
removed for or without cause at any time by the board of directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the board of directors, the Chairman or the Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the board of directors. [Section
142(b), (e).]
SECTION 4.05. AUTHORITY AND DUTIES OF OFFICERS. The officers of the
---------------------------------
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these Bylaws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. [Section 142(a).]
SECTION 4.06. THE CHAIRMAN. The Chairman shall preside at all meetings of
-------------
the stockholders and shall preside at all meetings of the directors at which he
is present and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall have the authority to sign, in the
name and on behalf of the Corporation, contracts and other documents and
instruments, and cause the employment or appointment of such employees and
agents of the Corporation as are necessary or appropriate to discharge the
duties incident to the office of the Chairman. The Chairman shall have such
other powers and perform such other duties as are provided in these Bylaws and
in addition thereto, as the Board of Directors may from time to time determine..
SECTION 4.07. THE PRESIDENT. The President shall be the chief executive
-------------
officer of the Corporation, and, , shall have general control and supervision of
the policies and operations of the Corporation and shall see that all orders and
resolutions of the board of directors are carried into effect. He shall manage
and administer the Corporation's business and affairs and shall perform all
duties and exercise all powers usually pertaining to the office of a chief
executive officer of a corporation. The President shall have the authority to
(a) sign, in the name and on behalf of the Corporation, checks, orders,
contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and, together with the
Secretary or an Assistant Secretary, conveyances of real estate and other
documents and instruments to which the seal of the Corporation is affixed; (b)
cause the employment or appointment of such employees and agents of the
Corporation as the conduct of the business of the Corporation may require and to
fix their compensation; and (c) remove or
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suspend any employee or agent who shall not have been elected or appointed by
the Chairman or the board of directors. The President shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
SECTION 4.08. THE VICE PRESIDENTS. The several Vice Presidents shall
--------------------
perform such duties and exercise such powers as may be assigned to them from
time to time by the President. In the absence of the President, his duties
shall be performed and his powers may be exercised by such Vice President as
shall be designated by the President or failing such designation, such duties
shall be performed and such powers may be exercised by the Vice Presidents in
the order of their earliest election to that office; subject in any case to
review and superseding action by the President.
SECTION 4.09. THE SECRETARY. The Secretary shall have the following
--------------
powers and duties:
(a) He shall keep or cause to be kept a record of all the proceedings of
the meetings of the stockholders and of the board of directors in
books provided for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of
the board of directors, he shall furnish a copy of such resolution to
the members of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to
the issuance thereof and to all instruments the execution of which on
behalf of the Corporation under its seal shall have been duly
authorized in accordance with these Bylaws, and when so affixed he may
attest the same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these Bylaws.
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(f) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of
the Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record
of such shares, the number of shares held by each holder and the date
as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or an
Assistant Secretary shall have signed) certificates representing
shares of the Corporation the issuance of which shall have been
authorized by the board of directors.
(h) He may, in lieu of the Chairman, preside at all meetings of the
stockholders at which he is present.
(i) He shall perform, in general, all duties incident to the office of
Secretary and such other duties as may be given to him by these Bylaws
or as may be assigned to him from time to time by the board of
directors, the Chairman or the President.
SECTION 4.10. THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer
---------------------------
shall be the chief financial officer of the Corporation and, subject to the
control of the President, shall have general management over the finances and
financial records and financial reporting systems of the Corporation. He shall
render to the board of directors, the Chairman or the President, whenever
requested, a statement of the financial condition of the Corporation and render
a full financial report at the annual meeting of the stockholders, if called
upon to do so. He shall be empowered from time to time to require from all
officers or agents of the Corporation reports or statements giving such
information as he may desire with respect to any and all financial transactions
of the Corporation. He shall perform, in general, all duties incident to the
office of chief financial officer and such other duties as may be given to him
by these Bylaws or as may be assigned to him from time to time by the board of
directors or the President.
SECTION 4.11. THE TREASURER. The Treasurer shall have the following
--------------
powers and duties:
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation,
and shall keep or cause to
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be kept full and accurate records of all receipts of the Corporation.
(b) He shall cause the moneys and other valuables of the Corporation to be
deposited in the name and to the credit of the Corporation in such
banks or trust companies or with such bankers or other depositories as
shall be selected in accordance with Section 8.05 of these Bylaws.
(c) He shall cause the moneys of the Corporation to be disbursed by checks
or drafts (signed as provided in Section 8.06 of these Bylaws) upon
the authorized depositories of the Corporation and cause to be taken
and preserved proper vouchers for all moneys disbursed.
(d) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock
of the Corporation the issuance of which shall have been authorized by
the board of directors.
(e) He shall perform, in general, all duties incident to the office of
Treasurer and such other duties as may be given to him by these Bylaws
or as may be assigned to him from time to time by the board of
directors or the President.
SECTION 4.12. ADDITIONAL OFFICERS. The board of directors may appoint such
--------------------
other officers and agents as it may deem appropriate, and such other officers
and agents shall hold their offices for such terms and shall exercise such
powers and perform such duties as may be determined from time to time by the
board of directors. The board of directors from time to time may delegate to any
officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him for or without cause. [Section 142(a), (b).]
SECTION 4.13. SECURITY. The board of directors may require any officer,
---------
agent or employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character as may be
determined from time to time by the board of directors. [Section 142(c).]
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ARTICLE V
----------
CAPITAL STOCK
-------------
SECTION 5.01. CERTIFICATES OF STOCK. Every holder of stock in the
----------------------
Corporation shall be entitled to have a certificate signed by, or in the name
of, the Corporation by the Chairman, the President or a Vice President or by the
Secretary certifying the number of shares owned by him in the Corporation. Such
certificate shall be in such form as the board of directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these Bylaws. [Section 158.]
SECTION 5.02. SIGNATURES; FACSIMILE. All of such signatures on the
----------------------
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. [Section 158.]
SECTION 5.03. LOST, STOLEN OR DESTROYED CERTIFICATES. The board of
---------------------------------------
directors may direct that a new certificate be issued in place of any
certificate previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the board of directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
board of directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. [Section 167.]
SECTION 5.04. TRANSFER OF STOCK. Upon surrender to the Corporation or the
------------------
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Subject to the provisions of the Certificate of Incorporation and these Bylaws,
the board of directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
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SECTION 5.05. RECORD DATE. In order to determine the stockholders
------------
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
-------- -------
that the board of directors may fix a new record date for the adjourned meeting.
[Section 213 (a), (c).]
SECTION 5.06. REGISTERED STOCKHOLDERS. Prior to due surrender of a
------------------------
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer, both the transferor
and transferee request the Corporation to do so. [Section 159.]
SECTION 5.07. TRANSFER AGENT AND REGISTRAR. The board of directors may
-----------------------------
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
----------
INDEMNIFICATION
---------------
SECTION 6.01. NATURE OF INDEMNITY. The Corporation shall indemnify any
--------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust
or other
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enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, and may indemnify any person who was or is a party or is
threatened to be made a party to such an action, suit or proceeding by reason of
the fact that he is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
---------------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 6.02. SUCCESSFUL DEFENSE. To the extent that a director, officer,
-------------------
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
6.01 of these Bylaws or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 6.03. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
---------------------------------------------
indemnification of a director or officer of the Corporation under Section 6.01
of these Bylaws (unless ordered by a court) shall be made by the Corporation
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unless a determination is made that indemnification of the director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Section 6.01 of these Bylaws. Any
indemnification of an employee or agent of the Corporation under Section 6.01 of
these Bylaws (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 6.01 of these Bylaws. Any such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
SECTION 6.04. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a
----------------------------
director or officer in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate. The board of directors may authorize the Corporation's counsel to
represent such director, officer, employee or agent in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
SECTION 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
--------------------------------------------------------
indemnification of a director or officer of the Corporation under Sections 6.01
and 6.02 of these Bylaws, or advance of costs, charges and expenses to a
director or officer under Section 6.04 of these Bylaws, shall be made promptly,
and in any event within 30 days, upon the written request of the director or
officer. If a determination by the Corporation that the director or officer is
entitled to indemnification pursuant to this Article is required, and the
Corporation fails to respond within 60 days to a written request for indemnity,
the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within 30 days, the right to indemnification or advances as granted by this
Article shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under
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Section 6.04 of these Bylaws where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met the standard of
conduct set forth in Section 6.01 of these Bylaws, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 6.01
of these Bylaws, nor the fact that there has been an actual determination by the
Corporation (including its board of directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
---------------------------------------
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit,
or proceeding previously or thereafter brought or threatened based in whole or
in part upon any such state of facts. Such a "contract right" may not be
modified retroactively without the consent of such director, officer, employee
or agent.
The indemnification provided by this Article shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 6.07. INSURANCE. The Corporation shall purchase and maintain
----------
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article;
provided, that such
- --------
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BW/IP, INC.
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insurance is available on acceptable terms, which determination shall be made by
a vote of a majority of the entire board of directors.
SECTION 6.08. SEVERABILITY. If this Article or any portion hereof shall
-------------
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
SECTION 6.09. DEFINITION. For purposes of this Article, the term
-----------
"Corporation" shall include constituent corporations referred to in Subsection
(h) of Section 145 of the General Corporation Law of the State of Delaware (or
any similar provision of applicable law at the time in effect).
ARTICLE VII
-----------
OFFICES
-------
SECTION 7.01. REGISTERED OFFICE. The registered office of the Corporation
------------------
in the State of Delaware shall be located at 30 The Green in the City of Dover,
County of Kent.
SECTION 7.02. OTHER OFFICES. The Corporation may maintain offices or
--------------
places of business at such other locations within or without the State of
Delaware as the board of directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VIII
------------
GENERAL PROVISIONS
------------------
SECTION 8.01. DIVIDENDS. Subject to any applicable provisions of law and
----------
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the board of directors at any regular or special meeting of
the board of directors and any such dividend may be paid in cash, property, or
shares of the Corporation. [Section 173.]
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SECTION 8.02. RESERVES. There may be set aside out of any funds of the
---------
Corporation available for dividends such sum or sums as the board of directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
board of directors shall think conducive to the interest of the Corporation, and
the board of directors may similarly modify or abolish any such reserve.
[Section 171.]
SECTION 8.03. EXECUTION OF INSTRUMENTS. The Chairman, the President, any
-------------------------
Vice President or the Secretary may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation. The board
of directors, the Chairman or the President may authorize any other officer or
agent to enter into any contract or execute and deliver any instrument in the
name and on behalf of the Corporation. Any such authorization may be general or
limited to specific contracts or instruments.
SECTION 8.04. CORPORATE INDEBTEDNESS. No loan shall be contracted on
-----------------------
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the board of directors, the Chairman, the
President, the Chief Financial Officer or the Treasurer. Such authorization may
be general or confined to specific instances. Loans so authorized may be
effected at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual. All bonds, debentures,
notes and other obligations or evidences of indebtedness of the Corporation
issued for such loans shall be made, executed and delivered as the board of
directors, the Chairman, the President, the Chief Financial Officer or the
Treasurer shall authorize. When so authorized by the board of directors, the
Chairman, the President, the Chief Financial Officer or the Treasurer, any part
of or all the properties, including contract rights, assets, business or
goodwill of the Corporation, whether then owned or thereafter acquired, may be
mortgaged, pledged, hypothecated or conveyed or assigned in trust as security
for the payment of such bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation, and of the interest thereon, by
instruments executed and delivered in the name of the Corporation.
SECTION 8.05. DEPOSITS. Any funds of the Corporation may be deposited from
--------
time to time in such banks, trust companies or other depositories as may be
determined by the board of directors, the Chairman, the President, the Chief
Financial Officer or the Treasurer, or by such officers or agents as may be
authorized by the board of directors or the President to make such
determination.
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SECTION 8.06. CHECKS. All checks or demands for money and notes of the
------
Corporation shall be signed by such officer or officers or such agent or agents
of the Corporation, and in such manner, as the board of directors or the
President from time to time may determine.
SECTION 8.07. SALE, TRANSFER, ETC. OF SECURITIES. To the extent authorized
-----------------------------------
by the board of directors or the Chairman, the President, any Vice President or
the Secretary or any other officers designated by the board of directors, or the
President may sell, transfer, endorse, and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
SECTION 8.08. VOTING AS STOCKHOLDER. Unless otherwise determined by
----------------------
resolution of the board of directors, the Chairman, the President, any Vice
President or the Secretary shall have full power and authority on behalf of the
Corporation to attend any meeting of stockholders of any corporation in which
the Corporation may hold stock, and to act, vote (or execute proxies to vote)
and exercise in person or by proxy all other rights, powers and privileges
incident to the ownership of such stock. Such officers acting on behalf of the
Corporation shall have full power and authority to execute any instrument
expressing consent to or dissent from any action of any such corporation without
a meeting. The board of directors may by resolution from time to time confer
such power and authority upon any other person or persons.
SECTION 8.09. FISCAL YEAR. The fiscal year of the Corporation shall
------------
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
SECTION 8.10. SEAL. The seal of the Corporation shall be circular in form
----
and shall contain the name of the Corporation, the year of its incorporation and
the words "Corporate Seal" and "Delaware". The form of such seal shall be
subject to alteration by the board of directors. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or reproduced, or may
be used in any other lawful manner.
SECTION 8.11. BOOKS AND RECORDS; INSPECTION. Except to the extent
------------------------------
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the board of directors.
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ARTICLE IX
----------
AMENDMENT OF BYLAWS
-------------------
In furtherance and not in limitation of the powers conferred upon it by
law, the board of directors is expressly authorized to adopt, repeal, alter or
amend the Bylaws of the Corporation by the vote of a majority of the entire
board of directors. Bylaws adopted, repealed, altered or amended by the board
of directors may be altered, amended or repealed, and new Bylaws may be adopted,
by the affirmative vote of a majority of the shares, represented in person or by
proxy and entitled to vote on such matter, at any annual or special meeting of
the stockholders at which a quorum is present. Any proposal to adopt, repeal,
alter or amend any Bylaw at an annual meeting of the stockholders must be
properly brought before such meeting as provided in Section 1.01.2 of these
Bylaws, and any proposal to adopt, repeal, alter or amend any Bylaw at a special
meeting of the stockholders must be set forth in the notice thereof. [Section
109(a).]
* * *
29
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Exhibit 4(c)
BW/IP INTERNATIONAL, INC.
-------------------------
BYLAWS
------
AS AMENDED AND RESTATED ON OCTOBER 19, 1995
ARTICLE I STOCKHOLDERS
----------------------
SECTION 1.01. ANNUAL MEETINGS. The annual meeting of the stockholders of
---------------
the Corporation for the election of directors and for the transaction of such
other business as may properly come before such meeting shall be held at such
place, either within or without the State of Delaware, and at 10:00 a.m. local
time on the last Tuesday in April (or, if such day is a legal holiday, then on
the next succeeding business day), or at such other date and hour, as may be
fixed from time to time by resolution of the board of directors and set forth in
the notice or waiver of notice of the meeting. [Sections 211 (a), (b).]*
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the stockholders may be
-----------------
called at any time by the President or by the Secretary (or, in the event of
their absence or disability, by any Vice President), or by the board of
directors. A special meeting shall be called by the President or by the
Secretary (or, in the event of their absence or disability, by any Vice
President), immediately upon receipt of a written request therefor by
stockholders holding in the aggregate not less than a majority of the
outstanding shares of the Corporation at the time entitled to vote at any
meeting of the stockholders. If such officers or the board of directors shall
fail to call such meeting within 20 days after receipt of such request, any
stockholder executing such request may call such meeting. Such special meetings
of the stockholders shall be held at such places, within or without the State of
Delaware, as shall be specified in the respective notices or waivers of notice
thereof. [Section 211 (d).]
SECTION 1.03. NOTICE OF MEETINGS; WAIVER. The Secretary shall cause written
---------------------------
notice of the place, date and hour of each meeting of the stockholders, and, in
the case of a special meeting, the purpose or purposes for which such meeting is
called, to be given personally or by mail, not less than 10 nor more
______________________________________
* Citations are to the General Corporation Law of the State of Delaware, are
inserted for reference only, and do not constitute a part of the Bylaws.
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BW/IP INTERNATIONAL, INC.
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than 60 days prior to the meeting, to each stockholder of record entitled to
vote at such meeting. If such notice is mailed, it shall be deemed to have been
given to a stockholder when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the record
of stockholders of the Corporation, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed to
some other address, then directed to him at such other address. Such further
notice shall be given as may be required by law.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. [Sections 222,229.]
SECTION 1.04. QUORUM. Except as otherwise required by law or by the
-------
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
SECTION 1.05. VOTING. If, pursuant to Section 5.05 of these Bylaws, a
-------
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of business
on such record date. If no record date has been fixed, then every holder of
record of shares entitled to vote at a meeting of stockholders shall be entitled
to one vote for each share of stock standing in his name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. Except
as otherwise required by law or by the Certificate of Incorporation, the vote of
a majority of the shares represented in person or by proxy at any meeting at
which a quorum is present shall be sufficient for the transaction of any
business at such meeting. [Sections 212(a),216.]
SECTION 1.06. VOTING BY BALLOT. No vote of the stockholders need be taken
-----------------
by written ballot nor need any such vote be conducted by inspectors of election,
unless otherwise required by law. Any vote which need not be taken by ballot may
be conducted in any manner approved by the meeting.
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SECTION 1.07. ADJOURNMENT. If a quorum is not present at any meeting of the
------------
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the adjournment is
-------- -------
for more than 30 days, or, if after the adjournment a new record date for the
adjourned meeting is fixed pursuant to Section 5.05 of these Bylaws, a notice of
the adjourned meeting, conforming to the requirements of Section 1.03 of these
Bylaws, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business may
be transacted on the original date of the meeting. [Section 222(c).]
SECTION 1.08. PROXIES. Any stockholder entitled to vote at any meeting of
-------
the stockholders or to express consent to or dissent from corporate action in
writing without a meeting may, by a written instrument signed by such
stockholder or his attorney-in-fact and filed with the Secretary, authorize
another person or persons to vote at any such meeting and express such consent
or dissent for him by proxy. No such proxy shall be voted or acted upon after
the expiration of three years from the date of such proxy, unless such proxy
provides for a longer period. Every proxy shall be revocable at the pleasure of
the stockholder executing it, except in those cases where applicable law
provides that a proxy shall be irrevocable. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or by filing another duly
executed proxy bearing a later date with the Secretary. [Section 212(b), (c).]
SECTION 1.09. ORGANIZATION; PROCEDURE. At every meeting of stockholders the
------------------------
presiding officer shall be the Chairman or such other officer as is designated
by the board of directors, or in the event of such designated officer's absence
or disability, the President, or in the event of his absence or disability, any
Vice President or, in the event of their absence or disability, a presiding
officer chosen by a majority of the stockholders present in person or by proxy.
The Secretary, or in the event of his absence or disability, the Assistant
Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Secretary, an appointee of the presiding officer, shall act as Secretary of the
meeting. The order of business and all other matters of procedure at every
meeting of stockholders may be determined by such presiding officer.
SECTION1.10. CONSENT OF STOCKHOLDERS IN LIEU Of MEETING. To the fullest
-------------------------------------------
extent permitted by law, whenever the vote of stockholders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate
action, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, if the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
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BW/IP INTERNATIONAL, INC.
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authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted shall consent in writing to such corporate action
being taken. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not so consented in writing. [Section 228.]
ARTICLE II
----------
BOARD OF DIRECTORS
------------------
SECTION 2.01. GENERAL POWERS. Except as may otherwise be provided by law,
---------------
by the Certificate of Incorporation or by these Bylaws, the property, affairs
and business of the Corporation shall be managed by or under the direction of
the board of directors, and the board of directors may exercise all the powers
of the Corporation. [Section 141 (a).]
SECTION 2.02. NUMBER AND TERM OF OFFICE. The number of directors
-------------------------
constituting the entire board of directors shall be nine, which number may be
modified from time to time by resolution of the board of directors, but in no
event shall the number of directors be less than one. Each director (whenever
elected) shall hold office until his successor has been duly elected and
qualified, or until his earlier death, resignation or removal. [Section 141
(b).]
SECTION 2.03. ELECTION OF DIRECTORS. Except as otherwise provided in
----------------------
Sections 2.12 and 2.13 of these Bylaws, the directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
directors is not held on the date designated therefor, the directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of directors, provided a quorum is present, the
directors shall be elected by a plurality of the votes validly cast in such
election. [Sections 211 (b), (c), 216.]
SECTION 2.04. ANNUAL AND REGULAR MEETINGS. The annual meeting of the board
----------------------------
of directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders.
Notice of such annual meeting of the board of directors need not be given.
The board of directors from time to time may by resolution provide for the
holding of regular meetings and fix the place (which may be within or without
the State of Delaware) and the date and hour of such meetings. Notice of regular
meetings need not be given; provided, however, that if the board of directors
-------- -------
shall fix or change the time or place of any regular meeting, notice of such
action shall be mailed promptly, or sent by telegram, radio or cable, to each
director who shall
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BW/IP INTERNATIONAL, INC.
BYLAWS
not have been present at the meeting at which such action was taken, addressed
to him at his usual place of business, or shall be delivered to him personally.
Notice of such action need not be given to any director who attends the first
regular meeting after such action is taken without protesting the lack of notice
to him, prior to or at the commencement of such meeting, or to any director who
submits a signed waiver of notice, whether before or after such meeting.
[Section 141 (g).]
SECTION 2.05. SPECIAL MEETINGS; NOTICE. Special meetings of the board of
-------------------------
directors shall be held whenever called by the Chairman or by the Secretary, or
in the event of their absence or disability, by the President or any Vice
President, at such place (within or without the State of Delaware), date and
hour as may be specified in the respective notices or waivers of notice of such
meetings. Special meetings of the board of directors may be called on 24 hours'
notice, if notice is given to each director personally or by telephone,
facsimile transmission or telegram, or on five days' notice, if notice is mailed
to each director, addressed to him at his usual place of business. Notice of any
special meeting need not be given to any director who attends such meeting
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any director who submits a signed waiver of notice, whether
before or after such meeting, and any business may be transacted thereat.
[Sections 141(g), 229.]
SECTION 2.06. QUORUM; VOTING. At all meetings of the board of directors,
---------------
the presence of a majority of the total authorized number of directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of a majority of the directors present at any meeting
at which a quorum is present shall be the act of the board of directors.
[Section 141(b).]
SECTION 2.07. ADJOURNMENT. A majority of the directors present, whether or
------------
not a quorum is present, may adjourn any meeting of the board of directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.05
of these Bylaws shall be given to each director.
SECTION 2.08. ACTION WITHOUT A MEETING. Any action required or permitted to
------------------------
be taken at any meeting of the board of directors may be taken without a meeting
if all members of the board of directors consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the board of
directors. [Section 141(f).]
SECTION 2.09. REOULATIONS; MANNER OF ACTING. To the extent consistent
------------------------------
with applicable law, the Certificate of Incorporation and these Bylaws, the
board
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BW/IP INTERNATIONAL, INC.
BYLAWS
of directors may adopt such rules and regulations for the conduct of meetings of
the board of directors and for the management of the property, affairs and
business of the Corporation as the board of directors may deem appropriate. The
directors shall act only as a board, and the individual directors shall have no
power as such.
SECTION 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the board of
------------------------------------
directors may participate in a meeting of the board of directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting. [Section 141 (i).]
SECTION 2.11. RESIGNATIONS. Any director may resign at any time by
-------------
delivering a written notice of resignation, signed by such director, to the
Chairman or the Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery. [Section 141 (b).]
SECTION 2.12. REMOVAL OF DIRECTORS. Any director may be removed at any
---------------------
time, either for or without cause, upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such director, given at a special meeting of stockholders
called for the purpose or by consent as contemplated by Section 1.10 of these
Bylaws. Any vacancy in the board of directors caused by any such removal may be
filled at such meeting or by such consent by the stockholders entitled to vote
for the election of the director so removed. If such stockholders do not fill
such vacancy at such meeting (or in the written instrument effecting such
removal, if such removal was effected by consent without a meeting), such
vacancy may be filled in the manner provided in Section 2.13 of these Bylaws.
[Section 141(b).]
SECTION 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If any vacancies
------------------------------------------
shall occur in the board of directors, by reason of death, resignation, removal
or otherwise, or if the authorized number of directors shall be increased, the
directors then in office shall continue to act. Such vacancies and newly created
directorships may only be filled by a majority of the directors then in office,
although less than a quorum. [Section 223.]
SECTION 2.14. COMPENSATION. The amount, if any, which each Director shall
-------------
be entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the board of directors. [Section 141 (h).]
SECTION 2.15. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director, each
-----------------------------------------
member of a committee designated by the board of directors, and each officer of
the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the records of the Corporation and upon
such information, opinions, reports or statements presented to the
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Corporation by any of the Corporation's officers or employees, or committees or
the board of directors, or by any other person as to matters the directors,
committee member or officer believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation. [Section 141 (e).]
ARTICLE III
-----------
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
----------------------------------------
SECTION 3.01. HOW CONSTITUTED. The board of directors may, by resolution
----------------
adopted by a majority of the whole board, designate one or more Committees,
including an Executive Committee, an Audit Committee and a Compensation and
Benefits Committee, each such Committee to consist of such number of directors
as from time to time may be fixed by the board of directors. The board of
directors may designate one or more directors as alternate members of any such
Committee, who may replace any absent or disqualified member or members at any
meeting of such Committee. Thereafter, members (and alternate members, if any)
of each such Committee may be designated at the annual meeting of the board of
directors. Any such Committee may be abolished or re-designated from time to
time by the board of directors. Each member (and each alternate member) of any
such Committee (whether designated at an annual meeting of the board of
directors or to fill a vacancy or otherwise) shall hold office until his
successor shall have been designated or until he shall cease to be a director,
or until his earlier death, resignation or removal. The Executive Committee, the
Audit Committee and the Compensation and Benefits Committee shall have, and any
such other Committee may be granted by the board of directors, power to
authorize the seal of the Corporation to be affixed to any or all papers which
may require it. [Section 141 (c).]
SECTION 3.02. POWERS.
-------
SECTION 3.02.1 EXECUTIVE COMMITTEE. During the intervals between the
--------------------
meetings of the board of directors, the Executive Committee, except as otherwise
provided in this Section 3.02.1, shall have and may exercise all the powers and
authority of the board of directors in the management of the property, affairs
and business of the Corporation, including the power to declare dividends, to
authorize the issuance of stock and to adopt a certificate of ownership and
merger. Each such other Committee, except as otherwise provided in this Section
3.02.1, shall have and may exercise such powers of the board of directors as may
be provided in these Bylaws or by resolution or resolutions of the board of
directors. Neither the Executive Committee nor any such other Committee shall
have the power or authority:
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(a) to amend the Certificate of Incorporation (except to the extent
permitted by the Delaware General Corporation Law),
(b) to adopt an agreement of merger or consolidation,
(c) to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets,
(d) to recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or
(e) to amend these Bylaws.
SECTION 3.02.2. AUDIT COMMITTEE. The Audit Committee shall have and may
----------------
exercise the power to review and approve the scope and results of the
Corporation's outside audit, and the fees therefor, and review, consider and act
upon all matters concerning auditing and accounting matters and the selection of
outside auditors.
SECTION 3.02.3. COMPENSATION AND BENEFITS COMMITTEE. The Compensation and
------------------------------------
Benefits Committee shall have and may exercise the power to review, consider and
act upon matters of salary and other compensation and benefits of all officers
and other employees of the Corporation, as well as act upon all matters
concerning benefits and retirement or pension plans, and exercise such authority
as is delegated to it under the provisions of, any benefit, retirement or
pension plan.
SECTION 3.03. PROCEEDINGS. Each such Committee may fix its own rules of
------------
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall report
such proceedings to the board of directors at the meeting of the board of
directors next following any such proceedings.
SECTION 3.04. QUORUM AND MANNER OF ACTING. Except as may be otherwise
----------------------------
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such Committee.
Any action required or permitted to be taken at any meeting of any such
Committee may be taken without a meeting, if all members of such Committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the Committee. The members of any
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such Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such. [ Section 141 (c).]
SECTION 3.05. ACTION BY TELEPHONIC COMMUNICATIONS. Members of any Committee
------------------------------------
designated by the board of directors may participate in a meeting of such
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. [Section 141 (i).]
SECTION 3.06. ABSENT OR DISQUAFIFIED MEMBERS. In the absence or
-------------------------------
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member. [Section 141(c).]
SECTION 3.07. RESIGNATIONS. Any member (and any alternate member) of any
-------------
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the Secretary. Unless otherwise
specified therein, such resignation shall take effect upon delivery. [Section
141 (b).]
SECTION 3.08. REMOVAL. Any member (and any alternate member) of any
-------
Committee may be removed at any time, either for or without cause, by resolution
adopted by majority of the whole board of directors.
SECTION 3.09. VACANCIES. If any vacancy shall occur in any Committee, by
----------
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the board of directors.
ARTICLE IV OFFICERS
-------------------
OFFICERS
--------
SECTION 4.01. NUMBER. The officers of the Corporation shall be chosen by
-------
the board of directors and shall be a Chairman, a President, one or more Vice
Presidents and a Secretary. The board of directors also may elect a Chief
Financial Officer, a Treasurer and one or more Assistant Secretaries and
Assistant Treasurers in such numbers as the board of directors may determine.
Any number of offices may be held by the same person. No officer need be a
director of the Corporation. [Section 142(a), b).]
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SECTION 4.02. ELECTION. Unless otherwise determined by the board of
---------
directors, the officers of the Corporation shall be elected by the board of
directors at the annual meeting of the board of directors, and shall be elected
to hold office until the next succeeding annual meeting of the board of
directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the board of
directors. Each officer shall hold office until his successor has been elected
and qualified, or until his earlier death, resignation or removal. [Section
142(b).]
SECTION 4.03. SALARIES. The salaries of all officers and agents of the
---------
Corporation shall be fixed by the Compensation and Benefits Committee or, in the
absence of such a Committee, by the board of directors.
SECTION 4.04. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be
-----------------------------------
removed for or without cause at any time by the board of directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the board of directors, the Chairman or the Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the board of directors. [Section
142(b), (e).]
SECTION 4.05. AUTHORITY AND DUTIES OF OFFICERS. The officers of the
---------------------------------
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these Bylaws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. [Section 142(a).]
SECTION 4.06. THE CHAIRMAN. The Chairman shall preside at all meetings of
-------------
the stockholders and shall preside at all meetings of the directors at which he
is present and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall have the authority to sign, in the
name and on behalf of the Corporation, contracts and other documents and
instruments, and cause the employment or appointment of such employees and
agents of the Corporation as are necessary or appropriate to discharge the
duties incident to the office of the Chairman. The Chairman shall have such
other powers and perform such other duties as are provided in these Bylaws and
in addition thereto, as the Board of Directors may from time to time determine.
SECTION 4.07. THE PRESIDENT. The President shall be the chief executive
--------------
officer of the Corporation, and, shall have general control and supervision of
the policies and operations of the Corporation and shall see that all orders and
resolutions of the board of directors are carried into effect. The President
shall have the authority to (a) sign, in the name and on behalf of the
Corporation, checks, orders, contracts, leases, notes, drafts and other
documents and instruments in connection with the business of the Corporation,
and, together
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with the Secretary or an Assistant Secretary, conveyances of real estate and
other documents and instruments to which the seal of the Corporation is affixed;
(b) cause the employment or appointment of such employees and agents of the
Corporation as the conduct of the business of the Corporation may require and to
fix their compensation; and (c) remove or suspend any employee or agent who
shall not have been elected or appointed by the Chairman or the board of
directors. The President shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
SECTION 4.08. THE VICE PRESIDENTS. The several Vice Presidents shall
--------------------
perform such duties and exercise such powers as may be assigned to them from
time to time by the President. In the absence of the President, his duties shall
be performed and his powers may be exercised by such Vice President as shall be
designated by the President or failing such designation, such duties shall be
performed and such powers may be exercised by the Vice Presidents in the order
of their earliest election to that office; subject in any case to review and
superseding action by the President.
SECTION 4.09. THE SECRETARY. The Secretary shall have the following
--------------
powers and duties:
(a) He shall keep or cause to be kept a record of all the proceedings of
the meetings of the stockholders and of the board of directors in books
provided for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of
the board of directors, he shall furnish a copy of such resolution to
the members of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to the
issuance thereof and to all instruments the execution of which on
behalf of the Corporation under its seal shall have been duly
authorized in accordance with these Bylaws, and when so affixed he may
attest the same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these Bylaws.
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(f) He shall have charge of the stock books and ledgers of the Corporation
and shall cause the stock and transfer books to be kept in such manner
as to show at any time the number of shares of stock of the Corporation
of each class issued and outstanding, the names (alphabetically
arranged) and the addresses of the holders of record of such shares,
the number of shares held by each holder and the date as of which each
became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or an
Assistant Secretary shall have signed) certificates representing shares
of the Corporation the issuance of which shall have been authorized by
the board of directors.
(h) He may, in lieu of the Chairman, preside at all meetings of the
stockholders at which he is present.
(i) He shall perform, in general, all duties incident to the office of
Secretary and such other duties as may be given to him by these Bylaws
or as may be assigned to him from time to time by the board of
directors, the Chairman or the President.
SECTION 4. 10. THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer
----------------------------
shall be the chief financial officer of the Corporation and, subject to the
control of the President, shall have general management over the finances and
financial records and financial reporting systems of the Corporation. He shall
render to the board of directors, the Chairman or the President, whenever
requested, a statement of the financial condition of the Corporation and render
a full financial report at the annual meeting of the stockholders, if called
upon to do so. He shall be empowered from time to time to require from all
officers or agents of the Corporation reports or statements giving such
information as he may desire with respect to any and all financial transactions
of the Corporation. He shall perform, in general, all duties incident to the
office of chief financial officer and such other duties as may be given to him
by these Bylaws or as may be assigned to him from time to time by the board of
directors or the President.
SECTION 4.11. THE TREASURER. The Treasurer shall have the following powers
--------------
and duties:
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation, and
shall keep or cause to be kept full and accurate records of all
receipts of the Corporation.
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(b) He shall cause the moneys and other valuables of the Corporation to be
deposited in the name and to the credit of the Corporation in such
banks or trust companies or with such bankers or other depositories as
shall be selected in accordance with Section 8.05 of these Bylaws.
(c) He shall cause the moneys of the Corporation to be disbursed by checks
or drafts (signed as provided in Section 8.06 of these Bylaws) upon the
authorized depositories of the Corporation and cause to be taken and
preserved proper vouchers for all moneys disbursed.
(d) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock
of the Corporation the issuance of which shall have been authorized by
the board of directors.
(e) He shall perform, in general, all duties incident to the office of
Treasurer and such other duties as may be given to him by these Bylaws
or as may be assigned to him from time to time by the board of
directors or the President.
SECTION 4.12. ADDITIONAL OFFICERS. The board of directors may appoint such
--------------------
other officers and agents as it may deem appropriate, and such other officers
and agents shall hold their offices for such terms and shall exercise such
powers and perform such duties as may be determined from time to time by the
board of directors. The board of directors from time to time may delegate to any
officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him for or without cause. [Section 142(a), (b).]
SECTION 4.13. SECURITY. The board of directors may require any officer,
---------
agent or employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character as may be
determined from time to time by the board of directors. [Section 142(c).]
ARTICLE V
---------
CAPITAL STOCK
-------------
SECTION 5.01. CERTIFICATES OF STOCK. Every holder of stock in the
----------------------
Corporation shall be entitled to have a certificate signed by, or in the name
of, the
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Corporation by the Chairman, the President or a Vice President or by the
Secretary certifying the number of shares owned by him in the Corporation. Such
certificate shall be in such form as the board of directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these Bylaws. [Section 158.]
SECTION 5.02. SIGNATURES: FACSIMILE. All of such signatures on the
----------------------
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. [Section 158.]
SECTION 5.03. LOST, STOLEN OR DESTROYED CERTIFICATES. The board of
---------------------------------------
directors may direct that a new certificate be issued in place of any
certificate previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the board of directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
board of directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. [Section 167.]
SECTION 5.04. TRANSFER OF STOCK. Upon surrender to the Corporation or the
------------------
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Subject to the provisions of the Certificate of Incorporation and these Bylaws,
the board of directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
SECTION 5.05. RECORD DATE. In order to determine the stockholders entitled
------------
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment
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of the meeting; provided, however, that the board of directors may fix a new
-------- -------
record date for the adjourned meeting. [Section 213 (a), (c).]
SECTION 5.06. REGISTERED STOCKHOLDERS. Prior to due surrender of a
------------------------
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer, both the transferor
and transferee request the Corporation to do so. [Section 159.]
SECTION 5.07. TRANSFER AGENT AND REGISTRAR. The board of directors may
-----------------------------
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
----------
INDEMNIFICATION
---------------
SECTION 6.O1. NATURE OF INDEMNITY. The Corporation shall indemnify any
--------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint' venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his
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conduct was unlawful; except that in the case of an action or suit by or in the
right of the Corporation to procure a judgment in its favor (1) such
indemnification shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (2) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
---- -----------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 6.02. SUCCESSFUL DEFENSE. To the extent that a director, officer,
-------------------
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
6.01 of these Bylaws or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 6.03. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
---------------------------------------------
indemnification of a director or officer of the Corporation under Section 6.01
of these Bylaws (unless ordered by a court) shall be made by the Corporation
unless a determination is made that indemnification of the Director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Section 6.01 of these Bylaws. Any
indemnification of an employee or agent of the Corporation under Section 6.01 of
these Bylaws (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 6.01 of these Bylaws. Any such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
SECTION 6.04. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a director
----------------------------
or officer in defending a civil or criminal action, suit or proceeding shall
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be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate. The board of directors may authorize the Corporation's counsel to
represent such director, officer, employee or agent in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
SECTION 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
--------------------------------------------------------
indemnification of a director or officer of the Corporation under Sections 6.01
and 6.02 of these Bylaws, or advance of costs, charges and expenses to a
director or officer under Section 6.04 of these Bylaws, shall be made promptly,
and in any event within 30 days, upon the written request of the director or
officer. If a determination by the Corporation that the director or officer is
entitled to indemnification pursuant to this Article is required, and the
Corporation fails to respond within 60 days to a written request for indemnity,
the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within 30 days, the right to indemnification or advances as granted by this
Article shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.04 of these
Bylaws where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 6.01 of these Bylaws, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its board of
directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 6.01 of these Bylaws, nor the fact that
there has been an actual determination by the Corporation (including its board
of directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
SECTION 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
---------------------------------------
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
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provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit,
or proceeding previously or thereafter brought or threatened based in whole or
in part upon any such state of facts. Such a "contract right" may not be
modified retroactively without the consent of such director, officer, employee
or agent.
The indemnification provided by this Article shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 6.07. INSURANCE. The Corporation shall purchase and maintain
----------
insurance on behalf of any person who is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article;
provided that such insurance is available on acceptable terms, which
- --------
determination shall be made by a vote of a majority of the entire board of
directors.
SECTION 6.08. SEVERABILITY. If this Article or any portion hereof shall be
-------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
SECTION 6.09. DEFINITION. For purposes of this Article, the term
-----------
"Corporation" shall include constituent corporations referred to in Subsection
(h) of Section 145 of the General Corporation Law of the State of Delaware (or
any similar provision of applicable law at the time in effect).
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ARTICLE VII
-----------
OFFICES
-------
SECTION 7.01. REGISTERED OFFICE. The registered office of the Corporation
------------------
in the State of Delaware shall be located at 30 The Green in the City of Dover,
County of Kent.
SECTION 7.02. OTHER OFFICES. The Corporation may maintain offices or places
--------------
of business at such other locations within or without the State of Delaware as
the board of directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
------------
GENERAL PROVISIONS
------------------
SECTION 8.01. DIVIDENDS. Subject to any applicable provisions of law and
----------
the Certificate of IncorpOration, dividends upon the shares of the Corporation
may be declared by the board of directors at any regular or special meeting of
the board of directors and any such dividend may be paid in cash, property, or
shares of the Corporation. [Section 173.]
SECTION 8.02. RESERVES. There may be set aside out of any funds of the
---------
Corporation available for dividends such sum or sums as the board of directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
board of directors shall think conducive to the interest of the Corporation, and
the board of directors may similarly modify or abolish any such reserve.
[Section 171.]
SECTION 8.03. EXECUTION OF INSTRUMENTS. The Chairman, the President, any
-------------------------
Vice President or the Secretary may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation. The board
of directors, the Chairman or the President may authorize any other officer or
agent to enter into any contract or execute and deliver any instrument in the
name and on behalf of the Corporation. Any such authorization may be general or
limited to specific contracts or instruments.
SECTION 8.04. CORPORATE INDEBTEDNESS. No loan shall be contracted on behalf
-----------------------
of the Corporation, and no evidence of indebtedness shall be issued in its name,
unless authorized by the board of directors, the Chairman, the President,
19
<PAGE>
BW/IP INTERNATIONAL, INC.
BYLAWS
the Chief Financial Officer or the Treasurer. Such authorization may be general
or confined to specific instances. Loans so authorized may be effected at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual. All bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation issued for such
loans shall be made, executed and delivered as the board of directors, the
Chairman, the President, the Chief Financial Officer or the Treasurer shall
authorize. When so authorized by the board of directors, the Chairman, the
President, the Chief Financial Officer or the Treasurer, any part of or all the
properties, including contract rights, assets, business or goodwill of the
Corporation, whether then owned or thereafter acquired, may be mortgaged,
pledged, hypothecated or conveyed or assigned in trust as security for the
payment of such bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, and of the interest thereon, by instruments
executed and delivered in the name of the Corporation.
SECTION 8.05. DEPOSITS. Any funds of the Corporation may be deposited from
---------
time to time in such banks, trust companies or other depositories as may be
determined by the board of directors, the Chairman, the President, the Chief
Financial Officer or the Treasurer, or by such officers or agents as .may be
authorized by the board of directors or the President to make such
determination.
SECTION 8.06. CHECKS. All checks or demands for money and notes of the
-------
Corporation shall be signed by such officer or officers or such agent or agents
of the Corporation, and in such manner, as the board of directors or the
President from time to time may determine.
SECTION 8.07. SALE, TRANSFER, ETC. OF SECURITIES. To the extent authorized
-----------------------------------
by the board of directors or the Chairman, the President, any Vice President or
the Secretary or any other officers designated by the board of directors or the
President may sell, transfer, endorse, and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
SECTION 8.08. VOTING AS STOCKHOLDER. Unless otherwise determined by
----------------------
resolution of the board of directors, the Chairman, the President, any Vice
President or the Secretary shall have full power and authority on behalf of the
Corporation to attend any meeting of stockholders of any corporation in which
the Corporation may hold stock, and to act, vote (or execute proxies to vote)
and exercise in person or by proxy all other rights, powers and privileges
incident to the ownership of such stock. Such officers acting on behalf of the
Corporation shall have full power and authority to execute any instrument
expressing consent to or dissent from any action of any such corporation without
a meeting. The
20
<PAGE>
BW/IP INTERNATIONAL, INC.
BYLAWS
board of directors may by resolution from time to time confer such power and
authority upon any other person or persons.
SECTION 8.09. FISCAL YEAR. The fiscal year of the Corporation shall
------------
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
SECTION 8.10. SEAL. The seal of the Corporation shall be circular in form
----
and shall contain the name of the Corporation, the year of its incorporation and
the words "Corporate Seal" and "Delaware". The form of such seal shall be
subject to alteration by the board of directors. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or reproduced, or may
be used in any other lawful manner.
SECTION 8.11. BOOKS AND RECORDS; INSPECTION. Except to the extent
------------------------------
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the board of directors..
ARTICLE IX
----------
AMENDMENT OF BYLAWS
-------------------
In furtherance and not in limitation of the powers conferred upon it by
law, the board of directors is expressly authorized to adopt, repeal, alter or
amend the Bylaws of the Corporation by the vote of a majority of the entire
board of directors. Bylaws adopted, repealed, altered or amended by the board of
directors may be altered, amended or repealed, and new Bylaws may be adopted, by
the affirmative vote of a majority of the shares, represented in person or by
proxy and entitled to vote on such matter, at any annual or special meeting of
the stockholders at which a quorum is present.
* * *
21
<PAGE>
EXHIBIT 4(S)
Date: July 30, 1995
-------------
GUARANTY
--------
Know all men by these presents, that in consideration of the extension by ABN-
AMRO Bank N.V. (hereinafter called the "Bank") acting through its branch at
Etten-Leur, Stationsplein 21, (4872 XL) of financial accommodation to BW/IP
International B.V. or its successors or assigns (hereinafter called the
"Borrower"), for the period from August 1, 1995 to August 1, 1997 the
undersigned hereby unconditionally guarantees the payment in NLG 50,000,000
(SAY: FIFTY MILLION DUTCH GUILDERS) when due (at maturity, by acceleration, or
otherwise), of any and all liabilities, present or future, direct or contingent,
joint, several or independent, for principal, interest, charges, commissions or
otherwise, of the Borrower due or to become due to, or held or to be held by,
the Bank, whether created directly or acquired by assignment or otherwise (all
such liabilities being hereinafter called the "Guaranteed Liabilities").
The termination of this Guaranty as provided herein shall be ineffective with
regard to any credit granted in the Borrower during the time period in which
this Guaranty was in full force and effect.
The undersigned hereby waives (a) notice of the acceptance of this Guaranty and
of any demand for payment hereunder, (b) notice of the incurring by the Borrower
or the acquisition by the Bank of the Guaranteed Liabilities, and (c)
presentment, demand, protest and notice of dishonor or default with respect to
any of the Guaranteed Liabilities.
The Bank may from time to time accept, exchange, surrender, realize on and
otherwise deal with and dispose of any security for any of the Guaranteed
Liabilities; the Guaranteed Liabilities or any of them may be prepaid
accelerated as to maturity, renewed or extended as to maturity; any default
thereunder may be waived; and any of the provisions thereof modified,
supplemented or waived; all without notice to or assent by the undersigned and
without affecting the obligations of the undersigned under this Guaranty.
<PAGE>
- 2 -
The aggregate amount of the Guaranteed Liabilities upon which the undersigned
shall be liable hereunder shall not exceed NLG 50,000,000 (SAY: FIFTY MILLION
DUTCH GUILDERS) plus interest.
No delay by the Bank in exercising any right or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right or power
hereunder preclude other or further exercise thereof or the exercise of any
other right or power, nor shall the Bank be liable for exercising or failing to
exercise any such right of power, nor shall any action by the Bank omitted
hereunder in any way impair or affect this Guaranty.
Notwithstanding the foregoing, the Guarantor specifically waives all defenses
that it may have based upon any election of remedies by the Bank which destroys
the Guarantor's subrogation rights to proceed against the Borrower or any other
person for reimbursement, including any loss of rights suffered by reason of any
privileges, rights, powers or remedies of the Borrower in connection with any
antideficiency laws or any other laws limiting, qualifying or discharging the
indebtedness of or remedies against the Borrower.
The Guarantor represents, warrants and agrees that each of the waivers set forth
herein is made with the Guarantor's full knowledge of their significance and
consequences, with the understanding that events giving rise to any defenses
waived may diminish, destroy or otherwise adversely affect rights which the
Guarantor may otherwise have against the Borrower or others, or against
collateral, and that under the circumstances these waivers are reasonable.
This Guaranty shall inure to the benefit of the successors of the Bank and shall
be construed and governed in accordance with the laws of the State of
California.
In witness whereof, this instrument has been duly executed and sealed by the
undersigned the day and year first above written.
Attest:
BW/IP INTERNATIONAL, INC.
/s/ John M. Nanos /s/ Zohar Ziv
- ---------------------------------- ------------------------------
Assistant Secretary Treasurer
<PAGE>
EXHIBIT 5
November 10, 1995
BW/IP, Inc.
200 Oceangate Blvd., Suite 900
Long Beach, CA 90802
Dear Sirs:
As General Counsel of BW/IP, Inc. (formerly known as BWIP Holding, Inc.), a
Delaware corporation (the "Company"), I have participated in the preparation of
the Registration Statement on Form S-8 (the "Registration Statement") to be
filed under the Securities Act of 1933 (the "Act") relating to 1,125,000
aggregate number of shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), to be issued pursuant to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Compensation Plan (the "Plans").
I have examined the originals, or copies certified or otherwise identified
to my satisfaction, of the Plans and such other corporate records, documents,
certificates or other instruments as in my judgment are necessary or appropriate
to enable me to render the opinion set forth below.
Based on the foregoing, I am of the opinion that authorized but not
previously issued shares of Common Stock which may be issued under the Plans
have been duly authorized and when issued in accordance with the terms of the
Plans will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement. In giving such consent, I do not thereby
admit that I am within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ John D. Hannesson
------------------------------------
John D. Hannesson
Vice President, General
Counsel & Secretary
<PAGE>
Exhibit 23.b
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (No. ) of our report dated February 14, 1995, which
appears on page 38 of the 1994 Annual Report to Stockholders of BW/IP, Inc.,
which is incorporated by reference in BW/IP, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1994. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears on
page F-2 of such Annual Report on Form 10-K.
PRICE WATERHOUSE LLP
Los Angeles, California
November 10, 1995
<PAGE>
Exhibit 23.c
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. ) of BW/IP, Inc. (formerly BWIP Holding, Inc.) and
its wholly owned subsidiary (the Company) of our reports dated February 16,
1993, on our audit of the consolidated statements of income, stockholders'
equity and cash flows, and the financial statement schedules of the Company,
for the year ended December 31, 1992, which report is included in the Company's
1994 Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Los Angeles, California
November 10, 1995
<PAGE>
EXHIBIT 24(A)
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ Eugene P. Cross
-------------------
Eugene P. Cross
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ James J. Gavin, Jr.
-----------------------
James J. Gavin, Jr.
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ George D. Leal
------------------
George D. Leal
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ H. Jack Meany
-----------------
H. Jack Meany
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ Bernard G. Rethore
----------------------
Bernard G. Rethore
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ William C. Rusnack
----------------------
William C. Rusnack
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ James S. Pignatelli
-----------------------
James S. Pignatelli
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ James O. Rollans
--------------------
James O. Rollans
2
<PAGE>
POWER OF ATTORNEY
-----------------
(Registration Statement of BW/IP, Inc. relating to the BWIP Holding, Inc. Non-
Employee Directors' Stock Option Plan and the BW/IP International, Inc. 1992
Long-Term Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Peter C. Valli and John D. Hannesson and each of them his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to execute and file in his name and on his behalf:
(a) a Registration Statement of BW/IP, Inc. (the "Corporation") on
Form S-8 proposed to be filed with the Securities and Exchange Commission
("SEC") for the purpose of registering under the Securities Act of 1933, as
amended (the "Securities Act"), Common Shares of the Corporation, par value
$.01 per share (the "Common Stock"), and other securities of the
Corporation to be offered pursuant to the BWIP Holding, Inc. Non-Employee
Directors' Stock Option Plan and the BW/IP International, Inc. 1992 Long-
Term Incentive Plan (the "Plans") and as may be required with respect to
the continued registration of the Common Stock offered pursuant to the
Plans; and
(b) any and all amendments (including, without limitation, post-
effective amendments) to such Registration Statement;
and any and all other instruments which such attorneys and agents, or any one of
them deem necessary or advisable to enable the Corporation to comply with the
Securities Act, the rules, regulations and requirements of the SEC in respect
thereof, and the securities or Blue Sky laws of any state or other political
subdivision or jurisdiction of the United States and any other jurisdiction,
foreign or domestic; as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming as his own act and deed all that
such attorneys and agents, and each of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Any one of
such attorneys and agents shall have, and may exercise, all of the powers hereby
conferred.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 19th day of October, 1995.
/s/ Peter C. Valli
------------------
Peter C. Valli
<PAGE>
EXHIBIT 99(J)
AMENDMENT NUMBER SIX
TO THE
BW/IP INTERNATIONAL, INC.
CAPITAL ACCUMULATION PLAN
(AS AMENDED AND RESTATED AS OF JANUARY 1, 1992)
- --------------------------------------------------------------------------------
The BW/IP International, Inc. Capital Accumulation Plan, as amended
and restated as of January 1, 1992 (the "Plan"), is hereby amended in the
following respects:
1. BW/IP, Inc.
-----------
Due to the change in the corporate name of BWIP Holding, Inc., the
references to BWIP Holding, Inc. contained in Sections 1.2(i) and 1.4 of the
Plan are hereby changed to BW/IP, Inc.
2. Compensation Limit
------------------
The phrase "the Adjustment Factor" contained in Section 1.2(i) of the
Plan is deleted and inserted in lieu thereof is the phrase "the amounts and at
such times as permitted under Section 401(a)(17)(B)."
3. Time for Distributions
----------------------
Section 8.5 of the Plan is amended by substituting the word "month"
for the word "quarter" in the phrase "calendar quarter" in the first sentence
thereof.
4. Effective Date.
--------------
This Amendments made hereby shall be effective as of January 1, 1994,
except with respect to paragraph 1 hereof which shall be effective as of May
11, 1994.
5. Ratification and Re-Affirmation.
--------------------------------
Except as specifically amended hereby, the Plan, as heretofore amended
to date shall remain in full force and effect in accordance with its terms.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly
executed at Long Beach, California, as of the 1st day of June, 1994.
----- -----
BW/IP International, Inc.
By /s/ D.G. Taylor
-----------------------------
Its Vice President
---------------------------
2
<PAGE>
EXHIBIT 99(K)
AMENDMENT NUMBER SEVEN
TO THE
BW/IP INTERNATIONAL, INC.
CAPITAL ACCUMULATION PLAN
(as amended and restated as of January 1, 1992)
- --------------------------------------------------------------------------------
The BW/IP International, Inc. Capital Accumulation Plan, as amended
and restated as of January 1, 1992 (the "Plan"), is hereby amended in the
following respects:
1. Distributions in the Event of Disposition of Assets.
----------------------------------------------------
Section 8.1 of the Plan is hereby amended by deleting the same and
inserting in lieu thereof the following:
"Termination of Employment. Upon the termination of a Participant's
-------------------------
employment with the BW/IP Companies which otherwise constitutes a
separation from service under Code Section 401(k), the vested portion
of all assets in the Participant's Account shall thereafter be
distributed to him or his Beneficiary, as the case may be, pursuant to
Subsection 8.5 and 8.5A; provided, however, that nothing in this
Section 8 shall be deemed to permit a Participant or Beneficiary to
receive a distribution of any part of an Account held in the Executive
Life Fund, whether in the form of a lump sum distribution or
installment payments, except to the extent the Committee determines,
pursuant to Subsection 6.5(b)(ii), that such amounts may be liquidated
from the Executive Life Fund. Notwithstanding the preceding sentence,
if the Committee shall so determine and permit, upon the sale or other
disposition by any corporation which is an Employer of substantially
all of the assets used in a trade or business of such Employer or of a
subsidiary of any such Employer ("Transferor Employer") to an
unrelated entity (as defined in Treas. Reg. Section 1.401(k)-
1(d)(4)(iv)(B)) ("Acquiring Entity"), a Participant who continues
employment with the Acquiring Entity shall be entitled to receive a
lump sum distribution (as defined in Code Section 401(k)(10)(B)) from
the Plan, but only if such distribution is made in connection with
such disposition, the Acquiring Entity does not maintain the Plan
after such disposition and the Transferor Employer continues as an
Employer with respect to the Plan after such disposition. It is
expressly determined that the preceding sentence shall apply to a sale
of the assets
<PAGE>
of Fluid Controls Division of the Company to E-Systems, Inc. on or
before December 31, 1994, if the conditions set forth in such
preceding sentence are satisfied.
2. Investment of Amounts Paid in Installment.
-----------------------------------------
The Plan is amended by deleting Section 8.6 thereof in its entirety
and such section shall be left blank.
3. Effective Date.
--------------
The amendment made by paragraph 1 hereof shall be effective as of
October 1, 1994 and the amendment made by paragraph 2 hereof shall be effective
as of January 1, 1993.
4. Ratification and Re-Affirmation.
--------------------------------
Except as specifically amended hereby, the Plan, as heretofore amended
to date shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly
executed at Long Beach, California, as of the 1st day of October, 1994.
----- --------
BW/IP International, Inc.
By /s/ D.G. Taylor
--------------------------------
Its Vice President
------------------------------
<PAGE>
EXHIBIT 99(L)
- --------------------------------------------------------------------------------
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(as amended and restated as of January 1, 1993)
(Successor to
the Borg-Warner Corporation Retirement Plan)
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. - PURPOSE AND EFFECTIVE DATE.................................... 1
1.01 Purpose......................................................... 1
1.02 Effective Date.................................................. 1
1.03 Supplements and Exhibits........................................ 1
SECTION 2. - DEFINITIONS................................................... 2
Actuarial Equivalent or Actuarial Value............................... 2
Adjustment Factor..................................................... 2
Administrative Committee.............................................. 3
Affiliated Company.................................................... 3
Authorized Leave of Absence........................................... 3
BW/IP................................................................. 3
Code.................................................................. 3
Commencement Date..................................................... 3
Committee............................................................. 3
Company............................................................... 3
Compensation.......................................................... 4
Continuous Service.................................................... 6
Contributory Participant.............................................. 6
Covered Compensation.................................................. 6
Credited Service...................................................... 7
Earnings.............................................................. 7
Eligible Employee..................................................... 8
Employee.............................................................. 9
Employer.............................................................. 10
ERISA................................................................. 10
Final Average Earnings................................................ 10
Highly Compensated Employee........................................... 11
Leased Employee....................................................... 14
Nonhighly Compensated Employee........................................ 15
Hour of Service....................................................... 15
Inactive Participant.................................................. 16
Investment Committee.................................................. 16
Normal Retirement Date................................................ 16
Participant........................................................... 16
Pension............................................................... 16
Plan.................................................................. 16
Plan Year............................................................. 16
Primary Social Security Benefit....................................... 16
Prior Plan............................................................ 17
Social Security Benefits.............................................. 17
Social Security Retirement Age........................................ 18
Totally and Permanently Disabled...................................... 18
Trust Fund............................................................ 19
Trustee............................................................... 19
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 3. - PARTICIPATION................................................ 19
3.01 Participation.................................................. 19
3.02 Transfer....................................................... 19
3.03 Special Transitional Rules in Connection with the Sale of
Borg-Warner Industrial Products, Inc........................... 20
3.04 Special Transitional Rules in Connection with the Plan Merger
Effective April 1, 1989........................................ 21
SECTION 4. - ELIGIBILITY FOR RETIREMENT PENSION........................... 22
4.01 Normal Retirement.............................................. 22
4.02 Early Retirement............................................... 22
4.03 Disability Retirement.......................................... 22
4.04 Vested Deferred Retirement..................................... 23
SECTION 5. - AMOUNT OF RETIREMENT BENEFIT................................. 24
5.01 Normal Retirement Pension...................................... 24
5.02 Early Retirement Pension....................................... 28
5.03 Disability Retirement Pension.................................. 28
5.04 Vested Deferred Retirement Pension............................. 29
5.05 Maximum Benefit................................................ 29
5.06 Maximum Benefit for Participation in More Than One Plan........ 31
5.07 Nonduplication of Benefits..................................... 35
5.08 Notice of Option to Determine Primary Social Security Benefits
by Actual Salary History....................................... 35
5.09 COLA Cessation................................................. 36
SECTION 6. - MANNER OF PAYMENT............................................ 36
6.01 Normal Form of Benefit Payment................................. 36
6.02 Surviving Spouse Benefit....................................... 37
6.03 Automatic Death Before Age 55 Surviving Spouse Benefit......... 39
6.04 Automatic Post-Termination Surviving Spouse Benefit............ 40
6.05 Automatic Joint and Contingent Annuitant Benefit............... 41
6.06 Election and Election Period................................... 41
6.07 Optional Forms of Benefit Payment.............................. 42
6.08 Election of Optional Form of Retirement Benefit................ 45
6.09 Level Income Option............................................ 46
6.10 Commencement and Duration of Retirement Pension................ 47
6.11 Reemployment................................................... 48
6.12 Small Retirement Pension....................................... 49
SECTION 7. - CONTINUOUS SERVICE: CREDITED SERVICE........................ 50
7.01 Continuous Service............................................. 50
7.02 Credited Service............................................... 55
SECTION 8. - ADMINISTRATION............................................... 56
8.01 Establishment of the Administrative Committee.................. 56
8.02 Establishment of the Investment Committee...................... 56
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
8.03 Organization of the Committees.................................. 57
8.04 Powers of the Administrative Committee.......................... 57
8.05 Powers of the Investment Committee.............................. 59
8.06 Duties of the Administrative Committee.......................... 60
8.07 Actions by a Committee.......................................... 61
8.08 Accounts and Reports............................................ 61
8.09 Discretionary Action............................................ 61
8.10 Action Taken in Good Faith...................................... 61
8.11 Indemnification................................................. 62
8.12 Responsibilities of Named Fiduciaries Other than the Committees. 62
8.13 Allocation of Responsibilities.................................. 62
8.14 Designation of Persons to Carry Out Responsibilities of Named
Fiduciaries..................................................... 63
8.15 Information Required by Committee............................... 63
8.16 Forms........................................................... 64
8.17 Evidence........................................................ 64
8.18 Review of Benefit Determinations................................ 64
8.19 Administrative Committee's Decision Final....................... 65
8.20 Missing Persons................................................. 65
SECTION 9. - FUNDING....................................................... 65
9.01 Employer Contributions.......................................... 65
9.02 Funding of Benefits............................................. 66
9.03 Assets for the Exclusive Benefit of Participants................ 66
9.04 Reversion of Employer Contributions............................. 67
SECTION 10. - AMENDMENT AND TERMINATION OF THE PLAN........................ 67
10.01 Employers May Amend or Terminate Their Participation in the
Plan........................................................... 67
10.02 Discontinuance of a Division, Subsidiary or Affiliate.......... 68
10.03 Cessation of Participation by the Company...................... 69
10.04 Allocation and Distribution of Assets on Termination or
Partial Termination............................................ 70
10.05 Manner of Distribution......................................... 70
10.06 Residual Amounts............................................... 70
SECTION 11. - MISCELLANEOUS................................................ 71
11.01 Nonalienation of Benefits...................................... 71
11.02 Incapacity..................................................... 72
11.03 Continuance of Employment...................................... 72
11.04 Merger or Consolidation of Plan................................ 72
11.05 Construction................................................... 73
SECTION 12. - RESTRICTIONS ON BENEFITS PAYABLE TO HIGHLY COMPENSATED
PARTICIPANTS................................................. 73
12.01 Termination Restrictions....................................... 73
12.02 Ongoing Restrictions........................................... 73
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 13. - TOP-HEAVY RESTRICTIONS....................................... 75
13.01 Determination of Top-Heavy..................................... 75
13.02 Minimum Benefit................................................ 77
13.03 Minimum Vesting................................................ 77
13.04 Change in Top-Heavy Status..................................... 78
13.05 Impact on Maximum Benefits..................................... 78
13.06 Exception...................................................... 78
SUPPLEMENT A - CONTRIBUTORY PARTICIPANTS................................... 80
A-1. Normal Retirement Income........................................ 80
A-2. Termination of Employment....................................... 81
A-3. Death Benefits.................................................. 81
A-4. Optional Forms of Retirement Pension............................ 83
A-5. Withdrawal of Contributions Not Permitted....................... 85
A-6. Interest........................................................ 85
SUPPLEMENT B - MERGER OF MECHANICAL SEAL PLAN, PUMP DIVISION PLAN,FLUID
CONTROLS PLAN AND UCP PLAN.................................. 86
Benefits Accrued Prior to Merger...................................... 86
EXHIBIT A - EARLY RETIREMENT INCOME DETERMINANTS........................... 88
</TABLE>
iv
<PAGE>
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(As amended and restated as of January 1, 1993)
SECTION 1. - PURPOSE AND EFFECTIVE DATE
1.01 Purpose. The purpose of this Plan is to provide regular income
-------
after retirement for eligible employees of the participating divisions,
subsidiaries and affiliates of BW/IP International, Inc.
1.02 Effective Date. The Plan was adopted as of January 1, 1987, as
--------------
a successor plan to the Borg-Warner Corporation Retirement Plan with respect to
those employees affected by the sale of BW/IP International, Inc. by Borg-Warner
Corporation on May 20, 1987. The Plan, as set forth herein, is amended and
restated effective January 1, 1993, except as to any provision hereof which
pursuant to the Code or ERISA is required to have an effective date of January
1, 1987 or other earlier effective date or where a provision of the Plan
specifies an earlier or later effective date.
1.03 Supplements and Exhibits. From time to time, the Committee, at
------------------------
the request of an Employer, may adopt supplements and exhibits to the Plan for
the purpose of modifying the provisions of the Plan as they apply to the
Employees of the Employer (or any group or classification of Employees of the
Employer) to provide additional, substitute or restrictive terms and provisions
of the Plan as it applies to such Employees,
<PAGE>
including provisions to preserve benefits attributable to such Employees'
participation in a plan of the Employer or predecessor of the Employer or to
coordinate such benefits with the benefits of this Plan. Each such supplement
or exhibit will be attached to and form a part of this Plan, will specify the
group or class of Employees to which it applies and will supersede the
provisions of the Plan to the extent necessary to eliminate any inconsistencies
between the Plan and such supplement or exhibit.
SECTION 2. - DEFINITIONS
The following words and phrases as used herein have the following
definitions, unless the context clearly requires otherwise.
Actuarial Equivalent or Actuarial Value. Actuarial Equivalent or
---------------------------------------
Value means equality in value of the aggregate amounts expected to be received
under different forms of payments, based on the 1971 Group Annuity Mortality
Table which is weighted 90% male and 10% female, with interest at 6%.
Application of such assumptions to the computations of benefits payable under
the Plan shall be made uniformly and consistently with respect to all
Participants in similar circumstances.
Adjustment Factor. The cost of living adjustment factor prescribed
-----------------
by the Secretary of the Treasury under Section 415(d) of the Code for years
beginning after December 31, 1987, applied to such items and in such manner as
the Secretary shall prescribe.
2
<PAGE>
Administrative Committee. Administrative Committee means the BW/IP
------------------------
Administrative Committee designated by the Board to administer, interpret and
construe the Plan as provided in Section 8.
Affiliated Company. Any corporation which is included in a controlled
------------------
group of corporations (within the meaning of Section 414(b) of the Code) of
which the Company is a member, any trade or business which is under common
control with the Company (within the meaning of Section 414(c) of the Code), any
affiliated service group (within the meaning of Section 414(m) of the Code) of
which the Company is a member, and any other entity required to be aggregated
with the Employer pursuant to Section 414(o) of the Code.
Authorized Leave of Absence. Authorized Leave of Absence means any
---------------------------
absence authorized by an Employer under the Employer's standard personnel
practices.
BW/IP. BW/IP means the Company.
-----
Code. Code means the Internal Revenue Code of 1986, as amended.
----
Commencement Date. Commencement Date means the date an Employee first
-----------------
completes an Hour of Service.
Committee. Committee means the Retirement Committee described in
---------
Section 8.
Company. Company means BW/IP International, Inc., a Delaware
-------
corporation.
3
<PAGE>
Compensation. Compensation means all amounts paid or made available to
------------
a Participant during a Plan Year by the Company or any Affiliated Company for
personal services actually rendered to the Company or any Affiliated Company in
the course of employment by the Participant during such Plan Year and which are
subject to inclusion as gross income for federal income tax purposes in the
calendar year such amounts are first paid or made available. Such term shall
specifically include:
i) all wages, salaries, bonuses and commissions;
ii) taxable fringe benefits;
iii) reimbursements or other expense allowances under a nonaccountable
plan; and
iv) all amounts contributed to any plan established by the Corporation
under Section 125 of the Code with respect to the payment of certain
insurance premiums on a pre-tax basis.
Such term shall specifically exclude:
v) all employer contributions to this Plan and all other qualified plans
of deferred compensation for the period in question;
vi) amounts realized from the exercise of a non-qualified stock option or
when restricted stock or property held by an employee either becomes
freely transferable or is no longer subject to a substantial risk of
forfeiture;
4
<PAGE>
vii) amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option, and
viii)other amounts which receive special tax benefits, such as premiums for
group-term life insurance to the extent they are not includible in the
gross income of the employee.
In no event shall annual Earnings taken into account hereunder for any employee
for any Plan Year exceed the first two hundred thousand dollars of Compensation
for such employee; provided, that said amount shall be adjusted by the
Adjustment Factor.
Notwithstanding anything herein to the contrary, in the case of a Participant
(i) whose spouse, or lineal descendant(s) who have not attained age 19 prior to
the end of a Plan Year, are also Participants, and (ii) who is a five percent
owner (as defined in Section 416(i) of the Code) or one of the ten Highly
Compensated Employees paid the highest compensation (as defined in Section
414(q)(7) of the Code), then (iii) all such family members shall be treated as a
single participant for purposes of the $200,000 limitation in the preceding
sentence, and (iv) all Compensation paid to all family members shall be treated
as if paid to the Highly Compensated Employee.
5
<PAGE>
Continuous Service. Continuous Service means Continuous Service
------------------
determined as described in Section 7.01.
Contributory Participant. Contributory Participant means a
------------------------
Participant who contributed to the Prior Plan prior to March 1, 1970. The
rights and benefits of a Contributory Participant shall be determined by the
terms and provisions of this Plan as modified by Supplement A.
Covered Compensation. Covered Compensation means as to any
--------------------
Participant the average (without indexing) of the Taxable Wage Bases in effect
for each calendar year during the 35-year period ending with the last day of the
calendar year in which the Participant attains or will attain social security
retirement age (as defined in Section 415(b)(8) of the Code). In determining
the Covered Compensation for any Participant for a Plan Year, the Taxable Wage
Base for all calendar years beginning after the first day of the Plan Year shall
be assumed to be the same as the Taxable Wage Base in effect as of the beginning
of the Plan Year. The Covered Compensation for a Participant for a Plan Year
beginning after such 35-year period shall be the Participant's Covered
Compensation for the Plan Year during which such 35-year period ends. The
Covered Compensation for a Participant for a Plan Year beginning before such 35-
year period shall be the Taxable Wage Base in effect as of the beginning of the
Plan Year. The Covered Compensation for a Participant shall be automatically
adjusted for each Plan Year. For purposes of this definition, the
6
<PAGE>
term "Taxable Wage Base" shall mean the contribution and wage base under Section
230 of the Social Security Act, as the same may be amended from time to time.
Credited Service. Credited Service means Credited Service determined
----------------
as described in Section 7.02.
Earnings. With respect to an individual who is an hourly Employee,
--------
earnings for a Plan Year means the total wages received by a Participant for
services rendered by him to the Company and Affiliated Companies during the
calendar year ending in the Plan Year, as reported on Internal Revenue Service
Form W-2. With respect to an individual who is a salaried Employee, Earnings
for a Plan Year means the total earnings received by a Participant for services
rendered by him to the Company and Affiliated Companies during the calendar
ending in the Plan Year, including the amount of any performance bonus actually
paid to such Participant during such Plan Year but excluding any payment,
allowance, bonus or premium determined or paid solely by reason of the location
at which the services were rendered to the Employer, any payment which is not
considered compensation for services rendered and any amounts paid in a form
other than cash. Notwithstanding the above, in the event a Participant has an
Authorized Leave of Absence without earnings due to sickness, accident, military
or government service, or any other cause, and such Authorized Leave of Absence
is for a period in excess of one month during a calendar year, his Earnings for
the Plan Year in
7
<PAGE>
which said calendar year ends shall not be less than his Earnings for the
preceding Plan year. Earnings for plan years under the Prior Plan beginning
before March 1, 1956, shall be determined as provided in the Prior Plan in
effect prior to March 1, 1970.
Eligible Employee. Eligible Employee means an Employee who is either:
-----------------
(a) a salaried or commissioned Employee, or
(b) an hourly paid Employee on the office payroll, or engaged in a
supervisory, administrative, engineering or professional capacity, or performing
work of the type most frequently performed by salaried Employees whose terms and
conditions of employment are not determined by a collective bargaining agreement
which does not extend the Plan to said Employee, or who is not a participant in
another plan of retirement income to which the Employer contributes and under
which such Employee is accruing benefits for current service, or
(c) any hourly-rated shop and warehouse, production, maintenance and
mechanical employee not covered by a collective bargaining agreement who is
regularly employed by the Employer in its Mechanical Seal Division or in its
Pump Division or in its Fluid Controls Division in Van Nuys, California, or
(d) any employee of the Employer in its United Centrifugal Pump
Division except if such employee's wages and working conditions are determined
pursuant to a collective bargaining agreement, if there is evidence that
retirement
8
<PAGE>
benefits were the subject of good faith bargaining in association with such
collective bargaining agreement which does not expressly provide for
participation in this Plan or the United Centrifugal Pumps Second Amended and
Restated Defined Benefit Pension Plan..
Employee. Employee means any resident of the United States employed
--------
by an Employer, including Leased Employees within the meaning of section
414(n)(2) of the Code, and any citizen of the United States employed by an
Employer or by a foreign subsidiary of the Company, which subsidiary has entered
into an agreement with the Company under Section 3121(1)of the Code which is in
effect and as to whom no contributions under a funded plan of deferred
compensation are being provided by any other person with respect to the earnings
paid to such individual by such subsidiary. Notwithstanding the foregoing, if
Leased Employees constitute less than twenty percent of the Employer's non-
highly compensated work force within the meaning of section 414(n)(1)(C)(ii) of
the Code, the term "Employee" shall not include those Leased Employees covered
by a plan described in section 414(n)(5) of the Code. If approved by the
Committee, the term Employee may include a non-U.S. citizen who is employed by
the Company, its subsidiaries or affiliates outside of the United States. The
term Employee shall not include a non-U.S. citizen who is temporarily
transferred to an Employer.
9
<PAGE>
Employer. Employer means the Company and the divisions, subsidiaries
--------
and affiliates of the Company which are participating in the Plan. Divisions of
the Company shall participate in the Plan as determined from time to time by the
Committee. Subsidiaries and affiliates of the Company shall participate in the
Plan by taking appropriate corporate action with the Committee's consent.
ERISA. ERISA means the Employee Retirement Income Security Act of
-----
1974, P.L.93-406, as hereafter amended from time to time.
Final Average Earnings. Final Average Earnings means one-fifth of the
----------------------
aggregate Earnings paid to a Participant during the highest five consecutive
complete Plan Years within the last ten complete Plan Years of his Continuous
Service immediately preceding the earlier of his Termination Date. For a
Participant with less than five consecutive complete Plan Years of Continuous
Service, the Final Average Earnings means the sum of his Earnings for the last
five complete Plan Years of Continuous Service (or actual number of complete
Plan Years of Continuous Service if less than five) immediately preceding his
Termination Date divided by the actual number of such Plan Years.
For purposes of determining the Final Average Earnings of an Employee
who was a participant in the Prior Plan on December 31, 1986 and who became a
Participant in this Plan in connection with the sale of BW/IP by Borg-Warner
Corporation on May 20, 1987,
10
<PAGE>
amounts of compensation received during employment with a member of the Borg-
Warner Corporation controlled group of corporations prior to January 1, 1987
that would have been treated as Earnings pursuant to the Prior Plan shall be
considered Earnings of the Employee pursuant to this Plan.
Solely for purposes of determining the Final Average Earnings of an
Employee who was a participant in the Mechanical Seal Plan, the Pump Division
Plan, the Fluid Controls Plan or the UCP Plan prior to April 1, 1989 amounts of
compensation received during employment with the Mechanical Seal Division, the
Pump Division, the Fluid Controls Division, or the UCP Division of the Employer
or with United Centrifugal Pumps that would have been treated as Earnings
hereunder if the Employee was covered hereby when such compensation was earned
shall be considered Earnings of the Employee pursuant to this Plan.
Highly Compensated Employee. Highly Compensated Employee means an
---------------------------
Employee who, as required by, and as that term shall be interpreted consistently
with, Section 414(q) of the Code:
(i) is a 5% owner (as defined in Section 416(i)(1)(iii) of the
Code) at any time during the Determination Year or the Look-
Back Year;
(ii) receives compensation in excess of $75,000, as adjusted by
the Secretary of the Treasury, during the Look-Back Year;
11
<PAGE>
(iii) receives compensation in excess of $50,000, as adjusted by
the Secretary of the Treasury, during the Look-Back Year and
is a member of the Top Paid Group for the Look-Back Year; or
(iv) is an officer, within the meaning of Section 416(i) of the
Code, during the Look-Back Year and who receives
compensation greater than 50 percent of the amount in effect
under Section 415(b)(1)(A) of the Code for the calendar year
in which the Look-Back Year begins;
(v) is both (A) described in subparagraphs (ii), (iii) or (iv)
above when these provisions are modified substituting the
Determination Year for the Look-Back Year and (B) is among
the group consisting of the 100 Employees with the greatest
compensation during the Determination Year.
Solely for purposes of this definition, the following
special rules and definitions shall apply:
(vi) "Determination Year" shall mean the Plan Year with respect
to which the determination is being made.
(vii) "Look-Back Year" shall mean the twelve-month period
immediately preceding the Determination Year; provided,
however, that the Company may elect to
12
<PAGE>
treat the calendar year ending with the Determination Year
as the Look-Back Year.
(viii) "Top Paid Group" shall mean the group of Employees
consisting of the top 20 percent of all Employees when
ranked on the basis of Compensation paid during each year.
For purposes of determining the number of Employees in the
Top Paid Group, employees described in Section 414(q)(8) of
the Code and Q&A 9(b) of Section 1.414(q)-1T of the Treasury
Regulations shall be excluded.
(ix) The number of officers is limited to 50 (or, if lesser, the
greater of 3 Employees or 10 percent of Employees).
(x) When no officer has Compensation in excess of 50 percent of
the amount in effect under Section 415(b)(1)(A) of the Code,
the highest paid officer shall be a Highly Compensated
Employee.
(xi) "Compensation" shall mean compensation within the meaning of
Section 415(c)(3) of the Code including elective or salary
reduction contributions to a cafeteria plan, cash or
deferred arrangement or tax-sheltered annuity.
(xii) The term "Highly Compensated Employee" shall include a
former Highly Compensated Employee if such Employee was a
Highly Compensated Employee
13
<PAGE>
when such Employee separated from service, or such Employee
was a Highly Compensated Employee at any time after
attaining age 55.
(xiii) To the extent that any provision of this definition shall
conflict with any provision of final regulations issued by
the Secretary of the Treasury under Section 414(q) of the
Code, the provisions hereof shall cease to have effect to
extent of such conflict.
Leased Employee. Leased Employee means, with respect to services
---------------
performed after December 31, 1986, any individual (other than a common law
employee of an Employer) who, pursuant to an agreement between an Employer and
any other person (the "leasing organization"), has performed services for such
Employer or for such Employer and related persons (within the meaning of Section
144(a)(3) of the Code) on a substantially full-time basis (as defined in
regulations under Section 414(n) of the Code) for a period of at least one year,
and such services are of a type historically performed by employees in the
business field of such Employer. Contributions or benefits provided by the
leasing organization which are attributable to the services performed for such
Employer shall be treated as provided by such Employer. Notwithstanding
anything in this Section to the contrary, an individual shall not be considered
a Leased Employee during any Plan Year in which (i) the leasing organization
sponsors a money
14
<PAGE>
purchase pension plan which provides a nonintegrated employer contribution of
ten percent of compensation, full and immediate vesting, and immediate
participation for all employees of the leasing organization (other than
employees who perform substantially all of their services for the leasing
organization); (ii) the individual in question participates in the leasing
organization's plan; and (iii) Leased Employees (determined without regard to
this sentence) constitute less than twenty percent of the work force of the
Employer and any Affiliates. For purposes of the preceding sentence,
"compensation" shall mean an individual's compensation as defined under Section
415 of the Code, except that "compensation" shall exclude Pre-Tax Contributions
hereunder (or any other elective deferrals under any plan maintained by the
Employer or any Affiliate), and any amount which the individual would have
received in cash but for an election under a cafeteria plan (within the meaning
of Section 125 of the Code) maintained by the Employer or any Affiliate."
Nonhighly Compensated Employee. Nonhighly Compensated Employee means
------------------------------
an Employee of the Employer who is neither a Highly Compensated Employee nor a
family member described in Section 414(q)(6)(B) of the Code.
Hour of Service. Hour of Service means an hour for which an employee
---------------
is paid or entitled to payment for the performance of duties for the Company or
an Affiliated Company.
15
<PAGE>
Inactive Participant. Inactive Participant means a person who
--------------------
participated in the Plan and subsequently ceases to be an Eligible Employee.
Investment Committee. Investment Committee means the BW/IP Investment
--------------------
Committee designated by the Board to have the Investment Responsibilities under
the Plan designated in Section 8.
Normal Retirement Date. Normal Retirement Date of a Participant means
----------------------
the later of (i) the date he reaches age sixty-five (65) or (ii) the fifth
anniversary of the date his participation in the Plan commenced if such
Participant commences participation in the Plan at age 60 or older.
Participant. Participant means an Eligible Employee participating in
-----------
the Plan in accordance with Section 3.
Pension. Pension means a series of monthly amounts which are payable
-------
to a person who is entitled to receive benefits under the Plan.
Plan. Plan means the BW/IP International, Inc. Retirement Plan.
----
Plan Year. A Plan Year means the 12 consecutive calendar months
---------
beginning each January 1.
Primary Social Security Benefit. Primary Social Security Benefit
-------------------------------
means the annual amount available to the Participant at age 65 (or upon actual
retirement, if later) under the provisions of Title II of the Social Security
Act in effect at
16
<PAGE>
the time of his Termination Date, without regard to any increase in the wage
base, or benefit levels that take effect thereafter. However, if his
Termination Date occurs prior to age 65, the Participant's Primary Social
Security Benefit shall be estimated by assuming continuation of his Earnings
until age 65 at the same rate as in effect during the last completed Plan Year
before his Termination Date. The computation of the Participant's Primary
Social Security Benefit shall assume that his compensation for years prior to
the last complete Plan Year before his Termination Date is his Earnings during
the last complete Plan Year before his Termination Date discounted at 6% per
year. However, a Participant may submit documentation of actual salary history
(in accordance with the provisions of Section 5.08) which shall be used to
determine compensation in computing that Participant's Primary Social Security
Benefits in lieu of the assumptions set forth in this definition. The fact that
a Participant does not actually receive a Primary Social Security Benefit
because of failure to apply or continuance of work, or for any other reason,
shall be disregarded.
Prior Plan. Prior Plan means the Borg-Warner Corporation Retirement
----------
Plan as in effect on December 31, 1986 unless another effective date is
specifically provided.
Social Security Benefits. Social Security Benefits means unreduced
------------------------
old age benefit payments or disability benefit payments (other than those
payable because of military service)
17
<PAGE>
under the Federal Social Security Act, as amended, or under any future Federal
legislation, amending, superseding, supplementing or incorporating the Federal
Social Security Act to which the Participant or former Participant would be
entitled upon proper application therefor, assuming that the Pension paid under
this Plan is his only income.
Social Security Retirement Age. The age used as the retirement age
------------------------------
for the Participant under section 216(1) of the Social Security Act, except that
such section shall be applied without regard to the age increase factor, and as
if the early retirement age under Section 216(1)(2) of such Act were 62.
Termination Date. Termination Date means the earliest of the date a
----------------
Participant terminates his employment with all Employers and Affiliated
Companies by reason of a voluntary quit, involuntary discharge, death, or his
retirement under the Plan or under the Prior Plan.
Totally and Permanently Disabled. A Participant shall be deemed to be
--------------------------------
Totally and Permanently Disabled when on the basis of medical evidence, it is
determined by the Committee that:
(a) he is totally disabled by bodily injury or disease so as to be
prevented thereby from engaging in any occupation or employment (for
remuneration or profit) for which he is or may become reasonably fitted by
reason of education, training or experience, but excluding a disability
resulting from service in
18
<PAGE>
the armed forces of any country, participation in a felonious criminal act, or
intentional self infliction; and
(b) his disability will continue during the remainder of his life.
Trust Fund. Trust Fund means the trust fund established and
----------
maintained under the Plan, to which all contributions are paid and from which
all benefits are disbursed.
Trustee. Trustee means the bank, trust company or other entity acting
-------
at any time as trustee of the Trust Fund.
SECTION 3. - PARTICIPATION
3.01 Participation. Each Eligible Employee, other than a Leased
-------------
Employee, shall become a Participant in the Plan on the first day of the
calendar month coincident with or next following the date on which he has both:
(i) completed a one year period of Continuous Service and (ii) attained the age
of 21; provided, however, if an Eligible Employee satisfies the requirements of
this Section 3.01 while on an Authorized Leave of Absence, he shall become a
Participant on the first day of the calendar month coincident with or next
following the date on which he returns to active employment.
Participation in the Plan shall terminate if an Employee ceases to be
an Eligible Employee.
3.02 Transfer. If a person is transferred from a position in which
--------
he was excluded from participation in the Plan
19
<PAGE>
to a position in which he is not so excluded, he shall be eligible to
participate under the Plan as of the first day of the calendar month coincident
with or next following the later of (i) such transfer date or (ii) the date as
of which he satisfied the requirements of Subsection 3.01.
3.03 Special Transitional Rules in Connection with the Sale of Borg-
--------------------------------------------------------------
Warner Industrial Products, Inc. This Plan was adopted by the Employer
- -------------------------------
effective as of January 1, 1987 as a continuation of the Prior Plan for former
employees of Borg-Warner Corporation or its subsidiaries who became or continued
to be employees of the Employer following and in connection with the sale of
Borg-Warner Industrial Products, Inc. by Borg-Warner Corporation on May 20, 1987
(the "Sale"). It is the intent of the following transitional rules that this
Plan be interpreted as assuring the uninterrupted continuation of the provisions
of the Prior Plan for employees of the Employer who were or would have been
eligible to participate in the Prior Plan before the Sale. (Nevertheless, the
Company reserves the right to amend the Plan as provided herein so long as no
such amendment adversely affects benefits accrued by such employees prior to the
effective date of amendment.) Therefore, notwithstanding any provision of the
Plan to the contrary, each employee of the Employer who was immediately prior to
January 1, 1987, a participant in the Prior Plan shall, as of such date, be a
Participant in this Plan. For purposes of determining eligibility to
participate and vesting, qualifying
20
<PAGE>
service shall include all periods of employment which would have been taken into
account in computing qualifying service under the Prior Plan as in effect
immediately before the Sale. Notwithstanding any other provision of the Plan,
no Participant in this Plan shall derive any accrued benefit hereunder with
respect to any period during which he was also a participant in the Prior Plan
and accordingly there shall be no duplication of benefits with respect to such
Participant.
3.04 Special Transitional Rules in Connection with the Plan Merger
-------------------------------------------------------------
Effective April 1, 1989. Pursuant to Supplement B effective April 1, 1989
- -----------------------
hereto, the Mechanical Seal Plan, the Pump Division Plan, the Fluid Controls
Plan and the UCP Plan (the "Merged Plans") were merged into this Plan. In order
to recognize prior service of participants in and employees covered by such
plans for eligibility, participation and vesting purposes (but not for benefit
accrual purposes) service of such participants and employees under such plans
for all periods of employment shall be taken into account for purposes of
determining eligibility to participate and vesting hereunder as if such periods
of employment would have been taken into account in computing qualifying service
if earned hereunder.
Any person who is a participant as of April 1, 1989 in the Merged
Plans shall continue to be a Participant hereunder from and after such date
subject otherwise to the terms hereof.
21
<PAGE>
In no event, however, shall any Participant in this Plan derive any
accrued benefit hereunder with respect to any period during which he was a
participant in the Merged Plans, all such accrued benefits being determined
under the applicable Merged Plan as provided in Supplement B hereto, and
accordingly there shall be no duplication of benefits with respect to such
Participant.
SECTION 4. - ELIGIBILITY FOR RETIREMENT PENSION
4.01 Normal Retirement. A Participant shall be eligible for a Normal
-----------------
Retirement Pension if his Termination Date occurs on or after his Normal
Retirement Date. Payment of a Normal Retirement Pension shall commence on the
first day of the calendar month coincident with or next following his actual
retirement.
4.02 Early Retirement. A Participant shall be eligible for an Early
----------------
Retirement Pension if his Termination Date occurs on or after his fifty-fifth
birthday and prior to his Normal Retirement Date and he elects to commence his
Early Retirement immediately after his Termination Date. Payment of an Early
Retirement Pension shall commence on the first day of the calendar month
coincident with or next following his Early Retirement.
4.03 Disability Retirement. A Participant who has not reached his
---------------------
Normal Retirement Date and who is not receiving an Early Retirement Benefit
under this Plan shall be eligible for a Disability Retirement Pension if:
22
<PAGE>
(a) He has been Totally and Permanently Disabled for a continuous
period of at least six months and
(b) He was a Participant on the date his Total and Permanent
Disability commenced and he had completed at least ten years of Continuous
Service prior to that date.
Payment of a Disability Retirement Pension will commence on the first day of
the calendar month coincident with or next following the date the Participant
fulfills the provisions of this Section 4.03, provided he is Totally and
Permanently Disabled at that time.
4.04 Vested Deferred Retirement. A Participant or an Inactive
--------------------------
Participant shall be eligible for a Vested Deferred Retirement Pension if for
any reason, other than death, he terminates employment with the Company and its
Affiliated Companies prior to his retirement under the Plan and (i) he has at
least 5 years of Continuous Service or (ii) he is age fifty-five or older on the
date of such termination.
a) Any Eligible Employee who was a Participant in the Plan on December
31, 1988 and who completes at least four years of Continuous Service
shall be eligible to receive forty percent (40%) of his Vested
Deferred Retirement Benefit after completing four years of Continuous
Service and shall be eligible to receive one hundred percent (100%) of
his Vested Deferred Retirement Pension after completing five years of
Continuous Service.
23
<PAGE>
b) Any Eligible Employee who becomes a Participant in the Plan on or
after January 1, 1989 shall be eligible to receive one hundred percent
(100%) of his Vested Deferred Retirement Pension after completing five
years of Continuous Service.
Payment of a Vested Deferred Retirement Pension shall commence on the first day
of the month coincident with or next following his sixty-fifth birthday. Any
person entitled to a Vested Deferred Retirement Pension under the Plan may,
however, elect to receive his benefit commencing on the first day of any month
coincident with or next following his fifty-fifth birthday, in an amount
actuarially reduced based on the actuarial assumptions described in Section 2.
Such election must be made on a written application filed with the Committee,
provided, however, such written application may not be made prior to the
sixtieth day preceding his fifty-fifth birthday.
SECTION 5. - AMOUNT OF RETIREMENT BENEFIT
5.01 Normal Retirement Pension. Effective as of January 1, 1989 for
-------------------------
Participants who accrue an Hour of Service from and after such date, the monthly
Normal Retirement Pension will be an amount, except as otherwise provided herein
and specifically subject to Sections 5.05, 5.06, 5.07 and 12, equal to the
greater of (a) or (b):
(a) one-twelfth of the sum of (i), (ii) and (iii):
24
<PAGE>
(i) 1.15% of his Final Average Earnings, but not in excess of
his Covered Compensation, multiplied by the number of Plan Years and fractions
thereof, with completed months as twelfths, of his Credited Service.
(ii) 1.6% of his Final Average Earnings in excess of his Covered
Compensation multiplied by the number of Plan Years and fractions thereof, with
completed months as twelfths, of his Credited Service.
(iii) .50% of his Final Average Earnings, multiplied by the
number of Plan Years and fractions thereof, with completed months as twelfths,
of his Continuous Service in excess of 30 years but not in excess of 40 years.
Provided, however, and continued subject to Sections 5.05, 5.06, 5.07 and 12, as
to any Participant who was a Non-Highly Compensated Employee prior to January 1,
1992 the amount of his monthly Normal Retirement Pension shall not be less than
the amount of his monthly Normal Retirement Pension which would have been
accrued as of December 31, 1991, and as to any Participant who was a Highly
Compensated Employee prior to January 1, 1992 the amount of his monthly Normal
Retirement Pension shall not be less than the amount of his monthly Normal
Retirement Pension which was accrued as of December 31, 1988, each under the
following formula:
One-twelfth of the sum of (i) and (ii):
25
<PAGE>
(i) 1.6% of his Final Average Earnings multiplied by the number
of Plan Years and fractions thereof, with completed months as twelfths, of his
Credited Service; less 1% of his Primary Social Security Benefits multiplied by
the number of Plan Years and fractions thereof, with completed months as
twelfths, of his Credited Service.
(ii) .50% of his Final Average Earnings, multiplied by the
number of Plan Years and fractions thereof, with completed months as twelfths,
of his Continuous Service in excess of 30 years but not in excess of 40 years.
(b) The "Minimum Normal Retirement Pension" which shall mean:
(i) in the case of an individual who was a Participant under
the Prior Plan on December 31, 1984 and had reached age fifty-five (55) on or
prior to December 31, 1984, the amount of the monthly Normal Retirement Pension
to which he would be entitled at his Normal Retirement Date determined under the
provisions of the Prior Plan as in effect prior to January 1, 1985, and based on
his Continuous Service, Credited Service and Final Average Earnings at his
Normal Retirement Date;
(ii) in the case of an individual who was a Participant under
the Prior Plan on December 31, 1984 and had not reached age fifty-five (55) on
or prior to December 31, 1984, the amount computed as of December 31, 1984, to
be the monthly Normal Retirement Pension to which he would be entitled at his
Normal
26
<PAGE>
Retirement Date determined under the provisions of the Prior Plan as in effect
prior to January 1, 1985.
The Normal Retirement Pension of a Participant shall not be decreased by reason
of any increase in the benefit levels or wage base under the provisions of Title
II of the Social Security Act if such increase takes place after the earlier of
the date as of which the Participant begins to receive payments under the Plan
or the date the Participant separates from service.
The Normal Retirement Pension of a Participant who continues in the employ of an
Employer after his Normal Retirement Date shall be the greater of (1) the
Actuarial Equivalent of the Normal Retirement Pension to which the Participant
would have been entitled at his Normal Retirement Date, adjusted to reflect the
value, if any, of the amount of benefits accrued by him as of his Normal
Retirement Date and not paid to him for any calendar month commencing on or
after his Normal Retirement Date in which he fails to complete at least one Hour
of Service per day (which service qualifies as "Section 203(a)(3)(B) service"
under ERISA Regulation Section 2530.203-3(c)(1)) for at least eight days during
that calendar month, and (2) the amount of a benefit computed as a Normal
Retirement Benefit based upon the Participant's Continuous Service and Credited
Service at his
27
<PAGE>
actual date of retirement from the Company and all Affiliated Companies.
5.02 Early Retirement Pension. The monthly Early Retirement Pension
------------------------
will be an amount, as determined in accordance with the provisions of Section
5.01, based on his Continuous Service and Credited Service at his Early
Retirement Date, multiplied by the percentages set forth in the Table contained
in Exhibit A hereof adopted by his Employer and in effect on the date of his
Early Retirement.
5.03 Disability Retirement Pension. The monthly Disability
-----------------------------
Retirement Pension will be an amount, subject to Sections 5.05, 5.06, 5.07 and
12, equal to the sum of (a) and (b):
(a) The amount determined in accordance with Section 5.01, based on
his Continuous Service and Credited Service prior to the earlier of his
Termination Date or the first anniversary date of the date his Authorized Leave
of Absence for medical reasons commenced.
(b) If the Participant is not entitled to Social Security Benefits,
an amount equal to $2.80 multiplied by his complete Plan Years of Continuous
Service prior to the applicable date described in Subsection 5.03(a).
28
<PAGE>
The amounts so determined above in accordance with (a) and (b) shall be reduced
by any amount payable due to any sickness, injury or disability benefits under
any Employer sponsored plan, except for any benefits provided by any long term
disability income plan under which the benefits are reduced by the benefits
payable under this Plan.
5.04 Vested Deferred Retirement Pension. The monthly Vested Deferred
----------------------------------
Retirement Pension will be an amount as determined in accordance with Section
5.01 of the Plan, as in effect on the date he ceased to be an Eligible Employee
and based on his Continuous Service and Credited Service at that date,
multiplied by his Vested Percentage.
5.05 Maximum Benefit. Effective January 1, 1987, the monthly
---------------
benefits provided under the Plan and all defined benefit plans maintained by the
"BW/IP Companies" (as defined in Subsection 5.06(g)) shall not exceed the lesser
of one-twelfth of his "Average Earnings for His High Three Years" (as defined in
Subsection 5.06 (c)) or $7,500 ("Dollar Limitation"); subject to the following:
(a) The Dollar Limitation shall apply to the Actuarial Equivalent of
the single life Pension excluding the value of the Surviving Spouse Benefit, if
applicable, as provided in Section 6.02.
29
<PAGE>
(b) If the Participant has fewer than 10 years of Participation in
this Plan at retirement, the applicable Dollar Limitation shall be multiplied by
a fraction, of which the numerator is the number of years of Participation and
the denominator is 10 and if the Participant has fewer than 10 years of
Continuous Service at retirement, then his Average Earnings for His High Three
Years shall be multiplied by a fraction, of which the numerator is the number of
years of Participation and the denominator is 10.
(c) Notwithstanding the Dollar Limitation of this Section 5.05, a
Participant shall receive a monthly benefit which is not less than the amount of
his accrued monthly pension as of December 31, 1982, determined under the
provisions of the Prior Plan as then in effect, and a Participant shall receive
a monthly benefit which is not less than the amount of his accrued monthly
pension as of December 31, 1986.
(d) The Dollar Limitation of $7,500 shall be increased by the cost of
living adjustment factor as provided under Section 415 (the "Adjustment
Factor").
(e) If the retirement benefit of a Participant commences before the
Participant's Social Security Retirement Age, the Dollar Limitation shall be
adjusted so that it is the Actuarial Equivalent of an annual benefit of $90,000
multiplied by the Adjustment Factor, as prescribed by the Secretary of the
Treasury, beginning at the Social Security Retirement Age. The
30
<PAGE>
adjustment provided for in the preceding sentence shall be made in such manner
as the Secretary of the Treasury may prescribe which is consistent with the
reduction for old-age insurance benefits commencing before the Social Security
Retirement Age under the Social Security Act.
(f) If the retirement benefit of a Participant commences after the
Participant's Social Security Retirement Age, the Dollar Limitation shall be
adjusted so that it is the actuarial equivalent of a benefit of $90,000
beginning at the Social Security Retirement Age, multiplied by the Adjustment
Factor as provided by the Secretary of the Treasury, based on the lesser of the
interest rate assumption under the Plan or on an assumption of five percent (5%)
per year.
(g) The foregoing limitations shall apply to the Plan and all defined
benefit plans maintained by the BW/IP Companies. Company. Any reduction
necessary to comply with this provision shall first come under the defined
benefit plan that provides the Participant with the greatest Retirement Pension.
5.06 Maximum Benefit for Participation in More Than One Plan. If a
-------------------------------------------------------
Participant also participates in one or more defined contribution plans of an
BW/IP Companies, then in no event, except as otherwise provided by ERISA, shall
the sum of his Defined Benefit Plan Fraction and his Defined Contribution Plan
Fraction (both as defined below) exceed 1.0. This requirement shall be
31
<PAGE>
applied by the Committee in accordance with the following which shall be
effective as of January 1, 1987:
(a) A Participant's "Defined Benefit Plan Fraction" for any Plan Year
is a fraction, the numerator of which is his Projected Annual Benefit (as
defined below) determined at the end of such year under this Plan and all
defined benefit plans maintained by the BW/IP Companies and the denominator
of which is the lesser of:
(i) 1.25 multiplied by $90,000 as adjusted by the Adjustment
Factor, or
(ii) 1.4 multiplied by 100% of his Average Earnings for His High
Three Years (as defined below).
(b) A Participant's "Projected Annual Benefit" means his Projected
Annual Benefit under this Plan, adjusted for Participant contributions, if
any, in accordance with regulations prescribed by the Secretary of
Treasury, which is Actuarially Equivalent to an annual benefit commencing
at his Normal Retirement Date.
(c) A Participant's "Average Earnings for His High Three Years" means
his average annual Limitation Compensation during that period of three
consecutive calendar years of his participation in the Plan (or during his
actual number of such years of participation if less than three such years)
in which his aggregate Limitation Compensation from an Affiliated Company
were the greatest. "Limitation
32
<PAGE>
Compensation" is defined as wages within the meaning of section 3401(a) of
the Code (for purposes of income tax withholding at the source) but
determined without regard to any rules that limit the remuneration included
in wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in section
3401(a)(2) of the Code).
(d) A Participant's "Defined Contribution Plan Fraction" for any Plan
Year is a fraction, the numerator of which is the sum of the Annual
Additions (as defined below) to his accounts under all defined contribution
plans of the BW/IP Companies for all years as of the close of such year,
and the denominator of which is the sum of the Maximum Annual Additions (as
defined below) for each year of his employment with the BW/IP Companies,
subject to the transitional rules described in Sections 415(e)(4) and
415(3)(6) of the Code.
(e) A Participant's "Annual Addition" for any Plan Year means the sum
for that year of:
(i) the contributions of the BW/IP Companies and the amount of
forfeitures, if any, credited to his account under any defined
contribution plan maintained by any of the BW/IP Companies;
(ii) the amount of such Participant's own contributions for such
year to any defined contribution plan maintained by the BW/IP
Companies other than his
33
<PAGE>
'rollover contributions' (as defined in section 402(a)(5), 403(a)(4),
403(b)(8) or 408(d)(3) of the Code); and
(iii) amounts, if any, described in sections 415(l) and 419A(d)(2)
of the Code relating to amounts allocated to the Participant's medical
account under such plan.
(f) A Participant's "Maximum Annual Addition" for any Plan Year means
the lesser of:
(i) 1.25 multiplied by $30,000 adjusted by the Adjustment
Factor; or
(ii) 1.4 multiplied by 25% of his compensation (as defined under
Section 415(c)(3) of the Code.
(g) BW/IP Companies shall mean each Affiliated Company and the
controlled group of corporations (within the meaning of section 1563(a) of
the Code, determined without regard to section 1563(a)(4) and (e)(3)(C)
thereof and substituting for the phrase "at least 80 percent" each place it
appears in section 1563(a)(1) the phrase "at least 50 percent") whose
common parent is BW/IP.
If a reduction in benefits or contributions is required under Section 415(e) of
the Code, such reduction shall be applied to the benefits under this Plan. The
limitations of this Section are intended to comply with the provisions of
Section 415 of the Internal Revenue Code, as amended, so that the maximum
benefits provided by plans of the BW/IP Companies shall be exactly equal to
34
<PAGE>
the maximum amounts allowed under Section 415 of the Code and regulations
thereunder. If there is any discrepancy between the provisions of this Section
5.06 and the provisions of Section 415 of the Code and regulations thereunder,
such discrepancy shall be resolved in such a way as to give full effect to the
provisions of the Code.
5.07 Nonduplication of Benefits. The amount of any benefit payable
--------------------------
under this Plan shall be reduced by the Actuarial Equivalent of any benefit
payable at any time under any pension plan other than this Plan, which meets the
requirements of Section 401 of the Code, and to which contributions have been
made by the Company or the BW/IP Companies, that is attributable to any period
included in the years of Continuous Service and Credited Service used in
computing the Pension under this Plan.
5.08 Notice of Option to Determine Primary Social Security Benefits
--------------------------------------------------------------
by Actual Salary History. A Participant's Primary Social Security Benefit shall
- ------------------------
be computed as set forth in Section 2 of the Plan. A Participant shall have the
right to have his Primary Social Security Benefit recomputed on the basis of the
Participant's actual Social Security salary history up to his Termination Date
instead of estimated compensation. A Participant shall be furnished with a
clear written notice of his right to supply such actual salary history, of the
financial consequences of failing to supply such history, and that the
Participant can obtain such actual salary history on a year-by-year basis from
the
35
<PAGE>
Social Security Administration. The notice shall be included with each summary
plan description provided to the Participant and shall also be given to the
Participant upon his Termination Date.
If the Participant supplies documentation from the Social Security
Administration of his actual year-by-year salary history, the Participant's
Primary Social Security Benefit, which previously was estimated, shall be
recalculated based on the actual salary history prior to his Termination Date.
Such documentation must be provided to the Committee within a reasonable time
following the later of the date of the Participant's Termination Date and the
time when the Participant is notified by the Committee of the amount of the
benefit to which he is entitled.
5.09 COLA Cessation. The automatic cost of living adjustment as
--------------
provided in Section 5.05 of the Prior Plan as in effect prior to January 1,
1985, shall apply only to a Participant or former Participant whose Termination
Date occurred prior to January 1, 1985, or the surviving spouse or beneficiary
of such Participant or former Participant, and only to benefits earned under the
Prior Plan prior to that date.
SECTION 6. - MANNER OF PAYMENT
6.01 Normal Form of Benefit Payment. Retirement Pension will be paid
------------------------------
monthly on an immediate life annuity basis except as otherwise provided in this
Section 6.
36
<PAGE>
6.02 Surviving Spouse Benefit.
------------------------
(a) If a Participant or a former Participant eligible to receive or
receiving a Pension (but not including a former Participant eligible to
receive or receiving a Vested Deferred Retirement Pension, unless his
termination of employment with his Employer occurred on or after January 1,
1979 by reason of the sale or discontinuance of all or a substantial
portion of his Employer's operation or any similar event beyond the control
of the Participant, as determined by the Committee in its sole discretion)
shall die, a Surviving Spouse's Benefit in addition to the benefit under
Paragraph A-3 of Supplement A, if applicable, shall be payable to his
surviving spouse provided:
(i) he shall have reached age fifty-five (55) on or prior to his
Termination Date, unless he is receiving a Disability Retirement
Pension, and
(ii) he shall have been married to such surviving spouse at the
time of his Pension commencement date, if applicable, and for a period
of at least one year immediately preceding the date of his death, and
(iii) he shall not have elected during his Election Period to
reject the Surviving Spouse Benefit in accordance with Section 6.06.
(b) The amount of the Retirement Pension payable to a Participant or
former Participant described in Subsection
37
<PAGE>
6.02(a) shall be equal to 95% of the monthly Retirement Pension which would
have been payable to him under Section 6.01.
(c) The monthly retirement benefit payable to a surviving spouse of a
Participant or former Participant described under Subsection 6.02(a) shall
be fifty percent of (i) the amount of the Retirement Pension he was
receiving at the time of his death, less the amount he was receiving under
Subsection 5.03(b), if applicable, or (ii) if he was not then receiving a
Retirement Pension, the Retirement Pension he would have been eligible to
receive if he had commenced receiving his Pension on the first day of the
month next following his death.
(d) The provisions of Subsection 6.02(b) shall not reduce the amount
of a monthly retirement benefit payable to a Participant (or former
Participant) and his surviving spouse below:
(i) In the case of an individual who was a Participant under the
Prior Plan on December 31, 1984 and had reached age fifty-five (55) on
or prior to December 31, 1984, the amount of monthly retirement
benefit which would have been payable to such person under the
provisions of the Prior Plan as in effect prior to January 1, 1985,
and based on his Continuous
38
<PAGE>
Service, Credited Service and Final Average Earnings at his
Termination Date.
(ii) In the case of an individual who was a Participant under
the Prior Plan on December 31, 1984 and had not reached age fifty-five
(55) on or prior to December 31, 1984, the amount of monthly
retirement benefit which would have been payable to such person had
the Participant retired immediately prior to January 1, 1985.
6.03 Automatic Death Before Age 55 Surviving Spouse Benefit.
------------------------------------------------------
(a) If a Participant who is eligible to receive a Vested
Deferred Retirement Pension (but not including a former Participant
eligible to receive or receiving a Vested Deferred Retirement Pension)
shall die prior to his fifty-fifth birthday, a surviving spouse
benefit, as described in Subsection 6.03(b), shall be payable to his
surviving spouse (commencing at the time described in Subsection
6.10(c)) provided he shall have been married to such spouse at least
one year immediately preceding the date of his death.
(b) The monthly retirement benefit payable to a surviving spouse
of a Participant described under Subsection 6.03(a) shall be fifty
percent of the amount of Retirement Pension he would have received
under
39
<PAGE>
Subsection 6.02(b) had he died on his fifty-fifth birthday, based on
his Continuous Service, Credited Service, Final Average Earnings,
Covered Compensation and Primary Social Security Benefits at the date
of his actual death.
6.04 Automatic Post-Termination Surviving Spouse Benefit. A former
---------------------------------------------------
Participant eligible to receive a Vested Deferred Retirement Pension who is not
entitled to coverage under Section 6.02, shall be deemed to have elected the
surviving spouse benefit coverage described in this Section 6.04 for that
portion of the period between his Termination Date and his Pension commencement
date during which he has a spouse to whom he has been married for at least one
year. If such former Participant dies prior to his Pension commencement date,
the monthly retirement benefit payable to his spouse (to whom he has been
married at least one year immediately preceding the date of his death) if
surviving shall be equal to fifty percent of:
(a) The reduced amount of Retirement Pension he would have received
if he had commenced receiving his Pension under Section 6.05 on the first
day of the month next following his death, if applicable, or
(b) If he dies before his fifty-fifth birthday, the reduced amount of
Retirement Pension he would have received had he died on his fifty-fifth
birthday, based on his
40
<PAGE>
Continuous Service, Final Average Earnings and Primary Social Security
Benefits at his Termination Date.
6.05 Automatic Joint and Contingent Annuitant Benefit. In lieu of a
------------------------------------------------
benefit payment on a Life Annuity Basis, if a former Participant eligible to
receive a Vested Deferred Retirement Pension (other than a former Participant
entitled to coverage in Section 6.02) has a spouse to whom he has been married
throughout the one-year period ending on his Pension commencement date, his
Pension shall be paid in the form of an immediate 50% joint and contingent
annuitant option as described in Subsection 6.07(a) under which such spouse will
be deemed to be the Contingent Annuitant unless such Participant elects during
his Election Period to reject the joint and contingent annuitant benefit in
accordance with Section 6.06.
6.06 Election and Election Period.
----------------------------
(a) Any election by a Participant (including a former Participant) to
reject the benefits provided for under Section 6.02 or 6.05 ("Waiver") must
be made in writing consented to by the Participant's spouse and filed with
his Employer at any time, and from time to time, during his Election
Period. A Participant's "Election Period" shall be the ninety-day period
ending on his Pension commencement date.
(b) The spouse's consent to a Waiver must acknowledge the effect
thereof and be witnessed by a notary public. Such
41
<PAGE>
spouse's consent shall not be required if the Participant establishes to
the satisfaction of the Committee that such written consent may not be
obtained because he has no spouse or his spouse cannot be located. A
Waiver made by a Participant may be revoked by such Participant in writing
without the consent of his spouse at any time during the Election Period.
The number of revocations shall not be limited. A Waiver consented to by a
former spouse of a Participant shall not be binding on his new spouse.
(c) A written general explanation of the surviving spouse benefit
shall be furnished to the Participant by his Employer within a reasonable
period of time before his Pension commencement date (and consistent with
Treasury Regulations).
6.07 Optional Forms of Benefit Payment. In lieu of the Pension
---------------------------------
(including any surviving spouse benefit) payable pursuant to the foregoing
provisions of this Section 6, a Participant (or former Participant, if indicated
below) may elect to have his Retirement Pension payable in a reduced amount,
determined on an Actuarial Equivalent basis to the Pension otherwise payable to
him on a Life Annuity basis (without regard to any surviving spouse benefit),
under one of the options described below:
(a) Contingent Annuitant: A Pension during the joint lives of the
Participant or former Participant, and a person designated by him
("Contingent Annuitant"); so that after the
42
<PAGE>
death of the Participant or former Participant, payment of the same amount
or a further reduced amount (as elected by the Participant or former
Participant) will be paid to the Contingent Annuitant. If the Contingent
Annuitant is not the spouse of the Participant or former Participant, the
Actuarial Value of the income continued to the Contingent Annuitant after
the death of the Participant or former Participant shall not exceed fifty
percent of the excess of the Actuarial Value of the benefits to be paid to
the Participant or former Participant and his Contingent Annuitant over the
total contributions made by the Participant or former Participant under the
Prior Plan.
(b) Ten Year Certain and Continuous: A life income to the
Participant or former Participant with payments for a minimum period of ten
years. If the Participant or former Participant dies after commencement of
the Pension and before he has received 120 monthly payments, his
beneficiary will receive the Actuarial Value (as of the first day of the
month following the Participant's or former Participant's death) of the
balance of the remaining 120 monthly payments.
(c) Cash Refund: A life income to the Participant or former
Participant and upon his death, a payment to his beneficiary equal to the
excess, if any, of the Actuarial Value of his Retirement Pension at
Retirement Date over the aggregate Retirement Pension payments received
prior to his
43
<PAGE>
death, computed as if no cost of living adjustments (as provided in Section
5.05 of the Plan as in effect under the Prior Plan prior to January 1,
1985) to his Pension had been made.
(d) Installment Payments: Substantially uniform installment payments
commencing no later than the later of the Participant's or former
Participant's Normal Retirement Date or actual retirement date, to be paid
to the Participant or former Participant or his beneficiary at least
annually over a period of time elected by the Participant or former
Participant and, to the extent necessary to insure compliance with the
Code, ERISA and the terms of this Plan, as approved by the Committee;
provided that the Actuarial Value of the Pension paid to the Participant or
former Participant over his normal life expectancy shall be at least 50% of
the Actuarial Equivalent thereof in excess of the total contributions made
by the Participant or former Participant under the Plan.
For a Participant or former Participant whose Ten Year Certain and
Continuous or Cash Refund option election was made effective under the Prior
Plan prior to March 1, 1978, the payment to his beneficiary shall be in a lump
sum or such other Actuarially Equivalent form as the Committee shall determine.
For a Participant or former Participant whose Ten Year Certain and Continuous or
Cash Refund option election was made effective under
44
<PAGE>
the Prior Plan on or after March 1, 1978 and before May 20, 1987 or is made
under this Plan, the payment to his beneficiary shall be in a lump sum;
provided, however, the Participant may elect, at the time he elects said option,
to have the Actuarial Equivalent of said payment paid to the beneficiary in such
form as the Committee shall determine.
6.08 Election of Optional Form of Retirement Benefit. The election
-----------------------------------------------
of an option under Section 6.07 must be made by a Participant in writing to his
Employer during the Election Period, subject to the Waiver and spousal consent
requirements in Section 6.06, and if applicable must state the name, sex and
date of birth of the beneficiary or Contingent Annuitant, and the percentage of
his Retirement Pension to be continued to the Contingent Annuitant after his
death or the duration of any installment payments. The terms and conditions of
these options are governed by the provisions of any applicable insurance company
contract and by such rules and actuarial tables as may be adopted by the
Committee. The options must be elected as follows:
(a) In the case of Normal Retirement, the election must be made prior
to his Pension commencement date and the option will become effective on
the first day of the month next following the date of the election, but not
prior to his Normal Retirement Date.
45
<PAGE>
(b) In the case of Early Retirement, the election must be made prior
to his Early Retirement Date and the option will become effective on his
Early Retirement Date.
(c) In the case of Disability Retirement, the election must be made
prior to his Normal Retirement Date and the option will become effective on
his Normal Retirement Date.
(d) In the case of a Vested Deferred Retirement, the election is to
be made at the time he applied for such benefit and the option will become
effective as of the date his benefits commence. If the Participant (or
former Participant), his Contingent Annuitant or beneficiary dies prior to
the effective date of the option, or if the Participant cancels the option
prior to the effective date of the option, the election of the option shall
become inoperative. If the Participant (or former Participant), his
Contingent Annuitant or beneficiary dies on or after the effective date of
the option, the election of the option shall continue to be operative. The
election of the option by a Participant or former Participant who would
otherwise be entitled to the benefit described in Sections 6.02 and 6.05
shall be inoperative unless he shall have rejected said benefit in
accordance with Section 6.06.
6.09 Level Income Option. If payment of an Early or Vested Deferred
-------------------
Retirement Pension commences prior to the earliest age as to which the
Participant or former Participant will become
46
<PAGE>
eligible for an Old-Age Insurance Benefit under the Social Security Act, the
amount of the Pension may be adjusted so that an increased amount will be paid
prior to such age and a reduced amount thereafter. The purpose of this
adjustment is to enable the Participant or former Participant to receive, from
this Plan and under the Social Security Act, an aggregate income in
approximately a level amount for life. Such adjusted Pension payments shall be
the Actuarial Equivalent of the Pension otherwise payable to such Participant,
and the option may be elected in conjunction with the Early Retirement Pension
or the Vested Deferred Retirement Pension payable on either a Life Annuity basis
or as otherwise provided in Section 6.02, 6.04 or 6.05.
6.10 Commencement and Duration of Retirement Pension.
-----------------------------------------------
(a) A Participant's or former Participant's Retirement Pension will
commence on the later of the date set forth in the applicable provision of
Section 4, or the first day of the month next following the month the
Participant or former Participant has filed an application for his Pension
in the manner prescribed by the Committee. Except as provided in
Subsection 6.07(b), subsequent payments will be made monthly thereafter,
ceasing with the last payment preceding the Participant's or former
Participant's death.
(b) The Disability Retirement Pension will cease with the last
payment preceding the Participant's death or the
47
<PAGE>
date he ceases to be Totally and Permanently Disabled prior to his Normal
Retirement Date. The portion of the Disability Retirement Pension payable
in accordance with Subsection 5.03(b) will cease at his Normal Retirement
Date.
(c) Any Surviving Spouse's Benefit or Contingent Annuitant's benefit
payable under Section 6 shall commence on the first of the month following
the death of the Participant or former Participant and shall cease with the
last payment preceding the date of the surviving spouse's or Contingent
Annuitant's death.
(d) Notwithstanding the foregoing, benefit payments must commence no
later than April 1 of the calendar year next following the calendar year in
which he attains age 70 1/2 years.
6.11 Reemployment.
------------
(a) If a former Participant who is receiving or who is entitled to
receive a Pension under this Plan is reemployed by the Company or an
Affiliated Company, no benefits shall be paid under the Plan to him during
his period of reemployment. Any benefits payable to such Participant under
this Plan upon his subsequent retirement shall be determined in accordance
with the provisions of the Plan as then in effect but shall be reduced by
the Actuarial Equivalent of any Pension payments received prior to his
reemployment.
48
<PAGE>
(b) Notwithstanding Subsection 6.11(a) above:
(i) if a reemployed Participant fails to complete at least one
Hour of Service per day for at least eight days during any calendar
month commencing on or after his Normal Retirement Date, the amount of
benefits payable to him upon subsequent retirement shall include the
Actuarial Equivalent of the Normal Retirement Pension not paid to him
for such calendar month; and
(ii) in no event shall the amount of Participant's benefit (on a
life annuity basis) be less than the benefit (one life annuity basis)
that he was receiving immediately prior to his date of reemployment.
6.12 Small Retirement Pension.
------------------------
In the event the Actuarial Value of any accrued benefit under this Plan for
any given Participant is not in excess of $3,500, and at the time of any prior
distribution did not exceed $3,500, the Participant upon Separation from Service
shall receive such benefit in a lump sum payment and distributable without the
consent of the Participant or his spouse. The Actuarial Value of the lump sum
payment shall be determined using an interest rate equal to 1) the interest rate
(in effect as of the date of distribution) used by the Pension Benefit Guaranty
Corporation for purposes of determining the present value of a lump sum
distribution on plan termination, if the vested accrued benefit of the
Participant determined using such rate does not exceed $25,000
49
<PAGE>
or 2) 120% of the interest rate under the immediately preceding clause 1), if
the vested accrued benefit exceeds $25,000 using such higher rate.
SECTION 7. - CONTINUOUS SERVICE: CREDITED SERVICE
7.01 Continuous Service.
------------------
(a) For the period prior to January 1, 1987, a Participant's
Continuous Service shall be his accrued Continuous Service under the Prior
Plan as of December 31, 1986, determined in accordance with the terms and
provisions of the Prior Plan as in effect prior to January 1, 1987.
(b) For the period after December 31, 1986, a Participant's
Continuous Service shall be the last period of uninterrupted employment
with his Employer (including all adjustments to Continuous Service provided
for in this Section 7) beginning with the later of January 1, 1987, or his
latest Commencement Date and ending on his Termination Date as determined
and adjusted in accordance with the following provisions:
(i) Authorized Leave of Absence or Lay-off. If a
Participant is on an Authorized Leave of Absence (other than an
Authorized Leave of Absence for medical reasons) or lay off, his
Continuous Service shall not be deemed to be interrupted during
such Authorized Leave of Absence or layoff,
50
<PAGE>
provided he returns to active employment with the Employer at the
expiration of such Authorized Leave of Absence or layoff. If he
fails to return to active service his Continuous Service for the
purpose of determining eligibility for a Pension shall be deemed
to have been terminated on the earlier of his Termination Date or
the first anniversary date of such Authorized Leave or layoff
commenced; however, his Continuous Service for the purpose of
computing his Pension shall be deemed to have terminated on the
date such Authorized Leave of Absence or layoff commenced.
(ii) Authorized Leave of Absence for Medical Reasons. If a
Participant is on an Authorized Leave of Absence for medical
reasons, his Continuous Service shall not be deemed to be
interrupted during such Authorized Leave of Absence, provided he
returns to active employment with the Employer at the expiration
of such Authorized Leave of Absence. If he fails to return to
active service, his Continuous Service shall be deemed to have
terminated on the earlier of his Termination Date or the first
anniversary date of the date such Authorized Leave of Absence
commenced.
51
<PAGE>
(iii) Predecessor Employers. If a person becomes an
Eligible Employee by reason of, or in conjunction with, the
acquisition by an Employer of all, or substantially all, of the
assets or capital stock of the business entity by which such
person was employed at the time of the acquisition, any period of
employment performed by such person prior to the time of the
acquisition of such business entity shall be considered
employment with an Employer under this Section 7.01 for only such
purposes and to the extent, if any, determined by the Committee.
(iv) Non-Participating Service. Continuous Service shall
include a Participant's employment with an Employer during which
he was not an Eligible Employee and his employment with a
nonparticipating Affiliated Company (provided such employment is
continuous between periods of participating service and non-
participating service) for purposes of (A) determining
eligibility for a Pension under this Plan and/or (B) to the
extent, if any, determined by the Committee, computing the amount
of Pension under this Plan.
52
<PAGE>
(v) Certain Periods of Severance. Continuous Service, for
the purpose of determining eligibility and vesting for a Pension
(but not for computing the amount thereof), will include a
severance period between a Participant's previous Termination
Date and his subsequent reemployment date if such reemployment
date occurs prior to the first anniversary date of his previous
Termination Date.
(vi) Military Service. Continuous Service will include
the period a Participant is in the Armed Forces provided he is
eligible for reemployment upon his discharge pursuant to the
Military Selective Service Act (or under any prior or subsequent
corresponding law) and he makes application for reemployment
within the period prescribed by said Act; if he fails to apply
for reemployment within such period, his Continuous Service shall
be deemed to have terminated on the earlier of his Termination
Date or the first anniversary date of the date his Military
Service Leave commenced.
(c) Reemployment. If the employment of a Participant with an
Employer is terminated at any time and he is subsequently reemployed
by an Employer, his Continuous Service with the Employer will include
his
53
<PAGE>
Continuous Service accrued prior to the date of said termination under
the Plan in effect on the date of said termination and as adjusted
pursuant to this Paragraph 7.01(c) if:
(i) he was entitled to receive a Vested Deferred
Retirement Benefit under the Plan in effect on his previous
Termination Date; or
(ii) the period between the previous Termination Date and
the date of said reemployment does not equal or exceed the
greater of (A) five years or (B) his Continuous Service accrued
prior to the previous Termination Date. Notwithstanding the
foregoing, if a Participant's termination of employment is due to
a "maternity or paternity leave", then paragraph (ii) of
Subsection 7.01(c) shall be read by substituting "six years" for
"five years". For the purposes of this Plan, "maternity or
paternity leave" means termination of employment or absence from
work due to pregnancy of the Participant, the birth of a child of
the Participant, the placement of a child in connection with the
adoption of the child by a Participant, or the caring for a
Participant's child during the period immediately following the
child's birth or placement for adoption. The Committee shall
54
<PAGE>
determine, under rules of uniform application and based on
information provided to the Committee by the Participant, whether
or not the Participant's termination of employment or absence
from work is due to "maternity or paternity leave".
7.02 Credited Service. A Participant's Credited Service shall be his
----------------
period of Continuous Service, to a maximum of 30 years, reduced by one year if
he was eligible under the Prior Plan to be a Contributing Participant in the
Prior Plan year beginning March 1, 1969, but did not become a Contributing
Participant in such plan year, and further reduced by one year for each plan
year under the Prior Plan after March 1 nearest his 35th birthday and prior to
March 1, 1969, that a Participant under the Prior Plan was eligible to be a
Contributing Participant but was not a Contributing Participant. For the
purposes of computing Credited Service under this Section:
(a) An Employee on an Authorized Leave of Absence or temporary layoff
during a plan year under the Prior Plan, or
(b) An Employee who during a plan year under the Prior Plan
commencing on or after March 1, 1963, and prior to March 1, 1970, who was
eligible to contribute on Basis B but not on Basis A but did not
subsequently contribute on Basis B, shall not be deemed to have been
eligible to be a Contributing Participant during such plan year.
55
<PAGE>
SECTION 8. - ADMINISTRATION
8.01 Establishment of the Administrative Committee. The general
---------------------------------------------
administration of the Plan and the responsibility for carrying out its
provisions shall be placed in the BW/IP Administrative Committee (the
"Administrative Committee") of not less than three nor more than seven persons
appointed from time to time by the Board to serve at its pleasure. Any member
of the Administrative Committee may resign by delivering his written resignation
to BW/IP and the secretary of the Administrative Committee. The Administrative
Committee shall be the Plan Administrator (within the meaning of section 3 of
ERISA and section 414(g) of the Code) with such authority, responsibilities and
obligations as ERISA and the Code grant to and impose upon persons so
designated. For the purposes of ERISA, the Administrative Committee shall be a
"named fiduciary" under the Plan.
8.02 Establishment of the Investment Committee. The responsibility
-----------------------------------------
for the formulation of the general investment practices sad policies of the Plan
and its related Trust Fund and for effectuating such practices and policies
shall be placed in the BW/IP Investment Committee (the "Investment Committee")
of not less than three nor more than seven persons appointed from time to time
by the Board to serve at its pleasure. Any member of the Investment Committee
may resign by delivering his written resignation to BW/IP and the secretary of
the Investment
56
<PAGE>
Committee. For purposes of ERISA, the Investment Committee shall be a "named
fiduciary" under the Plan.
8.03 Organization of the Committees. The members of each Committee
------------------------------
shall elect a chairman from their number, and shall also elect a secretary who
may be but need not be one of the members of the Committee. No member of a
Committee who is also an Employee receiving regular compensation as such shall
receive any compensation for his services as a member of such Committee. No
bond or other security shall be required of any member of a Committee in any
jurisdiction. No member of a Committee shall, in such capacity, act or
participate in any action directly affecting his own Accounts other than an
action which affects the Accounts of Participants generally.
8.04 Powers of the Administrative Committee. The powers of the
--------------------------------------
Administrative Committee shall include, but are not limited to, the following:
(1) appointing such committees with such powers as it shall
determine, including an executive committee to exercise all powers of the
Administrative Committee between meetings of the Administrative Committee;
(2) determining the times and places for holding meetings of the
Administrative Committee and the notice to be given of such meetings;
(3) employing such agents and assistants, such counsel (who may be
counsel to the Employer) and such clerical,
57
<PAGE>
medical, accounting and actuarial services or advisers as the
Administrative Committee may require in carrying out the provisions of the
Plan;
(4) authorizing one or more of their number or any agent to make any
payment, or to execute or deliver any instrument, on behalf of the
Administrative Committee, except that all requisitions for funds from, and
requests, directions, notifications and instructions to the Trustee shall
be signed either by two members of the Administrative Committee or by one
member and the secretary thereof;
(5) fixing and determining the proportion of expenses of the Plan
from time to time to be paid by the participating Employers and requiring
payment thereof;
(6) establishing one or more subcommittees in a location at which
BW/IP or any of its subsidiaries or affiliates does business, appointing
the members of any such subcommittees, in such number and for such service
as the Administrative Committee shall deem appropriate, and delegating any
power or duty granted to the Administrative Committee by this Section 8 to
any such subcommittees;
(7) appointing and removing the Trustee pursuant to a Master Trust
Agreement between BW/IP and the Trustee;
(8) receiving and reviewing reports from the Trustee as to the
financial condition of the Fund, including its receipts sad disbursements;
58
<PAGE>
(9) executing and filing with the appropriate governmental agencies
such registration and other statements, forms, applications, notifications,
and other documents or information as the Administrative Committee may from
time to time deem appropriate in connection with the Plan; and
(10) approving the adoption of the Plan by any subsidiary or
affiliate of the Employer.
8.05 Powers of the Investment Committee. The powers of the
----------------------------------
Investment Committee shall include, but not be limited to, the following:
(1) directing the Trustee, or appointing one or more investment
managers to direct the Trustee, subject to the conditions set forth in the
Trust Agreement, in all matters concerning the investment of the Fund;
(2) authorizing one or more of their number or any agent to make any
payment, or to execute or deliver any instrument, on behalf of the
Investment Committee, except that all requisitions for funds from, and
requests, directions, notifications and instructions to the Trustee shall
be signed either by two members of the Investment Committee or by one
member and the secretary thereof;
(3) receiving and reviewing reports from the Trustee as to the
financial condition of the Fund, including its receipts and disbursements;
and
59
<PAGE>
(4) employing such agents and assistants, such counsel (who may be
counsel to the Employer) and such clerical, accounting, actuarial and
investment services or advisers as the Investment Committee may require in
carrying out its responsibilities under the Plan.
8.06 Duties of the Administrative Committee. The Administrative
--------------------------------------
Committee shall have the general responsibility for administering the Plan and
carrying out its provisions. Subject to the limitations of the Plan, the
Administrative Committee from time to time shall establish rules and regulations
for the administration of the Plan and the transaction of its business. All
matters of interpretation of the terms hereof and all determinations concerning
the entitlement of any person to any benefit or other right hereunder are hereby
reserved exclusively to the Administrative Committee, to be exercised in its
sole and absolute discretion, except as the same may from time to time be
delegated by the Adninistrative Committee to another person or group of persons
in which instance such delegee or delegees shall have all discretionary
authority of the Administrative Committee with respect thereto. All such
interpretations and determinations made shall be final and binding. It shall be
the duty of the Administrative Committee to notify the Trustee in writing of the
amount of any benefit which shall be due to any Participant and in what form and
when such benefit is to be paid.
60
<PAGE>
8.07 Actions by a Committee. A majority of the members of a
----------------------
Committee at the time in office shall constitute a quorum for the transaction of
business at any meeting. Resolutions or other actions made or taken by a
Committee shall require the affirmative vote of a majority of the members of
such Committee attending a meeting, or by a majority of members in office by
writing without a meeting.
8.08 Accounts and Reports. The Administrative Committee shall
--------------------
maintain accounts showing the fiscal transactions of the Plan and shall keep in
convenient form such data as may be necessary for the effective operation of the
Plan.
8.09 Discretionary Action. Whenever in the administration of the
--------------------
Plan any discretionary action is required by a Committee, such action shall be
uniform in nature as applied to all persons similarly situated.
8.10 Action Taken in Good Faith. To the extent permitted by ERISA,
--------------------------
the members of the Committee, BW/IP and the Employer and the officers and
directors of BW/IP and the Employer shall be entitled to rely upon all
certificates and reports made by any accountant or by the Trustee, and upon all
opinions given by any legal counsel or investment adviser selected or approved
by a Committee, and the members of a Committee, BW/IP, the Employer and the
officers and directors of BW/IP and the Employer shall be fully protected in
respect of any action taken or suffered by them in good faith in reliance upon
say such certificates, reports,
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opinions or other advice of any accountant, Trustee, investment adviser or legal
counsel, and all action so taken or suffered shall be conclusive upon each of
them and upon all Participants and Full-time and Part-time Employees.
8.11 Indemnification. To the extent not contrary to ERISA, the
---------------
Employer and BW/IP shall indemnify each Committee, each member of a Committee
and any other director, officer or employee of an Employer and of BW/IP who is
designated to carry out any responsibilities under the Plan for any liability,
joint and/or several, arising out of or connected with their duties hereunder,
except such liability as may arise from their gross negligence or willful
misconduct.
8.12 Responsibilities of Named Fiduciaries Other than the Committees.
---------------------------------------------------------------
The Trustee shall have such responsibilities with respect to the operation of
the Plan as are set forth in the Trust Agreement. Any investment adviser which
the Investment Committee may appoint pursuant to Section 8.05 shall have the
responsibility to direct the Trustee in investing and reinvesting the Trust Fund
(or that portion thereof specified by the Investment Committee in the instrument
appointing such adviser) and to report the book value and fair market value of
each asset in the Trust Fund (or such portion thereof) to the Investment
Committee periodically, as such responsibilities may be more fully described in
the Trust Agreement.
62
<PAGE>
8.13 Allocation of Responsibilities. The description of the
------------------------------
responsibilities and powers of the Committees and the description of the
responsibilities of the Trustee contained in the foregoing provisions of this
Section 8 shall constitute, for purposes of ERISA, procedures for allocating
responsibilities for the operation and administration of the Plan among named
fiduciaries.
8.14 Designation of Persons to Carry Out Responsibilities of Named
-------------------------------------------------------------
Fiduciaries. The Committees, the Trustee and any investment adviser which the
- -----------
Investment Committee may employ pursuant to Section 8.05 may, except as to
responsibilities involving management and control of assets held in the Trust
Fund, designate one or more other persons to carry out any or all of their
respective responsibilities under the Plan, provided that such designation shall
be made in writing, filed with the Plan's records and made available for
inspection upon request by any Participant or Beneficiary under the Plan.
8.15 Information Required by Committee. Each person entitled to
---------------------------------
benefits under the Plan must file with the Administrative Committee from time to
time, in writing, such person's post office address and each change of post
office address. Any communication, statement or notice addressed to any such
person at the last post office address filed with the Administrative Committee
will be binding upon such person for all purposes of the Plan. Each person
entitled to benefits under the
63
<PAGE>
Plan shall also furnish the Administrative Committee with such documents,
evidence, data or information as the Administrative Committee considers
necessary or desirable for the purpose of administering this Plan. The
Employers shall furnish the Administrative Committee with such data and
information as the Administrative Committee may deem necessary or desirable in
order to administer the Plan. The records of an Employer as to an Employee's or
Participant's period of employment, termination of employment and the reason
therefor, leave of absence, reemployment and earnings will be conclusive on all
persons unless determined to the Administrative Committee's satisfaction to be
incorrect.
8.16 Forms. Any application for benefits or any election provided by
-----
this Plan shall be on terms prescribed by the Administrative Committee.
8.17 Evidence. Evidence required of anyone under the Plan may be by
--------
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and signed, made or presented by the proper
party or parties.
8.18 Review of Benefit Determinations. The Administrative Committee
--------------------------------
will provide notice in writing to any Participant or beneficiary whose claim for
benefits under the Plan is denied and the Administrative Committee shall afford
such Participant or beneficiary a full and fair review of its decision if so
requested.
64
<PAGE>
8.19 Administrative Committee's Decision Final. Subject to
-----------------------------------------
applicable law, any interpretation of the provisions of the Plan and any
decisions on any matter within the discretion of the Administrative Committee
made by the Administrative Committee in good faith shall be binding on all
persons. A misstatement or other mistake of fact shall be corrected when it
becomes known and the Administrative Committee shall make such adjustment on
account thereof as it considers equitable and practicable.
8.20 Missing Persons. No Committee, the Trustee, or any Employer is
---------------
required to search for or locate any person entitled to benefits under the Plan.
SECTION 9. - FUNDING
9.01 Employer Contributions. Each Employer will from time to time
----------------------
while the Plan is in effect make such contributions to the Plan as shall be
recommended by a qualified actuary selected by the Committee as sufficient to
maintain the Plan in effect as qualified under Section 401 of the Code,
reserving, however, the right to discontinue contributions pursuant to Section
10.01. The liability of the Employer is limited to such contributions and
remittances except as may be provided by ERISA. Neither the Committee nor any
Employer in any way guarantees the Trust Fund from loss or depreciation.
Forfeitures arising under the Plan for any reason shall be used to reduce the
Employer's
65
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Contributions under the Plan and shall not be used to increase benefits.
9.02 Funding of Benefits. The benefits of the Plan are currently
-------------------
funded through various Trust Funds and annuity contracts. The Company reserves
the right at any time to have all or part of said Trust Funds transferred from
the present Trustees to their corporate and/or individual trustees or to an
insurance company, to have said contracts assigned and transferred to a
corporate trustee, individual trustees, or another insurance company, or to the
Company, and to appoint, or permit the Trustee to appoint, an investment or
financial management or consulting firm, company or individual to manage any
assets of the Plan. The Company further reserves the right to cause any
Retirement Pension payable from two or more of said Trust Funds or contracts to
be consolidated and paid from a single source. Copies of the Plan, trust
agreements, annuity contracts, and any amendments thereto, will be available at
the office of the Secretary of the Company and of each Employer which adopts the
Plan, where they may be examined by any Eligible Employee or Participant. The
provisions of and benefits under the Plan are subject to the terms and
provisions of the trust agreements and annuity contracts.
9.03 Assets for the Exclusive Benefit of Participants. All assets of
------------------------------------------------
the Plan shall be retained for the exclusive benefit of Participants, former
Participants end their beneficiaries and shall be used to pay benefits to such
persons or to pay
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administrative expenses to the extent not paid by the Employer and shall not
revert to or inure to the benefit of any Employer.
9.04 Reversion of Employer Contributions. Notwithstanding any other
-----------------------------------
provision of the Plan, contributions made by an Employer are expressly
conditioned upon the continued qualification of the Plan under the Code,
including any amendments to the Plan, and upon the deductibility under Section
404 of the Code of contributions made to provide Plan benefits. A contribution
which was made by a mistake of fact, or conditioned upon continued qualification
of the Plan or any amendment thereof or upon the deductibility of the
contribution under Section 404 of the Code, shall be returned to the Employer
within one year after the payment of the contribution, the denial of the
qualification or the disallowance of the deduction (to the extent disallowed),
whichever is applicable, but reduced by the amount of any investment losses
thereon.
SECTION 10. - AMENDMENT AND TERMINATION OF THE PLAN
10.01 Employers May Amend or Terminate Their Participation in the
-----------------------------------------------------------
Plan. The Company and each of the Employers hope and expect to continue the
- ----
Plan indefinitely, but necessarily reserve the right with respect to the
application of the Plan to their employees to change, modify or discontinue the
Plan at any time at their discretion, to discontinue or reduce their
contributions under the Plan, and to fix such other terms and
67
<PAGE>
conditions as they deem necessary to carry out the purpose of the Plan. Each
Employer hereby appoints the Company or, to the extent permitted in this Section
10.01, the Committee as its agent to change or modify the Plan at any time. The
Committee may adopt, or change, modify or discontinue, any Supplement to the
Plan as it deems appropriate for the Employees of any Employer and shall make
such changes or modifications to the Plan or any Supplement to the Plan
(retroactively, if required) as it deems necessary to comply with ERISA and the
Code, or any other applicable laws or regulations. No amendment shall have an
adverse effect upon benefits provided by prior contributions or upon benefits
currently being paid pursuant to the provisions of the Plan in effect
immediately prior to such amendments except as may be necessary to comply with
ERISA and the Code, or any other applicable laws or regulations. Furthermore,
no amendment shall have the effect of eliminating or reducing a subsidy or an
early retirement benefit (as defined in Treasury Regulations issued under
Section 411(d)(6) of the Code), or eliminating an optional form of benefit, with
respect to benefits attributable to service prior to the date of the amendment.
No amendment shall be construed to modify or expand the Employer liability as
set forth in Section 9.01.
10.02 Discontinuance of a Division, Subsidiary or Affiliate. In the
-----------------------------------------------------
event all or a portion of the operation of any division, subsidiary or affiliate
of the Company participating
68
<PAGE>
hereunder is sold or discontinued by the Company, or a division, subsidiary or
affiliate for any other reason ceases to be an Employer, the Committee may
determine that all or that portion of the affected Employees of said division,
subsidiary or affiliate shall no longer participate in the Plan; may waive, on a
nondiscriminatory basis, with respect to said Employees any or all Continuous
Service requirements as they relate to eligibility for a benefit under the Plan
but not Continuous Service or Credited Service requirements as they relate to
the computation of said benefits; and may direct the Trustees or insurance
companies to segregate in an equitable manner the portion of the funds or
annuity contracts allocable to said Employees, but not inconsistent with the
terms of any applicable annuity contract; provided, however, that it shall be
impossible for any part of the corpus of or the income from the trust funds or
annuity contracts so segregated, to be used for or diverted to purposes other
than for the exclusive benefit of the Participants of said division or former
subsidiary or affiliate and their Contingent Annuitants or beneficiaries, any
time prior to the satisfaction of all liabilities with respect to such
Participants and their Contingent Annuitants or beneficiaries. The Committee
shall then cause the assets to be distributed as provided in Section 10.04.
10.03 Cessation of Participation by the Company. In the event that
-----------------------------------------
the Company for any reason ceases to participate in the Plan, then each of the
remaining participating subsidiaries
69
<PAGE>
and affiliates shall have, insofar as its employees are concerned, the powers
now reserved to the Company under the Plan, subject to the terms of the
applicable trust agreements or annuity contracts.
10.04 Allocation and Distribution of Assets on Termination or Partial
---------------------------------------------------------------
Termination. Upon the termination or partial termination of the Plan, the
- -----------
rights of all affected Participants to their respective accrued benefits under
the Plan shall be nonforfeitable to the extent then funded. On termination or
partial termination of this Plan as to any Employer, the Committee may segregate
and allocate the Plan assets to the affected Participants, former Participants
and beneficiaries in the manner set forth in Section 10.02. After payment of
all expenses of liquidation, the Committee shall allocate the remainder of the
portion of the Plan assets and cause them to be distributed to the affected
Participants, former Participants and beneficiaries in the manner and order set
forth in Section 4044 of ERISA to the extent of the sufficiency of such assets.
10.05 Manner of Distribution. Subject to the foregoing provisions of
----------------------
this Section 10, such distribution may be made in cash or property or partly in
each, provided the property is distributed at its fair market value as of the
date of distribution and that no discrimination in value results.
10.06 Residual Amounts. In no event shall the Company or any
----------------
Employer receive any amounts from the Fund upon termination of the Plan, except
that, and notwithstanding any other provision
70
<PAGE>
of the Plan, the Company or any Employer shall receive such amounts, if any, as
may remain after satisfaction of all liabilities of the Plan and arising out of
any variations between actual requirements and expected actuarial requirement.
SECTION 11. - MISCELLANEOUS
11.01 Nonalienation of Benefits. Except as may be required by law,
-------------------------
no right or benefit provided for in the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind, either voluntary or
involuntary and any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge or otherwise dispose of any right or benefit provided
for hereunder, shall be void. The preceding sentence shall also apply to the
creation, assignment, or recognition of a right to any benefit payable with
respect to a Participant pursuant to a domestic relations order, unless such
order (i) is determined to be a "Qualified Domestic Relations Order" as such
term is defined in Section 414(p) of the Code or (ii) is permitted to be treated
as a "Qualified Domestic Relations Order" by the Plan under the provisions of
the Retirement Equity Act of 1984. The Committee shall establish a written
procedure to determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Notwithstanding the
foregoing, a person receiving Retirement
71
<PAGE>
Pension payments may authorize a deduction in such payments for the purpose of
paying his contributions to any contributory group insurance maintained by the
Company for which he is eligible.
11.02 Incapacity. If any person entitled to a benefit under the Plan
----------
is, in the judgment of the Committee, legally, physically or mentally incapable
of personally receiving and receipting for any payment due hereunder, the
Committee at its discretion may determine that payment thereof shall be made to
such other person, persons, or institution who, in the opinion of the Committee,
are then maintaining or have custody of such person, until claim is made by a
duly appointed guardian or other legal representative of such person. Such
payments shall constitute a full discharge of the liability of the Plan to the
extent thereof.
11.03 Continuance of Employment. The Plan shall not be construed to
-------------------------
create or enlarge any right of any person to remain in the employment of the
Company, its subsidiaries or affiliates, nor shall it interfere in any manner
with the right of the Company, its subsidiaries or affiliates to discharge any
person or otherwise treat him without regard to the effect upon his rights under
the Plan.
11.04 Merger or Consolidation of Plan. In the case of any merger or
-------------------------------
consolidation of this Plan, with, or transfer of Plan assets and liabilities to,
any other plan, provisions shall be made so that each Participant in the Plan on
the date thereof
72
<PAGE>
(if the Plan then terminated) would receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately prior to the merger,
consolidation or transfer if the Plan had then terminated.
11.05 Construction. The masculine gender, where appearing in the
------------
Plan, shall be deemed to include the feminine gender, and the singular may
include the plural, unless the context clearly indicates to the contrary.
SECTION 12. - RESTRICTIONS ON BENEFITS PAYABLE TO HIGHLY COMPENSATED
PARTICIPANTS
12.01 Termination Restrictions. The limitations contained in this
------------------------
Section 12 are required by the Internal Revenue Service for benefits payable to
certain Participants. In the event of a termination of the Plan, no Highly
Compensated Employee or former Highly Compensated Employee shall receive a
benefit which is discriminatory under Section 401(a)(4) of the Code.
12.02 Ongoing Restrictions. Except as otherwise provided in this
--------------------
Section 12, the payment of benefits in any Plan Year to or on behalf of a
"Restricted Employee" as defined in the following sentence shall in no event
exceed the sum of (i) a straight life annuity that is the actuarial equivalent
of the accrued benefit and other benefits payable under the Plan to such
Restricted Employee (other than a social security supplement), and (ii) the
amount of any payments that such Restricted Employee is
73
<PAGE>
entitled to receive under a social security supplement under the Plan. For
purposes of this Section 12, the term "Restricted Employee" shall mean any
Participant if he is a Highly Compensated Employee or a former Highly
Compensated Employee unless such Participant is not among the 25 nonexcludable
Employees and former Employees of the Employer with the largest amount of
Compensation in the current or any preceding Plan Year. The restrictions
contained in this Section 12.02 shall not apply in the event of any of the
following:
(a) After the payment of all benefits payable under the Plan to or on
behalf of the Restricted Employee, the value of Plan assets equals or
exceeds 110% of the value of current liabilities of the Plan as
defined in Code Section 412(l)7).
(b) The value of the benefits payable to or on behalf of the Restricted
Employee is less than one percent of the value of current liabilities
of the Plan before the distribution.
(c) The value of the benefits payable to or on behalf of the Restricted
Employee does not exceed the $3,500 amount described in Code Section
411(a)(11)(A) applicable to certain mandatory distributions from the
Plan.
74
<PAGE>
SECTION 13. - TOP-HEAVY RESTRICTIONS
The following provisions shall become effective in any Plan Year in
which the Plan is determined to be a Top-Heavy Plan.
13.01 Determination of Top-Heavy. The Plan will be considered a Top
--------------------------
Heavy Plan for the Plan Year if, as of the last day of the preceding Plan year
or, in the case of the first Plan Year, as of the last day of such first Plan
Year (the "Determination Date"):
(a) the present value of the accrued benefits of Participants who are
Key Employees (as defined in Section 416(i) of the Code) exceeds 60% of the
present value of the accrued benefits of all Participants (the "60% Test");
or
(b) the Plan is part of a "required aggregation group" (which is
defined as each plan of BW/IP or any Affiliated Company in which a Key
Employee is a participant and each other plan of BW/IP or any Affiliated
Company which enables any plan in which a key employee is a participant to
satisfy the requirements of Section 401(a)(4) or 410 of the Code).
However, notwithstanding the results of the 60% Test, the Plan shall
not be considered a Top-Heavy Plan for any Plan Year in which the Plan is a part
of a required aggregation group or "permissive aggregation group" (which is
defined as any plan of BW/IP or any Affiliated Company which is not part of a
required aggregation group but which continues to satisfy the requirements of
Section 401(a)(4) and 410 of the Code).
75
<PAGE>
For the purposes of making the "60% Test" for any Plan Year, accrued
benefits shall be those amounts calculated as of the first day of the preceding
Plan Year and the present value of those amounts shall be based on the actuarial
assumptions used in the actuarial valuation made as of the first day of such
preceding Plan Year. The determination of the value of a Participant's account
in a defined contribution plan shall be made as of the last day of the preceding
plan year. If another valuation date is prescribed in regulations promulgated
by the Secretary of the Treasury, such alternate valuation date shall be used.
The determination of whether the Plan is a Top-Heavy Plan in any Plan
Year shall be made in accordance with sections 416(g)(3), 416(g)(4)(A),
416(g)(4)(B) and 416(g)(4)(E) of the Code and the regulations promulgated
thereunder.
Solely for the purpose of determining if the Plan, or any other plan
included in a required aggregation group of which this Plan is a part, is top-
heavy (within the meaning of section 416(g) of the Code) the accrued benefit of
an Employee other than a Key Employee ("Non-Key Employee") shall be determined
under (a) the method, if any, that uniformly applies for accrual purposes under
all defined benefit plans maintained by the Affiliated Employers, or (b) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional accrual rate of section
411(b)(1)(C) of the Code.
76
<PAGE>
13.02 Minimum Benefit. For any Plan Year in which the Plan is a Top-
---------------
Heavy Plan, the minimum Normal Retirement Pension accrued by a Participant who
is a Non-Key Employee terminating employment at or after age 65, and the minimum
accrued benefit, payable at Normal Retirement Date, accrued by a Participant who
is a Non-Key Employee who terminates employment prior thereto with entitlement
to a Pension, shall be equal to the product of (a) 2% of his average monthly
Earnings during his five highest-paid consecutive calendar years (exclusive of
plan years under the Prior Plan prior to January 1, 1984 and Plan Years during
which the Plan is not a Top-Heavy Plan) of Service multiplied by (b) each of the
first 10 years of his Credited Service after December 31, 1983 in which the Plan
is a Top-Heavy Plan.
13.03 Minimum Vesting. Notwithstanding the provisions of Sections
---------------
4.04 and 5.04, a Participant shall be eligible for a Vested Deferred Retirement
Pension, if while the Plan is a Top-Heavy Plan, his employment is terminated
before death or retirement after he has completed at least 2 years of Service.
The amount of his Vested Deferred Retirement Pension on a Life Annuity basis,
commencing as of his Normal Retirement Date shall be equal to his vested
percentage of his accrued benefit, determined in accordance with the following
table:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
<S> <C>
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
</TABLE>
77
<PAGE>
A Participant who had at least five years of Service at the date of
his termination of employment, may request the Committee to authorize
commencement of his Vested Deferred Retirement Pension as of the beginning of
any calendar month within the 10-year period preceding his Normal Retirement
Date; and in such case his Pension shall commence as of the date requested, but
the amount thereof shall be reduced as provided in Section 4.04.
13.04 Change in Top-Heavy Status. If the Plan becomes a Top-Heavy
--------------------------
Plan and subsequently ceases to be such, the vesting schedule in Section 13.03
of this Section 13 shall continue to apply in determining the Vested Deferred
Retirement Pension of any Participant who had at least three years of Service as
of December 31 in the last Plan Year of top-heaviness. For other Participants,
said schedule shall apply only to their accrued benefits as of such December 31.
13.05 Impact on Maximum Benefits. Except as provided in Section
--------------------------
13.06, for any Plan Year in which the Plan is a Top-Heavy Plan, Section 5.06
shall be read by substituting the number "1.00" for the number "1.25" wherever
it appears therein.
13.06 Exception. The change in the 415(e) limitation specified in
---------
Section 13.05 above shall not be applicable for a Plan Year in which the Plan is
a Top-Heavy Plan if, with respect to any Plan within the aggregate group
described in Section 13.01(b), (a) the sum of the present value of the accrued
benefits
78
<PAGE>
of all Participants who are Key Employees does not exceed 90 percent of a
similar sum for all Participants of such plans, and (b) the minimum benefit
described in Section 13.02 above is modified by replacing "three percent (3%)"
for "two percent (2%)".
IN WITNESS WHEREOF, the Company maintaining the Plan has caused this
restatement to be executed as of the 1st day of January, 1993.
BW/IP International, Inc.
By /s/ John D. Hannesson
---------------------------------
79
<PAGE>
SUPPLEMENT A
CONTRIBUTORY PARTICIPANTS
A-1. Normal Retirement Income. The annual Normal Retirement Pension
under Section 5.01 for a Contributing Participant (or for a Participant or
former Participant who was eligible to contribute to the Prior Plan in effect
prior to March 1, 1970, but never contributed) will not be less than the greater
of:
(a) The sum of:
(i) The amount of his accrued Normal Retirement Pension as of
February 28, 1970, under the Prior Plan in effect prior to March 1,
1970, without regard to the Five Year Aver age Retirement under
paragraph 4.03(c) of such Prior Plan; plus
(ii) 1.3% of his plan year earnings as defined in the Prior Plan
up to and including the greater of $12,000 or the Average Social
Security Base plus 1.5% of his plan year earnings in excess of the
greater of $12,000 or the Average Social Security Base for each
complete plan year of his Continuous Service on and after March 1,
1970; or
(b) An amount equal to the "Minimum Retirement Income" determined
under paragraph 4.03(b) of the Prior Plan as in effect prior to March 1,
1970.
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<PAGE>
A-2. Termination of Employment. Upon termination of employment prior
to his retirement under the Plan for any reason other than death:
(a) A Contributing Participant eligible for a Vested Deferred
Retirement Pension may elect at any time prior to or at the time he applies
for a benefit under the Plan to have paid to him his own contributions with
interest in which case:
(i) If his current period of Continuous Service commenced prior
to January 1, 1957, his retirement pension will be reduced in
accordance with actuarial tables adopted by the Committee; or
(ii) If his current period of Continuous Service commenced on or
after January 1, 1957, his retirement pension shall be reduced by the
amount of his accrued Contributory Retirement Income as of February
28, 1970, under the Prior Plan as in effect on that date.
(b) A Contributing Participant who, at the date of such termination,
is not eligible for a Vested Deferred or other type of Pension under this
Plan shall have paid to him his own contributions with interest.
A-3. Death Benefits.
(a) A Contributing Participant may name one or more beneficiaries and
contingent beneficiaries on the forms provided by the Committee, and he may
change the
81
<PAGE>
beneficiaries in the same manner. In the event of the death of a
Contributing Participant prior to the first to occur of any of the
following events:
(i) the date his Normal, Early Retirement or Vested Deferred
Pension commences;
(ii) the date an option under Section 6.03 of the Plan becomes
effective; or
(iii) the date he attains age 65 if the Contributing Participant
is receiving a Permanent and Total Disability Pension under the Plan;
the beneficiary will receive a death benefit.
(b) The amount of this death benefit will be equal to:
(i) the Participant's contributions and the Employer's
contributions while participating under Basis B of the Prior Plan as
in effect prior to March 1, 1970; and
(ii) the amount of the Participant's contributions while
participating under Basis A of said Prior Plan, with interest to the
first of the month coincident with or preceding his death.
(c) The death benefit will be paid in a lump sum; provided, however,
if the amount of such death benefit payable is equal to or exceeds $1,000,
the Contributing Participant may elect, subject to the provisions of any
82
<PAGE>
applicable annuity contract, that payment shall be made on an Actuarially
Equivalent basis in one of the following forms:
(i) A specified number of equal installments of not less than
$10 over a period not exceeding 20 years.
(ii) A specified number of equal installments over a period not
to exceed 20 years and as long thereafter as the beneficiary survives.
(iii) Proceeds left on deposit in the Trust Fund for a period
not to exceed 12 months, or left on deposit with the insurance company
involved. The beneficiary will receive interest subject to future
election of option (i) or (ii) of this subparagraph, or the payment of
accumulated proceeds in cash.
(iv) For elections effective under the Prior Plan or under this
Plan on or after March 1, 1973, such other form as the Committee shall
determine.
A-4. Optional Forms of Retirement Pension. In addition to the
options available under Section 6.03 of the Plan, a Contributing Participant may
elect a Modified Cash Refund option to provide income during the lifetime of the
Contributing Participant after retirement and upon his subsequent death, a
payment to his beneficiary equal to the excess, if any, of his own contributions
with interest to his date of retirement, over the aggregate retirement income
payments received prior to date of death computed as if no cost of living
adjustment (as provided in
83
<PAGE>
Section 5.05 of the Prior Plan as in effect prior to January 1, 1985) had been
made to his Pension. For a Contributing Participant whose Modified Cash Refund
option election was made effective under the Prior Plan prior to March 1, 1978,
the payment to his beneficiary shall be in a lump sum or such other Actuarially
Equivalent form as the Committee shall determine. For a Contributing
Participant whose Modified Cash Refund option election is made effective under
the Prior Plan on or after March 1, 1978 and before May 20, 1987 or under this
Plan, the payment to his beneficiary shall be in a lump sum; provided, however,
the Participant may elect, at the time he elects said option, to have the
Actuarial Equivalent of said payment paid to the beneficiary in such form as the
Committee shall determine. If a Contributing Participant elects a Contingent
Annuitant option and the Contingent Annuitant is not the spouse of the
Participant, the Actuarial Value of the income continued to the Contingent
Annuitant after the death of the Participant shall not exceed the sum of:
(a) the total contributions made by the Participant under the Prior
Plan; plus
(b) 50% of the excess of the Actuarial Value of the benefits to be
paid to the Participant and his Contingent Annuitant over the total
contributions made by the Participant under the Prior Plan.
84
<PAGE>
A-5. Withdrawal of Contributions Not Permitted. A Contributing
Participant may withdraw his contributions made under the Prior Plan prior to
March 1, 1970, only upon the termination of his employment with the Company and
Affiliated Companies for reasons other than retirement under any pension plan
maintained by the Company and Affiliated Companies.
A-6. Interest. For periods ending prior to January 1, 1976, interest
on Participant contributions shall be computed at rates adopted by the Company
from time to time but not less than the rates specified in paragraph 7.02(b) of
the Prior Plan as in effect prior to March 1, 1970. For periods beginning on or
after January 1, 1976, interest shall be computed at the rate of 5% (or such
other rate as may be in effect for particular years as prescribed by regulations
issued by the Secretary of Treasury), compounded annually from January 1, 1976.
85
<PAGE>
SUPPLEMENT B
MERGER OF MECHANICAL SEAL PLAN, PUMP DIVISION PLAN,
FLUID CONTROLS PLAN AND UCP PLAN
Effective April 1, 1989, the Borg-Warner Industrial Products, Inc.
Mechanical Seal Division Hourly Pension Plan ("Mechanical Seal Plan"), the Borg-
Warner Industrial Products, Inc. Pump Division Pension Plan No. 1 Covering
Service Operations Hourly Employees ("Pump Division Plan"), the Borg-Warner
Industrial Products, Inc. Fluid Controls Division Pension Plan Covering Hourly
Employees ("Fluid Controls Plan") and the United Centrifugal Pumps Second
Amended and Restated Defined Benefit Pension Plan ("UCP Plan") (collectively,
the Mechanical Seal Plan, the Pump Division Plan, the Fluid Controls Plan and
the UCP Plan are hereinafter sometimes referred to as "the Plans") were merged
with and into this Plan.
Benefits Accrued Prior to Merger
--------------------------------
Notwithstanding any other provision of the Plan to the contrary, with
respect to service rendered to the Employer, or any predecessor Employer, prior
to April 1, 1989 by any employee in the Mechanical Seal Division, the Pump
Division, the Fluid Controls Division or the UCP Division of the Employer, such
employees shall be entitled to the benefits accrued by them as Participants
under, and as determined pursuant to the benefit formula of, the Mechanical Seal
Plan, the Pump Division Plan, the Fluid Controls Plan or the UCP Plan, as the
case may be, as of
86
<PAGE>
such date, including all ancillary benefits thereunder with respect thereto
including all forms of settlement and distribution, early retirement benefits
and subsidies, disability benefits and all other benefits or forms of benefit
protected under Section 411(d)(6) of the Code, provided that all such benefits
and ancillary benefits shall be provided under this Plan and the provisions of
such plans with respect to such benefits and ancillary benefits as to such
service shall be, and they hereby are, incorporated by this reference herein.
With respect to any such employee as to service from and after April 1, 1989,
benefits shall accrue and all ancillary benefits with respect thereto shall be
provided under the terms of this Plan without respect to this Section.
87
<PAGE>
EXHIBIT A
EARLY RETIREMENT INCOME DETERMINANTS
Early Retirement Pension under Section 5.02 of the Plan shall be
determined using the percentages in the Table set forth herein. The percentages
are based on the number of years computed to twelfths of a year that a
Participant's Early Retirement Date precedes his Normal Retirement Date and
shall be adjusted by straight line interpolation for fractions of years.
<TABLE>
<CAPTION>
Years Early Retirement Date
Precedes Normal Retirement Date Percentage
<S> <C>
1 100
2 100
3 100
4 93
5 86
6 79
7 73
8 67
9 61
10 55
</TABLE>
88
<PAGE>
EXHIBIT 99(M)
AMENDMENT NUMBER ONE
TO THE
BW/IP INTERNATIONAL,INC.
RETIREMENT PLAN
AS AMENDED AND RESTATED AS OF JANUARY 1, 1993
The BW/IP International, Inc. Retirement Plan, as amended and restated
as of January 1, 1993 (the "Plan"), is hereby amended in the following respects:
1. The definition of "Employer" contained in Section 2 of the Plan is
hereby amended by adopting the following as the last sentence of such
definition:
"BWIP Holding, Inc. effective as of January 1, 1994 has adopted the
Plan and shall thenceforth be deemed an Employer for all purposes of
this Plan."
2. Ratification and Re-Affirmation.
-------------------------------
Except as specifically amended hereby, the Plan, as heretofore amended
to date, shall remain in full force and effect in accordance with its terms.
3. Effective Date.
--------------
The amended to the Plan set forth herein shall be effective as of
January 1, 1994.
<PAGE>
IN WITNESS WHEREOF, each employer has caused this plan to be executed
as of the 27 day of October, 1993.
---- -------
BW/IP International, Inc.
By /s/ John D. Hannesson
-------------------------------
Its Vice President
-------------------------------
"Employer"
BWIP Holding, Inc.
By /s/ D.G. Taylor
-------------------------------
Its Vice President
------------------------------
"Employer"
-2-
<PAGE>
EXHIBIT 99(N)
AMENDMENT NUMBER TWO
TO THE
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(as amended and restated as of January 1, 1993)
The BW/IP International, Inc. Retirement Plan, as amended and restated
as of January 1, 1993 (the "Plan"), is hereby further amended as follows:
1. Compensation Limit
------------------
(a) The fourth sentence of the definition of "Compensation" set forth
in Section 2 of the Plan is amended by deleting the same in its entirety and
substituting in lieu thereof the following:
"In no event shall annual Earnings taken into account hereunder for any
employee for any Plan Year exceed the first one hundred fifty thousand
dollars of Compensation for such employee; provided, that said amount shall
be adjusted as provided under Code Section 401(a)(17)(B)."
(b) In addition, the reference to "$200,000" contained in clause (iii)
of the last sentence of such definition of "Compensation" is hereby changed to
"150,000."
2. Definition of Employer
----------------------
(a) The definition of ""Employer" set forth in Section 2 of the Plan
is amended by substituting each reference to "affiliates" contained therein to
"Affiliated Companies."
(b) In addition, the definition of "Employer" contained in such
Section 2 of the Plan is hereby amended by adding the following sentence to the
end thereof:
1
<PAGE>
"BWIP Holding, Inc. effective as of January 1, 1994 has adopted the Plan
and shall thenceforth be deemed an Employer for all purposes under the
Plan."
3. Annual Additions
----------------
(a) Section 5.06(d) of the Plan is amended by changing the reference
contained therein to Internal Revenue Code section "415(3)(6)" to section
"415(e)(6)".
(b) Section 5.06(e)(ii) of the Plan is amended by changing the
reference contained therein to Internal Revenue Code section "402(a)(5)" to
section "402(c)".
4. Small Benefit Cash-Outs
-----------------------
(a) The second sentence of Section 6.12 of the Plan is amended by
deleting the parenthetical clause "(in effect as of the date of distribution)"
and inserting in lieu thereof the following parenthetical clause:
"(in effect as of the first day of the Plan Year in which the date of
distribution occurs)"
(b) Section 6.12 of the Plan is amended by adding the following to the
end thereof:
"In the event of the death of a married Participant prior to commencing to
receive benefits hereunder, his surviving spouse shall be treated as the
Participant for purposes of this Section 6.12."
5. Direct Rollovers
----------------
Section 6 of the Plan is amended by adding to the end thereof the
following new subsection 6.13:
"6.13. A Distributee may elect, at the time and in the manner prescribed
by the Employer, to have any portion of an
2
<PAGE>
Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
a. "Eligible Rollover Distribution": An Eligible Rollover
Distribution is any distribution of all or any portion of the balance to
the credit of a 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 Beneficiary or
for a specified period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the code; and the
portion of any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized appreciation
with respect to employer securities).
b. "Eligible Retirement Plan": An Eligible Retirement Plan is
an individual retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b) of the Code,
an annuity plan described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to a Participant's surviving spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
c. "Distributee": A Distributee is a Participant or former
Participant, a Participant's or former Participant's surviving spouse, and
a Participant's or former Participant's spouse or former spouse who is the
alternate payee under a qualified domestic relations order (as defined by
section 414(p) of the Code).
d. "Direct Rollover": A Direct Rollover is a payment by the
Plan to the Eligible Retirement Plan specified by the Distributee.
6. Rate of Distribution
--------------------
Section 6 of the Plan is amended by adding to the end thereof the
following new subsection 6.14:
3
<PAGE>
"6.14 Notwithstanding any other provision hereof, if distributions to
a Participant shall be considered to have begun in accordance with Code
Section 401(a)(9)(A)(ii) before the Participant's death, the remaining
interest of the Participant will distributed at least as rapidly as under
the method of distribution in effect as of the date of the Participant's
death. Further, the provisions of this Section 6 shall be interpreted in
such a manner so that if a Participant shall die before distributions to
the Participant shall be considered to have begun in accordance with Code
Section 401(a)(9)(A)(ii): (a) any benefits that may be payable to a person
not designated as his beneficiary by the Participant shall be distributed
in their entirety by December 31 of the calendar year in which shall fall
the fifth anniversary of the Participant's death, or (b) any benefits that
are payable to the Participant's designated beneficiary shall be
distributed either (i) over the five year period set forth in the
immediately preceding clause (a) or (ii) over the life of the beneficiary
or a period certain not extending beyond the life expectancy of the
beneficiary and which benefits shall commence (A) with respect to a
beneficiary who is not the Participant's spouse, not later December 31 of
the calendar year immediately following the calendar year in which the
Participant died or (B) with respect to a beneficiary which is the
Participant's spouse, not later than the later of (I) December 31 of the
calendar year immediately following the calendar year in which the
Participant died or (II) December 31 of the calendar year in which the
Participant would have attained age 70 1/2."
7. Exclusive Benefit Rule
----------------------
Section 9.03 of the Plan is amended by changing the word "end"
contained between the words "Participants" and "their" to the word "and."
8. Reversion of Employer Contributions
-----------------------------------
Section 9.04 of the Plan is amended deleting the same in its entirety
and substituting the following in lieu thereof:
"9.04 Reversion of Employer Contributions. Notwithstanding any other
-----------------------------------
provision of the Plan, contributions made by an Employer are expressly
conditioned upon the deductibility under Section 404 of the Code of
4
<PAGE>
contributions made to provide Plan benefits. A contribution which was made
by a mistake of fact or upon the deductibility of the contribution under
Section 404 of the Code, shall be returned to the Employer within one year
after the payment of the contribution or the disallowance of the deduction
(to the extent mistaken or disallowed), whichever is applicable, but
reduced by the amount of any investment losses thereon."
9. Top Heavy Participation
-----------------------
Section 13.02 of the Plan is amended by adding to the end thereof the
following sentence:
"For purposes of this Section 13.02 each Participant who is a Non-Key
Employee and who has completed at least 1,000 Hours of Service shall accrue
the benefit provided for in this Section 13.02 irrespective of the level of
the Participant's Compensation for the Plan Year in which the accrual is to
be made.
10. Amendment or Termination
------------------------
Section 10.1 of the Plan is amended by the second and third sentences
thereof and substituting the following in lieu thereof:
"Each Employer hereby appoints the Company as its agent to amend, change or
modify the Plan at any time, whether prospectively or retroactively. Any
such amendment, change or modification shall be made be through the duly
taken action of the Compensation Committee of the Company's Board of
Directors or if the Board of Directors shall determine by the duly taken
action of the Board of Directors."
11. Ratification and Reaffirmation
------------------------------
Except as specifically amended hereby, the Plan shall remain in full
force and effect in accordance with its terms.
5
<PAGE>
12. Effective Date
--------------
This Amendment Number Two to the Plan as restated shall be effective
as of January 1, 1987, except as to section 5 hereof which shall be effective
as of January 1, 1993, sections 1, 2(b), 3(b) and 4 hereof which shall be
effective as of January 1, 1994, and section 10 hereof which shall be effective
as of date this Amendment is executed.
IN WITNESS WHEREOF, the Company maintaining the Plan has caused this
Amendment Number Two to be executed as of the 11 day of January 1995.
---- -------------
BW/IP International, Inc.
By /s/ D.G. Taylor
----------------------------
6
<PAGE>
EXHIBIT 99(O)
AMENDMENT NUMBER THREE
TO THE
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(as amended and restated as of January 1, 1993)
The BW/IP International, Inc. Retirement Plan, as amended and restated
as of January 1, 1993 (the "Plan"), is hereby further amended as follows:
1. Earnings
--------
The definition of "Earnings" set forth in Section 2 of the Plan is
amended by deleting the first two sentences thereof in their entirety and
substituting in lieu thereof the following:
"Earnings. With respect to any Employee, Earnings for a Plan Year means the
---------
total wages or earnings received by the Employee for services rendered by
him to the Company and Affiliated Companies during the calendar year ending
in the Plan Year, as reported on Internal Revenue Service Form W-2,
including the amount of any performance bonus actually paid to such
Participant during such Plan Year but excluding any payment, allowance,
bonus or premium determined or paid solely by reason of the location at
which the services were rendered to the Employer, any payment which is not
considered compensation for services rendered and any amounts paid in a
form other than cash."
2. Normal Retirement Pension
-------------------------
Section 5.01 of the Plan is amended by adding the following to the end
thereof:
"Notwithstanding the foregoing, but continued subject to Sections 5.05,
5.06, 5.07 and 12, a Participant's Normal Retirement Pension under the Plan
at any time after December 31, 1993 will be equal to the greater of (a) or
(b) below:
(a) the sum of (1) and (2) below:
(1) the Participant's Normal Retirement Benefit, determined under the
Plan as of December 31, 1993
1
<PAGE>
(determined without regard to the $150,000 limit on Compensation
described in the definition of Compensation set forth in Section
2, but after application of the limitation on the maximum amount
of Compensation permitted to be taken into account under the Plan
pursuant to Code Section 401(a)(17) immediately prior to the
adoption of the $150,000 limit, where applicable),
(2) the Participant's Normal Retirement Pension based all periods of
Credited Service and Continuous Service, as applicable, otherwise
taken into account in determining his Normal Retirement Pension
earned after December 31, 1993 (determined by applying the
$150,000 limit on Compensation to all years, whether before 1994
or after 1993),
(b) the Participant's Normal Retirement Pension based on all periods of
Credited Service and Continuous Service, as applicable, otherwise
taken into account in determining his Normal Retirement Pension
(whether completed before 1994 or after 1993) and determined by
applying the $150,000 limit on Compensation to all years (whether
before 1994 or after 1993).
In no event shall a Participant's Normal Retirement Pension be less
than the Participant's Normal Retirement Pension on the date
immediately preceding the date on which any Plan provision that
affects accrued benefits is amended."
3. Ratification and Reaffirmation
------------------------------
Except as specifically amended hereby, the Plan shall remain in full
force and effect in accordance with its terms.
4. Effective Date
--------------
This Amendment Number Three to the Plan as restated shall be effective
as of January 1, 1994, except as to paragraph 1 hereof which shall be effective
as of January 1, 1987.
2
<PAGE>
IN WITNESS WHEREOF, the Company maintaining the Plan has caused this
Amendment Number Three to be executed as of the 11 day of January 1995.
---- -------------
BW/IP International, Inc.
By /s/ D.G. Taylor
--------------------------
3
<PAGE>
EXHIBIT 99(P)
AMENDMENT NUMBER FOUR
TO THE
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(as amended and restated as of January 1, 1993)
The BW/IP International, Inc. Retirement Plan, as amended and restated
as of January 1, 1993 (the "Plan"), is hereby further amended as follows:
1. Vesting of Fluid Controls Division Employees
--------------------------------------------
Section 4 of the Plan is amended by adding the following immediately
after the last sentence thereof:
Notwithstanding any other provision hereof, in the event of a sale of the
assets of Fluid Controls Division of the Company to E-Systems, Inc. on or
before December 31, 1994, any Participant in the Plan who is actively
employed in the Fluid Controls Division of the Company on the date
immediately preceding the closing date of such sale shall be entitled to a
Vested Deferred Pension Benefit as if such Participant had, for vesting
purposes only, five years of Continuous Service as of such date.
2. Ratification and Reaffirmation
------------------------------
Except as specifically amended hereby, the Plan shall remain in full
force and effect in accordance with its terms.
3. Effective Date
--------------
This Amendment Number Four to the Plan as restated shall be effective
as of October 1, 1994.
IN WITNESS WHEREOF, the Company maintaining the Plan has caused this
Amendment Number Four to be executed as of the 11 day of January 1995.
---- -------------
BW/IP International, Inc.
By /s/ D.G. Taylor
--------------------------
<PAGE>
EXHIBIT 99(Q)
AMENDMENT NUMBER FIVE
TO THE
BW/IP INTERNATIONAL, INC.
RETIREMENT PLAN
(as amended and restated as of January 1, 1993)
The BW/IP International, Inc. Retirement Plan, as amended and restated
as of January 1, 1993 (the "Plan"), is hereby further amended as follows:
1. Vesting of Fresno Pump Division Employees
-----------------------------------------
Section 4 of the Plan is amended by adding the following immediately
after the last sentence thereof:
Notwithstanding any other provision hereof, any Participant in the Plan who
is actively employed in the Fresno Pump Division of the Company on January
9, 1995 and who terminates from the Company during 1995 shall be entitled
to a Vested Deferred Pension Benefit as if such Participant had, for
vesting purposes only, five years of Continuous Service as of such date.
2. Ratification and Reaffirmation
------------------------------
Except as specifically amended hereby, the Plan shall remain in full
force and effect in accordance with its terms.
3. Effective Date
--------------
This Amendment Number Five to the Plan as restated shall be effective
as of January 1, 1995.
IN WITNESS WHEREOF, the Company maintaining the Plan has caused this
Amendment Number Five to be executed as of the 11 day of January 1995.
---- -------------
BW/IP International, Inc.
By /s/ D.G. Taylor
--------------------------
1
