Registration No. 33 - _____________
As filed with the Securities and Exchange Commission on March 27, 1998
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S - 8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
____________________
REGAL-BELOIT CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-0875718
(State of Incorporation) (I.R.S. Employer Identification Number)
200 State Street
Beloit, WI 53511
(Address of principal executive offices, including Zip Code)
____________________
MARATHON ELECTRIC HOURLY 401(k) SAVINGS PLAN
(Full Title of the Plan)
____________________
James L. Packard
Chairman, President and CEO
Regal-Beloit Corporation
200 State Street
Beloit WI 53511
(Name and address of agent for service)
(608) 364-8800
(Telephone Number, including area code, of agent for service)
____________________
<PAGE>
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Proposed
Title of securities Amount to maximum aggregate Amount of
to be registered be registered offering price (1) registration fee
_____________________________________________________________________________
Interests in Marathon (2) $4,000,000 $1,180.00
Electric Hourly 401(k)
Savings Plan
___________________________________________________________________________
(1) Computed pursuant to Rule 457(h), only with respect to the estimate
aggregate employee contributions through December 31, 2007.
(2) An indeterminate number of shares as may be purchased from time to
time at market prices for allocation to the accounts of employees
participating in the Plan. Based on a market price of $ 31.50 on
March 23, 1998, and based on estimate aggregate employee
contributions allocated to the Company Stock Fund of $4,000,000
through December 31, 2007, a maximum of 126,984 shares would need
to be registered at this time.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information sepcified in Part I
are not required to be filed with the Securities and Exchange Commission
(the "Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
1. The Company's annual report filed on Form 10-K for the year ended
December 31, 1997.
2. The Company's Current Reports on form 8-K filed as Exhibits 2.1 and
2.2 dated April 10, 1997 and 2.3 dated August 8, 1997.
3. The Company's proxy statement filed on Schedule 14A dated
March 13, 1998.
4. The description of the Company's Common Stock as set forth in
Article 3 of the Articles of Amendment to the Articles of
Incorporation filed as Exhibit B to the 1994 Proxy Statement.
5. Bylaws of the Registrant filed as Exhibit C to the 1994 Proxy
Statement.
6. Agreement and Plan of Merger by and between the Registrant and Regal-
Beloit Corporation, dated as of April 18, 1994 filed as Exhibit A
to Annual Meeting Proxy Statement of Regal-Beloit Corporation dated
March 11, 1994.
7. Agreement and Plan of Merger among the Registrant, Regal-Beloit
Acquisition Corp., and Marathon Electric Manufacturing Corporation
dated as of February 26, 1997, as amended and restated March 17, 1997
and March 26, 1997 filed as Exhibit 2.1 on Regal-Beloit Corporation's
Form 8-K dated April 10,1997.
8. Credit Agreement among Registrant, Bank of America Illinois, M&I
Marshall & Ilsley Bank and the Other Financial Institutions Party
hereto dated as of March 26, 1997; Schedule 2.01 Guaranty Agreements
dated March 26, 1997; and Promissory Notes dated March 26, 1997
filed as Exhibit 2.2 on Regal-Beloit Corporation's Form 8-K dated
April 10, 1997.
9. Amended and Restated Credit Agreement Dated as of May 30, 1997 among
Registrant, Bank of America Illinois, as Documentation Agent, M&I
Marshall & Ilsley Bank, as Administrative Agent and Letter of Credit
Issuing Bank, Firstar Bank Milwaukee, N.A., Harris Trust and Savings
Bank and The Northern Trust Company, as Co-Agents, and The Other
Financial Institutions Party Hereto Arranged by Bancamerica
Securities, Inc. As Syndication Agent; Disclosure Schedules and
Attached Exhibits; and Promissory Note filed as Exhibit 2.3
to Regal-Beloit Corporation's Quarterly Report on Form 10-Q dated
August 8, 1997.
<PAGE>
10. The Company's Registration Statement on Form S-8 dated October 28,
1988, Registration No. 33-25233.
All documents subsequently filed by the Company and the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, (the Exchange Act ) prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Item 4. Description of Securities
-------------------------
The securities being offered pursuant to the Registration consist of
participation interests in the Plan which consist of the Company's common
stock at $.01 par value and a cash component. These securities are
purchased by employees through payroll deferral and have been previously
registered by the Company for purchase on the open market.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Under provisions of Sections 180.0850 to 180.0859 of the Wisconsin Business
Corporation Law and Article VIII of the Bylaws of the Company, directors,
officers and persons controlling the Company are indemnified by the Company
under certain circumstances for certain liabilities and expenses. In
addition, officers and directors of the Company are insured, under a policy
of insurance paid for by the Company, under certain circumstances for
certain liabilities and expenses.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings
------------
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, as amended (the Securities Act );
(ii) To reflect in the prospectus any facts or event 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered ( if the total dollar
value of securities offered would not exceed that which was
<PAGE>
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference 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.
(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.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statement on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-X if such
financial statements and information are contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated by reference
in the Form F-3.
(b) That, for the purposes of determining any liability under the
Securities Act, each filing of the registrant s annual report pursuant to
section 13(a) or section 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 that time shall be deemed to be the initial bona fide offering
thereof.
(h) 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 opinion of the Securities and
<PAGE>
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 asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit No. Page No.
- ---------- -------
<S> <C>
4.1 Marathon Electric Hourly 401(k) Savings Plan
effective March 1, 1992, as amended through
February 1, 1998.
4.2 Marathon Electric Master Trust Agreement effective
January 1992, as amended effective April 18, 1995.
4.3 Regal-Beloit Corporation Master Trust Agreement
effective November 1, 1997.
23.1 Consent of Wipfli Ullrich Bertelson LLP.
24.1 Powers of Attorney (Signature page of this Registration)
24.2 Signature of Marshall & Ilsley Trust Company (Trustee)
99 Internal Revenue Service determination letter of tax
qualifed status
</TABLE>
INCLUDES AMENDMENTS TO 2/98
EXHIBIT 4.1
MARATHON ELECTRIC HOURLY 401(k) SAVINGS PLAN
Effective March 1, 1992
<PAGE>
MARATHON ELECTRIC HOURLY 401(k) SAVINGS PLAN
Table of Contents
-----------------
Page
----
ARTICLE I. DEFINED TERMS
Section 1.01. Definitions
ARTICLE II. ELIGIBILITY
Section 2.01. Eligibility
Section 2.02. Participation
Section 2.03. Inactive Status
Section 2.04. Return to Active Status
Section 2.05. Status of Leased Employees
ARTICLE III. CONTRIBUTIONS
Section 3.01. Participant Contributions
Section 3.02. Change in Amount of Participant Contributions
Section 3.03. Suspension of Contributions
Section 3.04. Employer Matching Contributions
Section 3.05. Hardship Withdrawals
Section 3.06. Withdrawals After Age Fifty-Nine and One-Half (59)
Section 3.07. Non-Reversion of Employer Contributions
Section 3.08. Rollover Contributions
Section 3.09. Employer Additional Contributions
ARTICLE IV. ALLOCATIONS TO PARTICIPANT'S ACCOUNTS
Section 4.01. Individual Accounts
Section 4.02. Allocation of Income
Section 4.03. Allocation of Employer Matching Contributions
Section 4.04. Allocation of Participant Deposits
Section 4.05. Allocation and Disposition of Forfeitures
Section 4.06. Maximum Additions
Section 4.07. Investment Election
Section 4.08. Allocation of Employer Additional Contributions
ARTICLE V. BENEFITS
Section 5.01. Retirement Benefits
Section 5.02. Death Benefits
Section 5.03. Disability Benefits
Section 5.04. Severance Benefits
Section 5.05. Payment of Benefits
Section 5.06. Payments to Minors or Incompetents
<PAGE>
Section 5.07. Nonalienation of Benefits
Section 5.08. Direct Rollovers
ARTICLE VI. ADMINISTRATION
Section 6.01. Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration
Section 6.02. Administrative Committee
Section 6.03. Plan Administrator
Section 6.04. Authority of Plan Administrator
Section 6.05. Use of Professional Services
Section 6.06. Fees and Expenses
Section 6.07. Claims Procedure
Section 6.08. Trustee's Responsibilities
Section 6.09. Fiduciary Insurance and Indemnification
Section 6.10. Agent for Service of Process
Section 6.11. Allocation of Fiduciary Responsibility
Section 6.12. Selection of Investment Managers
Section 6.13. Liability for Breach of Co-Fiduciary
Section 6.14. Communications
ARTICLE VII. RIGHTS RESERVED BY EMPLOYER
Section 7.01. Employer's Interest in Plan
Section 7.02. Amendment
Section 7.03. Termination
ARTICLE VIII. SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION
OF PLANS
Section 8.01. Successor Employer
Section 8.02. Merger or Transfer of Plan Assets
Section 8.03. Adoption of Plan by Affiliate
ARTICLE IX. MISCELLANEOUS
Section 9.01. Nonguarantee of Employment
Section 9.02. Action by Company
Section 9.03. Plan Binding on Successors
Section 9.04. Construction
Section 9.05. Titles
Section 9.06. Form of Written Notice
Section 9.07. Top-Heavy Restrictions
Section 9.08. Prior Plans
<PAGE>
MARATHON ELECTRIC HOURLY 401(k) SAVINGS PLAN
Marathon Electric Manufacturing Corporation, a Wisconsin corporation,
hereby adopted the Marathon Electric West Plains and Lebanon Hourly 401(k)
Savings Plan ("Plan") as of March 1, 1992 as a "cash or deferred" arrangement
pursuant to Section 401(k) of the Internal Revenue Code of 1986, as amended.
Effective Midnight, December 31, 1994, it was renamed the Marathon
Electric Hourly 401(k) Savings Plan ("Plan") and the Marathon Electric Wausau
Hourly 401(k) Savings Plan and the Marathon Electric - York 401(k) Savings Plan
(with respect to employees on the hourly payroll) were merged into it.
<PAGE>
ARTICLE I. DEFINED TERMS
------------------------
Section 1.01. Definitions. As used in the Plan, the following terms
--------------------------
shall have the meanings hereinafter set forth:
(a) "Affiliate" shall mean any Employer and each other
corporation or unincorporated business in a controlled group of corporations,
a group of trades or businesses under common control or an affiliated service
group (within the meaning of Section 414(b), (c) or (m) of the Code) which
includes an Employer.
(b) "Beneficiary" shall mean a person or persons (natural or
otherwise) or organization or organizations designated by a Member pursuant
to Section 5.02 hereof to receive any death benefit which shall be payable
under the Plan.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Break in Service" shall mean a twelve consecutive month
period, during which an Employee is credited with no Hours of Service,which
begins on the Employee's Severance of Employment Date.
(e) "Certified Leave of Absence" is any absence of any
Employee from active service of an Affiliate which is not treated as
a Termination of Employment. In granting a Certified Leave of Absence,
all Employees in similar circumstances will be treated alike. Any
Employee in the military service of the United States, whether as a
volunteer or by induction, shall be deemed to have received a Certified
Leave of Absence for such period as may be required by applicable state
or federal law regarding veterans' reemployment rights.
(f) "Code" shall mean the Internal Revenue Code of 1986,
as amended, and reference to a particular section shall also include any
successor section or sections.
(g) "Committee" shall mean the Marathon Electric Pension
and Savings Plans Committee acting and appointed in accordance with the
terms and conditions of Article VI.
(h) "Company" shall mean Marathon Electric Manufacturing
Corporation, a Wisconsin corporation.
(i) "Compensation" shall mean a Member s base pay,
shift differential, overtime, any Deposits hereunder and any salary
reduction pursuant to Code Section 125, but shall exclude bonuses,
gain sharing, income protection pay and all other extraordinary
remuneration. The maximum annual compensation taken into account
hereunder for purposes of calculating any Participant s accrued
benefit (including the right to any optional benefit) and for all
other purposes under the Plan shall be $150,000 (or such other amount
permitted pursuant to Code Section 401(a)(17)). For purposes of
calculating this maximum for any five percent (5%) owner or highly
compensated employee who is in the group of ten (10) employees paid
<PAGE>
the greatest compensation during the year, pursuant to Code Section
414(q)(6), the compensation of a spouse or a lineal descendant under
age 19 before the end of the Plan Year shall be treated as if paid
to the employee.
(j) "Deposits" shall mean amounts designated under the
Plan by Participants pursuant to Article III which are contributed
by the Employers in lieu of payment of an equal amount to the
Participant as compensation. "Matched Deposits" are subject to
certain matching by Employer contributions and "Unmatched Deposits" are not.
(k) "Deposits Account" (hereinafter sometimes referred to
collectively with the Member's Employer Contribution Account as "Accounts")
shall mean the account maintained for a Member to record pre-tax
contributions and adjustments thereto.
(l) "Effective Date" shall mean March 1, 1992.
(m) "Employee" shall mean any person employed by the Company:
(1) Who is compensated on an hourly basis or who is
employed as a truck driver; and
(2) who is a resident or citizen of the United States
of America; and
(3) who is not in a collective bargaining unit
with which the Company has a bargaining agreement unless such
agreement specifically provides that persons in such unit shall be
covered by the Plan;
(n) "Employer" shall mean the Company and any other
Affiliate that adopts the Plan in accordance with Section 8.03.
(o) "Employer Contribution Account" (hereinafter
sometimes referred to collectively with a Member's Deposits Account
as "Accounts") shall be the account maintained for a Member and
separated as necessary into subaccounts to record his share of
Employer Matching Contributions pursuant to Section 3.04, forfeitures
and adjustments thereto, and Employer Additional Contributions
pursuant to Section 3.09 and adjustments thereto.
(p) "ERISA" shall mean Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as may be amended from time to time.
(q) "Fiscal Year" of the Plan and the Employers shall
mean the twelve-month period beginning on January 1 and ending on
December 31.
(r) "Hour of Service" shall mean each hour for which an
Employee is directly or indirectly paid or entitled to payment by an
Affiliate (1) for the performance of duties during the applicable
computation period, (2) on account of a period of time during which no
duties are performed, or (3) as back pay, irrespective of mitigation of
damages; and, for purposes of determining a Break in Service, shall include
<PAGE>
those normally scheduled working hours during which an Employee is on a
Certified Leave of Absence. Hours of Service credited to an Employee for
periods of time during which the Employee is directly or indirectly paid
but performs no duties shall be credited in accordance with Department of
Labor Regulations 29 C.F.R. Section 2530.200-2(b) and (c).
(s) "Inactive Participant" shall mean a Member described
in Section 2.03.
(t) "Investment Fund" shall mean the investment funds
described and provided for in Section 4.07.
(u) "Member" shall mean a Participant or an Inactive
Participant who has one or more Accounts that have not yet been fully
distributed.
(v) "Normal Retirement Date" shall mean a Member's
sixty-fifth (65th) birthday.
(w) "Participant" shall mean an Employee who is
eligible to participate in the Plan and who is making Deposits in
accordance with Section 3.01.
(x) "Pay Period" shall mean that portion of the
calendar year used by the Employers for the processing and payment of
Compensation, but in no event shall any Pay Period exceed thirty-one days.
(y) "Permanently Disabled" shall mean any physical
or mental condition which renders a Member totally and permanently
disabled, as evidenced by eligibility for and receipt of disability
benefits under the federal Social Security Act.
(z) "Plan" shall mean the Marathon Electric Hourly
401(k) Savings Plan set forth herein and which may be amended from time
to time.
(aa) " Plan Administrator" shall mean the individual
selected by the Committee pursuant to Section 6.03.
(bb) "Plan Year" shall mean the twelve-month period
beginning on January 1 and ending on December 31.
(cc) "Severance of Employment Date" shall mean the
first to occur of (1) the date of the Member's Termination of Employment
or (2) the date immediately following the last day of the first
twelve-month period during which the Member has not been credited with
at least one Hour of Service.
(dd) "Termination of Employment" shall mean for
any Employee the first to occur of the following:
(i) his last day of active employment if he
becomes a member of the armed forces and
fails to return within ninety (90) days of
<PAGE>
his discharge or separation from active duty,
or if he re-enlists in the armed forces,
(ii) his last day of active employment if he does
not return to work upon the expiration of a
leave of absence,
(iii) the date he has been continuously laid-off
commencing on or after March 1, 1992 for
over twelve months, or
(iv) the date he resigns, retires, is discharged,
or dies.
(ee) "Trust" shall mean the Marathon Electric Master
Pension Trust adopted effective January 1, 1982 and as may be amended
and in effect from time to time, between the Company and the Trustee.
(ff) "Trustee" shall mean Marshall & Ilsley Trust
Company or any successor or successors thereto appointed by the
Committee to hold and administer the Trust.
(gg) "Valuation Date" shall mean the last day of
each calendar quarter, or such more frequent dates as the Plan
Administrator may determine is administratively appropriate.
(hh) "Vested" shall mean that a Member has a
nonforfeitable right to a benefit based upon the balance of his
Employer Matching Contribution subaccount, by meeting one of the
following requirements:
(1) The member has completed 36 months
of participation in the Plan. Subject to the provisions
of (A), (B) and (C), below, each Member shall be credited
with one month of participation for each whole or
partial calendar month during the period which begins on
the date on which the Member first performed an Hour
of Service after having become a Participant pursuant
to Section 2.02 and ends on the Member's Severance of
Employment Date.
(A) If a Member who has incurred a
Severance of Employment Date once again
becomes an Employee and performs at least
one Hour of Service before the first anniversary
of such Date, the Member shall, in addition to
the months of participation credited under (1)
above, be credited with one month of
participation for each whole or partial calendar
month which elapsed between the date of such
Hour of Service and his Severance of
Employment Date.
(B) An Employee who again becomes a
Member following a Break in Service and who
had accrued thirty-six (36) months of
<PAGE>
participation prior to his Break in Service shall
be credited with such months of participation
upon becoming a Participant.
(C) An Employee who again becomes a
Member following a Break in Service and who
had not accrued thirty-six (36) months of
participation prior to his Break in Service shall
be credited with his pre-break months of
participation upon becoming a Participant if
either (A) the period of Break in Service is less
than the period of participation accrued prior
to the first day of Break in Service or (B) the
Break in Service did not extend for at least six
(6) consecutive years; otherwise, his vesting
shall be determined only by his post-break
participation.
(2) The Member has completed 60 months
of service. For purposes of this paragraph (2), the
following rules shall apply:
A) A "month of service" shall mean
each whole or partial calendar month during
the period which begins on the later of (i) the
Effective Date or (ii) the date on which the
Member first performed an Hour of Service
and ends on the Member's Severance of
Employment Date; and
B) The rules outlined in (1)(A) through
(C) above shall apply but "sixty (60) months of
Service" replaces "thirty-six (36) months of
participation" and a rehired Member is credited
with Service pursuant to such provisions, even if
he is not an Employee or a Participant following
his reemployment.
<PAGE>
ARTICLE II. ELIGIBILITY
Section 2.01. Eligibility. (a) Each Employee who was employed
--------------------------
on February 29, 1992 shall be eligible to become a Participant as of the
Effective Date. Each other Employee shall be eligible to become a
Participant as of the first day of the first full Pay Period that begins
on the date coincident with or immediately subsequent to the later of
(1) his attainment of age twenty-one (21) or (2) his completion of the
qualifying period. Employees of Marathon Special Products Corporation
who have satisfied the eligibility conditions as of September 1, 1994
shall be first eligible to become Participants hereunder as of the first
full Pay Period on or after September 1, 1994.
(b) The qualifying period shall be the twelve (12) month period
commencing on the Employee's employment commencement date or any
subsequent January 1 during which the Employee completes at least one
thousand (1,000) Hours of Service. If earlier, an Employee represented by
Local 1791, International Brotherhood of Electrical Workers, AFL-CIO, or
by Local 446, Chauffeurs, Teamsters, Warehousemen and Helpers, shall
complete the qualifying period upon completion of the probationary period
under the collective bargaining agreement covering such Employees.
Section 2.02. Participation. Subject to the provisions of
-----------------------------
Sections 2.04 and 3.05, each eligible Employee shall become a Participant
as of the first day of the first Pay Period in which he has (1) satisfied
the eligibility requirements of Section 2.01 and (2) filed with the Plan
Administrator an application and payroll deduction authorization form
specifying a contribution level as provided for in Section 3.01;
provided, however, that an Employee who does not elect to become a
Participant prior to the first Pay Period in which he was eligible shall
become a Participant as of the first Pay Period beginning on or after
any first of the month next following the filing of applicable forms
under (2) above.
Section 2.03. Inactive Status. A Participant shall become
-----------------------------
an Inactive Participant upon the first to occur of the following:
(a) Employment by an Affiliate in a classification other
than as described in Section 1.01(m);
(b) A Termination of Employment;
(c) The effective date of any election filed under Section
3.03; or
(d) The date the Participant receives a distribution pursuant
to Section 3.05.
Section 2.04. Return to Active Status. (a) An Inactive
--------------------------------------
Participant described in Section 2.03(a) or (b) who is reemployed as an
Employee shall become a Participant upon again filing with the Plan
Administrator an application and payroll deduction authorization form.
(b) An Inactive Participant described in Section 2.03(c)
may once again become a Participant pursuant to Section 2.02 upon the
expiration of the period described in Sections 3.03(c).
(c) An Inactive Participant described in Section 2.03(d)
may once again become a Participant pursuant to Section 2.02 upon the
expiration of the period described in Section 3.05(b).
Section 2.05. Status of Leased Employees. A person who
----------------------------------------
is a "leased employee" within the meaning of Code Section 414(n) and
(o) shall not be eligible to participate in the Plan, but in the event
such a person was participating or subsequently becomes eligible to
participate herein, credit shall be given for the person's service as a
leased employee toward completion of the Plan's eligibility and vesting
requirements, including any service for a member of the controlled group
or affiliated service group.
<PAGE>
ARTICLE III. CONTRIBUTIONS
---------------------------
Section 3.01. Participation Contributions. (a) Each Participant
------------------------------------------
shall select the rate of his Deposits, which may be any whole percentage of his
Compensation to the maximum. Matched Deposits will be the percentage of
Compensation inany Pay Period as indicated below, and any amount in excess for
the Pay Period shall be Unmatched Deposits. The Participant's Compensation
shall be reduced by the amount of his Deposits, and the Employer shall pay over
the Deposits to the Trustee at such time or times as may be convenient to the
Employer, but not later than the fifteenth day of the month following the month
in which the deduction was made.
Employees Represented by Local 1791, IBEW
-----------------------------------------
Maximum Deposits Matched Deposits
---------------- ----------------
15% 4%
Employees Represented by Teamsters Local 662
--------------------------------------------
Maximum Deposits Matched Deposits
---------------- ----------------
10% 4%
Employees at West Plains
------------------------
Maximum Deposits Matched Deposits
---------------- ----------------
10% 3%
Employees at Lebanon
--------------------
Maximum Deposits Matched Deposits
---------------- ----------------
10% 3%
Employees at Lima
-----------------
Maximum Deposits Matched Deposits
---------------- ----------------
10% 0%
<PAGE>
<TABLE>
<CAPTION>
Marathon Special Products Corporation
-------------------------------------
Effective Date Maximum Matched Deposits
-------------- ------- ----------------
<S> <C> <C>
June 1, 1997 10% 2.0%
April 1, 1998 10% 2.5%
April 1, 1999 15% 3.0%
April 1, 2000 15% 3.5%
April 1, 2001 15% 4.0%
</TABLE>
(b) All such deposits and any adjustments thereto shall be
fully vested and nonforfeitable at all times and shall be distributed to
the Participant in accordance with Sections 3.05, 3.06 or 5.05.
Section 3.02. Change in Amount of Participant Contributions.
------------------------------------------------------------
(a) Upon notice to the Plan Administrator, no later than
the 20th day of any month, each Participant may change the amount of
Deposits as of the first Pay Period which begins on or after the first of
the month coincident with or next subsequent to the date such election
is received by the Plan Administrator.
(b) No Participant shall contribute Deposits in excess
of $7,000 in any calendar year (or such higher amount permitted pursuant
to Code Section 402(g)) less the amount of any elective deferrals under
all other plans, contracts or arrangements maintained by the Affiliates.
In addition, the Plan is subject to the limitations of Code Section
401(k) which are incorporated herein by this reference. Accordingly,
the actual deferral percentage for highly compensated employees as
defined in Code Section 414(q) shall not exceed the greater of:
(i) the actual deferral percentage of the nonhighly
compensated employees multiplied by 1.25, or
(ii) the lesser of (A) the actual deferral percentage of
the nonhighly compensated employees plus two percentage
points, or (B) the actual deferral percentage of the
nonhighly compensated employees multiplied by 2.0,
subject to such other applicable limit as may be prescribed by the Secretary
of the Treasury to prevent the multiple use of this alternative limitation.
In order to ensure the favorable tax treatment of Deposits hereunder
pursuant to Code Section 401(k) or to ensure compliance with Code Section
402(g) or 415, the Plan Administrator in its discretion may prospectively
decrease the rate of Deposits of any Participant at any time and, to the
extent permitted by applicable regulations, may direct the Trustee to
refund Deposits to any Participant. Any excess contributions, determined
(i) after application of the family aggregation rules and use of
qualified nonelective and/or qualified matching contributions as helpful
in the actual deferral percentage test, and (ii) by leveling the
<PAGE>
highest deferral ratios until the test is satisfied, and excess Deposits
shall be distributed with applicable income. In addition, any applicable
Employer Matching Contributions shall be forfeited. The amount of a
required distribution of excess contributions shall be reduced in whole
or in part by a prior distribution of excess deferrals for the applicable
period and vice versa. Such distributions shall be made during the Plan
Year following the year the excess contributions were made, and the
amount shall be determined based on the respective portions attributable
to each highly compensated employee. Notwithstanding the above,
nonelective and/or matching contributions may be used in the actual
deferral percentage test as qualified nonelective and/or qualified matching
contributions, respectively, only if such contributions are fully vested
when made and subject to the distribution restrictions applicable to
Deposits under this Plan. The foregoing limitations shall be applied
separately to each group of Employees who are covered by a collective
bargaining agreement.
(c) A Participant may give timely notice to the Committee
that the total of his elective deferrals (within the meaning of Code
Section 402(g)(3)) for his taxable year exceeded the limit described in
such Code Section for his taxable year and of the amount of such excess
attributable to the Plan. A Participant is deemed to notify the Plan
Administrator of any excess deferrals that arise by taking into account
only those deferrals made to this Plan and any other plans of an Employer.
In such event, the Plan Administrator may direct that such excess,
together with any income attributable to such excess, shall be
distributed to the Participant on or before the first April 15 following
the end of the Participant's taxable year. The foregoing limitations
shall be applied separately to each group of Employees who are covered
by a collective bargaining agreement.
Section 3.03. Suspension of Contributions. Each Participant
-------------------------------------------
shall be permitted to revoke any Deposit authorization pursuant to
Section 2.02 upon written notice to the Plan Administrator; provided,
however, that:
(a) Not more than one such revocation shall be effective in
any Plan Year;
(b) The effective date of any such revocation shall be the
first day of the first Pay Period which begins on the date
coincident with or next subsequent to the date revocation
is received by the Plan Administrator; and
(c) The Employee shall be deemed ineligible to become a
Participant for a period which begins on the effective
date of such revocation and ends on the first day of
the first Pay Period which begins not less than six (6)
months from the effective date of such revocation.
Section 3.04. Employer Matching Contributions. (a) Each Plan
----------------------------------------------
Year, each Employer shall make a contribution to the Plan of the amount
indicated below for each one dollar ($1.00) of Matched Deposits pursuant
to Section 3.01(a) contributed during the Plan Year by its Participants:
<PAGE>
Employees Represented by Local 1791, IBEW
-----------------------------------------
Current Rate $.50 (fifty cents)
Employees Represented by Teamsters Local 662
--------------------------------------------
Current Rate $.25 (twenty-five cents)
Rate Effective June 1, 1999 $.50 (fifty cents)
Employees at West Plains
------------------------
Current Rate $.50 (fifty cents)
Employees at Lebanon
--------------------
Current Rate .50 (fifty cents)
Employees at Lima
-----------------
Current Rate $.00 (zero cents)
Employees at Marathon Special Products
--------------------------------------
Current Rate Twenty-five cents ($.25)
Rate Effective April 1, 1998 Twenty-five cents ($.25)
Rate Effective April 1, 1999 Thirty cents ($.30)
Rate Effective April 1, 2000 Thirty cents ($.30)
Rate Effective April 1, 2001 Thirty-five cents ($.35)
(b) Employer Matching Contributions for each Pay Period
shall be paid to the Trustee for deposit in the Trust on or before the
fifteenth day of the month following the month in which each such Pay
Period ends.
(c) Notwithstanding anything herein to the contrary, the Plan
is subject to the limitations of Code Section 401(m) which are incorporated
herein by this reference. Accordingly, the actual contribution percentage
of Employer Matching Contributions for highly compensated employees as
defined in Code Section 414(q) shall not exceed the greater of:
<PAGE>
(i) the actual contribution percentage of the
nonhighly compensated employees multiplied
by 1.25, or
(ii) the lesser of (A) the actual contribution
percentage of the nonhighly compensated
employees plus two percentage points, or
(B) the actual contribution percentage of
the nonhighly compensated employees
multiplied by 2.0,
subject to such other applicable limit as may be prescribed by the Secretary
of the Treasury to prevent the multiple use of this alternative limitation.
In order to ensure compliance with Code Section 401(m) or 415, any excess
aggregate contributions, determined (i) after application of the family
aggregation rules and use of qualified nonelective and/or qualified
matching contributions as helpful in the actual contribution percentage
test, and (ii) by leveling the highest contribution ratios until the test
is satisfied, shall be distributed, to the extent vested, and forfeited,
to the extent forfeitable, with applicable income. Such distributions
shall be made during the Plan Year following the year the excess aggregate
contributions were made, and the amount shall be determined based on the
respective portions attributable to each highly compensated employee.
Notwithstanding the above, nonelective and/or matching contributions
may be used in the actual contribution percentage test as qualified
nonelective and/or qualified matching contributions, respectively, only
if such contributions are fully vested when made and subject to the
distribution restrictions applicable to Deposits under this Plan.
Section 3.05. Hardship Withdrawals. (a) In the event a
------------------------------------
Member makes a showing of financial hardship, such Member may withdraw
all or a portion of his vested Accounts (excluding earnings allocated
to his Deposits Account and amounts attributable to Employer Additional
Contributions and earnings thereon, if any) pursuant to such rules as
the Plan Administrator may establish. For purposes of this Section, a
withdrawal shall be deemed to be on account of a financial hardship if
the distribution is for:
(i) unreimbursed medical expenses described in Code
Section 213(d) previously incurred by the Member,
the Member's spouse or any dependents of the
Member (as defined in Code Section 152) or
necessary for such individuals to obtain medical
care described in Code Section 213(d);
(ii) costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the
Member;
(iii) payment of tuition and related educational fees for
the next twelve (12) months or quarter of post-
secondary education for the Member or the Member's
spouse or dependents; or
<PAGE>
(iv) payments necessary to prevent the eviction of the
Member from his principal residence or foreclosure
on the mortgage of the Member's principal residence.
(b) The hardship withdrawal (i) shall be limited to the amount of
the financial hardship, including any amounts necessary to pay any income
taxes or penalties reasonably anticipated to result from the withdrawal and
(ii) shall be made only after the Member takes all permitted loans and
distributions hereunder and pursuant to any other plan maintained by the
Employers. Any Member who makes a withdrawal under this Section shall
have his Deposits and any other elective contributions or employee
contributions under this Plan or any other plan of deferred compensation
maintained by the Employer (both qualified and nonqualified) automatically
suspended for a period of twelve (12) months following such withdrawal.
The amount which such a Member may contribute as Deposits for the calendar
year following such withdrawal shall not exceed the amount described in
Section 402(g) for such year, reduced by the amount of such Member's
actual Deposits for the calendar year in which the withdrawal occurred.
(c) The Member must file a written election with the Plan
Administrator specifying the amount to be withdrawn. For purposes of
determining the amount available for withdrawal, the Member's Account
shall be valued as of the Valuation Date coincident with or immediately
preceding the date on which such election is received by the Plan
Administrator; provided, however, that the Member's Account shall be
reduced by any distribution made to the Member between such Valuation
Date and the date an election is received under this Section. In any event,
the Member's Account shall be valued as of the Valuation Date following
the date the election is received, if the Plan Administrator determines that
use of such later Valuation Date is in the best interest of all Participants.
Distribution of withdrawn amounts shall be made by the Trustee as soon as
administratively feasible, but generally no later than forty-five (45) days
subsequent to such Valuation Date. If less than all of a Member Accounts
is to be withdrawn, the Trustee shall, to the extent possible, make all
distributions on a pro rata basis from the Investment Funds in which such
Accounts are then invested. All such distributions shall be made first from
the Member's Employer Contribution Account (including the income
thereon) and then from his Deposits Account (excluding earnings thereon).
Not more than one withdrawal election shall be effective in any Plan Year.
Section 3.06. Withdrawals After Age Fifty-Nine and One-Half (59).
------------------------------------------------------------------
Prior to his Termination of Employment, a Member shall be permitted to
withdraw all or a portion of his Deposits Account pursuant to such rules
as the Plan Administrator may establish. The Member must file a written
election with the Plan Administrator specifying the amount to be withdrawn.
For purposes of determining the amount available for withdrawal, the
Member's Account shall be valued as of the Valuation Date coincident with
or next following the date on which such election is received by the
Plan Administrator. Distribution of withdrawn amounts shall be made by
the Trustee as soon as administratively feasible, but generally no later
than forty-five (45) days subsequent to such Valuation Date. If less
than all of a Member's Deposit Account is to be withdrawn, the Trustee
shall, to the extent possible, make all distributions on a pro rata
<PAGE>
basis from the Investment Funds in which such Account is then invested.
Not more than one withdrawal election shall be effective in any Plan Year.
Section 3.07. Non-Reversion of Employer Contributions.
-------------------------------------------------------
(a) Subject to the provisions of paragraphs (b) and (c) below, contributions
to the Plan shall not inure to the benefit of the Employers and shall be
held for the exclusive benefit of the Members and Beneficiaries hereunder.
(b) Adoption of the Plan and Trust are expressly conditioned on
qualification as a tax-qualified plan and trust under Sections 401(a) and
501(a) of the Code, respectively. In the event that the Plan and Trust shall
fail to qualify as a tax-qualified Plan and Trust, all contributions made by
the Employers and Members to such date shall be returned to the Employers
and the Members, respectively, by the Trustee. Upon the return of all
such contributions, the Plan shall terminate and the Employers and any
and all other fiduciaries shall be discharged from all obligations under
this instrument.
(c) Contributions made by an Employer by a mistake of fact
shall revert to the Employer if such return is made within one year after
the payment of such mistaken contribution. Employer contributions
hereunder are expressly conditioned upon their deductibility under Code
Section 404. To the extent that a contribution is disallowed as a deduction
to an Employer, such contribution shall revert to the Employer if such
return is made within one year of the disallowance of the deduction.
Section 3.08. Rollover Contributions. The Plan Administrator
--------------------------------------
may, in his discretion, direct the Trustee to accept benefits (in the
form of cash) of any Member arising out of his participation in an
employee pension benefit plan maintained by a former employer of such
person as a qualified plan under Section 401 or 403 of the Code to the
extent that such benefits constitute a qualifying rollover distribution
under Section 402(a)(5) of the Code or the proceeds from a rollover
individual retirement account under Section 408(d)(3) of the Code.
In no event shall amounts representing (i) nondeductible employee
contributions, (ii) partial distributions from qualified plans (as
defined in Section 402(a)(5)(D) of the Code, or (iii) direct transfers
from any qualified plan subject to the joint and survivor annuity rules
of Section 401(a)(11) of the Code be transferred to this Plan pursuant
to this Section. For investment purposes, the Trustee shall commingle
the transferred benefits with the Member's Deposits Account. Any amount
so transferred shall be treated for all purposes of the Plan as fully
vested and shall be given special designation by the Trustee in order to
provide for the proper administration of the Plan.
Section 3.09. Employer Additional Contributions. (a) An
-------------------------------------------------
Employee employed at the Lima, Ohio location on January 1, 1998 (and who
has completed the probationary period by such date) shall receive an
allocation of $1,000 to his Employer Additional Contributions subaccount
as of such date.
(b) An Employee employed at the Lima, Ohio location who is
employed on January 1 of a Plan Year starting with January 1, 1999, and
<PAGE>
ending with January 1, 2002, shall receive an allocation of $1,000 to his
Employer Additional Contributions subaccount as of that January 1 if such
Employee completed 12 full months of service during the preceding year. If
such Employee did not complete 12 full months of service during the
preceding year, such Employee shall receive an allocation to his Employer
Additional Contributions subaccount as follows:
One full month of service: $ 83.33
Two full months of service $166.67
Three full months of service: $250.00
Four full months of service: $333.33
Five full months of service: $416.67
Six full months of service: $500.00
Seven full months of service: $583.33
Eight full months of service: $666.67
Nine full months of service: $750.00
Ten full months of service: $833.33
Eleven full months of service: $916.67
<PAGE>
ARTICLE IV. ALLOCATIONS TO PARTICIPANT'S ACCOUNTS
--------------------------------------------------
Section 4.01. Individual Accounts. The Plan Administrator
-----------------------------------
shall direct the Trustee to create and maintain adequate records of the
interest in the Plan of each Member and Beneficiary. Such records shall be
in the form of an Employer Contributions Account (including subaccounts for
Employer Matching Contributions and Employer Additional Contributions as
necessary) and a Deposits Account and credits and charges shall be made
to such Accounts (and subaccounts) in the manner herein described. The
maintenance of individual Accounts is for accounting purposes only and an
allocation of the assets held in the Trust to each Account shall not be
required. Distribution and withdrawals made from an Account shall be
charged to the Account as of the date paid.
Section 4.02. Allocation of Income. As of each Valuation
------------------------------------
Date, the Trustee shall value each Investment Fund under Section 4.07(e)
hereof and proportionately adjust each Participant's account invested in
such Fund to reflect the effect of income received, any change in fair
market value (whether realized or unrealized), expenses and all other
transactions during the calendar quarter, respecting such Fund. Such
valuation and adjustment shall be accomplished by recognizing the
beginning balances, any distributions, any participant loans, Participant
Deposits, rollovers and Employer Contributions.
Section 4.03. Allocation of Employer Matching Contributions.
-------------------------------------------------------------
Contributions made by an Employer pursuant to Section 3.04 shall be allocated
to each Participant's Employer Matching Contributions subaccount in
accordance with the amounts set forth therein.
Section 4.04. Allocation of Participant Deposits. Deposits
--------------------------------------------------
made by Participants shall be allocated to each Member's Deposits Account in
accordance with the Member's election as an administratively reasonable
date following receipt by the Trustee.
Section 4.05. Allocation and Disposition of Forfeitures. Upon
---------------------------------------------------------
Termination of Employment, the nonvested portion of a Member's Employer
Contribution Account shall remain in such Account and shall continue
to share in allocations under Section 4.02 until such Member incurs
six (6) consecutive years of Break in Service, whereupon such portion
shall be forfeited and allocated to the Employer Contribution Accounts
of eligible Members as of the last day of the Plan Year in which occurs
the Member's sixth consecutive year of Break in Service. Amounts
which become available for redistribution during a Plan Year pursuant
to this Section shall be allocated and credited, as of the last day of
such Plan Year, to the Employer Matching Contribution Accounts of
Members eligible under Section 4.03 based on the ratio that each such
Member's Deposits for such Plan Year bear to the total Deposits made by
all eligible Members during such Plan Year. Notwithstanding the foregoing,
if a Member receives a distribution of his entire vested interest in his
Accounts, the nonvested portion of such Member's Employer Contribution
Account shall be forfeited; provided, however, that if such Member is
reemployed prior to incurring six (6) consecutive years of Break in
Service, any forfeited amounts shall be reinstated from current
forfeitures or, if necessary, from a special Employer Contribution.
Any amounts that are reinstated pursuant to this Section 4.05 shall
<PAGE>
continue to vest according to the rules of Section 1.01(hh). A Member
whose entire vested interest in his Account has been distributed or who
has no vested interest shall be deemed cashed out of the Plan.
Section 4.06 Maximum Additions. (a) Notwithstanding the
---------------------------------
other provisions of this Plan, annual additions to the account of any
Member for a Plan Year shall not exceed the lesser of:
(i) thirty thousand dollars ($30,000) as adjusted
pursuant to Section 415(c)(1) (A) and (d)(1)
of the Code; or
(ii) twenty-five percent (25%) of the Member's total
compensation (as defined in Section 415(c) of
the Code) for such Plan Year.
The term "annual additions" as used in this subsection shall mean the amount
of the Employer's contributions and forfeitures for the Plan Year allocated
to the account of the Member, plus the Participant's Deposits for the Plan
Year (excluding those Deposits distributed pursuant to Section 3.02(c)).
(b) If a Member also participates in another qualified defined
contribution plan maintained by the Employer, then the sum of his annual
additions (as defined in subsection (c) of Section 415 of the Code) under
this Plan and under such other plan shall not exceed the limitations
described in subsection (a) of this Section. Further, if a Member also
participates in a defined benefit pension plan maintained by the Employer,
the sum of (i) and (ii) below shall not exceed one (1.0):
(i) the sum of the projected annual benefits of the
Member under all qualified defined benefit plans
of the Employer determined as of any December 31,
divided by the lesser of (A) the product of 1.4
times the maximum benefit allowable under Section
415 (b)(1)(B) of the Code for such year, or
(B) the product of 1.25 times the dollar limitation
in effect for such year under Section 415 (b)(1)(A)
of the Code, plus
(ii) the sum of all annual additions to the Member's
accounts under this Plan and all other defined
contribution plans maintained by the Employer,
as of such December 31, divided by the sum of
the lesser of the following amounts for such
year and each prior year of service with the
Employer: (A) the product of 1.4 times the
maximum annual additions allowable for such
<PAGE>
year under Section 415(c)(1)(B) of the Code, as
applicable, or (B) the product of 1.25 times the
dollar limitation in effect for such year under
Section 415(c)(1)(A) of the Code.
(c) In the event that either of the rules set forth in
subsection (a) and (b) of this Section would otherwise be violated after
all adjustments in accrued benefits provided for in any defined benefit
pension plan of the Employer, there shall be deducted from such Member's
account and returned to the Member such portion of his own contributions
for the Plan Year together with the earnings thereon, as shall be necessary
to satisfy such requirement. If the requirements are still not satisfied
then, there shall be deducted from the Member's account and reallocated to
other eligible Member's accounts in the manner described in Section 4.03,
such amount as may be necessary to satisfy both of such rules; provided that
if such reallocation to the accounts of other Members is not possible as the
result of the application of this Section, then the reallocable amounts
shall be credited to a suspense account subject to the following conditions:
(i) amounts in the suspense account shall be allocated at such time,
including termination of the Plan or complete discontinuance of Employer
contributions, as the foregoing limitations permit, (ii) no investment
gains or losses shall be allocated to the suspense account, (iii) no
further Employer contributions shall be permitted until the foregoing
limitations permit their allocation to Members' accounts, and (iv) upon
termination of the Plan any unallocable amounts in the suspense account
shall revert to the Employer.
(d) Notwithstanding anything in Subsection 4.06(c) to the
contrary, if a contribution under Section 3.09 results in a violation of
Code Section 415 for any year for a particular Member (after refund of the
Member's Deposits for the year), any amount in excess of the maximum
which may be contributed under Code Section 415 shall be carried forward
and allocated in the following year in accordance with Section 3.04 or
Section 3.09 and reducing the Employer Contribution that would otherwise
be required in that year. Such amount, less withholding, shall be paid to
the Member by the Company in cash.
Section 4.07. Investment Election. (a) Each Member shall, on
----------------------------------
or before the date he first becomes a Participant, file a written election
with the Plan Administrator specifying, in increments of ten percent (10%),
the Investment Fund or Funds in which all contributions to his Accounts
shall be invested.
(b) Not more frequently than every thirty days, each Member
may elect, in 10% increments, to change his investment election as to the
Investment Fund or Funds in which the balance of his Accounts shall be
invested. Such election shall be made in such manner and pursuant to
such rules as the Plan Administrator may establish. A Member's election
shall remain in effect until changed. The Committee is hereby authorized
to further modify the timing and method of investment election changes
pursuant to rules of uniform application.
(c) In addition to all other authority and power conferred on
the Plan Administrator to administer and interpret the provisions of the
<PAGE>
Plan, the Plan Administrator shall have the specific authority to establish
rules and regulations which govern the rights of Members to make the
elections herein described and the procedures, including the determination
of the validity of any election, to be followed in the administration of
this Section 4.07.
(d) The Committee may, from time to time, establish, modify or
terminate one or more Investment Funds for the purpose of providing
investment media for the assets of the Trust. The general investment
objectives of each such Fund shall be as herein described, provided,
however, that such descriptions shall be intended only as a general
description of the investment purpose and objective of each such
Investment Fund and shall not prohibit the Trustee or any investment
manager from altering, at any given time, the specific investments held by
such Investment Fund if such change is, in the opinion of such fiduciary,
necessary to meet applicable standards under ERISA or would not be
contrary to the general purpose of such Investment Fund. The Committee
is further specifically authorized to allocate, in whole or in such
increments as it deems appropriate, the responsibility of asset
management of one or more Investment Funds to or among the Trustee and
one or more investment managers appointed pursuant to Section 6.01;
provided, however, that where more than one fiduciary has been charged
with the investment of a separable portion of any Investment Fund,
allocations to Member's Accounts under this Article IV shall be made
on the basis of the Investment Fund as a whole and no Member shall
have the right to elect which such fiduciary shall manage the assets
held in his Accounts.
(e) The Investment Funds of the Trust shall be as follows:
(1) The "Equity Fund," which shall be invested primarily
in equity securities unless the Trustee or investment manager
appointed with respect to such Fund, shall, in its discretion, deem
such investment balance to be imprudent under the circumstances,
in which case, such Fund may be invested in non-equity securities
or other property, including commercial paper, certificates of
deposits and interest bearing securities and other similar
investments.
(2) The "Fixed Income Fund," which shall be invested
wholly in non-equity securities such as commercial paper,
certificates of deposit, commercial or government notes, bonds
or other investments of a similar nature, or which may, in the
Committee's discretion, be invested in whole or in part in (A) a
contract issued by a legal reserve life insurance company authorized
to do business in the State of Wisconsin and one or more other states
providing for the guarantee of principal and the payment of interest
thereon or (B) a common, pooled, diversified or consolidated fund
qualified for tax exemption under the appropriate provisions of
the Code, and maintained by a bank or other financial institution
(including the Trustee, any investment manager or any affiliate of
either) for the purpose of investing assets held in trust under
plans qualified under said Code, which fund invests in one or more
contracts issued by a legal reserve life insurance company
authorized to do business in the State of Wisconsin and one or more
other states providing for the guarantee of principal and the payment
of interest thereon. Any instrument governing a fund described in
<PAGE>
(B) shall be deemed to be incorporated in and made a part of this
Plan as fully and to all intents and purposes as if set forth herein
at length. Notwithstanding anything herein to the contrary, the
Fixed Income Fund shall not, in any event, be invested in equity
securities such as common or preferred stock.
(3) The "Balanced Fund," which shall be invested in a
diversified portfolio of equity securities of large capitalization
issues, highly rated fixed-income securities and cash-equivalent
instruments, with a focus on long-term investments to attain
capital growth and current income.
(4) Such other fund or funds as the Committee may
establish from time to time including, but not limited to, any
common, pooled, diversified or consolidated fund qualified for
tax exemption under the appropriate provisions of the Code and
maintained by a bank or other financial institution (including
the Trustee, any investment manager or any affiliate of either)
for purpose of investing assets held in trust under plans
qualified under said Code. Any instrument governing such a fund
shall be deemed to be incorporated herein and made a part of this
Plan and the Trust as fully and to all intents and purposes as if
set forth herein at length.
Section 4.08. Allocation of Employer Additional Contributions.
---------------------------------------------------------------
Contributions made by an Employer pursuant to Section 3.09, which are
attributable to a Plan Year, shall be allocated to each Employee's
Employer Additional Contributions Account in accordance with the amount
contributed under Section 3.09 on behalf of such Employee.
<PAGE>
ARTICLE V. BENEFITS
--------------------
Section 5.01. Retirement Benefits. Upon attaining his
-----------------------------------
Normal Retirement Date, a Member shall have a fully vested interest in the
total amount credited to his Accounts and any subsequent additions thereto.
Such Accounts shall be payable upon his Termination of Employment pursuant
to Section 5.05 hereof.
Section 5.02. Death Benefits. (a) Upon the death of a Member
------------------------------
before he otherwise terminates employment with an Employer, the total
amount then credited to his Accounts shall be payable to the Member's
Beneficiary. In the event of the death of a Member after he otherwise
terminates employment with an Employer but prior to the distribution of
the vested benefit to which he was entitled under Section 5.01, 5.03 or
5.04, such vested benefit shall be payable to the Member's Beneficiary.
Payments shall be made in accordance with Section 5.05.
(b) A Member shall have the right to designate his Beneficiary
by written direction to the Plan Administrator on a form supplied by the
Plan Administrator. Such designation shall be revocable by the Member
by filing a similar written direction with the Plan Administrator naming a
new Beneficiary, and in case of more than one such filing, the most recent
designation shall prevail. Notwithstanding the foregoing, in the event the
Member is married at the time of his death, the Beneficiary shall be the
Member's spouse at such time unless such spouse consented in writing to
the designation of an alternative Beneficiary after notice of the spouse's
rights and such consent is witnessed (i) by a Plan representative appointed
by the Plan Administrator or (ii) by a notary public. In the absence of a
valid designation, or, in the event the Beneficiary should predecease the
Member and no contingent Beneficiary has been designated, the Beneficiary
shall be deemed to be the Member's spouse, if living at the Member's
death, otherwise, the Member's estate.
Section 5.03. Disability Benefits. If, prior to Termination
-----------------------------------
of Employment, a Member becomes Permanently Disabled, his participation
in the Plan shall cease and he shall be entitled to, in lieu of any other
benefit payable hereunder, a disability retirement benefit based upon the
balance of his Accounts as well as any subsequent additions thereto.
Payments to a Permanently Disabled Member shall be made in accordance
with Section 5.05.
Section 5.04. Severance Benefits. When a Member's employment
----------------------------------
is terminated for reasons other than retirement (within the meaning of
Section 5.01), Permanent Disability or death, he shall be entitled to
receive a severance benefit based upon the balance of his Deposits Account,
his Employer Additional Contributions subaccount, and the vested portion
of his Employer Matching Contributions subaccount determined in accordance
with Subsection 1.01(hh) on the effective date of his Termination of
Employment. Payment of severance benefits hereunder shall be made in
accordance with Section 5.05.
Section 5.05. Payment of Benefits. (a) Benefits payable
-----------------------------------
hereunder shall consist of the vested balance of the Member's Accounts.
<PAGE>
Payment shall be made to a Member terminating pursuant to Section 5.01,
5.03 or 5.04 or a Beneficiary entitled to benefits pursuant to Section
5.02 in a lump sum within sixty (60) days after the Valuation Date
coincident with or next following the event giving rise to the
distribution. The value of such distribution shall be determined
as of such Valuation Date.
(b) Notwithstanding anything herein to the contrary:
(i) except with respect to death benefits, in the event
a Member's vested benefits have ever exceeded $5,000,
no lump sum distribution shall be made of such
benefits without the consent of the Member to the
extent required by law; but
(ii) benefits shall commence no later than the April 1
after the end of the calendar year in which the
Member attained age 70 1/2, even if he is still employed.
Unless the member elects a lump sum or installment
payout, distribution during employment shall equal
the minimum amount required by Code Section 401(a)(9);
and
(iii) any death benefits shall be paid within five (5) years
of the Member's death unless payments have commenced
under subsection (a)(ii) above or unless the
Participant's spouse is the Beneficiary, in which case
the spouse can elect benefit payments pursuant to
subsection (a) above.
Section 5.06. Payments to Minors or Incompetents. Whenever, in
-------------------------------------------------
the Committee's opinion, a person entitled to receive any payment of a
benefit hereunder is under a legal disability or is incapacitated in any
way so as to be unable to manage his financial affairs, the Committee may
direct the Trustee to make payments to such person or to his legal
representative or the Committee may direct the Trustee to apply the payment
for the benefit of such person in such manner as the Committee considers
advisable. Any payment of a benefit or installment thereof in accordance
with the provisions of this section shall be a complete discharge of any
liability for the making of such payment under the provisions of the Trust.
Section 5.07. Nonalienation of Benefits. Benefits payable to
----------------------------------------
a Member or Beneficiary under the Plan shall not be subject in any
manner to the claims of his creditors or others and may not be assigned
or alienated and any attempt to assign or alienate such benefits shall be
void. Notwithstanding the foregoing, the Plan Administrator may recognize
a qualified domestic relations order with respect to child support, alimony
payments, or marital property rights if such order contains sufficient
information for the Plan Administrator to determine that it meets the
applicable requirements of Section 414(p) of the Code. If any such order
so directs, distribution of benefits to the alternate payee may be made at
a time not permitted for distributions to the Participant. The Plan
<PAGE>
Administrator shall establish written procedures concerning the
notification of interested parties and the determination of the validity
of such orders.
Section 5.08 Direct Rollovers. This Section deals with
-------------------------------
Employees' and Beneficiaries' rights to distribution in the form
of a direct rollover.
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this Plan, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in
a direct rollover.
(b) Definitions. For purposes of this Section, the following
definitions apply:
(i) Eligible rollover distribution: An eligible rollover
------------------------------
distribution is any distribution of all or any portion
of the balance to the credit of the distributee, except
that an eligible rollover distribution does not
include: any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in
gross ncome (determined without regard to the
exclusion for net unrealized appreciation with
respect to employer securities).
(ii) 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 the surviving spouse, an eligible
<PAGE>
retirement plan is an individual retirement account
or individual retirement annuity.
(iii) Distributee: A distributee includes an Employee
-----------
or former Employee. In addition, the Employee's or
former Employee's surviving spouse and the Employee's
or former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest
of the spouse or former spouse.
(iv) Direct rollover: A direct rollover is a payment by
--------------
the Plan to the eligible retirement plan specified
by the distributee.
<PAGE>
ARTICLE VI. ADMINISTRATION
---------------------------
Section 6.01. Allocation of Responsibility Among Fiduciaries
-------------------------------------------------------------
for Plan and Trust Administration. The Board, Committee, Plan Administrator
- ----------------------------------
and Trustee shall be "Named Fiduciaries" within the meaning of Section
402(a)(2) of ERISA. The Named Fiduciaries shall have only those
specific powers, duties, responsibilities and obligations as are
specifically given them under this Plan or the trust agreement. In
general the Board shall have the sole authority to appoint and remove
the members of the Committee, and to amend or terminate the Plan in whole
or in part. The Committee shall be responsible for the general
administration of the Plan, for appointing and removing the Plan
Administrator, Trustee and any investment managers, for monitoring the
performance of the Plan Administrator, Trustee and any investment managers,
and for determining a funding policy and investment objectives for the Plan.
The Plan Administrator shall have the responsibility for the administration
of this Plan, which responsibility is specifically described in this Plan.
The Trustee shall have the sole responsibility for the administration of
the trust agreement and the management of the assets held thereunder, except
to the extent such responsibility is delegated to any investment managers
in accordance with such trust agreement. Each Named Fiduciary may rely
upon any direction, information or action of any other Named Fiduciary
as being proper, and is not required to inquire into the propriety of
any such direction, information or action. It is intended under this
Plan that each Named Fiduciary shall be responsible for the proper exercise
of his own powers, duties, responsibilities and obligations under this
Plan and shall not be responsible for any act or failure to act of another
Named Fiduciary. An individual may serve in more than one fiduciary
capacity hereunder.
Section 6.02 Administrative Committee. (a) The general
----------------------------------------
responsibility for carrying out the provisions of the Plan shall be placed
in an Administrative Committee ("Committee") of not less than three
officers, directors, or employees of the Employers or any Affiliate
thereof appointed from time to time by the Board. The Committee may
appoint from its number such officers and/or subcommittees with such
powers as it shall determine and may authorize one or more of its number
or any agent to execute or deliver any instrument or make any payment on
its behalf. The Committee may designate and allocate any fiduciary
responsibility to one or more of its members or to any other person or
persons. It may retain counsel, employ agents and provide for clerical,
accounting and actuarial services as it may require. The foregoing sentence
shall in no way affect the duty and obligation of the Plan Administrator
to retain such services in connection with the carrying out of his duties
and to designate an enrolled actuary and independent, qualified public
accountant as provided in Section 6.05 hereof.
(b) The Committee shall hold meetings upon such notice,
at such place and at such times as it may from time to time determine.
A meeting may be held in any manner as may be determined by the Committee,
but in any event, where all members are not physically present, the actions
ofthe Committee shall be reduced to writing and sent to all members within
ten (10) days of the date of such meeting.
<PAGE>
(c) A majority of the Committee shall constitute a quorum,
and any action which the Plan authorizes or requires the Committee to take
shall require the written approval or the affirmative vote of a majority of
its members.
(d) Members of the Committee shall not be paid any
compensation from the assets of the Plan.
(e) Subject to the provisions of the Plan, the Committee
may from time to time establish rules for the transaction of its business.
The determination of the Committee as to any disputed question pertaining to
the Plan shall be conclusive.
(f) Any member of the Committee may resign by delivering his
written resignation to the Board. Any member of the Committee may be removed
by the Board, and such removal shall be effective at such time as is provided
for by the Board. Notice of such removal shall be conveyed to the member so
removed in the manner provided by the Board.
(g) In addition, the Committee shall have the following
specific duties and responsibilities under the Plan:
(i) To designate one person (and if it so elects remove
and appoint another), to be the "Plan Administrator"
within the meaning of Section 3(16)(A) of ERISA;
(ii) To determine a funding policy and investment
objectives; provided, however, that in accomplishing
the foregoing, the Committee shall not be deemed to
be superseding, restricting or otherwise modifying
the exclusive investment authority and discretion
that may have been delegated to the Trustee or any
investment managers;
(iii) To adopt such procedures as the Committee may
deem appropriate and advisable to monitor and
review the performance of any investment managers
so as to determine whether the Plan assets have
been managed in accordance with the funding policy
and objectives established by the Committee and
with the requirements relating to the fiduciary
duties and responsibilities to exercise prudence, to
diversify investment of Plan assets and to refrain
from engaging in certain "prohibited transactions"
that are detailed in ERISA;
<PAGE>
(iv) To obtain such periodic written reports or other
accounting as the Committee may desire from such
investment managers in regard to the performance
of their respective delegated duties and
responsibilities and to meet semi-annually, or
at such other intervals as the Committee may
determine, with such investment managers for the
purpose of reviewing and evaluating such reports
or other accountings with them;
(v) To prepare a written report with respect to the
Committee's review and evaluation of the performance
of such investment managers, including therein any
findings and conclusions of the Committee
concerning the propriety and/or advisability of
either retaining or removing and replacing any
such investment manager, such report to be made
at least annually and at such other time that the
Committee deems necessary and advisable; and
(vi) To monitor the performance of the Plan
Administrator on an annual or more frequent basis
as the Committee deems necessary and advisable.
Section 6.03 Plan Administrator. The Plan Administrator shall
----------------------------------
be responsible for the day-to-day administration of the Plan and the duties
and obligations imposed on the Plan Administrator by ERISA, except to the
extent these duties are specifically allocated otherwise by the Plan or the
Plan Administrator. The Plan Administrator shall serve at the pleasure of
the Committee. The resignation of the Plan Administrator shall be effective
upon the delivery of his written resignation to the Committee. Upon the
Plan Administrator's death, resignation or removal, the Committee shall name
his successor.
Section 6.04 Authority of Plan Administrator. Unless otherwise
-----------------------------------------------
specifically provided herein, the Plan Administrator shall have full and
complete authority to:
(i) Interpret and apply all provisions of the Plan,
including without limitation, the power to
determine who is a Participant in the Plan,
whether each such Participant is Vested, and
whether any Participant or Beneficiary is entitled
to benefits hereunder;
<PAGE>
(ii) Formulate, issue and apply rules and regulations
which are consistent with the terms and provisions
of the Plan and the requirements of applicable law;
(iii) Make appropriate determinations and calculations
and direct the Trustee to pay benefits accordingly;
(iv) Prescribe and require the use of appropriate forms;
(v) Prepare all reports which may be required by law;
and
(vi) Inform the Trustee of anticipated contributions and
benefit payments in order to aid in the
establishment of an investment policy with
respect to the assets of the Plan.
The Plan Administrator shall exercise any authority allocated to him hereunder
in any manner consistent with ERISA and the applicable provisions of the Plan.
Section 6.05 Use of Professional Services. The Plan Administrator
--------------------------------------------
may allocate fiduciary duties to any other person or persons. He may employ
agents and provide for clerical services as he may require, and, subject to
the approval of the Committee, retain counsel.
Section 6.06 Fees and Expenses. Where the Plan Administrator
---------------------------------
utilizes services as provided in Section 6.05, he shall review the fees and
other cost for these services and shall authorize the payment of such
fees and costs. Such fees and costs and other expenses incurred or
authorized by the Plan Administrator shall be paid by the Employers or
from the Plan assets as determined by the Committee.
Section 6.07. Claims Procedure. A Participant or Beneficiary
--------------------------------
may file with the Plan Administrator a claim with respect to a benefit
payable from the Plan. Any such claim shall be filed in writing stating
the nature of the claim, the facts supporting the claim, the amount
claimed and the name and address of the claimant. The Plan Administrator,
within ninety (90) days (or 180 days if special circumstances require an
extension of time for processing the claim and the Plan Administrator
notifies the claimant of such extension prior to ninety (90) days from
the date of the initial filing of the claim) after receipt of the notice,
shall render a written decision on the claim. If the claim shall be
denied, either in whole or in part, the decision shall include the
specific reason or reasons for the denial; specific reference to the
pertinent Plan provision or provisions which is the basis for the denial;
a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation why the information or
material is necessary; and appropriate information as to the steps to be
taken if the Participant or Beneficiary wishes to appeal the Plan
Administrator's decision. The claimant may file with the Plan
Administrator, within sixty (60) days after receiving such notification
from him, a written notice of request for review of the Plan
<PAGE>
Administrator's decision. The review shall be made by the Committee.
In order that the Committee may expeditiously decide such appeal, the
written notice of appeal should contain (i) a statement of the ground(s)
for the appeal, (ii) a specific reference to the pertinent Plan provision
or provisions on which the appeal is based, (iii) a statement of the
argument(s) and authority (if any) supporting each ground for the appeal,
and (iv) any other pertinent documents or comments which the claimant
desires to submit in support of his appeal. The Committee shall render
a written decision on the claim which shall include the specific reasons
for the decision and a reference to the pertinent Plan Provisions on
which the decision was based within sixty (60) days (or 120 days if
special circumstances require an extension of time for processing the
claim and the Plan Administrator notifies the claimant of such extension
prior to sixty (60) days from the date of the initial filing of the
claim) after receipt of the documents requested for review. A copy of
the Committee's decision shall be mailed promptly to the claimant. If a
Participant or Beneficiary shall not file written notice with the Plan
Administrator or the Committee at the times set forth above, the
Participant or Beneficiary shall have waived all benefits other than as
set forth in the notice from the Plan Administrator.
The foregoing claims procedure shall be the only method by
which claims of Participants, former Participants or Beneficiaries shall
be decided under this Plan. Oral communications by potential claimants to
the Plan Administrator or his delegate shall have no force and effect
hereunder.
Section 6.08. Trustee's Responsibilities. The duties, authority
------------------------------------------
and responsibility of any Trustee, insurance company, investment manager
or other person handling all or any part of the Plan assets shall include
and be limited to the duties, authority, and responsibility expressly set
forth in a written agreement between the Committee or Company and any such
Trustee, insurance company, investment manager or other person.
Section 6.09. Fiduciary Insurance and Indemnification.
-------------------------------------------------------
The Company or any affiliated corporation shall maintain and keep in force
such insurance as the Plan Administrator shall, subject to the approval of
the Committee, determine to insure and protect the directors, officers,
employees of the Company or any affiliate thereof and any appropriately
authorized delegates or appointees of them against any and all claims,
damages, liability, loss, cost or expense (including attorneys fees)
arising out of or resulting from (including failure to act with respect to)
any responsibility, duty, function or activity of any such person in
relation to the Plan, including without limitation, the Committee, the
members of the Committee, the Plan Administrator and directors, officers
and employees of the Employers or any subsidiary or affiliate thereof
performing responsibilities, duties, functions, and/or actions at the
direction or under the authority of any of the foregoing.
In lieu of and/or as a supplement and in addition to the insurance
referred to in the foregoing sentence, the Employers and any affiliated
corporation shall indemnify and hold harmless its directors, officers and
employees against any and all claims, damages, liability, loss, cost or
expense (including attorneys fees) arising out of or resulting from
(including failure to act with respect to) any responsibility, duty,
function or activity of any such person in relation to the Plan (or trust
agreement, if applicable) including without limitation the Committee, the
<PAGE>
members of the Committee, the Plan Administrator, and directors, officers
and employees of the Employers or any affiliate thereof performing
responsibilities, duties, functions and/or actions at the direction or
under the authority of any of the foregoing; provided, however, that no
such indemnification shall extend to any matter as to which it shall have
been adjudged by any court of competent jurisdiction that such person or
persons have acted in bad faith or was guilty of gross negligence in the
performance of his or their duties unless such Court shall, in view of
all the circumstances of the case, determine that such person is fairly
and reasonably entitled to indemnification.
Section 6.10. Agent for Service of Process. The Plan
-------------------------------------------
Administrator is hereby designated as the agent for service of legal
process with respect to all matters pertaining to the Plan.
Section 6.11. Allocation of Fiduciary Responsibility.
------------------------------------------------------
This Article VI provides for "Named Fiduciaries" as required by Section
402(a)(1) of ERISA and a procedure for the allocation of responsibilities
as required by Section 402(b)(2) of ERISA. If the Board or Committee
allocates responsibility as herein provided, such Named Fiduciaries shall
not be responsible for the actions of the person(s) to whom the
responsibility is allocated except as provided in Section 405(c)(2)
of ERISA. However, if the Plan Administrator delegates duties hereunder,
such delegation shall be made subject to the express condition that the
Plan Administrator retains full and exclusive authority over and
responsibility for any activities of such person or persons.
Section 6.12. Selection of Investment Managers. If the
------------------------------------------------
Committee appoints one or more investment managers pursuant to Section 6.01
hereof, upon the acceptance by the investment manager of the fiduciary
duty incident to such appointment, such manager shall be solely liable
for all investment actions taken concerning the Plan assets which are
subject to his management. The Committee shall monitor the investment
performance of the investment manager(s) with respect to the Plan assets
in accordance with the procedure set forth in Section 6.02 hereof.
Section 6.13. Liability for Breach of Co-Fiduciary.
----------------------------------------------------
The members of the Board and the Committee and the Plan Administrator,
shall not be liable for the acts of commission or omission of another
fiduciary unless (i) such member knowingly participated or knowingly
attempted to conceal the act or omission of another fiduciary and he knew
the act or omission was a breach of fiduciary responsibility by the
other fiduciary; or (ii) such member has knowledge of a breach by the
other fiduciary and shall not make reasonable efforts to remedy the
breach; or (iii) such member's breach of his own fiduciary responsibility
permitted the other fiduciary to commit a breach.
<PAGE>
Section 6.14. Communications. All requests, appeals,
-----------------------------
elections and other communications to the Plan Administrator shall be in
writing and shall be made by transmitting the same via the U.S. Mail,
certified, return receipt requested, addressed as follows:
Marathon Electric Manufacturing Corporation
Post Office Box 8003
100 East Randolph Street
Wausau, Wisconsin 54402-8003
Attention: Plan Administrator
<PAGE>
ARTICLE VII. RIGHTS RESERVED BY EMPLOYER
-----------------------------------------
Section 7.01. Employer's Interest in Plan. The Plan is created
-------------------------------------------
and shall be maintained for the exclusive benefit of Members and their
Beneficiaries as a qualified Plan under Section 401(a) and 501(a) of the Code.
Subject to the provisions of Section 3.07, in no event shall the Employers
have any right, claim, or beneficial or reversionary interest in any assets
of the Plan.
Section 7.02. Amendment. The Company reserves the right, by
------------------------
action of its officers, to amend the Plan at any time, and from time to
time, effective as of any specified current, prior, or later date;
provided, however, that no such amendment shall vest an Employer with any
right, title or interest in or to the assets of the Plan, divest Members
or their Beneficiaries of any credits to their Accounts (except to the
extent necessary to conform the Plan to the requirements of any applicable
future legislation, rule of law, or regulations), eliminate an optional
form of distribution for a previously accrued benefit or allow any part
of the assets of the Plan to be used for, or diverted to, purposes other
than for the exclusive benefit of the Members and their Beneficiaries
within the meaning of the Code.
Section 7.03. Termination. (a) The Plan shall continue
---------------------------
until terminated under the provisions of this Section 7.03. The Company
reserves the right to terminate the Plan by action of its officers and by
giving prior written notice to that effect to the Trustee. In the event
that the Company shall be judicially declared bankrupt or insolvent or
shall be dissolved, the Plan shall terminate immediately unless provision
is made for a successor to the Company to continue the Plan, in which
event such successor shall be substituted for the Company hereunder.
(b) Upon the termination or partial termination of the Plan or in
the event that contributions to the Plan are discontinued, the interest of
each Member included by such event shall be fully vested and nonforfeitable
and benefits shall be distributed in accordance with Article V as if the
Plan had continued in existence, and, for purposes of effecting such
distribution, the Trust shall continue as a legal entity at least until all
such vested benefits have been distributed. In the event that contributions
to the Plan are discontinued as a result of merger or consolidation of the
Company with one or more other corporations, and the interest of each
Member who elects to continue as an Employee of the successor corporation
is transferred to an employee benefit plan established by such successor
corporation, pursuant to the provisions of Section 8.02, such transfer of
Participant's Accounts shall not be deemed to be a termination of the Plan.
(c) An Employer may terminate its participation in the Plan by
action of its board of directors.
<PAGE>
ARTICLE VIII. SUCCESSOR EMPLOYER AND
-------------------------------------
MERGER OR CONSOLIDATION OF PLANS
--------------------------------
Section 8.01. Successor Employer. In the event of the dissolution,
---------------------------------
merger, consolidation or reorganization of an Employer, provision may be
made by which the Plan will be continued by the successor; and, in that
event, such successor shall be substituted for the Employer under the Plan.
The substitution of the successor shall constitute an assumption of all
obligations of the Employer by the successor and the successor shall have
all of the powers, duties and responsibilities of the Employer under the
Plan.
Section 8.02. Merger or Transfer of Plan Assets. In the event
------------------------------------------------
of any merger or consolidation of the Plan with, or transfer in whole or in
part of the assets and liabilities of the Trust to another trust held
under any other employee benefit plan maintained or to be established
for the benefit of all or some of the Members of the Plan, the assets of
the Trust applicable to such Members shall be transferred to the trust of
the other plan only if:
(a) Each Member would (if either the Plan or the other plan
then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation or transfer if the Plan had then terminated;
(b) Resolutions of the Board of Directors of the Company under
the Plan, or of any new or successor employer of the affected Members,
shall authorize such transfer of assets; and, in the case of the new or
successor employer of the affected Members, its resolutions shall include
an assumption in the new employer s plan, and
(c) Such other plan and trust are qualified under Section 401(a)
and 501(a) of the Code.
Section 8.03. Adoption of Plan by Affiliate. In the event
--------------------------------------------
the Company and an Affiliate desire to include the Affiliate as an
Employer, such Affiliate shall become a party to the Plan after:
(a) adoption of the Plan by its board of directors for the
benefit of its eligible Employees, effective as of the
date specified in such adoption;
(b) appropriate action by the Board of Directors of the Company
authorizing such adoption;
(c) filing with the Committee a certified copy of such
resolutions to that effect, and such other instrument or
instruments as the Committee may require; and
<PAGE>
(d) the Committee's filing with the Trustee of a copy of such
resolutions, together with a certified copy of a
resolution of the Committee approving such adoption.
<PAGE>
ARTICLE IX. MISCELLANEOUS
--------------------------
Section 9.01. Nonguarantee of Employment. Nothing contained in
-----------------------------------------
the Plan shall be construed as a contract of employment between any
Employer and any Employee, or as a right of any Employee to be continued
in the employment of an Employer, or as a limitation of the right of the
Employers to discharge any of their Employees, with or without cause.
Section 9.02. Action by Company. Any action by the Company
---------------------------------
under this Trust may be by resolution of its Board of Directors, or by any
officer or officers duly authorized by resolution of said Board to take
such action.
Section 9.03. Plan Binding on Successors. The Plan shall be
------------------------------------------
binding upon all persons entitled to benefits hereunder, and upon their
respective heirs and legal representatives; upon the Employers, their
successors and assigns; and upon the Trustee and any successor or additional
Trustees.
Section 9.04. Construction. Except when otherwise indicated
----------------------------
by the context, any masculine terminology herein shall also include feminine,
and the definition of any term herein in singular shall also include the
plural.
Section 9.05. Titles. Article and Section titles are included
----------------------
for reference purposes only, and in the event of a conflict between a title
and its respective text, the text shall control.
Section 9.06. Form of Written Notice. Whenever written notice
--------------------------------------
by a Member or Beneficiary is required, such notice shall be effective only
if given on a form provided or approved by the Plan Administrator.
Section 9.07. Top-Heavy Restrictions. (a) Notwithstanding any
--------------------------------------
provision to the contrary herein, in accordance with Code Section 416, if
the Plan is a top-heavy plan for any Plan Year, then the provisions of this
Section shall be applicable. The Plan is top-heavy for a Plan Year if as
of its determination date (i.e. the last day of the preceding Plan Year
or the last day of the Plan s first Plan Year, whichever is applicable),
the total present value of the accrued benefits of key employees (as
defined in Code Section 416(i)(1) and applicable regulations) exceeds
sixty percent (60%) of the total present value of the accrued benefits of
all employees under the plan (excluding those of former key employees and
employees who have not performed any services during the preceding five (5)
year period) (as such amounts are computed pursuant to Section 416(g) and
applicable regulations using a five percent (5%) interest assumption and
a 1971 GAM mortality assumption) unless such plan can be aggregated with
other plans maintained by the applicable controlled group in either a
permissive or required aggregation group and such group as a whole is not
top-heavy. Any nonproportional subsidies for early retirement and benefit
options are counted assuming commencement at the age at which they are
most valuable. In addition, a plan is top-heavy if it is part of a
required aggregation group which is top-heavy. Any plan of a controlled
<PAGE>
group may be included in a permissive aggregation group as long as together
they satisfy the Code 401(a)(4) and 410 discrimination requirements. Plans
of a controlled group which must be included in a required aggregation
group include any plan in which a key employee participates or participated
at any time during the determination period (regardless of whether the plan
has terminated) and any plan which enables such a plan to meet the Section
401(a)(4) or 410 discrimination requirements. The present values of
aggregated plans are determined separately as of each plan s determination
date and the results aggregated for the determination dates which fall in
the same calendar year. "A controlled group" for purposes of this Section
includes any group employers aggregated pursuant to Code Sections 414(b),
(c) or (m). The calculation of the present value shall be done as of a
valuation date which for a defined contribution plan is the determination
date and for a defined benefit plan is the date as of which funding
calculations are generally made within the twelve month period ending on
the determination date. Solely for the purpose of determining if the Plan,
or any other plan included in a required aggregation group of which this
Plan is a part, is top-heavy (within the meaning of Section 416(g) of the
Code) the accrued benefit of an Employee other than a key employee (within
the meaning of Section 416(i)(1) of the Code) shall be determined under
(i) the method, if any, that uniformly applies for accrual purposes under
all plans maintained by the Affiliates, or (ii) if there is no such method,
as if such benefit accrued not more rapidly than the slowest accrual rate
permitted under the fractional accrual rate of Section 411(b)(1)(C) of
the Code.
(b) If a defined contribution plan is top-heavy in a Plan Year,
non-key employee participants who have not separated from service at the
end of such Plan Year will receive allocations of employer contributions
and forfeitures at least equal to the lesser of three percent (3%) of
compensation (as defined in Code Section 415) for such year or the
percentage of compensation allocated on behalf of the key employee for
whom such percentage was the highest for such year (including any salary
reduction contributions). If a defined benefit plan is top-heavy in a Plan
Year and no defined contribution plan is maintained, the employer-derived
accrued benefit on a life only basis commencing at the normal retirement
age of each non-key employee shall be at least equal to a percentage of the
highest average compensation for five consecutive years, excluding any
years after such Plan permanently ceases to be top-heavy, such percentage
being the lesser of (i) twenty percent (20%) or (ii) two percent (2%) times
the years of service after December 31, 1983 in which a Plan Year ends in
which the Plan is top-heavy. If the controlled group maintains both a
defined contribution plan and a defined benefit plan which cover the same
non-key employee, such employee will be entitled to the defined benefit
plan minimum and not to the defined contribution plan minimum.
(c) If the controlled group maintains a defined benefit plan and
a defined contribution plan which both cover one or more of the same key
employees, and if such plans are top-heavy, then the limitation stated in a
separate provision of this Plan with respect to the Code Section 415(e)
maximum benefit limitations shall be amended so that a 1.0 adjustment on
the dollar limitation applies rather than a 1.25 adjustment. This provision
shall not apply if the Plan is not "super top-heavy" and if the minimum
benefit requirements of this Section are met when two percent (2%) is
changed to three percent (3%) and twenty percent (20%) is changed to an
amount not greater than thirty percent (30%) which equals twenty percent
(20%) plus one percent (1%) for each year such plan is top-heavy. A plan
<PAGE>
is "super top-heavy" if the ratio referred to in subsection (a) above
results in a percentage in excess of ninety percent 90%) rather than a
percentage in excess of sixty percent (60%).
(d) If the Plan is top-heavy in a Plan Year, the vesting schedule
shall automatically be amended for any employee employed on the first
day of such year or thereafter so that the vested percentage for employer-
derived benefits is equal to the greater of the vesting provided under other
provisions of the Plan or the following schedule:
Years of Service Nonforfeitable Percentage
---------------- -------------------------
1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
where "years of service" means the years credited for vesting purposes under
the Plan or, if greater, the years required to be counted under Code
Section 411 and applicable regulation thereto. If the Plan thereafter
ceases to be top-heavy for a Plan Year, the vesting schedule above shall
be disregarded and the original schedule applied, except with respect to
any Participant with three (3) or more years of service and except that no
Participant's vested percentage as of the end of the prior year shall be
decreased. Any non-vested Participant who acquires a vested interest in
the employer-derived benefit by operation of the amended vesting schedule
shall not be subject thereafter to a cancellation of service.
Notwithstanding anything in this Section to the contrary, the amendment
of the vesting schedule pursuant to this subsection shall not affect the
calculation of benefit amounts or the determination of benefit commencement
dates hereunder.
Section 9.08. Prior Plans. Effective January 1, 1995, this
---------------------------
Plan shall assume the assets and liabilities with respect to the Marathon
Electric Wausau Hourly 401(k) Savings Plan and the Marathon Electric -
York 401(k) Savings Plan (as applied to hourly employees). The provisions
of this Plan also apply to such prior plans for the period prior to
January 1, 1995, except for the special eligibility and contribution
provisions applicable to such employees and reflected herein as of
January 1, 1995, and except that salaried employees at the York,
Pennsylvania location also participated in the York Plan.
EXHIBIT 4.2
MARATHON ELECTRIC
MASTER PENSION TRUST
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I. PARTICIPATING PLANS AND DEFINITIONS
Section 1.01. Participating Plans.
Section 1.02. Plan Definitions.
Section 1.03. Other Definitions.
Section 1.04. Gender, Number and Other Term Construction.
ARTICLE II. ESTABLISHMENT, CONTINUATION AND PURPOSE OF TRUST
Section 2.01. Establishment and Continuation.
Section 2.02. Trustee Acceptance.
Section 2.03. Purpose.
ARTICLE III. PAYMENTS FROM FUND
Section 3.01. Trustee's Duty.
ARTICLE IV. INVESTMENT OF FUND ASSETS
Section 4.01. Appointment of Investment Manager.
Section 4.02. Establishment of Manager's Account.
Section 4.03. Trustee as Investment Manager.
Section 4.04. Authority of Investment Manager.
Section 4.05. Transactions for Manager Accounts.
Section 4.06. Responsibility of Trustee.
Section 4.07. Temporary Investment of Cash Reserves.
Section 4.08. Review of Investment Managers.
Section 4.09. Plan Funding Policy.
ARTICLE V. TRUSTEE POWERS
Section 5.01. General Powers.
Section 5.02. Employer Securities and Real Property.
Section 5.03. Investment in Real Property.
ARTICLE VI. TAXES, EXPENSES, TRUSTEE COMPENSATION AND
RETURNS TO EMPLOYERS
Section 6.01. Taxes.
Section 6.02. Expenses and Trustee Compensation.
Section 6.03. Amounts Returnable to Employers.
<PAGE>
Page
----
ARTICLE VII. VALUATION OF TRUST FUND
Section 7.01. Separate Plan Accounts.
Section 7.02. Valuation of Trust Fund.
Section 7.03. Accounting for Contributions.
Section 7.04. Valuation Date.
Section 7.05. Withdrawal of a Plan.
Section 7.06. Accounting for Income, Expenses, Appreciation and Depreciation.
ARTICLE VIII. REPORTS AND ACCOUNTINGS
Section 8.01. Audit of Trustee Accounts.
Section 8.02. For Each Plan.
Section 8.03. Trust Fund.
Section 8.04. Settlement of Trustee Accounts.
ARTICLE IX. COMMUNICATIONS
Section 9.01. Investment Manager.
Section 9.02. Administrator and Investment Committee.
Section 9.03. Board and Company.
Section 9.04. Reliance on Written Communications.
Section 9.05. Plan Documents.
ARTICLE X. FIDUCIARIES AND TRUSTEE LIABILITY
Section 10.01. Named and Other Fiduciaries.
Section 10.02. Allocation of Fiduciary Responsibilities.
Section 10.03. Trustee Liability.
ARTICLE XI. SUCCESSOR TRUSTEE
Section 11.01. Removal or Resignation of Trustee.
Section 11.02. Successor Trustee of Trust Fund.
ARTICLE XII. AMENDMENT OF TERMINATION
Section 12.01. Amendment or Termination of Trust Agreement.
Section 12.02. Termination or Partial Termination of Plans.
<PAGE>ii
Page
----
ARTICLE XIII. MISCELLANEOUS
Section 13.01. No Assignment of Interest.
Section 13.02. Responsibility of Insurer.
Section 13.03. Wisconsin Law to Govern.
Section 13.04. Illegality.
Section 13.05. Waiver of Notice.
Section 13.06. Counterparts.
Section 13.07. Successors and Assigns.
<PAGE>iii
MARATHON ELECTRIC
MASTER PENSION TRUST
--------------------
THIS TRUST AGREEMENT made and entered into this 1 day of
January, 1982, by and between MARATHON ELECTRIC MANUFACTURING
CORPORATION, a Wisconsin corporation, (hereinafter called "Company"), and M&I
MARSHALL & ILSLEY BANK, a Wisconsin banking corporation, (hereinafter called
"Trustee");
W I T N E S S E T H:
WHEREAS, in order to provide retirement benefits for certain of its
employees, the Company has heretofore established certain employee pension
benefit plans known as the Marathon Electric Profit Sharing Retirement Plan
(hereinafter referred to as the "Profit Sharing Plan") and the Retirement Plan
for Salaried Non-Exempt Employees of Marathon Electric Manufacturing
Corporation (hereinafter referred to as the "Non-Exempt Plan") which are
intended to qualify under Section 401(a) of the Internal Revenue Code of 1954,
as amended; and
WHEREAS, immediately prior to the execution hereof, the Profit Sharing
Plan has been funded by a trust fund maintained under the Marathon Electric
Profit Sharing Retirement Trust Agreement of which the trustee has recently
been named successor trustee; and
WHEREAS, immediately prior to the execution hereof the Non-Exempt
Plan has been funded by Group Annuity Contract GA-2592 issued by Aetna Life
Insurance Company; and
WHEREAS, effective January 1, 1982, the assets and liabilities of the
Profit Sharing Plan and the Non-Exempt Plan are going to be merged into a new
plan known as the Marathon Electric Salaried Employees Pension Plan and an
additional new plan will be adopted known as the Marathon Electric Salaried
Employees' Savings Plan (hereinafter collectively referred to as the "Plans",
or in reference to each as the "Plan"); and
WHEREAS, the Company has determined that it is desirable to place
into one trust known as the Marathon Electric Master Pension Trust (hereinafter
called "Trust"), any assets attributable to the Plans and to such other plans
<PAGE>
as the Company may from time to time designate to use this Trust as a funding
medium for the investment of such assets; and
WHEREAS, the Marathon Electric Profit Sharing Retirement Trust
Agreement reserves to the Company, by action of the Board, the right to amend
same;
NOW, THEREFORE, the Company and the Trustee do hereby agree to
the amendment and restatement of such agreement in its entirety effective as of
January 1, 1982 to and continue as follows:
<PAGE>2
ARTICLE I. PARTICIPATING PLANS AND DEFINITIONS
-----------------------------------------------
Section 1.01 Participating Plans. (a) The Plans for which the
-----------------------------------
Company has determined, as of January 1, 1982, to use this Trust as a funding
medium are the Marathon Electric Salaried Employees' Pension Plan and the
Marathon Electric Salaried Employees' Savings Plan.
(b) In addition to the Plans referred to in subsection (a) of this
Section, the Committee may at any time designate this Trust as a funding medium
for any other qualified employee benefit plan of an Employer by filing with the
Trustee a certified copy of the resolution evidencing such designation. An
Employer other than the Company whose plan is so designated shall likewise file
with the Trustee a certified copy of a resolution of its board of directors
evidencing its adoption of this Trust to fund, in whole or in part, that plan,
which action shall constitute delegation of full and exclusive authority to the
Company to take on behalf of such Employer all necessary and appropriate
actions respecting this Trust, including, but not limited to, the amendment,
modification, or termination thereof. Any qualified employee benefit plan
designated, subsequent to the execution date hereof, to use this Trust as a
funding medium shall be deemed to be included within the term "Plan" for all
purposes of this Trust Agreement upon the effective date of the requisite
resolution(s). Thereafter, the Trustee shall receive and hold as a part of the
Trust Fund, subject to the terms and conditions of this Trust Agreement, any
deposits made to it under such Plan by or at the direction of the Employer.
Any Employer other than the Company with a Plan funded, in whole or in part,
under this Trust need not be a party signatory to this Trust Agreement.
(c) The Committee may cease having this Trust serve as a
funding medium for any of the Plans by filing with the Trustee a certified
copy of the resolution to such effect. Thereupon, the Trustee shall
segregate the share of the Trust Fund allocable to such Plan and make
disposition thereof in accordance with the Committee s directions.
Section 1.02 Plan Definitions. The following words and phrases
-------------------------------
when used herein shall have the following respective meanings, unless
the context clearly indicates otherwise.
<PAGE>3
(a) "Administrator" means David L. Eisenreich or any successor
thereto appointed pursuant to the provisions of the Plans.
(b) "Board" means the Board of Directors of the Company.
(c) "Company" means Marathon Electric Manufacturing Corporation, a
Wisconsin corporation.
(d) "Code" means the Internal Revenue Code of 1954, as
interpreted and applied by regulations and rulings issued pursuant thereto,
all as amended and in effect from time to time.
(e) "Committee" means the Marathon Electric Pension and Savings
Plans Committee established and appointed by the Board to perform such duties
with respect to the Trust and its administration as provided herein and as the
Board may from time to time delegate to the Committee.
(f) "Contract" means any insurance contract between the Trustee
and an insurer that may be established and held as part of the Trust Fund to
provide for payment of benefits under any Plan.
(g) "Employer" means the Company and any domestic subsidiary or
affiliated corporation of the Company designated by the Committee which has
adopted and maintains one or more of the Plans.
(h) "ERISA" means the Employee Retirement Income Security Act of
1974, as interpreted and applied by regulations and rulings issued pursuant
thereto, all as amended and in effect from time to time.
(i) "Insurer" means any insurance company designated by the
Committee which issues a Contract.
(j) "Investment Manager" means any person, committee, insurance
company, corporation, partnership or association which is authorized under this
Trust Agreement to direct the investment and reinvestment of all or any portion
of the assets of the Trust Fund in accordance with Article IV hereof, and which
satisfies ERISA's definition of the term "investment manager".
(k) "Manager's Account" means the portion of the Trust Fund
over which one Investment Manager exercises discretion with respect to the
<PAGE>4
investment and reinvestment thereof or, with respect to any Plan with multiple
investment funds controlled by one or more Investment Managers, each separate
and distinct investment fund under such Plan.
(l) "Plan" means an employee benefit plan of an employer which
has been designated in accordance with Section 1.01 hereof to be funded, in
whole or in part, under this Trust and which qualifies under the applicable
Code provisions as evidenced by an Internal Revenue Service determination to
that effect that exists at or is received subsequent to the time of such
designation; provided, however, that this meaning shall be assigned to such
employee benefit plan only while such designation is in full force and effect.
(m) "Trust" means the Marathon Electric Master Pension Trust as
embodied in this Trust Agreement.
(n) "Trust Agreement" means this document executed by and
between the Company and the Trustee as the same may, from time to time, be
modified, altered or amended by the Board in accordance with Section 12.01
hereof.
(o) "Trust Fund" means all Plan assets held by the Trustee
under this Trust, including the earnings, income, additions and appreciation
thereon and thereto, less the payments which at the time of reference shall
have been made by the Trustee as authorized under this Trust Agreement.
(p) "Trustee" means the M&I Marshall & Ilsley Bank, a
Wisconsin banking corporation with trust powers, or any successor thereto,
appointed by the Committee pursuant to Section 11.02 hereof to hold and
administer this Trust in accordance with this Trust Agreement.
Section 1.03. Other Definitions. Any term that is defined in
----------------------------------
the Plans shall have in this Trust Agreement the same meaning assigned to it
in the Plans, unless the context hereof clearly indicates a different meaning.
Section 1.04 Gender, Number and Other Term Construction.
----------------------------------------------------------
Wherever any words are used herein in the masculine, they shall be construed as
though they were used in the feminine in all cases where they would so apply,
and wherever any words herein are used in the singular or the plural they shall
<PAGE>5
be construed as though they were used in the plural or the singular, as the
case may be, in all cases where they would so apply. The words "hereof",
"herein", hereunder and other similar compounds of the word here shall
mean and refer to the entire Trust Agreement and not to any particular
Article or Section.
Titles of Articles and Sections hereof are for general information only, and
the Trust Agreement is not to be construed by reference thereto.
<PAGE>
ARTICLE II. ESTABLISHMENT, CONTINUATION
---------------------------------------
AND PURPOSE OF TRUST
--------------------
Section 2.01. Establishment and Continuation.
------------------------------------------------
To fund the Employer's Plans listed in Section 1.01(a) and those subsequently
designated in accordance with Section 1.01(b) hereof, effective January 1, 1982
the Company hereby establishes with the Trustee this Trust which continues as a
part thereof the trust and annuity contract created under any such Plan prior
to the date on which, and to the extent that, this Trust is adopted as a
funding medium for such Plan in lieu of such trust and annuity contract,
subject, however, only to the terms and conditions of this Trust Agreement.
Section 2.02. Trustee Acceptance. The Trustee hereby accepts the
-----------------------------------
Trust Fund consisting of the total assets of the Plans listed in Section
1.01(a) as of January 1, 1982, together with such additional sums of money and
other property acceptable to the Trustee as shall from time to time be paid or
delivered to the Trustee, including, but not limited to, contributions under
the Plans and such sums of money and other property which may be transferred
to the Trustee by an insurance company or by any other trustee of any trust
created to fund any Plan, and such earnings, income, additions and
appreciation thereon and thereto as may occur from time to time. The Trustee
shall hold the Trust Fund in trust and deal with it solely in accordance with
the express terms and conditions of this Trust Agreement.
Section 2.03. Purpose. This Trust is for the sole purpose of
------------------------
accumulating and distributing the Trust Fund to provide benefits under the
provisions of the Plans as from time to time amended or modified. Except for
that part of the Trust Fund which may be required to pay taxes and
administration expenses as provided in Sections 6.01 and 6.02 hereof and which
may be returned to an Employer pursuant to Section 6.03 hereof, at no time
prior to the satisfaction of all liabilities with respect to the participants
and their beneficiaries under any Plan, shall any part of the corpus or income
attributable to such Plan be used for or diverted to purposes other than for
the exclusive benefit of such participants and their beneficiaries and
defraying the reasonable expenses of administering such Plan and this Trust.
<PAGE>
ARTICLE III. PAYMENTS FROM FUND
---------------------------------
Section 3.01. Trustee's Duty. It shall be the duty of the Trustee
-------------------------------
hereunder to make payments out of the Trust Fund to such persons or accounts
(including any disbursing accounts which may be with the Trustee or any
affiliate thereof) in such manner, at such times and in such amounts as may be
specified in written directions received from time to time by the Trustee from
the Administrator, which may include directions to the Trustee to pay benefits
under any Plan through the purchase of one or more annuities under an
individual or group annuity contract from a designated insurance carrier. Any
such direction to the Trustee for payments out of the Trust Fund shall be in
writing, signed by the Administrator or its duly authorized representative,
and shall designate the Plan to which such direction is applicable. Unless
the assets of the applicable Plan are segregated for investment purposes
pursuant to Section 7.06 hereof or unless otherwise directed by the
Administrator, payments shall be made by the Trustee from the Manager's
Account subject to the Trustee's investment discretion, or, if the funds in
such account are insufficient for such distribution, from the Manager's
Account of any Investment Manager. The Trustee shall be fully protected in
acting in good faith, without prior inquiry or investigation, to make
payments out of the Trust Fund in accordance with such written direction,
and amounts paid pursuant to any such direction shall thereafter no longer
constitute a part of the Trust Fund. Should any payments made by the Trustee
out of the Trust Fund be unclaimed, the Trustee shall notify the
Administrator or its representative who had directed such payments to be
made, and shall dispose of such payments as the Administrator or representative
shall then direct. Except as provided above in this Section, the Trustee shall
not be responsible in any way with respect to the determination, computation,
payment or application of any benefit under any Plan or any other matter
affecting the operation and administration of such Plan.
<PAGE>
ARTICLE IV. INVESTMENT OF FUND ASSETS
--------------------------------------
Section 4.01. Appointment of Investment Manager.
---------------------------------------------------
The Committee may appoint one or more Investment Managers to manage and control
the investment and reinvestment of one or more Manager's Accounts. The
Trustee, until notified in writing to the contrary, shall be fully protected
in relying upon any written notice received from the Committee regarding the
appointment of an Investment Manager. Such notice shall specify the effective
date of the Investment Manager's appointment and the portion of the Trust Fund
constituting its Manager's Account as determined in accordance with Section
4.02 hereof. The Trustee shall also be provided with copies of the resolution
of the Committee appointing such Investment Manager and any agreement with it
respecting such appointment; provided, however, that the Trustee shall not be
required to be a party to such agreement except in the case of such an
agreement under which the Trustee is to be an Investment Manager and/or where
the Administrator, pursuant to the Committee's direction, requests the Trustee
to enter into an agency and custody agreement with any Investment Manager which
will also be the depositary and custodian of the Trust Fund assets allocated to
its Manager's Account or into an insurance contract with an insurance company
designated as an Investment Manager hereunder that may be established to serve
as an investment or funding vehicle of the Trust Fund; provided further, that
the terms and conditions of the appointment, authority, retention and removal
of the Investment Manager shall be the sole responsibility of the Committee.
During any period when an insurance company that is an Insurer is appointed and
serving as an Investment Manager hereunder, the acts or omissions by such
insurance company and its responsibilities in its capacity as an Insurer shall
be separate and distinct from the acts or omissions of it and its
responsibilities in its capacity as an Investment Manager, the same as if two
different and unrelated entities were involved.
Section 4.02. Establishment of Manager's Account.
---------------------------------------------------
The Committee may direct the Trustee from time to time to allocate and
reallocate the assets held in the Trust Fund into one or more Manager's
Accounts which shall bear such designation as may be specified in such
direction. At the time of the first allocation and of each reallocation, such
direction may also specify the part, if any, of a Plan's assets held in the
Trust Fund to be apportioned to each Manager's Account, and the Committee may
reapportion all or
<PAGE>
any part of such assets of each Plan between or among the Manager's Accounts
from time to time.
Section 4.03. Trustee as Investment Manager. (a) It is recognized
----------------------------------------------
that the Trustee may be appointed as an Investment Manager pursuant to Section
4.01 hereof. The Trustee shall be deemed to be the Investment Manager with
respect to any assets held in the Trust Fund which have not been allocated
pursuant to Section 4.02 hereof to the Manager's Account of an Investment
Manager other than the Trustee. In addition, whenever the Committee
provides the Trustee with written notification that the appointment of an
Investment Manager other than the Trustee has been terminated, the Trustee
shall then be deemed to be the Investment Manager of the assets in the
Manager's Account of the terminated Investment Manager until a new Investment
Manager other than the Trustee has been appointed and qualified. Any portion
of the Trust Fund assets as to which at any time the Trustee has been
appointed or is deemed to be the Investment Manager shall constitute a
separate Manager's Account of the Trustee for all purposes of this Trust
Agreement.
(b) Unless the Company elects to execute a separate agreement, the
terms and conditions of this Trust Agreement shall be deemed to prescribe the
authority, responsibilities, and duties of the Trustee whenever it serves in
the capacity of an Investment Manager except that, with respect to such
service, Sections 4.06 and 9.01 hereof shall have no effect and shall be
disregarded. During the period of any such service, the acts and omissions by
the Trustee and its responsibility in its capacity as Trustee shall be separate
and distinct from the acts or omissions by it and its responsibility in its
capacity as an Investment Manager, the same as if two different and unrelated
entities were involved.
Section 4.04. Authority of Investment Manager. An Investment
------------------------------------------------
Manager shall have the exclusive authority and discretion with respect to
the investment and reinvestment of the Manager's Account under its management
and control and, pursuant to such authority and discretion, may either direct
the Trustee, from time to time and at any time, as to the exercise of its
powers under Section 5.01(a)- (e) hereof that may be necessary or appropriate
to carry out such authority and discretion or, where such Investment Manager
has custody of the Trust Fund assets allocated to its Manager's Account,
exercise such
<PAGE>
powers itself as may be necessary or appropriate to carry out such authority
and discretion as is prescribed by any agreement with it respecting such
custodianship and/or its appointment as an Investment Manager. The Trustee
and any Investment Manager in whom fiduciary responsibility is vested for the
management and control of any Manager's Account shall each exercise its
fiduciary responsibility respecting its own Manager's Account, including
without limitation any responsibility for diversification imposed by ERISA, as
if its own Manager's Account constituted the entirety of the Trust Fund. In
the event that there is more than one Investment Manager, the Committee shall
be responsible for the overall diversification of the entire Trust Fund; the
Trustee shall advise the Committee at any time that it is aware of a question
that should be considered in fulfilling such responsibility.
Section 4.05. Transactions for Manager Accounts.
--------------------------------------------------
All transactions for a Manager s Account related to the purchase, sale, or
other disposal of assets therein shall be made upon such terms and conditions
and from and through such principals and agents as the Investment Manager
assigned to that Manager's Account shall direct from time to time and at
any time. Any Investment Manager, from time to time and at any time, may
issue orders for the purchase or sale of securities directly to a broker or
dealer. When such order involves securities that are or will be in the
custody of the Trustee, written notification of the issuance of each such
order shall be given promptly to the Trustee by such Investment Manager, and
the execution of each such order shall be confirmed by the broker or dealer
to such Investment Manager and to the Trustee. Such notification and
confirmation shall be authority to the Trustee to receive securities
purchased against payment therefor and to deliver securities sold against
receipt of the proceeds therefrom, as the case may be.
Section 4.06. Responsibility of Trustee. Unless the Trustee
------------------------------------------
participates knowingly in, or knowingly undertakes to conceal an act or
omission of an Investment Manager which the Trustee knows or would reasonably
be expected to know is a breach of fiduciary duty by an Investment Manager,
the Trustee shall not be liable for any act or omission of such Investment
Manager, and shall not be under any obligation to invest or otherwise manage
the assets of the Manager's Account under the management and control of such
Investment Manager. Without limiting the generality of the foregoing, the
Trustee shall
<PAGE>
not be liable by reason of its taking or refraining from taking, at the
direction of an Investment Manager, any action pursuant to Sections 4.04 and
4.05 hereof, or pursuant to a notification and confirmation of an order to
purchase or sell securities issued by an Investment Manager, nor shall the
Trustee be liable by reason of its refraining from taking any action because
of the failure of an Investment Manager to give such direction or order. The
Trustee shall be under no duty to question or to make inquiries as to any
direction or order or failure to give direction or order by an Investment
Manager. So long as the designation of an Investment Manager for a Manager's
Account remains in effect, the Trustee shall be under no duty to make any
review of the investments acquired for and/or held in such Manager's Account
at the direction or order of the Investment Manager and shall be under no duty
to make any recommendations with respect to disposing of or continuing to
retain any such investment.
Section 4.07. Temporary Investment of Cash Reserves.
------------------------------------------------------
With respect to cash reserves of its Manager's Account, an Investment Manager
shall have the discretionary authority, which authority may, from time to time
and at any time, be delegated to the Trustee, to temporarily invest and
reinvest such cash reserves in debt securities (including obligations of the
Government of the United States and variable amount demand notes) payable on
demand or having maturities not exceeding one (1) year or, subject to the
provisions of Section 5.01(a) hereof respecting certain common, pooled,
diversified, or consolidated funds, in interests of any such fund that is
created and maintained by such Investment Manager or the Trustee from time to
time for the collective short-term investment of the cash reserves in trusts
for employee benefit plans qualified under the applicable provisions of the
Code; provided, however, that, unless and until written delegation of such
authority is received by the Trustee, it shall have no obligation or
responsibility to so invest and reinvest the cash reserves of the Manager's
Account of such Investment Manager except that the Trustee shall be deemed
to have been delegated such authority with respect to any Manager's Account
as to which it may be the Investment Manager.
Section 4.08. Review of Investment Managers. The function of
---------------------------------------------
monitoring, reviewing and evaluating the performance of an Investment
Manager and the Trustee shall be the responsibility of the Committee. The
<PAGE>
Trustee shall provide such reports, information, cooperation and assistance to
the Committee as it may, from time to time and at any time, request and require
to enable it to fulfill and/or exercise its duties, responsibilities, powers
and rights with respect to the aforementioned function.
Section 4.09. Plan Funding Policy. The Committee shall
-----------------------------------
determine the funding policy and method required by ERISA for each Plan to the
extent such policy and method are not set forth in such Plan and shall
communicate its determination in this regard to the Trustee and each Investment
Manager. In addition to determining the allocation and reallocation of the
Trust Fund's assets among Manager's Accounts as provided by Section 4.02
hereof, the Committee shall determine each Manager's Account's allocable
share of each Employer's and, if any, the participants' respective
contributions to any Plan; provided, however, that, where any such
contributions to a Plan must be allocated to a particular Manager's Account
because of an explicit provision of such Plan to that effect and/or a
participant's investment direction specifically permitted thereunder, such
provision and/or direction shall govern such allocation without any approval
thereof by the Committee being required.
<PAGE>
ARTICLE V. TRUSTEE POWERS
--------------------------
Section 5.01. General Powers. Subject to the direction and
-------------------------------
control of an Investment Manager as provided in Article IV hereof, the Trustee
is authorized and empowered:
(a) to invest and reinvest the assets of the Trust Fund, without
distinction between principal and income, in shares, stocks, securities or
other evidences of ownership (whether common or preferred), bonds, notes,
debentures or other obligations of every description (whether or not secured
by mortgages on real or personal property or other collateral wherever
situated), including any part interest in a bond, note or mortgage (whether
or not insured), trade acceptances or other commercial paper, loans or
deposits at interest on call or on time (whether or not secured by collateral
and/or maintained with the Trustee, an Investment Manager or any affiliate of
either), savings and/or checking accounts maintained by a bank or other
financial institution (including the Trustee, any Investment Manager or any
affiliate of either), and any other property or part interest in property,
real or personal, domestic or foreign (whether or not productive of income or
consisting of wasting assets), including interests in any common, pooled,
diversified or consolidated fund qualified for tax exemption under the
appropriate provisions of the Code, and maintained by a bank or other
financial institution (including the Trustee, any Investment Manager or any
affiliate of either) for the purpose of investing assets held in trust under
plans qualified under said Code, which fund may be designated by an Investment
Manager, from time to time and at any time, whereupon, during the effective
period of such designation, any instrument governing such fund shall be deemed
to be incorporated in and made a part of this Trust Agreement as fully and to
all intents and purposes as if set forth herein at length;
(b) to sell, exchange, convey, transfer or dispose of and also to
grant options with respect to, any property, whether real or personal, at any
time held by the Trustee, and any sale may be made by private contract or by
public auction, and no person dealing with the Trustee shall be bound to see
to the application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
<PAGE>
(c) to retain, manage, operate, repair and improve and to
mortgage or lease for any period (including any renewal or extension thereof)
any real estate held by the Trustee;
(d) to compromise, compound, settle or submit to arbitration any
debt, claim or other obligation due from third persons to it or to third
persons from it, as Trustee hereunder, and to reduce the rate of interest on,
to extend or otherwise modify, or to foreclose upon default or otherwise
enforce or refrain from enforcing any such obligation;
(e) to vote, subject to Section 5.02 hereof, upon any stocks,
bonds or other securities held in the Trust Fund; to give general or special
proxies or powers of attorney with or without power of substitution; to buy,
sell, or exercise any conversion or redemption privileges, subscription rights
or other options appurtenant to such stocks, bonds or other securities and to
make any payments incidental thereto; to deposit such stocks, bonds or other
securities in any voting trust or with protective or like committee or
depositary designated thereby; to join in any protective agreement; to join
in, dissent from or oppose the reorganization, recapitalization, consolidation,
sale or merger of corporations or properties in which it may be interested as
Trustee, upon such terms and conditions as it may deem wise, and to accept any
securities which may be issued upon any such reorganization, recapitalization,
consolidation, sale or merger, and thereafter to hold the same; and in general
to exercise any of the powers and rights of an owner with respect to any
stocks, bonds, securities or other property held in the Trust Fund;
(f) to own any Contract with an Insurer, and to exercise any
option, privilege or benefit in connection therewith, including, without
limitation, the right to collect and receive the proceeds and all dividends or
other distributions thereon; to surrender any such Contract for cash; to change
the persons to whom and the manner in which the proceeds of any such Contract
shall be paid; to convert any such Contract from one form to another; to sell
or assign any such Contract; to execute all necessary receipts and releases
to any Insurer; to purchase one or more annuities under the terms of a group
annuity contract; and to compromise or adjust any claim arising out of any such
Contract;
<PAGE>
(g) to make, execute, acknowledge and deliver any and all deeds,
leases, assignments, documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the powers herein
granted;
(h) to enforce any right, obligation or claim in its discretion
and in general to protect in any way the interests of the Trust Fund, either
before or after default, and in case it shall consider such action for the best
interests of the Trust Fund, in its discretion, to abstain from the enforcement
of any right, obligation, or claim or to abandon any property, whether real or
personal, which at any time may be held by it;
(i) to borrow or raise moneys for the purpose of this Trust in
such amount and upon such terms and conditions as the Trustee in its discretion
may deem advisable; and for any sums so borrowed to issue its promissory note
as Trustee and to secure the repayment thereof by pledging all or any part of
the Trust Fund; and no person loaning money to the Trustee shall be bound to
see the application of the money loaned or to inquire into the validity,
expediency or propriety of any such borrowing;
(j) to cause any investments of the Trust Fund to be registered
in, or transferred into, its name as Trustee or the name of its nominees or
to retain them unregistered or in form permitting transferability by delivery,
but the books and records of the Trustee shall at all times show that all such
investments are part of the Trust Fund and the Trustee shall be absolutely
liable for any loss occasioned by the acts of its nominees with respect to
investments registered in the name of its nominees and for any other failure
to fulfill its responsibilities for safe custody and disposition of the Trust
Fund in accordance with the terms and conditions of this Trust Agreement;
(k) from time to time, to employ such legal, actuarial,
accounting, investment, and other assistants as it may deem necessary for
administering the Trust Fund; in any case in which the Trustee employs any
such assistant, it shall retain exclusive authority and discretion for
administration and operation of the Trust Fund;
(l) to organize and incorporate under the laws of any state it
may deem advisable one or more corporations and to acquire an interest in any
such corporation that it may have so organized and incorporated for the
<PAGE>
purpose of acquiring and holding title to any property, interest or rights that
the Trustee is authorized to acquire under this Section; and
(m) to do all acts which it may deem necessary or proper and to
exercise any and all powers of the Trustee under this Trust Agreement upon such
terms and conditions as to it may deem for the best interests of the Trust Fund
and the participants of the Plans.
Section 5.02. Employer Securities and Real Property.
------------------------------------------------------
(a) Notwithstanding any provision in this Trust Agreement to the contrary, the
assets of the Trust Fund may be invested and reinvested in any security and/or
real property of an Employer only to the extent that such investment and
reinvestment is permitted under ERISA. It shall be the responsibility of the
Committee, based upon information and advice provided by the Trustee, to
insure at all times that ERISA's percentage limitations with respect to such
investment and reinvestment are not exceeded and to provide from time to time
each Investment Manager with such information as may be necessary and
appropriate to preclude any such investment and reinvestment for its Manager's
Account from resulting in such limitations being exceeded.
Section 5.03. Investment in Real Property. In the event that
--------------------------------------------
any investment is made by an Investment Manager in real property, then the
Trustee shall have the right to request, as a condition precedent to its
executing any documents or paying over any Trust Fund assets in connection
with such transaction, receipt of (i) a certified appraisal that the property
has a value at least equal to the transaction price and that the property is
in the form and condition described in such documents, and (ii) an opinion
of counsel (who may be counsel to the Investment Manager) that such documents
are in proper form for execution by the Trustee, that such deed or document
has been or will be properly recorded under all applicable laws and that
appropriate policies adequately insuring this Trust against loss for any
reason (including a defect in title) have been procured in the name of the
Trustee. In addition, the Investment Manager shall provide the Trustee, upon
request, with current appraisals of such property which may be relied upon
by the Trustee for all valuation and accounting purposes under this Trust
Agreement.
<PAGE>
ARTICLE VI. TAXES, EXPENSES, TRUSTEE
-------------------------------------
COMPENSATION AND RETURNS TO EMPLOYERS
-------------------------------------
Section 6.01. Taxes. The Trustee, after receiving the written
----------------------
approval of the Committee, shall pay from the Trust Fund all taxes of any and
all kinds whatsoever that may be levied or assessed under existing or future
laws upon the Trust Fund or the income thereof and, in its discretion, may
contest the validity or the amount of any such taxes. The payment of any such
taxes shall be allocated and charged to any particular Plan in the manner
provided in Section 6.02 hereof for allocating and charging administrative
expenses.
Section 6.02 Expenses and Trustee Compensation. Unless they
-------------------------------------------------
are paid by an Employer, the Trustee shall pay from the Trust Fund all
reasonable expenses incurred in the administration of this Trust and any Plan,
including, but not limited to, actuarial, legal and accounting fees, brokerage
commissions and costs, such Trustee compensation and fees as shall be agreed
upon in writing between the Committee and the Trustee, and such fees, costs,
and other expenses that the Committee may certify in writing to the Trustee for
payment from the Trust Fund. Unless the Committee otherwise directs pursuant to
Section 7.06 hereof, any expenses paid from the Trust Fund shall be charged
against the Trust Fund as a whole.
Section 6.03 Amounts Returnable to Employers.
-----------------------------------------------
(a) In the case of a contribution to any Plan that is made by an Employer by a
mistake of fact, as certified to by such Employer's consulting actuaries,
independent public accountants and/or legal counsel, such contribution shall,
upon written direction of the Administrator, be returned to such Employer
within one (1) year after the payment of such contribution.
(b) If a contribution to any Plan by an Employer is expressly
conditioned on either the initial qualification of such Plan or the
deductibility of such contribution under the applicable provisions of the Code
and if such Plan does not so qualify or the deduction is disallowed, in whole
or in part, then such contribution shall, upon written direction of the
Administrator, be returned to such Employer within one (1) year after the date
of denial of initial qualification of such Plan or disallowance of the
deduction, as the case may be, provided, however, that, in the latter instance,
such contribution shall be returned to such Employer only to the extent of such
<PAGE>
disallowance, provided further that the provisions of this subsection (b) shall
not be effective and operative to the extent such provisions would cause the
disqualification of any Plan, result in any Employer contribution being
disallowed or otherwise contravene any provision of law, but to the extent such
provisions may be effective and operative, each Employer hereby declares its
intention and action that every contribution by it to any Plan shall be
conditional upon such initial qualification or such deductibility, as the case
may be.
(c) In the case of the termination of any Plan of an Employer
which is a defined benefit plan under ERISA, any residual assets of such
terminated Plan may be distributed to such Employer at the written direction
and in the discretion of the Administrator (or of a trustee appointed upon the
application of the Pension Benefit Guaranty Corporation) if all liabilities of
such terminated Plan to participants and their beneficiaries have been
satisfied and the distribution does not contravene any provision of law.
The certificate of an enrolled actuary engaged by such Administrator pursuant
to ERISA stating there are residual assets of such terminated Plan remaining
in the Trust Fund after all liabilities of such terminated Plan to participants
and their beneficiaries have been satisfied shall be conclusive evidence of
that fact. Notwithstanding the foregoing provisions of this subsection (c),
prior to any distribution to such Employer, any assets of such terminated
Plan attributable to employee contributions shall, at the written direction
of the Administrator (or of a trustee appointed upon the application of the
Pension Benefit Guaranty Corporation) be equitably distributed to the employees
who made such contributions (or their beneficiaries) in accordance with their
rate of contribution.
<PAGE>
ARTICLE VII. VALUATION OF TRUST FUND
-------------------------------------
Section 7.01. Separate Plan Accounts. The Trustee shall
---------------------------------------
maintain separate accounts reflecting each Plan's allocable share in any
Manager's Account, any Contract and the Trust Fund as a whole, and no amount
attributable to one Plan may be used to satisfy the liabilities of any other
Plan. For this purpose, the Trustee shall determine, as of each Valuation
Date (as defined in Section 7.04 hereof), the value of the assets of each
Manager's Account, each Contract and the total Trust Fund and each such
allocable share in accordance with the procedures set forth in this Article
VII. In addition, for the convenience of the Company, the Committee may request
the Trustee from time to time to include in any Plan's account other assets
that do not constitute part of the Trust Fund for the purposes of determining
the value of all of the assets of such Plan, in which event the Trustee shall
be fully protected in relying upon any certified appraisal or other form of
valuation submitted to it by any person controlling such other assets.
Section 7.02. Valuation of Trust Fund. (a) The share allocable
----------------------------------------
to each Plan in the Trust Fund and in each Manager's Account shall be expressed
in such manner as the Trustee and the Committee shall from time to time agree,
provided that each Plan's allocable share reflect the current market value of
the applicable assets. No Plan shall have any right, title or interest in or
to any specific asset of the Trust Fund, but each shall have an undivided
allocable share equal to the dollar value of the Trust Fund allocable to it as
herein provided. The Trustee shall not issue any certificate or other
documentation representing any such allocable share or any part thereof.
(b) In the case of a contribution allocated to a Manager's
Account, the Trustee shall allocate to the allocable share of the Plan with
respect to which such contribution is made a value as of the time of the
contribution equal to the amount contributed.
(c) In the case of a withdrawal from a Manager's Account, the
Trustee shall pay the amount withdrawn and shall reduce the allocable share of
the Plan with respect to which such withdrawal is made by a value at the time
of the withdrawal equal to the amount withdrawn.
(d) In determining the allocable share of each Plan in any
Contract held in the Trust Fund, the Trustee may rely upon whatever form
<PAGE>
of valuation and statement such allocation has been most recently submitted to
it by the Insurer of such Contract as of any Valuation Date. The Trustee shall
adjust such valuation and statement to reflect any transaction between it and
such Insurer which may have occurred between the date of such valuation and
statement and the Valuation Date involved.
Section 7.03 Accounting for Contributions. The Committee shall
--------------------------------------------
notify the Trustee as to each Plan's allocable share of any and all cash or
other property initially or at any time contributed by an Employer to the
Trustee or transferred to it from the trustees of predecessor plans or from
predecessor trustees. The Trustee shall keep separate accounts of the shares
of the Trust Fund allocable to such Plan, expressed in accordance with Section
7.02 hereof.
Section 7.04 Valuation Date. The Trustee shall determine the
------------------------------
value of the Trust Fund as of an initial date and as of any subsequent dates
which may be agreed upon between it and the Committee and also regularly as of
the last day of each calendar month after the Trust Fund is established
(hereinafter called "Valuation Dates").
Section 7.05 Withdrawal of a Plan. Subject to the provisions of
------------------------------------
Section 7.02(c) and 7.04 hereof, the allocable share of any Plan may be
withdrawn from the Trust Fund and transferred to any successor trustee,
insurance company or successor funding medium upon the written direction to the
Trustee by the Committee. Any such written direction of the Committee shall
identify the Plan to which the withdrawal direction relates, so that the
Trustee may adjust its separate accounting for the share of the Trust Fund
allocable to such Plan accordingly.
Section 7.06 Accounting for Income, Expenses, Appreciation and
-----------------------------------------------------------------
Depreciation. The Trustee shall allocate any income, expenses, or
- ------------
appreciation or depreciation in the value of each Manager's Account among the
Plans participating in such Manager's Account in proportion to the value of
each Plan's participation, as determined in accordance with Section 7.02
hereof, in such Manager's Account as of the last day of the applicable
valuation period.
<PAGE>
ARTICLE VIII. REPORTS AND ACCOUNTINGS
--------------------------------------
Section 8.01 Audit of Trustee Accounts. The Trustee shall keep
----------------------------------------
accurate and detailed accounts of all investments, receipts, disbursements and
other transactions hereunder for the Trust Fund (including any Manager's
Account and any Contract) and all accounts, books and records relating thereto
shall be open to inspection and audit at all reasonable times during business
hours of the Trustee by any person or persons designated by the Committee.
Section 8.02 For Each Plan. (a) With respect to each Plan, within
-----------------------------
ninety (90) days after the end of each calendar year, the Trustee shall prepare
and deliver to the Committee a statement of the accounts and proceedings of the
Plan's account for such year, including any assets outside the Trust Fund for
which the Committee has directed accounting by the Trustee pursuant to
Section 7.01 hereof. Each such statement shall be certified as accurate by
appropriate officers of the Trustee and, with respect to each Plan, for the
year in question shall contain such detailed information as is required by
ERISA and the Code to be included in any annual report to be filed by the
Administrator for such Plan with the Secretary of the U.S. Department of
Labor (hereinafter called "Secretary") and the Internal Revenue Service.
Such statement shall also contain such other information as may be reasonably
required by the Administrator to enable it to comply with ERISA, the Code and
other applicable law. The Committee shall, from time to time, advise the
Trustee in writing as to the specific information that is to be contained in
such statement which shall be in a form satisfactory to the Committee.
(b) If some or all of the assets of the Trust Fund are held in
any common, pooled, diversified or consolidated fund maintained by a bank or
similar financial institution as provided in Section 5.01(a) hereof or in a
Contract or in some other separate account maintained by an insurance carrier
or a separate trust maintained by a bank or similar financial institution, as
trustee, any statement provided under subsection (a) of this Section shall
include the most recent annual statement of assets and liabilities of such
fund, and in the case of a Contract or such other separate account or a
separate trust, such other information as shall be required to be included in
any annual report to be filed with the Secretary and the Internal Revenue
Service.
<PAGE>
(c) In addition, as soon as practicable after withdrawal from
the Trust Fund of the allocable share of any Plan or termination, in whole or
in part, of any Plan, the Trustee shall file with the Committee a written
account of all its transactions relating to such Plan during the period from
the last previous accounting to the date of such withdrawal or termination,
including the information described in subsection (a) and (b) of this Section.
Section 8.03 Trust Fund. Within ninety (90) days after the end
-------------------------
of each calendar year, the Trustee shall prepare and deliver to the Committee a
statement of the accounts and proceedings of the Trust Fund (which statement
shall include substatements showing the accounts and proceedings of each
Manager's Account and each Contract) for such year. Each such statement (and
each such substatement) shall be in a form satisfactory to the Committee, and
shall contain a listing of all receipts and disbursements and all investments
and other transactions in the Trust Fund (and in each Manager's Account and
each Contract) during the year, shall set forth the assets and liabilities
aggregated by categories and valued at fair market value, shall set forth the
assets at cost to the Trust Fund, shall specify the rate of return, and shall
contain such additional information as shall be agreed upon by the Trustee and
the Committee. In addition to the foregoing, the Trustee shall provide to the
Committee such additional reports, information, cooperation and assistance as
the Administrator, the Company and/or the Committee may, from time to time and
at any time, request and require in connection with their operation and
functions.
Section 8.04 Settlement of Trustee Accounts. Unless the Committee
----------------------------------------------
notifies the Trustee in writing of its objections to and disapproval of any
statement of accounts of the Trustee within six (6) months of the Committee's
receipt thereof, such statement shall be deemed approved by the Company. In
case of any disapproval of any statement of accounts of the Trustee, an audit of
such statement shall be made by an independent certified public accountant
appointed by the Committee, unless a corrected statement shall have been
rendered to the Committee and approved in writing by it. Upon completion of
such audit, the inaccuracies in such statement so audited, if any, shall be
corrected to conform to such audit and a corrected statement shall be delivered
by the Trustee to the Committee. Any such corrected statement shall stand
approved as the statement of account of the Trustee as to all matters embraced
therein, without further approval. An approved or corrected statement of
<PAGE>
account shall constitute an account stated between the Trustee and the Company
as to all matters embraced in such statement, and shall be binding and
conclusive upon all persons interested in the Trust Fund to the same extent as
if the account of the Trustee had been settled and allowed in a proceeding for
judicial settlement of its accounts in any court of competent jurisdiction, to
which all such persons had been made parties; provided, however, that no such
statement of accounts nor the Committee's approval thereof shall be deemed to
relieve the Trustee of any liability which may be imposed upon it for violation
of a specific provision of ERISA and/or the Code; provided further that nothing
contained in this Trust Agreement shall be deemed to deprive the Trustee and/or
the Company of the right to have a judicial settlement of the Trustee's
accounts.
<PAGE>
ARTICLE IX. COMMUNICATIONS
---------------------------
Section 9.01 Investment Manager. Each Investment Manager shall,
----------------------------------
from time to time, furnish the Trustee with the name and specimen signature of
any person authorized to direct the Trustee on its behalf under this Trust
Agreement. The Trustee shall have the right to request that all directions and
orders from the Investment Manager be in writing and shall assume no liability
hereunder for failure to act pursuant to such directions and orders unless and
until they are received in a form satisfactory to it.
Section 9.02 Administrator and Investment Committee. The names
-----------------------------------------------------
of the members of the Administrator and the Committee and of any person
authorized to act on behalf of such Administrator and/or Committee hereunder
shall be certified to the Trustee by the Company, together with the specimen
signature of each such person.
Section 9.03 Board and Company. Any action required or permitted
---------------------------------
under this Trust Agreement to be taken by the Board shall be evidenced by a
Board resolution certified to the Trustee by the secretary or assistant
secretary of the Company under its corporate seal. Whenever the provisions of
this Trust Agreement require or permit any action to be taken by the
Administrator or the Committee without Board action, such action shall be
evidenced by a certificate signed by any member of the Administrator or the
Committee whom the Company has identified, with the specimen signature of such
member, to the Trustee.
Section 9.04 Reliance on Written Communications. Until
--------------------------------------------------
appropriate written evidence to the contrary is received by the Trustee, it
shall be fully protected in relying upon and acting in accordance with any
written notice, instruction, direction, certificate, resolution or other
communication believed by it in good faith to be genuine and to be signed
and/or certified by any proper person, and the Trustee shall be under no duty
to make any investigation or inquiry as to the truth or accuracy of any
statement contained therein. Until notified in writing to the contrary, the
Trustee shall have the right to assume that there has been no change in the
identity or authority of any person previously certified to it under this
Article.
Section 9.05 Plan Documents. The Administrator shall provide the
------------------------------
Trustee with copies of all documents constituting any Plan at the time such
Plan
<PAGE>
is designated in accordance with Section 1.01 hereof to be funded, in whole or
in part, under this Trust as well as any other document amending or
supplementing such Plan promptly following its adoption. The Trustee shall be
entitled to rely upon the Administrator s attention to this obligation and
shall be under no duty to inquire of the Administrator as to the existence of
any documents not provided by the Administrator under this Section.
<PAGE>
ARTICLE X. FIDUCIARIES AND TRUSTEE LIABILITY
--------------------------------------------
Section 10.01. Named and Other Fiduciaries. The Board, the
---------------------------------------------
Administrator, and the Committee are named Fiduciaries within the meaning of
ERISA with respect to each Plan and, to the extent of such Plan's assets held
in the Trust Fund, this Trust. The Trustee is a named fiduciary with respect
to the Trust and, to the extent a Plan s assets are held in the Trust Fund,
such Plan. Each Investment Manager is a fiduciary within the meaning of ERISA
with respect to its Manager's Account and, insofar as the assets in that
Manager's Account are concerned this Trust and each Plan whose benefits are
funded, in whole or in part, by such assets.
Section 10.02. Allocation of Fiduciary Responsibilities. The
----------------------------------------------------------
fiduciary responsibilities (within the meaning of ERISA) allocated to each
fiduciary designated in Section 10.01 hereof shall consist of the
responsibilities, duties, authority, and discretion of such fiduciary which are
expressly provided in this Trust Agreement and any related documents, including
but not limited to any agreement with an Investment Manager and any Plan
document. Each such fiduciary may obtain the services of such legal,
actuarial, accounting, investment and other assistants as it deems
appropriate, any of whom may be assistants who also render services to any
other such fiduciary, any Plan and/or any Employer, provided, however, that
where such services are obtained, such fiduciary shall not be deemed to have
delegated any of its fiduciary responsibilities to any such assistant but
shall retain full and complete authority over and responsibility for any
activities of such assistant.
Sectoion 10.03. Trustee Liability. The Trustee shall not be
------------------------------------
liable for the making, retention, or sale of any investment or reinvestment
made by it as herein provided or for any loss to or diminution of the Trust
Fund, or for anything done or omitted to be done by it, except as and only
to the extent that such action constitutes a violation of a specific
provision of ERISA and/or the Code. The Trustee shall not be liable for
any act which is not included within its power hereunder and which has been
done pursuant to the proper written direction of the Company, the Board, the
Administrator, the Committee, or any Investment Manager, except as and only
to the extent that such action constitutes a violation of a specific
provision of ERISA and/or the Code. The
<PAGE>
Trustee shall be under no duty to determine whether the amount of any
contribution to any Plan is in accordance with the terms thereof or to collect
or enforce payment of any such contribution. The Trustee shall not be required
to give any bond or other security for the faithful performance of its duties
and responsibilities under this Trust Agreement, except as may be required from
time to time under ERISA.
<PAGE>
ARTICLE XI. SUCCESSOR TRUSTEE
------------------------------
Section 11.01 Removal or Resignation of Trustee. The Trustee
--------------------------------------------------
may be removed by the Committee at any time upon thirty (30) days' notice in
writing to the Trustee, or upon notice acceptable to the Trustee. The Trustee
may resign at any time upon one hundred twenty (120) days' notice in writing to
the Committee, or upon shorter notice acceptable to the Committee. In the
event of such removal or resignation, the Trustee shall have the right to have
its accounts settled as provided in Section 8.04 hereof.
Section 11.02 Successor Trustee of Trust Fund. Upon Such
------------------------------------------------
removal or resignation of the Trustee, the Committee shall either (i) appoint a
successor trustee who shall have the same powers and duties as those conferred
upon the Trustee hereunder and, upon acceptance of such appointment by the
successor trustee, the Trustee shall assign, transfer and pay over to such
successor trustee the funds and properties then constituting the Trust Fund,
or (ii) establish an alternative funding medium and the Trustee shall assign,
transfer and pay over to the Trust Fund, as then constituted, upon the
directions of the Committee. The Trustee is authorized, however, to reserve a
reasonable amount for payments of its fees and expenses in connection with the
settlement of its account or otherwise, and any balance of such reserve
remaining after the payment of such reasonable fees and expenses shall be paid
over to the successor trustee or alternative funding medium, as the case may
be. Notwithstanding any provision of the Plans or this Trust Agreement to the
contrary, the Trustee is hereby authorized to invest and reinvest such reserve
in any investment or investment vehicle appropriate for the temporary
investment of cash reserves as provided in Section 4.07 hereof.
(b) If for any reason the Committee cannot or does not act in
the event of the resignation or removal of the Trustee, as hereinabove
provided, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee. Any expenses incurred by the Trustee in
connection therewith shall be deemed to an expense of administration payable
in accordance with Section 6.02 hereof.
<PAGE>
ARTICLE XII. AMENDMENT Of TERMINATION
--------------------------------------
Section 12.01 Amendment or Termination of Trust Agreement.
------------------------------------------------------------
The Company reserves the right at any time and from time to time by action of
the Board to modify or amend in whole or in part any or all of the provisions
of this Trust Agreement by notice thereof in writing delivered to the Trustee,
or to terminate this Trust Agreement upon thirty (30) days' prior notice in
writing delivered to the Trustee; provided, however, that no modification or
amendment which affects the rights, duties or responsibilities of the Trustee
may be made without the Trustee's consent.
Section 12.02 Termination or Partial Termination of Plans.
------------------------------------------------------------
In the event of the termination or partial termination of any Plan, the Trustee
shall dispose of the assets of such Plan or allocable portion thereof in the
manner provided in such Plan and as may be directed by the Administrator
subsequent to the Trustee's receipt of a copy of any approval of such
termination or partial termination which may be required from any federal
government agency or other authority under ERISA and/or the Code. Upon such
termination or partial termination of any Plan, the Trustee shall have the
right to have its accounts settled as provided in Section 8.04 hereof.
<PAGE>
ARTICLE XIII. MISCELLANEOUS
----------------------------
Section 13.01 No Assignment of Interest. No interest in, and no
------------------------------------------
rights or claims to, any of the assets of the Trust Fund shall be assignable in
anticipation of payment either by voluntary or involuntary act or by operation
of law, or be liable in any way for the debts, obligations or defaults of any
participant or beneficiary of a Plan. Any attempt at assignment or other
disposition of such assets shall be void.
Section 13.02 Responsibility of Insurer. No Insurer which may
------------------------------------------
issue any Contract held as part of the Trust Fund shall be obliged to inquire
into the terms of the Trust Agreement or be responsible for any action of any
Employer, the Board, the Administrator, the Committee, any Investment Manager
or the Trustee. No such Insurer shall be obligated to see to the distribution
or further application of any proceeds paid by it to the Trustee or paid in
accordance with the written direction of the Trustee.
Section 13.03 Wisconsin Law to Govern. Notwithstanding the
--------------------------------------
location of the Trustee or the situs of any portion of the Trust Fund, this
Trust Agreement shall be construed and enforced and its validity determined
according to the laws of the State of Wisconsin, and all provisions hereof
shall be administered according to such laws, to the extent such laws are not
preempted by federal laws.
Section 13.04 Illegality. In case any provision of this Trust
---------------------------
Agreement shall be held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts of this Trust Agreement which
shall then be construed and enforced as if such illegal or invalid provision
had never been inserted herein.
Section 13.05 Waiver of Notice. Any notice required under this
---------------------------------
Trust Agreement may be waived by the party or person entitled thereto.
Section 13.06 Counterparts. This Trust Agreement may be executed
-----------------------------
in a number of counterparts, each of which shall be deemed an original, and
such counterparts shall constitute but one and the same instrument and may be
sufficiently evidenced by any one counterpart.
<PAGE>
Section 13.07 Successors and Assigns. This Trust Agreement shall
be binding and insure to the benefit of the successors and assigns of the
Company and the Trustee, respectively.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be executed and attested in duplicate originals by their
respective officers thereunto duly authorized, and their corporate seals to be
hereunto affixed, as of the day and year first above written.
MARATHON ELECTRIC
MANUFACTURING CORPORATION
By____________________________________
Attest________________________________
[CORPORATE SEAL]
M&I MARSHALL & ILSLEY BANK,
as Trustee
By____________________________________
Attest________________________________
[CORPORATE SEAL]
EXHIBIT 4.3
MASTER TRUST AGREEMENT
This Agreement made as of November 1, 1997, between Regal-Beloit
Corporation, (hereinafter referred to as the "Company") and MARSHALL & ILSLEY
TRUST COMPANY, a Wisconsin banking corporation (hereinafter referred to as the
"Trustee").
WITNESSETH:
WHEREAS, the Company and certain of its affiliated and subsidiary
corporations listed in Appendix A attached hereto (which affiliated and
subsidiary corporations shall hereinafter be referred to singularly or
collectively as the "Corporation" or the "Corporations") have established
certain pension retirement and other employee benefit plans for the exclusive
benefit of their respective eligible employees and the beneficiaries thereof
(which plans shall hereinafter be referred to as the "Separate Plans"), each
of which Separate Plans is listed in Appendix A attached hereto and constitutes
a qualified pension plan within the meaning of Section 401 (a) of the Internal
Revenue Code, as amended; and
WHEREAS, on November 1, 1997, the Company established a master trust;
WHEREAS, under the terms of each of the Separate Plans, the Company and the
Corporations have, pursuant to the terms of the Separate Plans, entered into a
trust agreement or agreements establishing certain trusts thereunder (which
trusts shall hereinafter be referred to as the "Separate Trusts"), each of
which Separate Trust is listed in Appendix A attached hereto and constitutes a
trust exempt from tax under Section 501 (a) of the Internal Revenue Code, as
amended, by reason of forming a part of a Separate Plan qualified under Section
401 (a) of said Code, as amended; and
WHEREAS, the Company and the Corporation now desire to establish a single
master trust for, among other purposes, the collective investment of the assets
of the Separate Trusts and such additional property as may from time to time be
contributed thereto under the terms of the Separate Plans, which master trust is
intended to be exempt from tax under Section 501 (a) of the Internal Revenue
Code, as amended, by reason of its forming a part of plans qualified under
Section 401 (a) of the Internal Revenue Code, as amended; and
WHEREAS, the assets of the separate master trust so transferred to the
aforesaid master trust, together with such additional property as may from time
to time be contributed hereto under the terms of the Separate Plans, shall be
invested,reinvested and administered by the Trustee as a single trust under the
Separate Plans; and
WHEREAS, the Trustee is willing to hold such assets and to invest, reinvest
and administer the same pursuant to the terms of this Master Trust Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
ARTICLE ONE
1.01 The Company hereby establishes with the Trustee a Master Trust
consisting of such sums of money and such property acceptable to the Trustee as
shall from time to time be paid or delivered to the Trustee and the earnings and
profits thereon. All such money and property, all investments made therewith
and proceeds thereof and all earnings and profit thereon, less the payments or
other distributions which, at the time of reference, shall have been made by the
Trustee, as authorized herein, and referred to herein as the "Master Fund", or
the "Fund," and shall be held by the Trustee, in trust, and dealt with in
accordance with the provision of the Agreement.
1.02 When the assets of each Separate Trust are transferred to the
Trustee, the Separate Trusts shall cease to exist as separate trusts and shall
be considered to continue hereafter as a single trust hereunder.
<PAGE>
ARTICLE TWO
2.01 Each of the Separate Plans shall be a Participating Plan hereunder.
2.02 Any other Plan may be funded in whole or in part through the Master
Trust and become a Participating Plan thereby only if all of the following
conditions have been met:
a. The Company, or a Corporation has established the Plan;
b. The Plan is qualified under Section 401 (a) of the Internal
Revenue Code of 1986, as amended;
c. The Master Trust is exempt from taxation under Section 501 (a) of
the Internal Revenue Code of 1986, as amended;
d. The Master Trust (as then in effect and as the same may be amended
from time to time) has been duly adopted as a trust under the Plan and
in the case of a Corporation, the Company has consented thereto;
e. The Master Trust is maintained at all times as a domestic trust in
the United States; and
f. The Company is duly authorized under the Plan to exercise on
behalf of such Plan all of the authority vested in it by the terms of
this Master Trust.
2.03 When the Master Trust is adopted as a trust under the Plan of any
Corporation, such Corporation shall be bound by the decisions, instructions,
actions and directions of the Company under this Agreement and the Trustee shall
be fully protected by the Company and such Corporation in relying upon such
decisions, instructions, actions and directions of the Company. The Trustee
shall not be required to give notice to or obtain the consent of any such
Corporation with respect to any action which is taken by the Trustee pursuant to
this Agreement, and the Company shall have the sole authority to enforce this
Agreement on behalf of any such Corporation.
2.04 Responsibility for the management and control of the assets of Plans
utilizing the Master Trust as a funding medium (including the power to acquire
or dispose of such assets) may be vested at the discretion of the Company in the
Trustee and/or in one or more Investment Managers appointed by the Company.
That portion of the fund for which the Trustee shall have such responsibility is
hereinafter referred to as the "Discretionary Fund." Any portion of the Master
Fund over which an Investment Manager shall have such responsibility is
hereinafter referred to as a "Directed Fund." Allocation of assets of the Fund
between or among any Discretionary or Directed Funds shall be determined by the
Company. Further, the Company, being a named fiduciary for this purpose,
reserves the right to itself to direct the Trustee respecting the management and
control of certain assets of specified Plans (including the power to acquire or
dispose of such assets) and such portion of the Master Fund over which the
Company shall have such responsibility is hereinafter referred to as the
"Company Directed Fund." The Company may direct the Trustee to hold all or any
part of the assets from time to time constituting the Company Directed Fund
separate and apart from the assets of the Master Fund. For efficiency or
convenience of investment or administration, the Master Fund or the
Discretionary, Directed or Company Directed Fund may be divided into such one or
more sub-funds as the Company or the Trustee may deem advisable.
For the purpose of this Agreement, "Investment Manager" shall mean an
investment adviser registered under the Investment Advisers Act of 1940, a bank
(other than the Trustee) as defined in the Act, or an insurance company
qualified to perform investment management services under the laws of more than
one State, which shall have acknowledged in writing to the Company that it is a
fiduciary with respect to all Participating Plans, and which shall have the
power to manage, acquire and dispose of Plan assets.
2.05 The Trustee shall maintain a separate account reflecting the
equitable share in the Master Fund of each Participating Plan. The equitable
shares in the Master Fund of the respective present Participating Plans as of
November 1, 1997 shall be proportionate to the fair market values of the assets
allocable to such Plans under the Separate Trusts, as certified by the Company
to the Trustee. Thereafter, for the purpose of determining the equitable shares
of Participating Plans, the Trustee shall determine the value of the assets of
the Master Fund as of the last day of each month and as of such other dates as
the Trustee may deem appropriate or the Company may direct. In addition, for
the convenience of the company, the Company may request the Trustee to include
in such account assets which do not constitute part of the Master Fund or are
held by the Trustee in a segregated Company Directed Fund, for the purposes of
determining the value of all of the assets of such Participating Plans. Assets
shall be valued attheir market values at the close of business on the date of
<PAGE>
valuation, or, in the absence of readily ascertainable market values, at such
values as the Trustee shall determine in accordance with methods consistently
followed and uniformly applied. Anything herein to the contrary
notwithstanding, with respect to assets constituting part of a Directed Fund
hereunder or in the event that assets which do not constitute part of the Master
Fund or which are held by the Trustee in a segregated Company Directed Fund are
included in such valuation or account at the request of the Company, the Trustee
may rely for all purposes of this Agreement, including for the purpose of
determining the value of such assets as of any monthly or other valuation date,
on any certified appraisal or other form of valuation submitted to it by the
Investment Manager, the Company, or by the person or persons controlling such
assets.
2.06 Except as provided in Section 3.01 (c), the Trustee shall not be
required to maintain any separate records or accounts with respect to any
participant in (or beneficiary of) any Participating Plan which is of the
defined benefit type, and any such records or accounts required to be maintained
pursuant to the terms of any such Plan shall be maintained by the Company or by
the appropriate committee, entity or person(s) directly charged with such
responsibility under the individual Participating Plan.
2.07 By entering into this Agreement, the Trustee does not assume any
responsibility or undertake any duty to enforce payment of any contribution to
any Participating Plan, any responsibility for the adequacy of the Fund or the
funding standards adopted by the sponsor of any Participating Plan to meet or
discharge any pension or other liabilities under such Plan, or (except as
otherwise required by law) any responsibility under the terms of this Agreement
for the management or control of any Directed Funds or Company Directed Funds.
No duties or obligations shall be imposed upon the Trustee unless they have been
specifically undertaken by the express terms of this Agreement.
2.08 Except as may otherwise be permitted by law, at no time prior to the
satisfaction of all liabilities with respect to participants and their
beneficiaries under any Participating Plan shall any part of the equitable share
of such Participating Plan in the Master Fund be used for, or diverted to, any
purposes other than for the exclusive benefit of such participants and their
beneficiaries, and for defraying reasonable expenses of administering such
Plans.
ARTICLE THREE
3.01 The Trustee shall:
a. hold, invest and reinvest the Discretionary Fund as provided in
Article Four in accordance with the powers and discretion contained in or
referred to in Article Seven;
b. settle purchases and sales for any Directed Fund upon the
instructions of the Investment Manager as provided in Article Five or in the
case of a Company Directed Fund, upon the instructions of the Company;
c. pay moneys on the order of the Company, including when the
Company shall so order, payments directly to or for the benefit of the
participants and their beneficiaries, or to an insurance company to provide, by
the purchase of an annuity contract, or otherwise, for the payment of benefits
and the Trustee shall keep records of any and all such payments so directed
and provide such tax advices or governmental forms and reports as shall from
time to time be agreed upon between the Company and the Trustee; and
d. transfer any portion of the Master Fund on the order of the
Company to any insurance company or other trustee to provide an alternative or
additional funding medium or investment vehicle for the management and/or
control of Participating Plan assets.
3.02 Any orders pursuant to subparagraphs (c) and (d) of Section 3.01 may,
but need not specify the application to be made of moneys so ordered, and the
Trustee may charge such distribution against any portion of the Master Fund, as
the Company may direct. The Trustee may assume that any such orders are not
contrary to any applicable law. The Trustee shall not be responsible in any way
respecting the determination, computation, payment or application of any benefit
or payment which it is ordered to make, or for the form, terms or issuer of any
insurance contract which it is directed to purchase with assets of the Fund
(whether or not such contract is purchased to provide primarily for the payment
of benefits under any Participating Plan or primary as an investment vehicle or
funding medium), for performing any functions under any insurance contract which
it may be directed to purchase and hold as Contract Holder thereunder (other
than the execution of any documents incidental thereto on the instruction of
the Company), or for the terms of any trust agreement under which any trustee
to which it shall deliver any assets of the Fund on the order of the Company is
acting, or for any other matter affecting the administration of a Plan by the
Company, or any other person or persons to whom responsibility for Plan
administration is allocated or delegated pursuant to the terms of a
Participating Plan.
<PAGE>
3.03 Any power or duty of the Company hereunder shall be exercised by the
Board of Directors of the Company or by such other person or persons as are
authorized to exercise such powers or duties as certified by the Company in
writing to the Trustee. The Trustee shall be entitled to rely upon any such
certification by the Company. The Trustee shall be fully protected in
continuing to rely on such certification until a subsequent certification is
filed with the Trustee.
ARTICLE FOUR
4.01 The Trustee shall invest and reinvest the Discretionary Fund as a
single fund without distinction between principal and income in such investments
and at such time or times and in such shares and proportions as it, in its
absolute discretion, shall deem advisable; except that, the Trustee is
authorized to hold in the Discretionary Fund uninvested cash awaiting investment
and such additional cash balances as it shall deem reasonable or necessary to
meet anticipated distributions from or administrative costs of any Participating
Plan or the Fund, without incurring any liability for the payment of interest on
such cash, notwithstanding that the Trustee or an affiliate thereof may accrue
interest on such cash balances.
The Trustee shall discharge the foregoing powers and discretion in
accordance with the funding policy and guidelines established by the Company
from time to time and communicated in writing to the Trustee. The Trustee shall
have no responsibility with respect to the formulation of any funding,
investment or diversification policy embodied in any such direction.
If the Company has exercised its discretion to vest responsibility for the
management and control of any portion of the Master Fund in one or more
Investment Managers or in itself as to a Company Directed Fund, or if the Master
Fund is not the only funding medium under a Participating Plan, any trustee
(including the Trustee), Investment Manager or other person in whom fiduciary
responsibility is vested for the management and control of any Plan assets shall
exercise its fiduciary responsibilities with respect to such Plan assets,
including without limitation any responsibility of diversification imposed by
Section 404 (a) (1) (C) of the Employee Retirement Income Security Act of 1974
("ERISA"), as if the assets allocated to it constituted the entirety of the Plan
assets. The Company or some other fiduciary named by it shall be responsible
for the overall diversification of the entire Master Fund.
4.02 The Trustee may in its discretion invest and reinvest in either (i)
any fund created and administered by it, as the trustee thereof, for the
collective investment of the assets of employee benefit trusts or otherwise, as
long as such collective investment fund is a qualified trust under the
applicable provisions of the Internal Revenue Code (and while any portion of the
Fund is so invested such collective investment fund shall constitute part of the
Participating Plans, and the instrument creating such fund shall constitute part
of this Master Trust Agreement) or (ii) the shares of any mutual fund including
any such fund from which the Trustee or any affiliate thereof receives an
investment management fee or any other fee.
ARTICLE FIVE
5.01 The investment and reinvestment of any Directed Fund established
under this Agreement shall be under the exclusive management and control of the
Investment Manager appointed by the Company. The Trustee shall not be a party
to any agreement with the Investment Manager, and the terms and conditions of
appointment, authority and retention of the Investment Manager shall be the sole
responsibility of the Company.
The Company shall certify in writing to the Trustee:
a. that it has appointed an Investment Manager with respect to each
Participating Plan; and
b. the assets of the fund to be allocated to the Directed Fund which
such Investment Manager shall have responsibility.
The Company shall also furnish to the Trustee a certification by such
Investment Manager that it is an "Investment Manager" as such term is defined in
Section 2.04 of this Agreement.
The Investment Manager shall furnish the Trustee from time to time with the
names and signatures of those persons authorized to direct the Trustee on its
behalf hereunder. The Trustee shall be fully protected in continuing on its
behalf hereunder. The Trustee shall be fully protected in continuing to rely on
the certification provided by an Investment Manager as to such authorized
<PAGE>
persons until a subsequent certification is filed with the Trustee. The Trustee
shall have the right to request that all directions by an Investment Manager
pursuant to this Agreement be in writing and shall assume no liability hereunder
for failure to act pursuant to such directions unless and until it shall receive
directions in a form satisfactory to it.
5.02 All transactions in or from a Directed Fund related to the
acquisition or disposal of assets, as well as all purchases and sales of assets,
shall be made upon such terms and conditions and from or through such principals
and agents, as the Investment Manager shall direct. No directed transactions
shall be executed through the facilities of the Trustee except in those
instances where the Trustee shall make available its facilities solely for the
purposes of temporary investment of cash reserves of a Directed Fund. (However,
nothing herein shall confer any authority or obligation upon the Trustee to
invest or reinvest the cash balances of any Directed Fund unless and until it
receives directions from the Investment Manager.)
5.03 Supervision of the Investment Manager shall be the exclusive
responsibility of the Company. Therefore, the Trustee shall have no duty to
review any direction or any securities or other property held in any Directed
Fund or to make suggestions to the Investment Manager or the Company with
respect to the exercise or non-exercise of any power by the Investment Manager.
The Trustee shall be fully protected in acting or omitting to act in accordance
with or in the absence of the written directions of the Investment Manager or of
the Company respecting any Company Directed Fund and shall be under no liability
for any loss of any kind which may result by reason of any action taken or
omitted by it in good faith in accordance with any such direction or by reason
of inaction in the absence of such written directions.
5.04 The Trustee shall not be deemed to have any responsibility to manage
and control any asset held in a Directed Fund or Company Directed Fund upon the
resignation or removal of an Investment Manager or withdrawal by the Company of
its control as to a Company Directed Fund unless and until it has been notified
in writing by the Company of its withdrawals of control as to a Company Directed
Fund or that the Investment Manager's authority has terminated and that such
Directed Fund or Company Directed Fund assets are to be integrated with the
Discretionary Fund. Such notice shall not be deemed effective until a
reasonable period after it has been received by the Trustee. In the event that
the assets of a Directed Fund or Company Directed Fund shall
become integrated at any time with the Discretionary Fund, the Trustee shall not
be liable for any losses to the Master Retirement Fund resulting from the
disposition of any investment made by an Investment Manager or the Company or
for the holding for any illiquid or unmarketable securities or the holding of
any other asset acquired by the Investment Manager or the Company if the Trustee
is unable to dispose of such investments because of any Securities Laws
restrictions or if any orderly liquidation of such investment is impractical
under prevailing conditions, or for failure to comply with any investment or
diversification limitations imposed by the Company pursuant to the power
reserved to it under Section 4.01 or for any other violation of the terms of
this Agreement, the Participating Plans or applicable law or laws as a result of
the addition of Directed Fund or Company Directed Fund assets to the
Discretionary Fund.
5.05 The Trustee shall not be liable for the acts or omissions of any
Investment Manager constituting a breach of the Investment Manager's duties
unless it shall have been judicially determined that the Trustee knowingly
participated in, or knowingly undertook to conceal, such act or omission,
knowing such act or omission constituted a breach of the Investment Manager's
duties hereunder.
ARTICLE SIX
6.01 Without in any way limiting the powers and discretions conferred upon
the Investment Manager by the other provisions of this Agreement or by law, any
Investment Manager appointed hereunder shall have the following powers and
discretions with respect to the Directed Fund subject to its management and
control, and, upon the directions of such Investment Manager, the Trustee shall
make, execute, acknowledge and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out such powers and discretions:
a. to sell, exchange, convey, transfer or otherwise dispose of any
property constituting the Directed Fund by privatecontract or at public auction,
and no person dealing with the Investment Managers or the Trustee shall be bound
to see to the application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
b. to enter into contract or to make commitments either alone or in
concert with others to sell at any future date any property acquired for the
Directed Fund or to purchase at any future date any property which it may be
authorized to acquire under this Agreement;
c. to purchase part interests in real property or in mortgages on
real property, wherever such real property may be situated;
<PAGE>
d. to lease to others for any term without regard to the duration of
this Trust any real property or part interest in real property held in the
Directed Fund;
e. to delegate to a manager or the holder or holders of a majority
interest in any real property or mortgage on real property at any time
constituting a part of the Directed fund, the management and operation of any
part interest in such real property or mortgage and the authority to sell such
real property or mortgage or otherwise carry out the decisions of such manager
or holder or holders of such majority interest;
f. to vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without power or
substitution rights or other options and to make any payments incidental
thereto; to consent to or otherwise participate in corporate reorganizations or
other changes affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection therewith; and
generally to exercise any of the powers of an owner with respect to stock,
bonds, securities or other property held in the Directed Fund.
g. to convert, redeem, exchange for other securities or other
property any securities or property held by it, or to write covered call options
against securities held by it or other forms of options directly related to any
such call options outstanding; and
h. to invest, in the case of any Investment Manager which is a bank
or trust company, through the medium of any fund created and administered by
such Investment Manager for the collective investment of the assets of employee
benefit trusts or otherwise, or in the case of any Investment Manager, to invest
through the medium of any similar collective investment fund created and
administered by the Trustee hereof which serves as a vehicle for the temporary
investment of reserves of participating trusts, so long as in either case such
collective investment fund is a qualified trust under the applicable provisions
of the Internal Revenue Code (and while any portion of the assets of the
Participating Plans is so invested, such collective investment fund shall
constitute part of the Separate Plans, and the instrument creating such fund
shall constitute part of this Master Trust).
6.02 In the event that any investment is made by an Investment Manager in
real property, then the Trustee shall have the right to request as a condition
precedent to its executing any documents or paying over any trust assets in
connection with such transactions, that it received a certified appraisal that
the property has a value at least equal to the transaction price and that the
property is in the form and condition described in such documents, and, further,
that it receive an opinion of counsel (who may be counsel to the Investment
Manager) that such documents are in proper form for execution by the Trustee,
that such deed or document has been or will be properly recorded under all
applicable Recording Acts, and that appropriate policies adequately insuring the
trust against loss for any reason (including a defect in title) have been
procured in the name of the Trustee. In addition, the Investment Manager shall
provide the Trustee, upon request, with the current appraisals of such property
which shall be relied upon by the Trustee for all valuation and accounting
purposes under this Agreement.
6.03 The Company, as to any Company Directed Fund, shall be vested with
all of the powers and discretion vested in an Investment Manager by Section 6.01
and, in addition, may specifically direct the acquisition, holding or sale of
employer securities or employer real property which are "qualifying" within the
meaning of the subject to all the limitations of ERISA, except that employer
securities or employer real property may be held to the extent permitted under
Section 414 (c) (2) or any other transitional rule or applicable exemption under
ERISA.
ARTICLE SEVEN
7.01 The Trustee, with respect to the Discretionary Fund, shall be
vested with all of the powers and discretions vested in the Investment Manager
by Section 6.01.
7.02 In addition, the Trustee is hereby authorized respecting the
Master Fund in its discretion:
a. to register any securities held in the Fund in its own name or in
the name of a nominee and to hold any investment in bearer form, and to
combine certificates representing such investments with certificates of the
same issue held by the Trustee in other fiduciary capacities or to deposit or
to arrange for the deposit of such securities in any qualified central
depository or clearing corporation even though, when so deposited, such
securities may be merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by any other person, or
to deposit or arrange for the deposit of any securities issued by the United
<PAGE>
States Government, or an agency or instrumentality thereof, with a federal
reserve bank, but the books and records of the Trustee shall at the times
show that all such investments are part of the Master Fund;
b. to employ suitable agents, depositories and counsel, domestic or
foreign, and to charge their reasonable expenses and compensation against
the fund;
c. to borrow money, with or without payment of interest, from any
source as may be necessary or advisable to effectuate the purpose of the
Master Fund on such terms and conditions as the Trustee, in its absolute
discretion, may deem advisable;
d. to deposit any funds of the trust in interest bearing account
deposits maintained by or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institution affiliated
with the Trustee;
e. to compromise or otherwise adjust all claims in favor of or against
the Fund subject to Company approval;
f. to organize corporations under the laws of any state for the
purpose of acquiring or holding title to any property for the fund or to
request the Company to appoint another trustee for such purpose;
g. to make any distribution or transfer of the Discretionary Fund
assets in cash or inkind as the Trustee and, in furtherance thereof, to value
such assets, which valuation shall be subject to the approval of the Company.
ARTICLE EIGHT
8.01 The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions hereunder for the
Master Fund (including any Directed Fund or Company Directed Fund) and all
accounts, books and records relating thereto shall be open to inspection and
audit at all reasonable times by any persons designated by the Company.
In addition, within ninety (90) days following the close of each fiscal
year, and within ninety (90) days after the removal or resignation of the
Trustee, the Trustee shall file with the Company a written accounting setting
forth all receipts and disbursements of the Fund and all investments and
other transactions effected by it upon its own authority or pursuant to the
directions of any Investment Manager or the Company as herein provided during
such fiscal year or during the period from the close of the last fiscal year
to the date of such removal or resignation. Within sixty (60) days from the
date of filing such annual or other account, the Trustee, if requested by the
Company, will also serve copies of such account upon any persons designated
by the Company as having administrative responsibility with respect to any
Participating Plan. Upon the expiration of two hundred ten (210) days from
the date of filing such account, the Trustee shall be forever released and
discharged from all liability and accountability to the Company or any person
upon whom the Trustee has served a copy of the account with respect to the
accuracy of such accounting, except with aspect to any such acts or
transactions as to which the Company or any person upon whom the account has
been served shall within such two hundred ten (210) day period file with the
Trustee specific written objections.
To the extent, if any, that the Trustee shall be required to value the
assets of any Directed Fund or Company Directed Fund for any purpose,
including any accounting as provided in this section 8.01, the Trustee may
rely for all purposes of this Agreement on any certified appraisal or other
form of valuation submitted to it by the party responsible for the management
and control of such Fund.
8.02 Except to the extent that Sections 502 and 504 of ERISA, as the
same may be amended from time to time, may provide otherwise, in order to
protect the Master Trust from the expenses which might otherwise be incurred,
no one other than the Company may require the Trustee to account or may
institute an action or preceding against the Trustee or the Fund. However,
nothing herein shall in any way limit the Trustee's right to bring any action
or proceeding to settle its account or for such other relief as it may deem
appropriate.
8.03 The Trustee may from time to time consult with counsel, who may
be counsel to the Company, with respect to any questions arising as to the
construction of this Agreement or any action to be taken hereunder and the
Trustee shall be fully protected, to the extent permitted by law, in acting
in good faith upon the advice of counsel.
<PAGE>
ARTICLE NINE
9.01 Any expenses incurred by the Trustee in connection with its
administration of this Trust, including fees for legal services rendered to
the Trustee, provided the Trustee gives written notice served to the Company
prior to the retaining of such legal service, (whether or not rendered in
connection with a judicial or administrative proceeding and whether or not
incurred while it is acting as Trustee), such compensation to the Trustee as
may be agreed upon from time to time between the Trustee and the Company, and
all other proper charges and disbursements of the Trustee, shall be paid from
the Master Fund unless paid by the Company. The Company shall reimburse the
Trustee for any such expenses if for any reason such expenses cannot be paid
out of the Fund. The Company may direct the Trustee to pay from the Master
Fund the fees of any Investment Manager appointed pursuant to Section 5.01
and other proper administration expenses of any Participating Plan, including
but not limited to actuarial fees. All taxes of any and all kinds whatsoever
that may be levied or assessed under existing or future laws upon the Master
Fund or the income thereof shall be paid from the Master Fund. Any amount
paid from the Master Fund which is specifically allocable to a particular
Participating Plan or Plans shall be charged against the equitable shares of
such Participating Plan or Plans; any amount paid from the Fund which is
allocable to all of the Participating Plans shall be charged against the
Fund as a whole.
ARTICLE TEN
10.01 Subject to the provisions of Section 3.03, whenever the
provisions of this Agreement require or permit any action to be taken by the
Company or any Corporation, such action may be taken by the Board of Directors
of the entity taking the same or by any person authorized to act on behalf of
such entity by such Board of Directors. Any resolution adopted by the Board
of Directors of any corporation shall be certified to the Trustee by the
Secretary or an Assistant Secretary of such Corporation under its corporate
seal, and the Trustee may rely upon any resolution so certified until revoked
or modified by a further resolution similarly certified to the Trustee.
10.02 The Company shall furnish the Trustee from time to time with
a certificate of its Secretary or an Assistant Secretary as to the names and
signatures of all persons authorized to issue orders, requests, instructions
and objections to the Trustee pursuant to the provisions of this Agreement.
10.03 All orders, requests, instructions and objections of any of the
persons authorized to act in accordance with the provisions of this Agreement
may be required by the Trustee, to the extent practical, to be in writing,
but the Trustee shall be fully protected in acting in accordance with either
such written instructions or oral instructions received by the Trustee in
good faith.
10.04 The Trustee shall have the right to assume in the absence of
written notice to the contrary, that no event constituting a change in the
authority of any person or terminating any Investment Manager's authority has
occurred.
ARTICLE ELEVEN
11.01 If Marshall & llsley Trust Company is at any time acting as a
successor Trustee or succeeds to responsibilities hereunder for management of
plan assets with respect to the Fund (or any portion thereof), the Company
hereby agrees to hold Marshall & Ilsley Trust Company harmless from and
against all taxes, expenses (including counsel fees), liabilities, claims,
damages, actions, suits or other charges incurred by or assessed against it
as successor Trustee, as a direct or indirect result of any act or omission
of a predecessor trustee or any other person who, prior to Marshall & Ilsley
Trust Company's acceptance as Trustee, was charged under any agreement
affecting Fund assets for investment responsibility with respect to such
assets.
ARTICLE TWELVE
12.01 Upon receipt of notice from the Company of the termination, the
disqualification under Section 401 (a) of the Code, or the withdrawal from
this Master Trust, of any Participating Plan or any part thereof, the Trustee
shall withdraw and segregate the share of the assets of the Fund allocable to
such Participating Plan or part thereof and shall either dispose of such
segregated share in accordance with the directions of the Company or continue
to hold such segregated share, in trust, as a separate trust governed by the
same provisions as this Agreement, except that if such segregated share is
equal to an entire Participating Plan in the Fund, the entity or successor
thereto which had established such Participating Plan shall thereafter be
deemed to be "the Company" for all purposes of the Agreement. If such
segregated share is less than the entire equitable share of a Participating
Plan in the Fund, the Company shall certify to the Trustee, that portion of
the equitable share of such Participating Plan attributable to the
participants and their beneficiaries on whose account such assets are to be
segregated.
<PAGE>
12.02 The Company reserves the right at any time and from time to time
to terminate or to amend, in whole or in part, any or all of the provisions
of this Agreement by notice thereof in writing delivered to the Trustee;
provided that, no such amendment which affects the rights, duties or
responsibilities of the Trustee may be made without its consent, and provided
further that, except as may be otherwise allowed under Section 403(c) of ERISA
(it being the Company's intent that all contributions by it or any Corporation
to any Participating Plan be conditioned as allowed in said Section), no
instrument of termination or amendment shall authorize or permit, at any time
prior to the satisfaction of all liabilities with respect to the participants
and their beneficiaries under the Plans, any part of the corpus or income of
the Fund to be used for or diverted to purposes other than for the exclusive
benefit of such participants and their beneficiaries.
12.03 In the event of the termination of the Trust as above provided
(or of all the Participating Plans), the Trustee shall continue to administer
the Fund as hereinabove provided until all of the purposes for which it has
been established have been accomplished or dispose of the Fund after the
payment or other provision of all expenses incurred in the administration and
termination of the Trust (including any compensation to which the Trustee may
be entitled), all in accordance with the written order of the Company or any
successor thereto. Until the final distribution of such Fund, the Trustee
shall continue to have and may exercise all of the powers and discretions
conferred upon it by this Agreement.
12.04 The Trustee may be removed by the Company at any time upon
thirty (30) days notice in writing to the Trustee. The Trustee may resign at
any time upon thirty (30) days' notice in writing to the Company. Upon such
removal or resignation of the Trustee, the Company shall appoint a successor
trustee and, upon acceptance of such appointment by the successor trustee,
the Trustee shall assign, transfer and pay over to such successor trustee the
Fund, as then constituted, upon the directions of the Company. The Trustee is
authorized, however, to reserve such amount as to it may seem advisable for
payments of its fees and expenses in connection with the settlement of its
account or otherwise, and any balance of such reserve remaining after the
payment of such fees and expenses shall be paid over to the successor trustee
or alternative funding medium, as the case may be. Notwithstanding any
provision of the Plans or this Agreement to the contrary, the Trustee is
hereby authorized to invest and reinvest such reserves in any investment or
investment vehicle (including any collective investment fund described in
Section 4.02) appropriate for the temporary investment of each cash reserves
of trusts.
If for any reason the Company cannot or does not act in the event of the
resignation or removal of the Trustee, as hereinabove provided, the Trustee
may apply to a court of competent jurisdiction for the appointment of a
successor Trustee or for instructions. Any expenses incurred by the Trustee
in connection therewith shall be paid from the Fund as an expense of
administration.
12.05 Anything hereinabove to the contrary notwithstanding, the Trustee
may condition its delivery, transfer or distribution or any asset under this
Article upon the Trustee s receiving assurance satisfactory to it that the
approval of appropriate governmental or other authorities has been secured
and that all notices and other procedures required by applicable law have
been accomplished.
ARTICLE THIRTEEN
13.01 To the extent that State Law shall not have been preempted by the
provisions of ERISA or any other laws of the United States heretofore or
hereafter enacted, as the same may be amended from time to time, this
Agreement shall be administered, construed and enforced according to the laws
of the State of Wisconsin.
ARTICLE FOURTEEN
14.01 The Company shall provide the Trustee with copies of all
documents constituting the Participating Plans at the time this Agreement is
executed by the Company or adopted under any other plan, as provided in
Article Two, and all other documents amending or supplementing the
Participating Plan promptly upon their adoption. The Trustee shall be
entitled to rely upon the Company s attention to this obligation and shall be
under no duty to inquire of the Company as to the existence of any documents
not provided by the Company hereunder.
ARTICLE FIFTEEN
15.01 Pursuant to a resolution by its Board of Directors and in
consideration of the Trustee s agreeing to enter into this Agreement, the
Company hereby agrees to hold harmless Marshall & Ilsley Trust Company,
individually and as Trustee under this Agreement, and Marshall & Ilsley Trust
Company directors, officers, and employees from and against all amounts
including without limitation, taxes, expenses (including reasonable counsel
fees), liabilities, claims, damages, actions, suits or other charges, incurred
by or assessed against Marshall & Ilsley Trust Company, individually or as
Trustee, or its directors, officers, or employees, (i) as a direct or indirect
result of anything done in good faith, or alleged to have been done, by or
on behalf of Marshall & Ilsley Trust Company in reliance upon the directions
of the company, any Investment Manager appointed by the Company, or any
<PAGE>
person or committee authorized to act on behalf of the Company or to appoint
such Investment Manager under any Participating Plan, or anything omitted
to be done in good faith, or alleged to have been omitted, in the absence of
such directions, or (ii) as a direct or indirect result of the failure of the
Company or such person or a committee, as a co-fiduciary under said Plans,
directly or through its agents, to adequately, carefully and diligently
discharge its responsibilities with respect to the selection, supervision
and /or retention of any Investment Manager.
15.02 The Company further agrees that the undertakings made in this
Article of this Agreement shall binding on its successors or assigns and
shall survive termination, amendment or restatement of this Agreement or the
resignation or removal of the Trustee, and that this Article shall be
construed as a contract between the Company and the Trustee according to
the laws of the State of Wisconsin in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officer-s and their corporate seals
to be affixed as of the date first above set forth.
REGAL-BELOIT CORPORATION
Kenneth F. Kaplan
-----------------------
BY: Kenneth F. Kaplan
TITLE: VP, CFO & Secretary
Fritz Hollenbach
----------------------
ATTEST: Fritz Hollenbach
TITLE: VP Human Resources
MARSHALL & ILSLEY TRUST COMPANY
William F. Grow
---------------------
BY: William F. Grow
TITLE: Vice President
<PAGE>
APPENDIX A
1. Regal-Beloit Corporation Profit Sharing Trust
2. Regal-Beloit Corporation Personal Savings Trust
3. Marathon Electric Salaried Employees 401(k) Savings Plan
4. Marathon Electric Hourly 401(k) Savings Plan
5. Regal-Beloit Corporation Savings & Protection Plan
Exhibit 23.1
Consent of Wipfli Ullrich Bertelson LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Marathon Electric Hourly 401(k) Savings Plan
of our report dated August 28, 1997, with respect to the financial
statements and schedules of the Plan included in the Annual Report for the
year ended December 31, 1996.
Wipfli Ullrich Bertelson LLP
----------------------------
Wipfli Ullrich Bertelson LLP
March 27, 1998
Wausau, Wisconsin
<PAGE>
Exhibit 24.1
Powers of Attorney
Signature Page of This Registration
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 Beloit, State of Wisconsin, on
this 27th day of March, 1998.
REGAL-BELOIT CORPORATION
REGISTRANT
JAMES L. PACKARD
-------------------
By: JAMES L. PACKARD
Chairman, President and Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints
James L. Packard and Kenneth F. Kaplan, and each of them, as his or her
true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and
perform each act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his
or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
JAMES L. PACKARD
----------------------- Chairman, President and March 27, 1998
James L. Packard Chief Executive Officer
KENNETH F. KAPLAN
----------------------- Secretary, Vice President March 27, 1998
Kenneth F. Kaplan and Chief Financial Officer
HENRY W. KNUEPPEL
----------------------- Executive Vice President March 27, 1998
Henry W. Knueppel Director
FRANK E. BAUCHIERO
-----------------------
Frank E. Bauchiero Director March 27, 1998
J. REED COLEMAN
-----------------------
J. Reed Coleman Director March 27, 1998
<PAGE>
JOHN M. ELDRED
-----------------------
John M. Eldred Director March 27, 1998
STEPHEN N. GRAFF
-----------------------
Stephen N. Graff Director March 27, 1998
G. FREDERICK KASTEN JR.
-----------------------
G. Frederick Kasten, Jr. Director March 27, 1998
WILLIAM W. KEEFER
----------------------
William W. Keefer Director March 27, 1998
JOHN A. MCKAY
----------------------
John A. McKay Director March 27, 1998
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
--------
Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Beloit, State
of Wisconsin, on March 27, 1998.
REGAL-BELOIT CORPORATION
PLAN
By: JAMES L. PACKARD
-------------------
James L. Packard
Plan Sponsor
<PAGE>
Exhibit 24.2
Signatures
Marshall & Ilsley Trust Company
Pursuant to the requirements of the Securities Act of 1933, the
trustees have caused this registration to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Milwaukee, State of
Wisconsin, on this 27th date of March, 1998.
MARATHON ELECTRIC HOURLY 401(k)
SAVINGS PLAN
By: WILLIAM P. GROW
--------------------------------
William P. Grow, Vice President
Marshall & Ilsley Trust Company
Trustee
<PAGE>
Exhibit 99
Internal Revenue Service Determination Letter of Tax Qualified Status
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS TX 75242
Employer Identification Number:
39-0449780
Date: December 26, 1995 File Folder Number:
390006347
Person to Contact:
FRANK HIGGINS
MARATHON ELECTRIC MANUFACTURING Contact Telephone Number:
CORPORATION (312) 886-9587
100 E RANDOLPH STREET Plan Name:
WAUSAU WI 54401-2568 HOURLY 401K SAVINGS PLAN
Plan Number: 007
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations). We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides
information on the reporting requirements for your plan. It also
describes some events that automatically nullify it. It is very important
that you read the publication.
This letter relates only tot he status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted on
December 23, 1994.
This determination letter is applicable for the plan adopted on
February 28, 1992.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 excepts as otherwise specified in
this letter.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
Bobby E. Scott
---------------
Bobby E. Scott
District Director
