<PAGE> 1
Subject to Completion August , 1995
Registration No. 33-
================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ROBBINS & MYERS, INC.
(Exact name of registrant as specified in its charter)
OHIO 31-0424220
----------------------- -----------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
ROBBINS & MYERS, INC.
1400 KETTERING TOWER
DAYTON, OHIO 45423
(513)222-2610
(Name, address, including zipcode, and telephone number, including area code,
of registrant's principal executive offices)
ROBBINS & MYERS, INC.
EMPLOYEE SAVINGS PLAN FOR SALARIED
EMPLOYEES OF CHEMINEER, EDLON AND PFAUDLER
(Full title of the Plan)
JOSEPH M. RIGOT
SECRETARY
THOMPSON, HINE & FLORY
2000 COURTHOUSE PLAZA, NORTHEAST
DAYTON, OHIO 45402
513-443-6586
(Name, address, including zipcode, and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
---------- ---------- -------- --------- ------------
<S> <C> <C> <C> <C>
Common Shares
without parvalue 35,000 $27.80 1 $973,000 1 $335.52
---------------------
<FN>
1 Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h), based
upon the average of the high and low sale prices of a
Common Share on August 10, 1995, as reported in the
National Market System.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference as of their respective dates of
filing:
(a) The Annual Report of Robbins & Myers, Inc. (the "Company") on Form
10-K for the year ended August 31, 1994, filed pursuant to Section 13 of the
Securities Exchange Act of 1934 ("Exchange Act");
(b) The Annual Report of the Robbins & Myers, Inc. Employee Savings
Plan for Salaried Employees of Chemineer, Edlon and Pfaudler (the "Plan") on
Form 11-K for the year ended December 31, 1994, filed pursuant to Section 15(d)
of the Exchange Act;
(c) The Quarterly Reports of the Company on Form 10-Q for the
quarters ended November 30, 1994, February 28, 1995, and May 31, 1995, filed
pursuant to Section 13 of the Exchange Act;
(d) All other reports filed by the Company pursuant to Section 13(A)
15(D) of the Exchange Act since May 31, 1995; and
(e) The description of the Company's Common Shares contained in the
Registration Statement filed pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all Common Shares
offered hereunder have been sold or which deregisters all Common Shares then
remaining unsold hereunder shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 2 of Article V of the Code of Regulations of the
Company sets forth certain rights of directors and officers of the Company to
indemnification. Such rights provide indemnification by the Company as
permitted by Ohio law. The liabilities against which a director and officer
may be indemnified and factors employed to determine whether a director and
officer is entitled to indemnification in a particular instance depend on
whether the
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proceedings in which the claim for indemnification arises were brought (a)
other than by and in the right of the Company ("Third Party Actions") or (b) by
and in the right of the Company ("Company Actions").
In Third Party Actions, the Company will indemnify each
director and officer against expenses, including attorneys' fees, judgments,
decrees, fines, penalties, and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened or actual
proceeding in which he may be involved by reason of his having acted in such
capacity, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company and with respect to
any matter the subject of a criminal proceeding, he had no reasonable cause to
believe that his conduct was unlawful.
In Company Actions, the Company will indemnify each director
and officer against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or settlement of any
such proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, except
that no indemnification is permitted with respect to (i) any matter as to which
such person has been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless a court determines such person is
entitled to indemnification and (ii) any liability asserted in connection with
unlawful loans, dividends, distribution, distribution of assets and repurchase
of Company shares under Section 1701.95 of the Ohio Revised Code.
Unless indemnification is ordered by a court, the determination
as to whether or not an individual has satisfied the applicable standards of
conduct (and therefore may be indemnified) is made by the Board of Directors of
the Company by a majority vote of a quorum consisting of directors of the
Company who were not parties to the action; or if such a quorum is not
obtainable, or if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or by the shareholders of the
corporation.
Section 2 of Article V of the Company's Code of Regulations
does not limit in any way other indemnification rights to which those seeking
indemnification may be entitled. The Company has entered into an
indemnification agreement with each director of the Company, the form of which
was approved by the Shareholders of the Company. A copy of such agreement was
filed as an exhibit to the Company's Annual Report on Form 10-K for the year
ended August 31, 1993.
The Company maintains insurance policies which presently
provide protection, within the maximum liability limits of the policies and
subject to a deductible amount for each claim, to the Company under its
indemnification obligations and to the directors and officers with respect to
certain matters which are not covered by the Company's indemnification
obligations.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
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Item 8. Exhibits.
---------
See index to Exhibits at Page 7.
Item 9. Undertakings.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this 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 or any material
change to such information in the registration statement;
provided, however that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise,
the registrant has been advised that in the
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opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(d) The registrant hereby undertakes that it will submit or has
submitted the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by
the IRS in order to qualify the plan.
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SIGNATURE
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dayton, Ohio, on this 16th day of August, 1995.
ROBBINS & MYERS, INC.
By /s/Daniel W. Duval
---------------------------------
Daniel W. Duval, President and
Chief Executive Officer
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>
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Name Title Date
---- ----- ----
--------------------------------------------------------------------------------
<S> <C>
/s/Daniel W. Duval Director, President and August 16, 1995
-------------------- Chief Executive Officer
Daniel W. Duval (Principal executive
officer)
/s/George M. Walker Vice President and August 16, 1995
-------------------- Chief Financial Officer
George M. Walker (Principal financial and
accounting officer)
--------------------------------------------------------------------------------
*Robert J. Kegerreis Director August 16, 1995
*Thomas P. Loftis Director August 16, 1995
*Maynard H. Murch, IV Director August 16, 1995
*William D. Manning, Jr. Director August 16, 1995
*John N. Taylor, Jr. Director August 16, 1995
*Jerome F. Tatar Director August 16, 1995
</TABLE>
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* The undersigned, by signing his name hereto, executes
this Registration Statement pursuant to powers of attorney executed by the
above-named persons and filed with the Securities and Exchange Commission as
exhibit to this Registration Statement.
/s/ Daniel W. Duval
---------------------------------------
Daniel W. Duval
Attorney-in-Fact
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Robbins & Myers, Inc. Employee Savings Plan For Salaried Employees of
Chemineer, Edlon and Pfaudler has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dayton, State of Ohio, on August 16, 1995.
/s/ George M. Walker
---------------------------------------
George M. Walker
Member, Corporate Benefits
Committee
Date: August 16, 1995
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INDEX TO EXHIBITS
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES:
(4.1) *Articles of Incorporation of Robbins &
Myers, Inc. (filed as Exhibit 3.1 to the
Company's Report on Form 10-Q for the
quarter ended February 28, 1995)
(4.2) *Code of Regulations of Robbins & Myers,
Inc. (filed as Exhibit 3.2 to the Company's
Report on Form 10-Q for the quarter ended
February 28, 1995)
(4.3) Robbins & Myers, Inc. Employee Savings
Plan for the Salaried Employee of Chemineer,
Edlon and Pfaulder
(5) OPINION RE LEGALITY:
(5.1) Opinion of Thompson, Hine and Flory
(23) CONSENTS OF COUNSEL AND EXPERTS:
(23.1) Consent of Ernst & Young
(23.2) Consent of Thompson, Hine and Flory
(contained in their opinion filed as Exhibit 5.1)
(24) Powers of Attorney:
(24.1) Powers of Attorney of each person
whose signature on this Registration
Statement was signed by another
pursuant to a power of attorney
__________________________________
* Indicates incorporation by reference from a document previously filed with
the Securities and Exchange Commission.
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EXHIBIT 4.3
ROBBINS & MYERS, INC.
---------------------
EMPLOYEE SAVINGS PLAN FOR
SALARIED EMPLOYEES OF
CHEMINEER, EDLON AND PFAUDLER
(Adopted Effective July 1, 1994)
<PAGE> 2
<TABLE>
ROBBINS & MYERS, INC.
---------------------
EMPLOYEE SAVINGS PLAN FOR
SALARIED EMPLOYEES OF
CHEMINEER, EDLON AND PFAUDLER
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C>
ARTICLE I - NAME, PURPOSE AND HISTORY OF PLAN . . . . . . . . . . . . . . . . . . 1
ARTICLE II - DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . . . . . . 1
Section 2.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Construction . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III - PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.01. Eligibility to Participate . . . . . . . . . . . . . . . . 6
Section 3.02. Election to Participate . . . . . . . . . . . . . . . . . . 7
ARTICLE IV - CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.01. Amount of Participant's Contributions . . . . . . . . . . . 7
Section 4.02. Limitations on Pre-Tax Contributions . . . . . . . . . . . 8
Section 4.03. Suspension of Contributions . . . . . . . . . . . . . . . . 9
Section 4.04. Payment of Basic Contributions to Trustee . . . . . . . . . 9
Section 4.05. Employer Matching Contributions . . . . . . . . . . . . . . 9
Section 4.06. Limitations on Contributions For
Nondiscrimination Testing Purposes . . . . . . . 10
Section 4.07. Maximum Annual Additions . . . . . . . . . . . . . . . . . 15
ARTICLE V - TRUST AGREEMENT; INVESTMENT FUNDS
AND PARTICIPANT INVESTMENT ELECTIONS . . . . . . . . . . . . . . . . 18
Section 5.01. Trust Agreement . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.02. Investment Funds . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Allocation and Reallocation of
Contributions Among Investment Funds . . . . . . 18
Section 5.04. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 19
Section 5.05. Exclusive Benefit and Funding Policy . . . . . . . . . . . 19
Section 5.06. Special Rules Relating to Certain
Participants Subject to Section 16(b) . . . . . 19
ARTICLE VI - PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.01. Establishment of Accounts . . . . . . . . . . . . . . . . . 20
Section 6.02. Crediting of Accounts . . . . . . . . . . . . . . . . . . . 20
Section 6.03. Valuation of Accounts . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII - VESTING; DISTRIBUTION OF ACCOUNTS . . . . . . . . . . . . . . . . . . 20
Section 7.01. Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.02. Distribution Upon Termination of
Employment . . . . . . . . . . . . . . . . . . . 20
Section 7.03. Designation of Beneficiary . . . . . . . . . . . . . . . . 21
</TABLE>
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<TABLE>
<S> <C>
Section 7.04. Manner and Timing of Distributions . . . . . . . . . . . . . . . . . 21
ARTICLE VIII - WITHDRAWALS AND LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.01. Withdrawal of Supplemental Contributions . . . . . . . . . . . . . . 22
Section 8.02. Withdrawal of After-Tax Contributions . . . . . . . . . . . . . . . . 23
Section 8.03. Withdrawals After Age 59-1/2 . . . . . . . . . . . . . . . . . . . . 23
Section 8.04. Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.05. Source of Funds for Withdrawals . . . . . . . . . . . . . . . . . . . 24
ARTICLE IX - ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 9.01. Designation of Fiduciaries . . . . . . . . . . . . . . . . . . . . . 25
Section 9.02. Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 9.03. Corporate Benefits Committee . . . . . . . . . . . . . . . . . . . . 25
Section 9.04. Action of Committee . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.05. Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.06. Employer Records . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.07. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.08. Discrimination Prohibited . . . . . . . . . . . . . . . . . . . . . 28
Section 9.09. Representation in Proceedings . . . . . . . . . . . . . . . . . . . 28
Section 9.10. Time of Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE X - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 10.01. Rights to Trust Assets . . . . . . . . . . . . . . . . . . . . . . . 29
Section 10.02. Non-Recommendation of Investment . . . . . . . . . . . . . . . . . . 30
Section 10.03. Non-Alienation . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.04. Facility of Payment . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.05. Unclaimed Benefits . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XI - TOP-HEAVY PLAN PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 11.01. Effect of Top-Heavy Status . . . . . . . . . . . . . . . . . . . . . 31
Section 11.02. Additional Definitions . . . . . . . . . . . . . . . . . . . . . . . 31
Section 11.03. Minimum Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 11.04. Maximum Benefit Limits . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XII - AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.01. General Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.02. Amendment of Vesting Schedule . . . . . . . . . . . . . . . . . . . 33
ARTICLE XIII - SUSPENSION, DISCONTINUANCE OR TERMINATION . . . . . . . . . . . . . . . . . . 34
Section 13.01. Termination or Partial Termination of
the Plan . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 13.02. Termination of the Trust . . . . . . . . . . . . . . . . . . . . . . 34
Section 13.03. Discontinuance of Employer Contributions . . . . . . . . . . . . . . 34
ARTICLE XIV - GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 14.01. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 14.02. Merger of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 14.03. Plan Not a Contract of Employment . . . . . . . . . . . . . . . . . 35
Section 14.04. Successors; Reorganizations . . . . . . . . . . . . . . . . . . . . 35
Section 14.05. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 14.06. Controlling Law . . . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
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<TABLE>
<S> <C>
Section 14.07. Construction . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 14.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 14.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 14.10. Treasury Qualification . . . . . . . . . . . . . . . . . . . 36
Section 14.11. Denial of Guaranty . . . . . . . . . . . . . . . . . . . . . 37
ADDENDUM A - IRS MODEL DIRECT ROLLOVER REVISIONS . . . . . . . . . . . . . . . . . . 38
ADDENDUM B - IRS MODEL SECTION 401(a)17 LIMITATION . . . . . . . . . . . . . . . . . 40
</TABLE>
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ROBBINS & MYERS. INC.
---------------------
EMPLOYEE SAVINGS PLAN FOR
SALARIED EMPLOYEES OF
CHEMINEER, EDLON AND PFAUDLER
ARTICLE I
NAME, PURPOSE AND HISTORY OF PLAN
---------------------------------
Robbins & Myers, Inc., an Ohio corporation (the "Company"), has
adopted the Robbins & Myers, Inc. Employee Savings Plan for Salaried Employees
of Chemineer, Edlon, and Pfaudler (the "Plan") effective July 1, 1994. The
Plan continues the Eagle Industries, Inc. Employee Savings Plan ("Eagle Plan")
as it was in effect June 30, 1994 and as it applied to employees of Chemineer,
Inc., Edlon Products, Inc. and The Pfaudler Companies, Inc. on that date. Its
purpose is to stimulate employee savings for financial security on a
tax-advantaged basis.
The Plan has been amended and restated to bring it into compliance
with the requirements of the Internal Revenue Code of 1986. The Company
intends that this Plan and the related Trust qualify under all applicable
provisions of the Internal Revenue Code of 1986, as amended ("Code"), and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and each
of the terms of this Plan and the Trust Agreement shall be so interpreted. This
Plan is intended to be a profit sharing plan with a qualified cash or deferred
arrangement meeting the requirement of Code sections 401(a) and 401(k).
ARTICLE II
DEFINITIONS AND CONSTRUCTION
----------------------------
SECTION 2.01. DEFINITIONS. For purposes of the Plan, unless the
content clearly or necessarily indicates otherwise, the following words and
phrases shall have the meaning set forth in the definitions below:
(a) "Account" shall mean the separate Account or Accounts to be
maintained under the Plan for each Participant as provided in Section 6.02.
(b) "Acquired Business" shall mean one or more plants, units or
other facilities acquired by the Company or any other Employer after the
Effective Date as a going concern.
(c) "Affiliate" shall mean each corporation or unincorporated
trade or business which is a member of either a controlled group of
corporations, a group of trades or businesses under common control, or an
affiliated service group within the meaning of Code sections 414(b), (c) or
(m), which includes the Company, or any other entity
<PAGE> 6
required to be aggregated with the Company pursuant to regulations under Code
section 414(o).
(d) "After-Tax Contributions" shall mean contributions by the
Participant pursuant to the Participant's authorization to make regular payroll
deductions from his Compensation pursuant to Section 4.01(b). The term shall
be deemed to include amounts contributed as "Qualified Deposits" under the
terms of the Plan in effect prior to January 1, 1985.
(e) "Basic Contributions" shall mean contributions made pursuant
to Section 4.01(a) or (b) and shall include both Pre-Tax Contributions and
After-Tax Contributions.
(f) "Beneficiary" shall mean the person or persons designated on
Timely Notice by a Participant to receive benefits in the event of the
Participant's death, as provided in Section 7.03.
(g) "Board" shall mean the Board of Directors of the Company.
(h) "Committee" shall mean the Corporate Benefits Committee
described in Section 9.01 hereof, which committee shall be the plan
administrator for purposes of ERISA.
(i) "Compensation" shall mean an Employee's total salary or wages
from an Employer before deductions, including annual base pay bonuses,
commissions and overtime and Pre-Tax Contributions hereunder and any other
salary reduction amount under Code section 401(k), but excluding deferred
compensation, contributions by an Employer to this or any other benefit plan,
and any other form of remuneration which is not "compensation" within the
meaning of Code section 415, all as determined in accordance with such rules,
regulations or standards as may be prescribed by the Committee. The maximum
annual compensation that may be taken into account hereunder for any
Participant shall be $150,000 or such greater amount as may be permitted
pursuant to Code section 401(a)(17). In determining the compensation of a
Participant for purposes of this limitation, the rules of Code section
414(q)(6) shall apply, except that, in applying such rules, the term "family"
shall include only the spouse of the Participant and any lineal descendants of
the Participant who have not attained age 19 before the close of the Plan Year.
(j) "Effective Date" means July 1, 1994.
(k) "Employee" shall mean any person who is in the employ of an
Employer during periods in which he meets the following conditions:
(i) he is employed by an Employer on its United States payroll;
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<PAGE> 7
(ii) he is not in a unit of employees covered by a collective
bargaining agreement, unless such collective bargaining
agreement specifically provides for the application of the
Plan to the employees in such unit; and
(iii) his employment is not in a group which has been excluded by
the Corporate Benefits Committee from participation in the
Plan.
The term shall not include persons employed by an Employer at an Acquired
Business unless and until the Corporate Benefits Committee designates the
persons so employed as Employees hereunder.
In addition, any leased employee (within the meaning of Code section
414(n)(2)) of the Employer performing services shall be treated as an Employee
of the Employer. However, contributions or benefits provided by the leasing
organization for any leased employee which are attributable to services
performed for the Employer shall be treated as provided by the Employer. The
preceding sentences shall not apply to any leased employee of the Employer if
(a) leased employees do not constitute more than 20 percent of the Employer's
nonhighly compensated workforce (as defined by reference to Code section
414(q)) and (b) the leased employee is covered by a money purchase pension plan
maintained by the leasing organization which provides (i) a nonintegrated
employer contribution rate for each participant of at least 10 percent of
compensation (ii) full and immediate vesting and (iii) immediate participation
for all employees of the leasing organization (except for those individuals
whose compensation is less than $1,000 in each Plan Year during the 4-year
period ending with the Plan Year). Notwithstanding any other provisions of the
Plan, for purposes of determining the number or identity of highly compensated
employees (within the meaning of Code section 414(q)), the employees of the
Employer shall include all individuals defined as Employees in this Section
2.01(m).
Notwithstanding the preceding paragraph, a leased employee shall be
deemed to be in a class of employees not eligible to participate in this Plan
unless such participation is required as a condition of the Plan's
qualification under Code section 401(a).
(l) "Employer" shall mean the Company and each other Affiliate which,
with the approval of the Corporate Benefits Committee, adopts this Plan by
appropriate corporate action.
(m) "Employer Contributions" shall mean amounts contributed under
the Plan by Employers as provided in Article IV. The term shall also be deemed
to include forfeitures applied to reduce the amount of an Employer's
contributions otherwise due hereunder.
(n) "Employment Commencement Date" shall mean the date on which an
Employee first performs an Hour of Service.
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<PAGE> 8
(o) "Highly Compensated Employee" shall mean an individual
described in Code section 414(q) and Section 4.06 of this Plan.
(p) "Hour of Service" shall mean:
(i) Each hour for which the Employee is paid or entitled
to payment, for the performance of duties for the
Company or an Affiliate, during the applicable
computation period. These hours shall be credited to
the Employee for the computation period in which the
duties were performed;
(ii) each hour for which the Employee is paid or entitled
to payment by the Company or an Affiliate, either
directly or indirectly, on account of a period of
time during which no duties are performed
(irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty,
military duty, and leave of absence, but excluding
payments under a plan maintained solely for the
purpose of complying with workmen's compensation,
unemployment compensation, or disability insurance
laws and also excluding payments for medical or
medically related expenses. No more than 501 Hours
of Service shall be credited under this paragraph
(ii) for any single computation period whether or not
such period occurs in a single computation period);
and
(iii) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to
by the Company or an Affiliate:
The same hours of service shall not be credited under clause (i) or clause
(ii), as the case may be, and under clause (iii). Further, no more than 501
Hours of Service shall be credited for payment of back pay to the extent it is
agreed to or awarded for a period of time during which an Employee did not or
would not have performed duties. These Hours shall be credited to the Employee
for the computation period or periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is
made. Hours of Service shall be computed and credited in accordance with
paragraphs (b) and (c) of Section 2530.200b-2 of the Department of Labor
Regulations.
(q) "Investment Fund" means an unsegregated fund established at
the direction of the Committee pursuant to Section 5.02, and invested in
securities, insurance contracts, mutual fund shares or other property of such
type and characteristics as the Committee shall determine.
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<PAGE> 9
(r) "Normal Retirement Age" shall mean the date on which the
Participant attains age 65.
(s) "Participant" shall mean an Employee who has satisfied the
requirements of Section 3.01 and has made Basic Contributions under the Plan.
The term shall also include any other person whose interests derived from
participation in a prior plan are transferred or rolled over into the Plan. A
person who has become a Participant hereunder shall continue to be a
Participant until his entire Account has been distributed or forfeited pursuant
to the Plan.
(t) "Part-Time Employee" shall mean an Employee who is regularly
scheduled to perform less than 20 Hours of Service per week or whose work
schedule, because of its seasonal or temporary nature, is expected to result in
completion of fewer than 1,000 Hours of Service per year.
(u) "Plan" shall mean the Robbins & Myers, Inc. Employee Savings
Plan for Salaried Employees of Chemineer, Edlon and Pfaudler.
(v) "Plan Year" shall mean the calendar year.
(w) "Pre-Tax Contributions" shall mean amounts contributed by the
Participant's Employer pursuant to the Participant's authorization and
direction under Section 4.01(a) to make such contribution on the Participant's
behalf in lieu of payment of an equal amount directly to the Participant.
(x) "After-Tax Contributions" shall mean amounts contributed by
the Participant's Employer pursuant to the Participant's authorization and
direction under Section 4.01(a) to make such contribution on the Participant's
behalf in lieu of payment directly to the Participant.
(y) "Supplemental Contributions" shall mean amounts contributed as
"Special Deposits" under the terms of the Eagle Plan in effect prior to July 1,
1994.
(z) "Timely Notice" shall mean a notice in writing on a form
prescribed by the Committee and filed at such places and at such reasonable
times as shall be required by the rules of the Committee.
(aa) "Trust" shall mean the trust fund established pursuant to the
provisions of this Plan, as it may be amended from time to time.
(bb) "Trustee" shall mean the Trustee under the Trust.
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<PAGE> 10
(cc) "Valuation Date" shall mean the last day of each calendar
month or more frequently, as provided by resolution of the Committee.
SECTION 2.02. CONSTRUCTION.
(a) Where appearing in this Plan, the masculine shall include the
feminine and the plural shall include the singular, unless the context clearly
indicates otherwise. The words "hereof", "herein", "hereunder", and other
similar compounds of the word "here" shall mean and refer to the entire Plan
and not to any particular section or subsection. Titles of articles and
sections are for reference purposes only.
(b) The Plan is intended to be a qualified profit sharing plan
meeting the requirements of Code section 401(a) and to contain a "qualified
cash or deferred arrangement" meeting the requirements of Code section 401(k),
and shall be interpreted so as to comply with the applicable requirements
thereof, where such requirements are not clearly contrary to the express terms
hereof. In all other respects, the Plan shall be construed and its validity
determined according to the laws of the State of Ohio to the extent such laws
are not preempted by applicable requirements of federal law. In case any
provision of this Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining provisions of the Plan,
and the Plan shall be construed and enforced as if said illegal or invalid
provisions had never been included herein.
ARTICLE III
PARTICIPATION
-------------
SECTION 3.01. ELIGIBILITY TO PARTICIPATE.
(a) Each Participant in the Eagle Plan on June 30, 1994 shall
become a Participant in the Plan on July 1, 1994 if he is then an Employee. On
or after July 1, 1994, an Employee, other than a Part-Time Employee, shall be
eligible to participate herein as of the first January 1 or July 1 which is at
least thirty (30) days after his Employment Commencement Date.
(b) A Part-Time Employee, shall be eligible to participate herein
as of the last day of his "qualifying period". For purposes of this
subsection, the "qualifying period" of a Part-Time Employee shall mean the
first 12-consecutive-month period commencing on his Employment Commencement
Date or any anniversary thereof, during which he completes at least 1,000 Hours
of Service.
(c) A former Participant whose employment has terminated and who
is subsequently reemployed as an Employee shall reenter the Plan as a
Participant on the date of his reemployment. If a
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<PAGE> 11
reemployed Employee was not formerly a Participant in the Plan, he shall be
considered a new Employee and required to meet the requirements of Section 3.01
to be eligible to participate in the Plan.
SECTION 3.02. ELECTION TO PARTICIPATE. An Employee may elect to
participate in the Plan by filing his election with his Employer on a Timely
Notice to make Basic Contributions on the Participant's behalf, as provided in
Section 4.01. Such election shall be effective with the July 1 or January 1
which next follows the later of (i) the filing of the election or (ii) the date
as of which he shall have become eligible to participate herein as determined
under Section 3.01. Such election shall remain in effect so long as the
Participant remains an Employee as defined herein, subject to Sections 4.03 and
8.04 relating to the suspension of contributions.
ARTICLE IV
CONTRIBUTIONS
-------------
SECTION 4.01. AMOUNT OF PARTICIPANT'S CONTRIBUTIONS.
(a) BASIC CONTRIBUTIONS. Subject to the limitations described in
Sections 4.02, 4.06 and 4.07, a Participant may elect to make Basic
Contributions in any whole percentage from 2 to 12 percent of the Participant's
Compensation. Such Basic Contributions may be either Pre-Tax Contributions,
After-Tax Contributions, or both, in any combination. Pre-Tax Contributions
shall be made by the Participant's Employer in lieu of payment of an equal
amount directly to the Participant as current compensation, pursuant to
authorization by the Participant on a form provided by the Committee. After-Tax
Contributions shall be made for the Participant through regular payroll
deductions, pursuant to authorization by the Participant on a form provided by
the Committee. In the event that a Participant's Pre-Tax Contributions exceed
the limitation of Code section 402(g), as described in Section 4.02 of this
Plan, after such limitation has been exceeded, the Participant's Basic
Contributions automatically will be made in the form of After-Tax
Contributions, rather than in the form of Pre-Tax Contributions, for the
remainder of the Plan Year.
(b) SUPPLEMENTAL CONTRIBUTIONS. The Plan does not permit
Supplemental Contributions.
(c) CHANGE IN RATE OF CONTRIBUTIONS. The designated rates of a
Participant's Pre-Tax and After-Tax Contributions, respectively may be changed
as of the first day of any month following the Company's receipt of Timely
Notice, but shall remain in effect for successive periods of time unless
changed.
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<PAGE> 12
SECTION 4.02. LIMITATIONS ON PRE-TAX CONTRIBUTIONS.
(a) No Participant shall be permitted to have Pre-Tax
Contributions made under the Plan and any other plan maintained by the Employer
during any taxable year in excess of the dollar limitation contained in Code
section 402(g) as in effect at the beginning of such taxable year.
(b) Excess Elective Deferrals under this Plan, plus any income and
minus any losses allocable thereto, may be distributed to the Participant no
later than March 15 of the following year.
(c) DEFINITIONS.
(i) "EXCESS ELECTIVE DEFERRALS" shall mean those Pre-Tax
Contributions that are includable in a Participant's
gross income under Code section 402(g) to the extent
such Participant's Elective Deferrals for a taxable
year exceed the dollar limitation under such Code
section. Excess Elective Deferrals shall be treated
as Annual Additions under the Plan.
(ii) "ELECTIVE DEFERRALS" with respect to any taxable
year, shall mean, the sum of all employer
contributions (including those of another employer
who is not an Employer who has adopted this Plan)
made on behalf of a Participant pursuant to an
election to defer under any qualified cash or
deferred arrangement as described in Code section
401(k), any simplified employee pension cash or
deferred arrangement as described in Code section
402(h)(l)(B), any eligible deferred compensation plan
under Code section 457, any plan as described under
Section 501(c) (18), and any employer contributions
made on the behalf of a Participant for the purchase
of an annuity contract under Code section 403(b)
pursuant to a salary reduction agreement.
(d) DETERMINATION OF INCOME OR LOSS. Excess Elective Deferrals
shall be adjusted for any income or loss up to the date of distribution using
the method described in this subsection or any other method permitted under
Treasury Regulation Section 1.402(g)-1(e)(5). The income or loss allocable to
Excess Elective Deferrals is the sum of: (i) income or loss allocable to the
Participant's Pre-Tax Contributions for the taxable year multiplied by a
fraction, the numerator of which is such Participant's Excess Elective
Deferrals for the year and the denominator of which is the Participant's
Account balance attributable to Pre-Tax Contributions without regard to any
income or loss occurring during such taxable year; and (ii) ten percent (10%)
of the amount determined under (i) multiplied by the number of whole calendar
months between the end of the Participant's taxable year and the date of
distribution,
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<PAGE> 13
counting the month of distribution if distribution occurs after the 15th of
such month.
SECTION 4.03. SUSPENSION OF CONTRIBUTIONS.
(a) A Participant's Basic Contributions shall be suspended if any
of the following occurs:
(i) the Participant elects, in the form of a Timely
Notice, to suspend all of his Basic Contributions
being made pursuant to Section 4.01;
(ii) the Participant receives a hardship withdrawal
under Section 8.04; or
(iii) the Participant fails to qualify as an Employee. (A
Participant on an authorized leave of absence without
pay fails to qualify as an Employee for purposes of
this Section.)
Suspensions shall be effective as soon as practicable following such
occurrence. Participants will not be permitted to make up suspended
contributions. A Participant's Basic Contributions shall be suspended for the
period described in Section 8.04(d) following his receipt of a hardship
withdrawal.
(b) A Participant whose contributions have been suspended for
reasons other than a Hardship Withdrawal pursuant to Section 8.04 of this Plan
may resume making contributions as of the next January 1 or July 1 following
his provision of Timely Notice provided that he is then an Employee as defined
herein.
SECTION 4.04. PAYMENT OF BASIC CONTRIBUTIONS TO TRUSTEE. Each
Employer shall periodically (but not less frequently than monthly), remit to
the Trustee (or to the Company, if the Company has remitted to the Trustee) the
amounts withheld from the Compensation of its Employees as Basic Contributions
under the Plan. Such amounts shall be credited to the Accounts of Participants
on a monthly basis.
SECTION 4.05. EMPLOYER MATCHING CONTRIBUTIONS.
(a) Each Employer shall make contributions for each of its
eligible Employees in an amount equal to fifty percent (50%) of the Employee's
Basic Contributions to a maximum of six percent (6%) of his Compensation.
Amounts forfeited from the Accounts of Employees of the Employer pursuant to
Section 11.10 shall be applied to reduce the amount of the Employer's Matching
Contributions otherwise payable hereunder.
(b) Employer Matching Contributions shall be made in cash on or
before the due date of the Company's tax return for the year.
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<PAGE> 14
(c) Employer Matching Contributions hereunder are conditioned upon
their deductibility under Code section 404. Notwithstanding any provision
herein to the contrary, to the extent a deduction is disallowed, contributions
may be returned to the Employer within one year after such disallowance.
(d) Employer Matching Contributions shall be forfeited to the
extent they are based on Excess Elective Deferrals under Section 4.02(c),
Pre-Tax Contributions that are Excess Contributions or After-Tax Contributions
that are Excess Aggregate Contributions distributed under Section 4.06(h). In
addition, Employee Matching Contributions shall be forfeited to the extent that
they are based on After-Tax Contributions that re withdrawn under Sections 8.02
or 8.03 during the calendar year that they are made. Any forfeitures that
occur will be used to reduce Employer Matching Contributions for the next Plan
Year.
SECTION 4.06. LIMITATIONS ON CONTRIBUTIONS FOR NONDISCRIMINATION
TESTING PURPOSES.
(a) Employer Matching Contributions, Pre-Tax Contributions and
After-Tax Contributions allocated to the Accounts of Highly- Compensated
Employees shall not in any Plan Year exceed the limits specified in this
Section 4.06. The Committee may make the adjustments authorized in this
Section 4.06 to ensure that the limits of Subsections (b) (the "Actual Deferral
Percentage test") and (c) (the "Average Contribution Percentage test") are not
exceeded, regardless of whether such adjustments affect some Participants more
than others. This Section shall be administered and interpreted in accordance
with Code sections 401(k) and 401(m).
(b) The Actual Deferral Percentage of the Highly-Compensated
Employees shall not exceed, in any Plan Year, the greater of:
(i) The Actual Deferral Percentage of all other
Participants for such Plan Year multiplied by 1.25; or
(ii) The lesser of the (A) Actual Deferral
Percentage. of all other Participants for such Plan Year
multiplied by two (2) and (B) the Actual Deferral Percentage
of all other Participants for such Plan Year plus two (2)
percentage points, or such lesser amount as the Secretary of
the Treasury shall prescribe to prevent the multiple use of
this alternative limitation with respect to any
Highly-Compensated Employee.
(c) The Average Contribution Percentage of the Highly Compensated
Employee shall not exceed, in any Plan Year, the greater of:
(i) The Average Contribution Percentage of all
other Participants for such Plan Year multiplied by 1.25; or
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<PAGE> 15
(ii) The lesser of (A) the Average Contribution
Percentage of all other Participants for such Plan Year
multiplied by two (2) and (B) the Average Contribution
Percentage of all other Participants for such Plan Year plus
two (2) percentage points, or such lesser amounts as the
Secretary of the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with respect to
any Highly-Compensated Employee.
(d) The following terms shall have the meanings specified herein
for purposes of this Section 4.06.
(i) ACTUAL DEFERRAL PERCENTAGE. The average, for
a specified group of Participants for a Plan Year, of the
ratios (calculated separately for each Participant in such
group) of (1) the amount of Employer contributions actually
paid over to the Trust on behalf of such Participant for the
Plan Year to (2) the Participant's compensation for such Plan
Year, as determined under Treasury Regulation Section
1.401(k)-1(g)(2). For this purpose, Employer contributions on
behalf of any Participant shall include Pre-Tax Contributions,
including amounts in excess of the dollar limitation contained
in Section 4.02(g) of the Code described in Section 4.02, but
excluding Pre-Tax Contributions that are taken into account in
the Average Contribution Percentage test (provided that the
Actual Deferral Percentage test is satisfied both with and
without exclusion of these Pre-Tax Contributions). For
purposes of computing Actual Deferral Percentages, an Employee
who would be a Participant but for the failure to make Pre-Tax
Contributions shall be treated as a Participant on whose
behalf no Pre-Tax Contributions are made.
(ii) AVERAGE CONTRIBUTION PERCENTAGE. The average
for a designated group of Employees of the ratios (calculated
separately for each Employee in the group) of (1) the sum of
(A) the Employer Matching Contributions paid and credited to
the Account of such Employee for a Plan Year, (B) After-Tax
Contributions credited to the Account of such Employee for a
Plan Year, (C) any Pre-Tax Contributions which are to be taken
into account for purposes of the Average Contribution
Percentage Test, to (2) such Employee's compensation for such
Plan Year, as determined under Treasury Regulation Section
1.401(k)- 1(g)(2). Participant Pre-Tax Contributions may be
used in the Average Contribution Percentage test provided that
the Actual Deferral Percentage test is met before the Pre-Tax
Contributions are used in the Average Contribution Percentage
test and continues to be met following the exclusion of those
contributions that are used to meet the Average Contribution
Percentage test.
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<PAGE> 16
(iii) HIGHLY-COMPENSATED EMPLOYEE. The term Highly
Compensated Employee shall mean Highly Compensated Active
Employees and Highly Compensated Former Employees.
A Highly Compensated Active Employee includes any
Employee who performs service for the Employer during the
determination year and who, during the look-back year: (i)
received compensation from the Employer in excess of $75,000
(as adjusted pursuant to Code section 415(d)); (ii) received
compensation from the Employer in excess of $50,000 (as
adjusted pursuant to Code section 415(d)) and was a member of
the top paid group for such year; or (iii) was an officer of
the Employer and received compensation during such year that
is greater than 50 percent of the dollar limitation in effect
under Code section 415(b)(1)(A). The term Highly Compensated
Employee also includes: (i) Employees who are both described
in the preceding sentence if the term "determination year" is
substituted for the term "look-back year" and the Employee is
one of the 100 employees who received the most compensation
from the Employer during the determination year; and (ii)
employees who are five percent owners at any time during the
look-back year or determination year.
If no officer has satisfied the compensation
requirement of (iii) above during either a determination year
or look-back year, the highest paid officer for such year
shall be treated as a Highly Compensated Employee.
For purposes of this Section, the determination year
shall be the Plan Year. The look-back year shall be the
twelve-month period immediately preceding the determination
year.
A Highly Compensated Former Employee includes any
Employee who separated from service (or was deemed to have
separated) prior to the determination year, peroforms no
service for the Employer during the determination year, and
was a Highly Compensated Active Employee for either the
separation year or any determination year ending on or after
the Employee's 55th birthday.
If an Employee is, during a determination year or
look-back year, a family member of either a five percent owner
who is an active or former Employee or a Highly Compensated
Employee who is one of the ten (10) most Highly Compensated
Employees ranked on the basis of compensation paid by the
Employer during such year, then the family member and the five
percent owner or top-ten Highly Compensated Employee shall be
aggregated. In such case, the family member and five percent
owner or top-ten
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<PAGE> 17
Highly Compensated Employee shall be treated as a single
employee receiving compensation and plan contributions or
benefits equal to the sum of such compensation and
contributions or benefits of the family member and five
percent owner or top-ten Highly Compensated Employee. For
purposes of this Section, family member includes the spouse,
lineal ascendants and descendants of the Employee or former
Employee and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated
Employee, including the determinations of the number and
identity of Employees in the top-paid group, the top ten
Employees, the number of Employees treated as officers and the
compensation that is considered, will be made in accordance
with Code section 414(q) and the regulations thereunder.
(e) For purposes of determining compliance with the Actual
Deferral Percentage Test and the Average Contribution Percentage test, Pre-Tax
Contributions and Employer Matching Contributions must be made before the last
day of the twelve-month period immediately following the Plan Year to which the
contributions relate.
(f) The Committee shall maintain records sufficient to demonstrate
satisfaction of the Actual Deferral Percentage test and the Average
Contribution Percentage test and the amount of Pre-Tax Contributions, After-Tax
Contributions, and Employer Matching Contributions used in such test.
(g) For purposes of determining the Actual Deferral Percentage or
Average Contribution Percentage of a Participant who is a five percent owner or
one of the ten most highly paid Highly Compensated Employees, the Pre-Tax
Contributions, After-Tax Contributions, Employer Matching Contributions, and
Compensation of such Participant shall include the Pre-Tax Contributions,
After-Tax Contributions, Employer Matching Contributions, and Compensation for
the Plan Year of family members (as defined in Code section 414(q)(6)). Family
members, with respect to Highly Compensated Employees, shall be disregarded as
separate employees in determining the Actual Deferral Percentages and Average
Contribution Percentages of Participants who are Highly Compensated Employees
and Participants who are not Highly Compensated Employees.
(h) TREATMENT OF EXCESS CONTRIBUTIONS. If Employer Matching
Contributions, After-Tax Contributions or Pre-Tax Contributions, exceed any of
the limits specified in Subsections 4.06(b) and (c) for a Plan Year, then the
Plan Administrator shall correct such excess in accordance with the provisions
of this Subsection (h).
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<PAGE> 18
(i) Notwithstanding any other provision of this Plan,
unless Pre-Tax Contributions are recharacterized as After-Tax
Contributions under Subsection (iv) below, or Employer Matching
Contributions are treated as Qualified Matching Contributions as
provided under Subsection (v) below, excess contributions and excess
aggregate contributions (as defined in subsections (ii) and (iii)
below) attributable to Pre-Tax Contributions, After-Tax Contributions,
plus any income and minus any loss allocable thereto, such income or
loss determined and allocated in accordance with Treasury Regulation
Section 1.401(k)-1(f)(4)(ii), shall be distributed no later than the
last day of each Plan Year to Participants to whose accounts such
excess contributions and excess aggregate contributions were allocated
for the preceding Plan Year. Employer Matching Contributions based on
such Pre-Tax Contributions and After-Tax Contributions distributed as
excess contributions and excess aggregate contributions shall be
forfeited as provided under Section 4.05(d). Excess contributions and
excess aggregate contributions shall be allocated to Participants who
are subject to the family member aggregation rules of Code section
414(q) (6) in the manner prescribed by the regulations. If such
excess contributions and excess aggregate contributions are
distributed more than 2-1/2 months after the last day of the Plan Year
in which such excess amounts arose, a ten percent (10%) excise tax
will be imposed on the Employer maintaining the Plan with respect to
those amounts. Excess contributions and excess aggregate
contributions shall be treated as Annual Additions under the plan.
(ii) "Excess contributions" shall mean, with respect to
any Plan Year, the excess of:
(A) The aggregate amount of Employer
contributions actually taken into account in
computing the Actual Deferral Percentage of Highly
Compensated Employees for such Plan Year, over
(B) The maximum amount of such
contributions permitted by the Actual Deferral
Percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in
order of the Actual Deferral Percentages, beginning
with the highest of such percentages).
(iii) "Excess aggregate contributions" shall mean, with
respect to any Plan Year, the excess of:
(A) The aggregate amount of Employer
contributions taken into account in computing the
numerator of the Average Contribution Percentage
actually made on behalf of Highly Compensated
Employees for such Plan year, over
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<PAGE> 19
(B) The maximum amount of Employer
contributions permitted by the Average Contribution
Percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in
order of their Contribution Percentages beginning
with the highest of such percentages).
(iv) A Participant may treat his or her excess
contributions as an amount distributed to the Participant and then
contributed by the Participant to the Plan. Recharacterized amounts
will remain nonforfeitable and subject to the same distribution rules
as Pre-Tax Contributions. Amounts may not be recharacterized by a
Highly Compensated Employee to the extent that such amount, in
combination with an After-Tax Contribution made by that Employee,
would exceed any stated limit under the Plan as After-Tax
Contributions. Recharacterization must occur no later than 2-1/2
months after the last day of the Plan Year in which such excess
contributions arose, and is deemed to occur no earlier than the date
the last Highly Compensated Employee is informed in writing of the
amount recharacterized and the consequences thereof. Recharacterized
amounts will be taxable to the Participant for the Participant's tax
year in which the Participant would have received them in cash.
(v) The Plan Administrator may, in its sole discretion,
elect to treat any portion of the Employer Matching Contributions as
Qualified Matching Contributions to be taken into account for the
Actual Deferral Percentage test to the extent necessary to satisfy the
requirements of this Section 4.06. To the extent Employer Matching
Contributions are treated as Qualified Matching Contributions and
taken into account for the Actual Deferral Percentage test, they may
not be taken into account for the Average Contribution Percentage
test. To the extent Employer Matching Contributions are treated as
Qualified Matching Contributions they shall be allocated to
Participants' Accounts within the Plan Year to which they relate and
shall be paid to the Trust no later than 12 months after the end of
the Plan Year to which they relate.
SECTION 4.0. MAXIMUM ANNUAL ADDITIONS.
(a) The Annual Addition to the Accounts of any Participant for a
Limitation Year, when added to the Annual Additions to his accounts under all
other defined contribution plans (if any) maintained by the Employer, may not
exceed the Maximum Permissible Amount. In addition, in the case of a
Participant who also participates in a defined benefit plan maintained by the
Employer, the Annual Addition for a Limitation Year will, if necessary, be
further limited so that the sum of the Defined Contribution Plan Fraction and
the Defined Benefit Plan Fraction for such Limitation Year does not exceed 1.0.
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(b) DEFINITIONS. For purposes of this Article, the following
definitions and rules of interpretation shall apply:
(i) ANNUAL ADDITIONS. The sum of the following amounts
credited to a Participant's Account for the Limitation Year:
(A) Employer Contributions;
(B) Employee Contributions; and
(C) Forfeitures.
Annual additions shall also include (i) any amounts
allocated to an individual medical account, as defined in Code
section 415(1)(2) which is part of a pension or annuity plan
maintained by an Employer and (ii) amounts derived from
contributions for post-retirement medical benefits allocated
to the separate account of a key employee (as defined in Code
section 419A(d)) under a welfare benefit plan (as defined in
Code section 419(e)) maintained by an Employer.
(ii) COMPENSATION. A Participant's earned income, wages,
salaries, and fees for professional services and other amounts
received for personal service actually rendered in the course of
employment with the Employer maintaining the Plan (including, but not
limited to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses), and excluding the following:
(A) Employer contributions to a plan of deferred
compensation which are not includable in the Employee's gross
income for the taxable year in which contributed, or Employer
contributions under a simplified employee pension to the
extent such contributions are deductible by the Employee, or
any distributions from a plan of deferred compensation;
(B) Amounts realized from the exercise of a
nonqualified stock option, or when restricted stock (or
property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture;
(C) Amounts realized from the sale, exchange, or
other disposition of stock acquired under a qualified stock
option; and
(D) Other amounts which received special tax
benefits, or contributions made by the Employer (whether or
not under a compensation reduction agreement) towards the
purchase of an annuity described in Code section
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<PAGE> 21
403(b) (whether or not the amounts are actually excludable
from the gross income of the Employee).
For purposes of applying the limitations of this Article, Compensation
for a Limitation Year is the Compensation actually paid or includable
in gross income during such year.
(iii) DEFINED BENEFIT FRACTION. A fraction, the numerator of
which is the projected annual benefit of the Participant under all
defined benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of (i) the
product of 1.25 multiplied by the dollar limitation in effect under
Code section 415(b)(1)(A) for such Plan Year, or (ii) the product of
1.4 multiplied by the amount which may be taken into account under
Code section 415(b)(1)(B) with respect to such Participant under the
Plan for such Plan Year.
(iv) DEFINED CONTRIBUTION FRACTION. A fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's accounts under defined contribution plans (whether or
not terminated) maintained by the Employer for the current and all
prior Limitation Years, and the denominator of which is the sum of the
lesser of the following amounts determined for such limitation Year
and all prior Limitation Years of service with the Employer: (i) the
product of 1.25 multiplied by the dollar limitation in effect under
Code section 415(c)(1)(A) for such Plan Year (determined without
regard to Code section 415(c)(6)), or (ii) the product under Code
section 415(c)(1)(B) (or Code section 415(c) (7), if applicable) with
respect to the Participant under the Plan for such Plan Year.
(v) MAXIMUM PERMISSIBLE AMOUNT. The lesser of thirty
thousand dollars ($30,000) (or, if larger, one-fourth of the dollar
limitation in effect under Code section 415(b)(1)(A)) or twenty-five
percent (25%) of the Participant's Compensation for the Limitation
Year.
(vi) LIMITATION YEAR. The Plan Year.
(c) In the event that rules set forth in Subsections (a) or (b)
would otherwise be violated after making all possible adjustments under the
terms of any defined benefit plans, then such Employee's benefits under this
Plan shall be reduced by returning the Participant's After-Tax Contributions,
if any, together with the earnings thereon and by forfeiting a pro rata portion
of the Employer Matching Contribution made with respect thereto and, in the
event such return is not sufficient to eliminate the violation, by returning
the Participant's Pre-Tax Contributions together with the earnings thereon and
by forfeiting a pro rata portion of Employer Matching Contributions made with
respect thereto. Such forfeited Employer Matching Contributions shall be held
in a
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suspense account and used to reduce Employer Matching Contributions to all
Participants in the next Limitation Year.
ARTICLE V
TRUST AGREEMENT; INVESTMENT FUNDS
AND PARTICIPANT INVESTMENT ELECTIONS
------------------------------------
SECTION 5.01. TRUST AGREEMENT. The Company shall enter into a trust
agreement with a corporate trustee selected by the Corporate Benefits Committee
to act as Trustee. The Trustee shall receive all Basic Contributions and all
Employer Matching Contributions and shall hold, manage, administer and invest
the same, reinvest any income, and make distributions in accordance with the
provisions of the Plan and the trust agreement. The trust agreement shall be
in such form and contain such provisions as the Board may deem necessary and
appropriate to effectuate the purposes of the Plan and to qualify the Plan and
the Trust under the Code.
SECTION 5.02. INVESTMENT FUNDS. The Committee shall establish two or
more Investment Funds and shall advise the Trustee in writing of the types of
investments to be made for each Investment Fund. The Committee may direct that
any such Investment Fund will be invested in one or more insurance contracts or
mutual funds selected by the Committee or may appoint one or more investment
managers to direct the investment of any Investment Fund. The Committee may at
any time add, delete or change the investment medium or investment manager of
any Investment Fund, provided that if such change substantially changes the
characteristics of any Investment Fund, Participants utilizing such Fund shall
be notified and given an opportunity to reallocate their Account balances.
Notwithstanding the foregoing, the Committee shall at all times on and after
September 1, 1995 cause to be maintained an Investment Fund, known as the
Robbins & Myers, Inc. Company Stock Fund," the assets of which shall be
invested in shares of a class of voting common stock issued by the Company,
which are regularly traded on an established securities market and are required
to be, and are, registered under the provisions of Section 12 of the Securities
Exchange Act of 1934, as amended.
SECTION 5.03. ALLOCATION AND REALLOCATION OF CONTRIBUTIONS AMONG
INVESTMENT FUNDS.
(a) ALLOCATION. On Timely Notice a Participant shall elect to
allocate all of his Basic Contributions and Employer Matching Contributions
among the Investment Funds established pursuant to Section 5.02 in whole
multiples of 1 percent of such Contributions. An election under this
subsection may be changed up to four (4) times in any Plan Year, as of the
first day of any calendar month, but shall remain in effect for successive
periods of time unless changed on Timely Notice. In the event that a
Participant fails to direct the investment of contributions subject to his
direction or
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fails to replace any directions which may have been suspended or revoked, then
such contributions shall be invested in an Investment Fund designated by the
Committee which invests primarily in securities or other property providing a
fixed or guaranteed rate of return.
(b) INVESTMENT FUND TRANSFERS. A Participant may on Timely Notice
elect to transfer his interests in any one or more Investment Funds to other
Investment Funds. Except to the extent that the conditions governing any
Investment Fund (such as a fund investing in guaranteed investment contracts
issued by an insurance company) may limit or prohibit such transfers, such
transfers may be made up to four (4) times in any Plan Year. Such election
shall be in such form as the Committee shall determine.
SECTION 5.04. FEES AND EXPENSES. Brokerage fees and other direct
costs of investment shall be paid by the Trustee out of that fund of the Trust
to which such cost is attributable. All other costs and expenses of the Plan
including without limitation the Trustee's fees and transfer taxes shall be
paid by the Company.
SECTION 5.05. EXCLUSIVE BENEFIT AND FUNDING POLICY.
(a) All contributions hereunder shall be paid to the Trust and all
property and funds of the Trust allocable to the Plan, including income from
investments and from all other sources, shall be managed solely in the interest
of Participants and their Beneficiaries and for the exclusive purpose of:
(i) providing benefits to Participants and their Beneficiaries; and
(ii) defraying the reasonable expenses of administering the Plan.
(b) To the extent not specifically set forth in the Plan or Trust,
the Trustee shall establish the funding policy for the Plan and shall consult
with the Committee with respect thereto.
SECTION 5.06. SPECIAL RULES RELATING TO CERTAIN PARTICIPANTS SUBJECT
TO SETION 16(B). Notwithstanding any other provision of the Plan, on and after
September 1, 1995, the Plan shall at all times be administered in a manner that
will minimize or eliminate a Participant's liability to the Company under
Section 16(b) of the Securities Exchange Act of 1934, and the rules,
regulations and interpretations thereunder.
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<PAGE> 24
ARTICLE VI
PARTICIPANT ACCOUNTS
--------------------
SECTION 6.01. ESTABLISHMENT OF ACCOUNTS. A separate Account shall be
established and maintained in the name of each Participant. To the extent
necessary or appropriate to provide for the proper administration of the Plan,
such Account shall include separate balances for interests derived from Pre-tax
and After-Tax Contributions, Supplemental Contributions and Employer Matching
Contributions and such other separate balances as the Committee shall
determine. As soon as practicable following the end of each Plan Year quarter,
each Participant shall be provided with a statement of his Account.
SECTION 6.02. CREDITING OF ACCOUNTS. The appropriate Account balances
shall be credited with the amounts of the Participant's Contributions as such
Contributions are received by the Trustee. The reallocation of a Participant's
Account among Investment Funds shall be appropriately credited as of the date
immediately following the effective date of the reallocation.
SECTION 6.03. VALUATION OF ACCOUNTS. Each Participant's Account shall
be valued and adjusted on each Valuation Date to preserve each Participant's
proportionate interest in the Investment Funds. As of each Valuation Date and
at the time of any reallocation among Investment Funds, pursuant to Section
5.03, the Account balances of each Participant shall be adjusted to reflect the
effect of income, collected and accrued, realized and unrealized gains and
losses, expenses and all other transactions since the valuation preceding
adjustment, in such manner as the Committee shall determine.
ARTICLE VII
VESTING; DISTRIBUTION OF ACCOUNTS
---------------------------------
SECTION 7.01. VESTING. A Participant's right to the balances credited
to his Account shall at all times be fully vested and nonforfeitable.
SECTION 7.02. DISTRIBUTION UPON TERMINATION OF EMPLOYMENT. When a
Participant's employment with the Company and any Affiliates is terminated for
any reason (except an intercompany transfer between the Company or any
Affiliate and another Affiliate), including death, disability or retirement,
the entire balance in such Participant's Account shall be paid at the time and
in the manner specified in Section 7.04. If the termination occurs by reason
of the death of the Participant, or if the Participant dies before the
distribution is completed, distribution shall be made to the Participant's
Beneficiary.
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<PAGE> 25
SECTION 7.03. DESIGNATION OF BENEFICIARY. A Participant may designate
any person, trust and/or other entity as Beneficiary. Any such designation
shall be in writing and filed with the Committee on the form and in the manner
prescribed by the Committee, and may be revoked or changed at any time by
the-Participant. Notwithstanding the foregoing, in the event that the
Participant has a spouse at the time of his death, such spouse shall be the
Participant's Beneficiary unless (i) such spouse has consented in writing to
the Participant's designation of a different Beneficiary, (ii) such consent
acknowledges the effect of such election and is witnessed by a plan
representative appointed by the Committee or by a notary public, and (iii) the
Participant is survived by a Beneficiary designated as such as described above.
Any such consent shall be irrevocable, but shall be effective only with respect
to the specific Beneficiary designation unless the consent expressly permits
designations by the Participant without any requirement of further consent. In
the event that the Participant is not married at the time of death and either
no valid designation of Beneficiary is on file with the Committee at the date
of death or no designated Beneficiary survives, the Participant's estate shall
be the Beneficiary.
SECTION 7.04. MANNER AND TIMING OF DISTRIBUTIONS.
(a) All amounts becoming payable under Section 7.02 shall be paid
in the form of a lump sum cash distribution.
(b) Distributions under this Section shall be made as soon as
practicable after the Valuation Date which is coincident with or next follows
the Participant's election to receive his Account.
(c) Notwithstanding the foregoing, if the value of the
Participant's interests exceeds $3,500, no distribution shall be made prior to
the Participant's Normal Retirement Age unless the prior written consent of the
Participant and the Participant's spouse, if any (or if either the Participant
or the spouse has died, the survivor) to the distribution has been obtained by
the Plan Administrator within the period beginning no more than 90 days and
ending no less than 30 days before the date payments are to be made or
commenced. The Plan Administrator shall notify the Participant and the
Participant's spouse of the right to defer any distribution until the
Participant's Normal Retirement Age. Such notification shall include a general
description of the material features of, and an explanation of the relative
values of, the optional forms of benefit under the Plan in a manner that would
satisfy the notice requirements of Code section 417(a)(3), and shall be
provided no less than 30 days and no more than 90 days prior to the date that
benefit payments are to be made or commenced. If the Participant or
Beneficiary fails to consent, distribution shall be made as soon as practicable
after the Participant attains Normal Retirement Age; provided that distribution
shall in all events be completed not later than five (5) years after the date
of the Participant's death. In the event
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that distribution is deferred, the Participant's entire Account shall be
invested in the Investment Funds selected by the Participant under Section
5.03.
(d) Notwithstanding any election to the contrary, payment of
benefits to a Participant shall commence no later than the April 1 next
following the close of the calendar year in which he attains age 70-1/2,
whether or not the Participant has retired.
(e) All distributions required under this Section 7.04 shall be
determined and made in accordance with the provisions of Code section 401(a)(9)
and the regulations issued thereunder, including the minimum distribution
incidental benefit requirement of Section 1.401(a)(9)-2 of the Treasury
Regulations.
(f) Pre-Tax Contributions, Employer Matching Contributions, and
income allocable to each, shall not be distributed to Participants or
Beneficiaries earlier than upon separation from service, death, or disability,
or upon the occurrence of one of the following events:
(i) The termination of the Plan without establishment of
a successor defined contribution plan as such term is defined in
Section 1.401(k)-1(d)(3) of the Treasury regulations.
(ii) The disposition by the Company of substantially all
of the assets (within the meaning of Section 401(k)-1(d) (4)(iv)(A) of
the Treasury regulations) used in the trade or business of the Company
if the Company continues to maintain this Plan after the disposition,
but only with respect to Employees who continue employment with the
corporation acquiring such assets.
(iii) The disposition by the Company to an unrelated entity
of the Company's interest in a subsidiary (within the meaning of
Section 409(d)(3) of the Code) if the Company continues to maintain
this Plan, but only with respect to Employees who continue employment
with such subsidiary.
(iv) The attainment of age 59-1/2 or, in the case of Pre-Tax
Contributions only, the hardship of the Participant, as described in
Section 8.04.
ARTICLE VIII
WITHDRAWALS AND LOANS
---------------------
SECTION 8.01. WITHDRAWAL OF SUPPLEMENTAL CONTRIBUTIONS. Participant
may elect to withdraw, as of any Valuation Date, all or part of any balances
credited to such Participant's Account attributable to Supplemental
Contributions, provided that, in no event shall any Participant have a right
under this Section to
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withdraw amounts in excess of the amounts actually contributed as Supplemental
Contributions. The minimum withdrawal under this Section (together with any
contemporaneous withdrawal under Section 8.02) shall be $500.
SECTION 8.02. WITHDRAWAL OF AFTER-TAX CONTRIBUTIONS. A Participant
may elect to withdraw, as of any Valuation Date, all or part of any balances
credited to such Participant's Account, attributable to After-Tax
Contributions; provided that Supplemental Contributions, if any, have been
previously withdrawn or are withdrawn at the same time; and provided further
that in no event shall any Participant have a right to withdraw amounts in
excess of the amounts actually contributed as After-Tax Contributions. The
minimum withdrawal under this Section (together with any contemporaneous
withdrawal under Section 8.01) shall be $500.
SECTION 8.03. WITHDRAWALS AFTER AGE 59-1/2. A Participant who has
attained age 59-1/2 may elect to withdraw, as of any Valuation Date, all or
part of the balances credited to such Participant's Account. The minimum
withdrawal under this Section shall be $500.
SECTION 8.04. HARDSHIP WITHDRAWALS.
(a) Prior to the termination of the Participant's employment, upon a
demonstration by the Participant of an immediate and heavy financial need that
cannot be met from other resources that are reasonably available to the
Participant, a Participant shall be permitted, on Timely Notice, to make a
withdrawal of an amount not exceeding the lesser of (i) the amount needed to
satisfy such need, or (ii) 100% of all balances in the Participant's Account
which are derived from the Participant's Pre-Tax Contributions.
Notwithstanding the foregoing, (i) amounts derived from Employer Matching
Contributions may not be withdrawn pursuant to this Section, and (ii)
distributions made pursuant to this Section on or after January 1, 1989 may not
include any earnings credited on or after January 1, 1989 to the balance in the
Participant's Account derived from Pre-Tax Contributions.
(b) For purposes of this Section, "an immediate and heavy
financial need" shall be deemed to exist if the distribution is on account of:
(i) Unreimbursed medical expenses described in Code
section 213(d) incurred by the Participant, the
Participant's spouse, or any dependent of the
Participant (as defined in Code section 152);
(ii) Costs directly related to the purchase of the
principal residence for the Participant (excluding
mortgage payments);
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(iii) Payment of tuition and related fees for the next
semester or quarter of post-secondary education for
the Participant, his or her spouse, children or
dependents;
(iv) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
mortgage on the Participant's principal residence; or
(v) Other events provided for in rulings, notices or
other documents published by the Commissioner of
Internal Revenue. The amount of an immediate and
heavy financial need may include amounts necessary to
pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the
distribution.
(c) In order to demonstrate that a need cannot be met from other
resources, the Participant shall be required to provide such documents or
information as the Committee may require and to certify that the need cannot be
relieved (i) through reimbursement from insurance, (ii) by reasonable
liquidation of assets, (iii) by cessation of Pre-Tax or After-Tax Contributions
under the Plan, or (iv) by other withdrawals under or loans from this or any
other plan or a loan from a commercial lender, on reasonable terms.
(d) Withdrawals under this Section shall be permitted only if the
Participant has first withdrawn all amounts available to him under this or any
other Employer plan and borrowed all amounts available to him under any other
Employer plan. All of the Participant's Contributions to this Plan and
contributions to all other plans maintained by the Employer (except
contributions to welfare benefit plans and mandatory employee contributions to
defined benefit plans) shall be suspended for a period of 12 months following
such withdrawal, and the amount which the Participant may contribute as Pre-Tax
Contributions for the Plan Year following such withdrawal shall not exceed the
amount described in Code section 402(g), reduced by the amount of the
Participant's actual Pre-Tax Contributions for the Plan Year in which the
withdrawal occurred.
(e) Distributions pursuant to this Section shall be made as soon
as administratively feasible after the withdrawal is approved.
SECTION 8.05. SOURCE OF FUNDS FOR WITHDRAWALS. A Participant may
specify which of his Accounts should be charged for any withdrawal under this
Article. Distribution will be made out of the Participant's interests in each
of the Investment Funds in accordance with the proportion of the Participant's
Account then invested in such Fund.
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<PAGE> 29
ARTICLE IX
ADMINISTRATION
--------------
SECTION 9.01. DESIGNATION OF FIDUCIARIES. The persons designated in
Sections 9.02, 9.03, and 9.05, and the persons they designate to carry out or
help to carry out their duties or responsibilities are fiduciaries under the
Plan and Trust. Each fiduciary has only those duties or responsibilities
specifically assigned to him under the Plan or Trust or delegated to him by
another fiduciary. Each fiduciary may assume that any direction, information
or action of another fiduciary is proper and need not inquire into the
propriety of any such action, direction or information. Except as provided by
law, no fiduciary will be responsible for the malfeasance, misfeasance or
nonfeasance of any other fiduciary. Any fiduciary may participate in the Plan,
provided he otherwise is eligible to do so. Except as permitted by law, no
Employee or director shall receive any compensation from the Plan or Trust for
his services as a fiduciary.
SECTION 9.02. BOARD. The Board will appoint the members of the
Corporate Benefits Committee, act on any matter referred by the Corporate
Benefits Committee under subsection 9.03(c) and receive and review reports
submitted periodically by the Corporate Benefits Committee concerning
administration of the Plan and Trust.
SECTION 9.03. CORPORATE BENEFITS COMMITTEE.
(a) DESIGNATION. The Board will name the members of the
Corporate Benefits Committee and will fix the number of its members.
(b) PURPOSE. The Corporate Benefits Committee will control
and administer the Plan.
(c) POWERS. The Corporate Benefits Committee has all powers
necessary to carry out its purposes, including the following:
(i) administer the Plan in accordance with its
terms and conditions;
(ii) establish the rules, regulations and procedures
it finds necessary or appropriate to discharge its duties;
(iii) adopt or amend the Plan and any trusts or
insurance contracts used to fund the Plan;
(iv) interpret the Plan, including supplying any
omissions in accordance with the intent of the Plan;
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<PAGE> 30
(v) decide all questions concerning eligibility of
any Employee to become a Participant;
(vi) compute the amount of benefits and determine
to whom such benefits will be paid;
(vii) authorize or deny the payment of Plan benefits;
(viii) delegate its powers and duties to others as
it sees fit, including:
(1) the preparation and filing of all reports
with governmental agencies;
(2) the preparation and distribution of
booklets, announcements, reports and descriptions
of the Plan to Employees, as required by law;
(3) the maintenance of all records relating
the Plan and Trust;
(4) the establishment and administration of
a uniform claims procedure; and
(5) the performance of all other duties
necessary to administer the Plan;
(ix) employ those accountants, actuaries, agents,
consultants, physicians and attorneys (who may be counsel to
the Company) it finds necessary, and to receive and evaluate
their reports;
(x) review bonding and insurance requirements;
(xi) designate an agent for service of legal process
upon the Plan;
(xii) review and implement long-term planning in
developing modifications of the Plan;
(xiii) establish and enforce the rules, regulations,
procedures, investment policies and investment programs it
considers desirable;
(xiv) receive and evaluate monthly, quarterly and
annual reports of Trustees, investment managers and
investment advisers;
(xv) review the performance of the Trustees,
investment managers and/or investment advisers at least
quarterly;
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<PAGE> 31
(xvi) allocate the amount of assets to be managed by
each Trustee, investment manager and investment adviser;
(xvii) accept or reject rollover amounts;
(xviii) establish any accounts called for by the Plan
or Trust;
(xix) report at least annually to the Company on the
investment performance of the Trust Fund;
(xx) appoint, remove or replace other fiduciaries
including the Trustee (or insurance company which holds Plan
assets), investment managers or investment advisers;
(xxi) approve the amount of Employer Contributions to
be made to the Plan or approve discontinuance of Employer
Contributions to the Trust Fund;
(xxii) discontinue or terminate the Plan and any trusts
or insurance contracts used to fund the Plan; and
(xxiii) perform any other act or acts necessary to the
performance of its powers and duties;
(d) RESIGNATION, REMOVAL AND DESIGNATION OF SUCCESSOR. The
Company may remove any member of the Corporate Benefits Committee at
any time. Any member of the Corporate Benefits Committee may resign
at any time by delivering his written resignation to the Company and
the Corporate Benefits Committee. New members will be named by the
Company. Any new member will have the same rights, powers,
privileges, immunities and duties as the other members of the
Corporate Benefits Committee. The Corporate Benefits Committee must
promptly notify the Trustee of any change in its membership.
SECTION 9.04. ACTION OF COMMITTEE. Any act authorized, permitted or
required to be taken by the Corporate Benefits Committee may be taken by a
majority of its members, either by vote at a meeting or in writing without a
meeting. All members must be notified of the proposed action and must have an
opportunity to vote. A majority of the members of the Corporate Benefits
Committee constitutes a quorum. All notices, advices, directions,
certifications, approvals and instructions required or authorized to be given
by the Corporate Benefits Committee must be in writing and signed (a) by a
majority of the members of the Corporate Benefits Committee, (b) by the member
or members of the Corporate Benefits Committee designated as having authority
to execute documents on its behalf or (c) by a person authorized to act for the
Corporate Benefits Committee under subsection 9.03(c)(ix).
SECTION 9.05. TRUSTEE.
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<PAGE> 32
(a) DESIGNATION. The Corporate Benefits Committee will
appoint the Trustee.
(b) POWERS AND DUTIES. The Trustee has the duties and powers
set forth in the agreement executed by the Company and the Trustee.
SECTION 9.06. EMPLOYER RECORDS. The Corporate Benefits Committee may
inspect the Employer's books and records to determine any fact in connection
with acts to be performed by it under the Plan, or it may rely on the
Employer's statement. If the Corporate Benefits Committee wants any statement,
certified, it may rely on a certification of the Company, Employer or
Affiliate, as appropriate.
SECTION 9.07. INDEMNIFICATION. All fiduciaries designated in Section
9.01 other than a bank or trust company or any insurance company acting as a
Trustee and anyone else delegated any power, authority or responsibility under
this Article, have all rights of indemnification provided by law or agreement
or under the Company's Articles of Incorporation, regulations or by-laws. In
addition, the Employer will satisfy any liability actually and reasonably
incurred by all fiduciaries, other than a bank or trust company or an insurance
company acting as Trustee, including expenses, attorneys' fees, judgments,
fines and amounts paid in settlement, in connection with any threatened,
pending, or completed action, suit or proceeding related to their exercise or
failure to exercise any of the powers, authority, responsibilities or
discretion provided under the Plan and the Trust, or reasonably believed by
them to be provided thereunder, any action taken by them in connection with
those matters if they acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interest of the Plan, and with respect to
any criminal action or proceeding, if they had no reasonable cause to believe
that their conduct was unlawful.
SECTION 9.08. DISCRIMINATION PROHIBITED. In exercising any
discretionary or absolute authority under the Plan, the Corporate Benefits
Committee will act in a consistent and nondiscriminatory manner, treating all
persons in similar circumstances in a similar manner. The Corporate Benefits
Committee may take no action which would discriminate in favor of Members,
Beneficiaries or Employees who are officers, shareholders or highly-compensated
employees, or which would result in benefiting one employee or group of
employees at the expense of others similarly situated.
SECTION 9.09. REPRESENTATION IN PROCEEDINGS. In any court proceeding
arising under the Plan, the Corporate Benefits Committee will be the
representative of the Members, Beneficiaries and all other claiming any
interest under the Plan.
SECTION 9.10. TIME OF DELIVERY. Any information, forms of election,
rejection or other materials required to be filed or
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<PAGE> 33
delivered by a Member or Beneficiary to the Company, the Employer or any
fiduciary will be deemed filed or delivered when received. Any consents,
approvals, information, requests for information or other materials required to
be filed or delivered to a Member or Beneficiary by the Company, the Employer
for any fiduciary will be deemed filed or delivered on the earlier of the date
of personal delivery or the date deposited in first class mail. Any
information or other materials required to be filed or delivered to the
Company, the Employer or any fiduciary by the Company, the Employer or any
fiduciary will be deemed filed or delivered when actually received.
ARTICLE X
MISCELLANEOUS
-------------
SECTION 10.01. RIGHTS TO TRUST ASSETS.
(a) No Participant or any other person shall have any right to, or
interest in, any part of the Trust assets upon termination of employment or
otherwise, except as provided from time to time under this Plan, and then only
to the extent of the amounts due and payable to such person out of the assets
of the Trust. All payments as provided for in this Plan shall be made solely
out of the assets of the Trust and neither the Employers, the Trustee, nor any
member of the Committee shall be liable therefor in any manner.
(b) The effectiveness of this Plan is expressly subject to the
condition that the Company shall initially receive a favorable determination
letter from the Internal Revenue Service that the Plan meets the requirements
for qualification under Section 401(a) of the Code and all Employer
contributions hereunder are conditioned on the continued qualification of the
Plan under such Code section and the deductibility of such contributions under
Code section 404. In the event that the Internal Revenue Service initially
fails to issue a favorable determination letter, the Company may, at its
option, terminate the Plan, in which case all amounts in the Trust attributable
to Employer contributions shall be refunded to the Employers and all amounts
attributable to Participant contributions shall be distributed to Participants.
In the event that the Committee determines that a contribution has been made as
the result of a good faith mistake of fact, then the Committee may direct that
any non-deductible Employer contribution or any other contribution made as the
result of a mistake of fact shall be refunded to the Employer or Participant in
accordance with applicable provisions of ERISA.
(c) Except as provided in subsection (b) of this Section, the
Employers shall have no beneficial interest of any nature whatsoever in any
Employer Matching Contributions after the same have been received by the
Trustee, or in the assets, income or profits of the Trust or any part thereof.
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<PAGE> 34
SECTION 10.02. NON-RECOMMENDATION OF INVESTMENT. The decision as to
the choice of Investment Funds hereunder must be made solely by each
Participant, and no officer or employee of any Employer or the Trustee is
authorized to make any recommendation to any Participant concerning the
allocation or reallocation of Contributions among the Investment Funds.
SECTION 10.03. NON-ALIENATION. Except as otherwise provided herein,
no right or interest of any Participant or Beneficiary in the Plan and the
Trust shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, attachment, garnishment,
execution, levy, bankruptcy, or any other disposition of any kind, either
voluntary or involuntary, prior to actual receipt of payment by the person
entitled to such right or interest under the provisions hereof, and such
disposition or attempted disposition shall be void. Notwithstanding the
foregoing, a qualified domestic relations order relating to child support,
alimony payments or marital property rights shall be recognized and given
effect if such order contains sufficient information to permit the Committee to
determine that it meets the requirements of Code section 414(p). If a
qualified domestic relations order so directs, distribution of benefits to the
alternate payee may be made at a time not permitted for distributions to the
Participant.
SECTION 10.04. FACILITY OF PAYMENT. If the Committee shall determine
that a Participant or Beneficiary entitled to a distribution hereunder is
incapable of caring for his own affairs, because of illness or otherwise, it
may direct that any distribution from such Participant's Account may be made,
in such shares as it shall determine, to the spouse, child, parent or other
blood relative of such Participant or his Beneficiary, or any of them, or to
such other persons or persons as the Committee may determine. The Committee
shall be under no obligation to see to the proper application of the
distributions so made to such person or persons and any such distribution shall
be a complete discharge of any liability under the Plan to such Participant or
Beneficiary, to the extent of such distribution.
SECTION 10.05. UNCLAIMED BENEFITS. In the event that the Committee
is unable to locate any person who is entitled to benefits hereunder despite
reasonable and diligent efforts to do so, then such person's benefits shall be
automatically forfeited as of the last day of the Plan Year next following the
year in which such benefits became payable; provided, however, in the event
that such person subsequently makes a claim for such forfeited benefits prior
to the termination of the Plan, such benefits shall be reinstated by means of a
special Employer contribution equal to the amount of the forfeiture or by
direct payment by the Company to such person as determined by the Committee.
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<PAGE> 35
ARTICLE XI
TOP-HEAVY PLAN PROVISIONS
-------------------------
SECTION 11.01. EFFECT OF TOP-HEAVY STATUS. The Plan shall be a
"Top-Heavy Plan" for any Plan Year if either of the following conditions
applies:
(i) The Top-Heavy Ratio for the Plan exceeds sixty percent (60%)
and the Plan is not part of any Required Aggregation Group or
Permissive Aggregation Group having a Top-Heavy Ratio of sixty
percent (60%) or less.
(ii) The Plan is part of a Required Aggregation Group Having a
Top-Heavy Ratio which exceeds sixty percent (60%) and is not
part of a Permissive Aggregation Group having a Top-Heavy
Ratio of sixty percent (60%) or less.
If the Plan is a Top-Heavy Plan in any Plan Year, the provisions of Article
11.03 through 11.05 shall supersede any conflicting provisions of the Plan.
SECTION 11.02. ADDITIONAL DEFINITIONS. Solely for purposes of this
Article, the following terms shall have the meanings set forth below:
(A) "Key Employee" means any employee or former employee (and the
beneficiary of such employee) whose status as an officer or owner of the
Employer makes him a "key employee" as determined in accordance with Code
section 416(i)(1) and the regulations thereunder.
(B) "Determination Date" means the last day of the preceding Plan
Year.
(C) "Top-Heavy Ratio" means a fraction, the numerator of which is
the sum of account balances under any defined contribution plans maintained by
the Employer for all Key Employees and the present value of accrued benefits
under any defined benefit plans maintained by the Employer for all Key
Employees, and the denominator of which is the sum of the account balances
under such defined contribution plans for all employees and the present value
of accrued benefits under such defined benefit plans for all employees
disregarding in either case accrued benefits attributable to employees who have
not been employed within the five year period preceding the Determination Date.
Both the numerator and denominator of the Top-Heavy Ratio shall be adjusted for
any distribution of an account balance on an accrued benefit made in the five
(5) year period ending on the Determination Date and any contribution due but
unpaid as of the Determination Date. For purposes of calculating the Top-Heavy
Ratio, (i) the value of account balances and the present value of accrued
benefits shall be determined as of the most recent Valuation Date that falls
within
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<PAGE> 36
or ends with the twelve (12) month period ending on the Determination Date, and
(ii) the account balances and present values of accrued benefits of any
employees who are not Key Employees but who were Key Employees in a prior year
shall be disregarded. The calculation of the Top-Heavy Ratio, and the extent
to which distributions, rollovers and transfers are taken into account will be
made in accordance with Code section 416 and the regulations thereunder. When
aggregating plans, the value of account balances and accrued benefits will be
calculated with reference to the Determination Dates that fall within the same
calendar year. The present value of accrued benefits shall be determined
pursuant to Code section 416(g) using a five (5) percent interest assumption
and the 11P-1984 Mortality Table. Solely for the purpose of determining if the
Plan, or any other plan included in an aggregation group of which this Plan is
a part, is top-heavy, the accrued benefit of an Employee other than a Key
Employee 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
Code section 411(b)(1)(C).
(D) "Permissive Aggregation Group" means the Required Aggregation
Group of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue to
satisfy the requirements of Code section 401(a)(4) and 410.
(E) "Required Aggregation Group" means (i) each qualified plan of
the Employer in which at least one Key Employee participates, and (ii) any
other qualified plan of the Employer which enables a plan described in (i) to
meet the requirements of Code sections 401(a)(4) and 410.
(F) "Valuation Date" means (i) in the case of a defined
contribution plan, the Determination Date, and (ii) in the case of a defined
benefit plan, the date as of which funding calculations are generally made
within the twelve (12) month period ending on the Determination Date.
(G) "Employer" means the employer or employers whose employees are
covered by this Plan and any other employer which must be aggregated with any
such employer under Code sections 414(b), (c), (m) or (o).
SECTION 11.03. MINIMUM BENEFITS. For any year in which the Plan is a
Top-Heavy Plan, the employer contributions on behalf of each Employee who is
not Key Employee shall at least be equal to three percent (3%) of such
Employee's compensation (as defined in Code section 415) for such Plan Year or
the percentage of compensation allocated on behalf of the Key Employee for
which such allocation was highest, whichever is less, reduced however by the
amounts allocated to such Employee under any other defined
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<PAGE> 37
contribution plans. If such Employee is also covered under a defined benefit
plan of the Affiliates, such Employee will only be entitled to the defined
benefit minimum.
SECTION 11.04. MAXIMUM BENEFIT LIMITS. If the Employer 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 deemed to refer to a 1.0
adjustment on the dollar limitation rather than a 1.25 adjustment. This
provision shall not apply if the Top-Heavy Ratio is less than ninety percent
(90%) and if the minimum benefit requirements of Section 11.03 are met when
three percent (3%) is changed to four percent (4%).
ARTICLE XII
AMENDMENT
---------
SECTION 12.01. GENERAL AMENDMENT. The Corporate Benefits Committee
may amend the Plan at any time, by action of a majority of its members at a
meeting or by unanimous written consent in lieu of meeting. The Employer, the
Corporate Benefits Committee and all Members, Beneficiaries and other persons
will be bound by those amendments. However, no amendment may increase the
duties or liabilities of the Trustee, the Company or the Employer without its
written consent, and no amendment may authorize or permit any part of the Trust
Fund to be used for or diverted to any purpose other than the exclusive benefit
of Members or their Beneficiaries, and for defraying the reasonable expenses of
administering the Plan and Trust. The Corporate Benefits Committee
specifically reserves the right to make any amendment designed to comply, or to
eliminate any uncertainty of compliance, with the Code, ERISA, any other laws
relating to qualified employees' trusts or any regulations or rulings issued
under those laws, even though accrued benefits are eliminated or reduced
retroactively.
SECTION 12.02. AMENDMENT OF VESTING SCHEDULE. If the Plan is amended
to provide a different vesting schedule, each person adversely affected:
(a) who is a Participant during the election period below; and
(b) who has completed a Period of Service of at least five
years before that period ends;
may elect to have the amendment disregarded in determining his vested amount.
The election must be in writing and delivered to the Corporate Benefits
Committee within the election period. Upon delivery, the election will be
irrevocable. The election period
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<PAGE> 38
begins on the date the amendment is adopted and ends 60 days after the latest
of the date:
(c) the amendment is adopted;
(d) the amendment becomes effective; or
(e) the Corporate Benefits Committee delivers a written
notice of the amendment to the Participant.
No amendment to the Plan's vesting schedule may decrease the vested amount
which any Member has earned as of the date of the amendment.
ARTICLE XIII
SUSPENSION, DISCONTINUANCE OR TERMINATION
-----------------------------------------
SECTION 13.01. TERMINATION OR PARTIAL TERMINATION OF THE PLAN. The
Corporate Benefits Committee may terminate or partially terminate the Plan at
any time by action of a majority of its members at a meeting or by unanimous
written consent in lieu of meeting. If the Plan is terminated or partially
terminated without termination of the Trust, the Trust will be continued until
terminated by the Corporate Benefits Committee or until all Trust assets have
been distributed.
SECTION 13.02. TERMINATION OF THE TRUST. If the Plan is terminated
or partially terminated, the Trust may be terminated by the Corporate Benefits
Committee in the manner described above. The Trust Fund and each account under
the Trust Fund will be valued as provided in the Trust document. The Corporate
Benefits Committee will determine the methods and means of distribution and
will certify that information to the Trustee. After receiving that
certification and after making necessary adjustments to reflect additional
earnings, losses and liquidation expenses, the Trustee will distribute the
Trust assets promptly. If one but not all Employers terminates or partially
terminates the Plan, that Employer will determine whether or not the Trust will
continue for its Members. If those interests are terminated, the Corporate
Benefits Committee will direct their liquidation under this Section.
SECTION 13.03. DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. The
Employer expects to continue the Plan and to make Employer Contributions
indefinitely. However, the Employer does not assume a contractual obligation
to continue the Plan and reserves the right to reduce, suspend or discontinue
Employer Contributions. Any suspension or discontinuance of Employer
Contributions will not constitute a discontinuance of the Plan. If Employer
Contributions are discontinued or suspended the Trust will be continued until
terminated by the Company or until all trust Assets have been distributed.
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<PAGE> 39
ARTICLE XIV
GENERAL
-------
SECTION 14.01. SEVERABILITY. Each provision of the Plan is
independent of each other provision. If any provision of the Plan proves to
be, or is finally held by any court or tribunal, board or authority of
competent jurisdiction to be illegal, unenforceable or in conflict with the
Code, ERISA or any other law relating to qualified employees' trusts, that
provision will be disregarded and will be void. Such invalidation will not
impair the Plan or any of its other provisions.
SECTION 14.02. MERGER OF PLANS. No merger or consolidation of the
Plan with, or transfer in whole or in part of the assets and liabilities of the
Trust Fund to, any other plan of deferred compensation or trust fund maintained
or established for the benefit of all or some Members may occur unless:
(a) each Member would receive (if the other plan then
terminated) a benefit immediately after the merger, consolidation or
transfer which is equal to or great 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 adopted by the Company, the Corporate
Benefits Committee, and the Employer, and by any new or successor
employer of the affected Members, authorize the transfer of assets
and, in the case of the new or successor employer of the affected
Members, its resolutions specifically assume liabilities for those
Members' benefits; and
(c) the other plan and trust are qualified under Code
sections 401(a) and 501(a).
SECTION 14.03. PLAN NOT A CONTRACT OF EMPLOYMENT. Neither the
creation of the Plan nor any amendment to it nor the creation of the Trust Fund
nor the payment of benefits gives any legal or equitable right to any person
against the Company, the Employer or any Affiliate, their officers or
employees, or against the Trustee except as provided in the Plan. All
liabilities under the Plan will be satisfied, if at all, only out of the Trust
Fund. Participation in the Plan does not give any Member any right to
continued employment.
SECTION 14.04. SUCCESSORS; REORGANIZATIONS. In the case of the
merger, consolidation, sale of assets, liquidation or other reorganization of
the Employer under circumstances in which a successor person, firm or company
(a) continues all or a substantial part of the Employer's business and (b)
employs a substantial number of the Employer's employees, the successor will
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<PAGE> 40
be substituted for the Employer under the Plan if it files a written election
with the Trustee and the Corporate Benefits Committee to carry on the
provisions of the Plan.
SECTION 14.05. EXPENSES. The Employer will pay all the expenses of
administering the Plan, including the Trustee's compensation and expenses, any
broker's fees incurred by the Trust, the expenses of the Corporate Benefits
Committee, and any other expenses incurred at the direction of the Corporate
Benefits Committee. Any of those expenses not paid by the Employer will be
paid out of the Trust Fund. The Company will allocate the expenses among
Employers.
SECTION 14.06. CONTROLLING LAW. The Plan will be construed and
enforced according to the laws of the State of Ohio and the United States.
SECTION 14.07. CONSTRUCTION. If the Plan contains contradictory
clauses or if there appears to be a conflict between its provisions, the
following rules of construction will apply:
(a) The interpretation that favors the Plan as a tax-free
retirement plan and the deduction of Employer Contributions for
federal income tax purposes will prevail over any interpretation that
might render the Plan taxable or prevent that deduction.
(b) Subject to subsection (a), the rules established by the
Supreme Court of the State of Ohio for the construction of like
instruments will apply.
SECTION 14.08. HEADINGS. The headings and subheadings in the Plan
are inserted for convenience of reference only and are not to be considered in
the construction of its provisions.
SECTION 14.09. COUNTERPARTS. The Plan may be executed in any number
of counterparts, each of which is an original. All counterparts constitute one
and the same instrument, sufficiently evidenced by any one counterpart.
SECTION 14.10. TREASURY QUALIFICATION. The Plan is designed to
comply with Code section 401(a) and will terminate automatically if (a) the
Internal Revenue Service issues a written determination that the Plan as
initially adopted is not qualified and the Corporate Benefits Committee elects
not to amend or further amend the Plan, or (b) the Internal Revenue Service
fails to issue, within one year following a request that the Internal Revenue
Service issue, a written determination of qualification. Upon termination of
the Plan under this Section, the Trust will terminate and all amounts
contributed by the Employer and Participants (adjusted for net earnings and
losses) will be returned to them.
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<PAGE> 41
SECTION 14.11. DENIAL OF GUARANTY. There is no guarantee that the
Trust Fund will not incur losses or depreciate in value. Also, there is no
guarantee that any benefit or amount which may become due to any Member,
Participant or Beneficiary, or to any creditor of the Trust will be paid, nor
does the Employer or the Corporate Benefits Committee guarantee or assume any
obligation to enforce payment by any insurance company of any benefit or amount
which may become due under any insurance contract. Each Member or Beneficiary
and any creditor of the Trust may look only to the Trust Fund for payment.
After a Member's Distributable Credit has been fully distributed to him or to
his Beneficiary, or to the persons designated in Section 5.05, his interest in
the Trust Fund is extinguished. Neither the Company nor the Employer is liable
in any manner to any Member, Beneficiary or other person for any act or
omission of the Corporate Benefits Committee or Trustee.
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<PAGE> 42
ADDENDUM A
IRS MODEL DIRECT ROLLOVER REVISIONS
A.1 Rollover Requirements
This Addendum 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 Addendum, a distributee may elect, at
the time and in the manner prescribed by the plan administrator, to have any
portion of an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
A.2 Definitions
(a) Eligible rollover distribution: An eligible rollover distribution is
any cash 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 includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to Employer securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) 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.
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<PAGE> 43
(d) Direct rollover: A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
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<PAGE> 44
ADDENDUM B
IRS MODEL SECTION 401(a)17 LIMITATION
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
12 months, over which compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than 12 months, the OBRA '93 annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the determination
period, and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in this
plan to the limitation under section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into account in
determining an employee's benefit accruing in the current plan year, the
compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
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<PAGE> 1
Exhibit 5.1
-----------
THOMPSON, HINE AND FLORY
Attorneys At Law
2000 Courthouse Plaza NE
P. O. Box 8801
Dayton, Ohio 45401-8801
August 16, 1995
(513) 443-6586
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Dear Sir or Madam:
We have acted as counsel to Robbins & Myers, Inc., an Ohio
corporation (the "Company"), in connection with the preparation and filing of
the Company's Registration Statement on Form S-8 being filed under the
Securities Act of 1933 for the purpose of registering the offering and sale of
35,000 common shares of the Company under the Company's Employee Savings Plan
for Salaried Employees of Chemineer, Edlon and Pfaudler (the "Plan") and
interests in the Plan.
Please be advised that we have examined such proceedings and
records of the Company, and have made investigation of such other matters, as
in our judgment permits us to render an informed opinion on the matters set
forth herein. Based upon the foregoing, it is our opinion that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, with
full power to provide for the issuance of interests in the Plan; and
(ii) the Common Shares of the Company offered under the Plan
have been duly authorized and, when purchased pursuant to the Plan,
will be legally issued, fully paid and nonassessable Common Shares.
We consent to the use of this opinion as an exhibit to the
Company's Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/Thompson, Hine and Flory
Thompson, Hine and Flory
<PAGE> 1
Exhibit 23.1
-------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Robbins & Myers, Inc. Savings Plan for Salaried
Employees of Chemineer, Edlon, and Pfaudler of our report dated October 4,
1994, with respect to the consolidated financial statements of Robbins & Myers,
Inc. incorporated by reference in its Annual Report (Form 10-K) for the year
ended August 31, 1994 and the related financial statement schedules included
therein, filed with the Securities and Exchange Commission and of our report
dated July 13, 1995, with respect to the financial statements of the Robbins &
Myers, Inc. Savings Plan for Salaried Employees of Chemineer, Edlon, and
Pfaudler included in the Plan's Annual Report (Form 11-K) for the period July
1, 1994 through December 31, 1994 and related financial schedules included
therein, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
--------------------
Ernst & Young LLP
August 16, 1995
<PAGE> 1
Exhibit 24.1
ROBBINS & MYERS, INC. -------------
---------------------
LIMITED POWER OF ATTORNEY
-------------------------
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/Robert J. Kegerreis
-------------------------------------
Robert J. Kegerreis
JMR3185.lmb
<PAGE> 2
ROBBINS & MYERS, INC.
---------------------
LIMITED POWER OF ATTORNEY
-------------------------
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/Thomas P. Loftis
-------------------
Thomas P. Loftis
JMR3185.lmb
-13-
<PAGE> 3
ROBBINS & MYERS, INC.
---------------------
LIMITED POWER OF ATTORNEY
-------------------------
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/William D. Manning, Jr.
---------------------------------------
William D. Manning, Jr.
-14-
<PAGE> 4
ROBBINS & MYERS, INC.
---------------------
LIMITED POWER OF ATTORNEY
-------------------------
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/Maynard H. Murch IV
----------------------------------------
Maynard H. Murch IV
-15-
<PAGE> 5
ROBBINS & MYERS, INC.
---------------------
LIMITED POWER OF ATTORNEY
-------------------------
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/Jerome F. Tatar
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Jerome F. Tatar
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<PAGE> 6
ROBBINS & MYERS, INC.
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LIMITED POWER OF ATTORNEY
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WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the Act), a Registration Statement on
Form S-8 covering 500,000 of its common shares, without par value, that may be
issued under the Company's 1994 Long-Term Incentive Stock Plan (the
"Registration Statement");
NOW, THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Daniel W. Duval to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute in his name, place and stead, as aforesaid, the Registration
Statement and any post-effective amendment thereto, and any and all other
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done, as fully
to all intents and purposes as the undersigned might or could do in person.
The undersigned hereby ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 28th day of June, 1995.
/s/John N. Taylor, Jr.
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John N. Taylor, Jr.
-17-
