<PAGE> 1
As filed with the Securities and Exchange Commission on May 3, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
----------------------
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COOPER CAMERON CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 76-0451843
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
515 Post Oak Boulevard, Suite 1200
Houston, Texas 77027
(Address of Principal Executive Offices) (Zip Code)
COOPER CAMERON CORPORATION
SAVINGS-INVESTMENT PLAN
FOR HOURLY EMPLOYEES
(Full title of the plan)
Franklin Myers
Senior Vice President, General Counsel and Secretary
Cooper Cameron Corporation
515 Post Oak Boulevard, Suite 1200
Houston, Texas 77027
(Name and address of agent for service)
(713) 513-3300
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered (1) Registered Share(2) Price(3) Fee
<S> <C> <C> <C> <C>
Common Stock, par value 4,000(4) $37.00 $148,000 $41.15
$.01 per share
</TABLE>
================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1934,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Savings-Investment
Plan for Hourly Employees.
(2) Estimated based on the reported New York Stock Exchange composite
transactions average of the high and low prices on April 29, 1999,
which is within 5 business days prior to the date of filing of this
registration statement.
(3) Estimated solely for the purpose of calculating the filing fee.
(4) Each share of Common Stock offered hereby includes one purchase right
issuable under the Cooper Cameron Corporation Rights Plan which is
exercisable upon the occurrence of certain specified events.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "SEC") by Cooper Cameron Corporation ("Cooper Cameron"
or the "Company"), are incorporated herein by reference and made a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1998.
All reports subsequently filed by the Company and the Plan pursuant to
Sections 13, 14 and 15 (d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of Cooper Cameron incorporated
by reference in Cooper Cameron's Annual Report (Form 10-K) for the year ended
December 31, 1998, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon incorporated by reference therein and
incorporated herein by reference. Such financial statements are, and audited
financial statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining
to such financial statements (to the extent covered by consents filed with the
Securities and Exchange Commission) given upon the authority of such firm as
experts in accounting and auditing.
The opinion as to the legality of the securities registered hereunder
is being given by Franklin Myers, Senior Vice President, General Counsel and
Secretary of the Company. Mr. Myers is not eligible to participate in the Cooper
Cameron Corporation Savings-Investment Plan for Hourly Employees.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action.
In a suit brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of the
case, and the corporation may not indemnify for amounts paid in satisfaction of
a judgment or in settlement of the claim. In any such action, no indemnification
may be paid in respect of any claim, issue or matter as to which such persons
shall have been adjudged liable to the corporation except as otherwise approved
by the Delaware Court of Chancery or the court in which the claim was brought.
In any other type of proceeding, the indemnification may extend to judgments,
fines and amounts paid in settlement, actually and reasonably incurred in
connection with such other proceedings, as well as to expenses (including
attorneys' fees).
<PAGE> 3
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable to
criminal actions and to actions brought by or in the name of the corporation.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (i) by a majority vote of a quorum of
disinterested members of the board of directors; or (ii) by independent legal
counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct; or (iii) by the stockholders.
The Certificate of Incorporation and bylaws of the Company require the
Company to indemnify the Registrant's directors and officers to the fullest
extent permitted under Delaware law, and to implement provisions pursuant to
contractual indemnity agreements the Company has entered into with its directors
and executive officers. The Certificate limits the personal liability of a
director to the Company or its stockholders to damages for breach of the
director's fiduciary duty. The Company has purchased insurance on behalf of its
directors and officers against certain liabilities that may be asserted or
incurred by such persons in their capacities as directors or officers of the
Company, or that may arise out of their status as directors or officers of the
Company, including liabilities under the federal and state securities laws.
ITEM 8. EXHIBITS
4.1 First Amended and Restated Bylaws of Cooper Cameron Corporation, filed
as Exhibit 3.2 to the Annual Report on Form 10-K for 1996 of Cooper
Cameron Corporation, and incorporated herein by reference.
4.2 Amended and Restated Certificate of Incorporation of Cooper Cameron
Corporation, dated June 30, 1995, filed as Exhibit 4.2 to the
Registration Statement on Form S-8 of Cooper Cameron Corporation
(Commission File No. 33-94948), and incorporated herein by reference.
4.3 Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of Cooper Cameron Corporation, filed as Exhibit 4.3 to
the Registration Statement on Form S-8 of Cooper Cameron Corporation
(Commission File No. 333-57995), and incorporated herein by reference.
4.4 Amended and Restated Credit Agreement, dated as of March 20, 1997,
among Cooper Cameron Corporation and certain of its subsidiaries and
the banks named therein and First National Bank of Chicago, as agent,
filed as Exhibit 10.21 to the Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, and incorporated herein by reference.
4.5 Form of Rights Agreement, dated as of May 1, 1995, between Cooper
Cameron Corporation and First Chicago Trust Company of New York, as
Rights Agent, filed as Exhibit 4.1 to the Registration Statement on
Form S-8 of Cooper Cameron Corporation (Commission File No. 33-94948),
and incorporated herein by reference.
4.6 First Amendment to Rights Agreement between Cooper Cameron Corporation
and First Chicago Trust Company of New York, as Rights Agent, dated
November 1, 1997, filed as Exhibit 4.2 to the Annual Report on Form
10-K for the fiscal year ended December 31, 1997, and incorporated
herein by reference.
4.7 Cooper Cameron Corporation Savings-Investment Plan for Hourly
Employees.
5.1 Opinion and Consent of Franklin Myers, Senior Vice President, General
Counsel and Secretary of the Company.
<PAGE> 4
23.1 Consent of Franklin Myers (contained in his opinion filed as Exhibit
5.1 hereto.)
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney from certain members of Cooper Cameron Corporation
Board of Directors.
24.2 Certified copy of resolution authorizing signatures pursuant to Power
of Attorney
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post effective amendment to this registration statement:
(i) to include any prospectus required by Section 10
(a)(3) of the Securities Act of 1993,
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that the undertakings set forth in
paragraphs (a) (1) (i) and (a) (1) (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
Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of
<PAGE> 5
the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Houston, State of Texas, on the 30th day of
April, 1999.
COOPER CAMERON CORPORATION
(Registrant)
By: /s/ Franklin Myers
--------------------------------
Franklin Myers, Senior Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on April 30, 1999:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Sheldon R. Erikson
- -------------------------------- Director, Chairman, President &
Sheldon R. Erikson Chief Executive Officer (principal
executive officer)
/s/ Thomas R. Hix
- -------------------------------- Senior Vice President & Chief
Thomas R. Hix Financial Officer
(principal financial officer)
/s/ Joseph D. Chamberlain
- -------------------------------- Vice President & Controller
Joseph D. Chamberlain (principal accounting officer)
/s/ C. Baker Cunningham*
- -------------------------------- Director
C. Baker Cunningham
/s/ Grant A. Dove*
- -------------------------------- Director
Grant A. Dove
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
/s/ Michael E. Patrick*
- -------------------------------- Director
Michael E. Patrick
/s/ David Ross*
- -------------------------------- Director
David Ross
/s/ Michael J. Sebastian*
- -------------------------------- Director
Michael Sebastian
</TABLE>
*By: /s/ Franklin Myers
------------------------------------
Franklin Myers, Senior Vice President,
General Counsel and Secretary
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the plan has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston and State
of Texas on the 30th day of April, 1999.
COOPER CAMERON CORPORATION
SAVINGS-INVESTMENT PLAN FOR
HOURLY EMPLOYEES
ADMINISTRATIVE COMMITTEE
/s/ Thomas R. Hix
---------------------------------------
By: Thomas R. Hix, Chairman
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------------------------------------------------------------------------------
<S> <C>
4.1 First Amended and Restated Bylaws of Cooper Cameron Corporation, filed
as Exhibit 3.2 to the Annual Report on Form 10-K for 1996 of Cooper
Cameron Corporation, and incorporated herein by reference.
4.2 Amended and Restated Certificate of Incorporation of Cooper Cameron
Corporation, dated June 30, 1995, filed as Exhibit 4.2 to the
Registration Statement on Form S-8 of Cooper Cameron Corporation
(Commission File No. 33-94948), and incorporated herein by reference.
4.3 Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of Cooper Cameron Corporation, filed as Exhibit 4.3 to
the Registration Statement on Form S-8 of Cooper Cameron Corporation
(Commission File No. 333-57995), and incorporated herein by reference.
4.4 Amended and Restated Credit Agreement, dated as of March 20, 1997,
among Cooper Cameron Corporation and certain of its subsidiaries and
the banks named therein and First National Bank of Chicago, as agent,
filed as Exhibit 10.21 to the Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, and incorporated herein by reference.
4.5 Form of Rights Agreement, dated as of May 1, 1995, between Cooper
Cameron Corporation and First Chicago Trust Company of New York, as
Rights Agent, filed as Exhibit 4.1 to the Registration Statement on
Form S-8 of Cooper Cameron Corporation (Commission File No. 33-94948),
and incorporated herein by reference.
4.6 First Amendment to Rights Agreement between Cooper Cameron Corporation
and First Chicago Trust Company of New York, as Rights Agent, dated
November 1, 1997, filed as Exhibit 4.2 to the Annual Report on Form
10-K for the fiscal year ended December 31, 1997, and incorporated
herein by reference.
4.7 Cooper Cameron Corporation Savings-Investment Plan for Hourly
Employees.
5.1 Opinion and Consent of Franklin Myers, Senior Vice President, General
Counsel and Secretary of the Company.
23.1 Consent of Franklin Myers (contained in his opinion filed as Exhibit
5.1 hereto.)
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney from certain members of Cooper Cameron Corporation
Board of Directors.
24.2 Certified copy of resolution authorizing signatures pursuant to Power
of Attorney.
</TABLE>
<PAGE> 1
EXHIBIT 4.7
COOPER CAMERON CORPORATION
SAVINGS-INVESTMENT PLAN
FOR HOURLY EMPLOYEES
<PAGE> 2
COOPER CAMERON CORPORATION
SAVINGS-INVESTMENT PLAN
FOR HOURLY EMPLOYEES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page No.
- ------- --------
ARTICLE I
DEFINITIONS
<S> <C> <C>
1.1 Definitions................................................................ 3
1.2 Construction............................................................... 11
ARTICLE II
HOURS OF SERVICE
2.1 Crediting of Hours of Service.............................................. 12
2.2 Determination of Non-Duty Hours of Service................................. 13
2.3 Allocation of Hours of Service to Plan Years............................... 14
ARTICLE III
EMPLOYEE PARTICIPATION
3.1 Participation.............................................................. 15
3.2 Notice of New Participants................................................. 15
3.3 Changes in Employment Status;
Transfers of Employment.................................................. 15
3.4 Reemployment of a Participant.............................................. 15
ARTICLE IV
CONTRIBUTIONS
4.1 Election to Make Employee Before-Tax
Contributions............................................................ 17
4.2 Election to Change Employee Before-Tax
Contributions............................................................ 17
4.3 Effect of Employee Before-Tax Contributions................................ 18
4.4 Suspension of Employee Before-Tax Contributions............................ 18
4.5 Election to Make Employee After-Tax Contributions.......................... 18
4.6 Election to Change Employee After-Tax
Contributions............................................................ 19
4.7 Suspension of Employee After-Tax Contributions............................. 19
4.8 Employer Matching Contributions............................................ 19
4.9 Allocation of Employer Matching Contributions.............................. 19
4.10 Excess Elective Deferrals.................................................. 20
4.11 Limitation on Employer Matching Contributions
and Employee After-Tax Contributions..................................... 20
4.12 Limitations on Employee Before-Tax Contributions........................... 22
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE V
FUNDS AND PARTICIPANT ACCOUNTS
5.1 Funds...................................................................... 27
5.2 Income on Trust Funds...................................................... 27
5.3 Separate Accounts.......................................................... 27
5.4 Investment Election........................................................ 27
5.5 Account Balances........................................................... 28
ARTICLE VI
ALLOCATIONS TO ACCOUNTS AND VALUATIONS
6.1 Crediting of Contributions................................................. 29
6.2 Valuation of Participant's Interest........................................ 29
6.3 Finality of Trustee's Determination........................................ 30
ARTICLE VII
LOANS AND WITHDRAWALS
7.1 Loans...................................................................... 31
7.2 Withdrawal of Employee After-Tax Contributions
and Employer Matching Contributions...................................... 32
7.3 Hardship Withdrawals....................................................... 33
ARTICLE VIII
TERMINATION OF PARTICIPATION AND DISTRIBUTION
8.1 Termination of Participation............................................... 35
8.2 Vesting.................................................................... 35
8.3 Crediting of Vesting Service............................................... 36
8.4 Distribution............................................................... 37
8.5 Limitation on Commencement of Distribution................................. 38
8.6 Election of Former Schedule................................................ 41
8.7 Restrictions on Alienation................................................. 42
8.8 Payments in the Event of Incapacity........................................ 42
8.9 Distribution to Other Qualified Plans...................................... 42
8.10 Eligible Rollover Distributions............................................ 43
ARTICLE IX
BENEFICIARIES
9.1 Designation of Beneficiary................................................. 44
9.2 Beneficiary in Absence of a Designated
Beneficiary.............................................................. 44
9.3 Spousal Consent to Beneficiary Designation................................. 45
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE X
PLAN ADMINISTRATION
10.1 Plan Administrator......................................................... 46
10.2 Authority of the Company................................................... 46
10.3 Action of the Company...................................................... 46
10.4 Claims Review Procedure.................................................... 47
10.5 Qualified Domestic Relations Orders........................................ 48
10.6 Indemnification............................................................ 48
ARTICLE XI
ADOPTION BY SUBSIDIARIES 50
ARTICLE XII
AMENDMENT AND TERMINATION
12.1 Amendment.................................................................. 51
12.2 Limitation on Amendment.................................................... 51
12.3 Termination................................................................ 51
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 No Commitment as to Employment............................................. 53
13.2 Benefits................................................................... 53
13.3 No Guarantees.............................................................. 53
13.4 Precedent.................................................................. 53
13.5 Merger, Consolidation, or Transfer of
Plan Assets.............................................................. 53
13.6 Internal Revenue Service Determination..................................... 53
Appendix A - Section 415 Limitations......................................................... A-1
</TABLE>
iii
<PAGE> 5
COOPER CAMERON CORPORATION
SAVINGS-INVESTMENT PLAN
FOR HOURLY EMPLOYEES
WHEREAS, Cameron Iron Works, Inc. established the Cameron Iron Works
USA, Inc. Savings-Investment Plan for Hourly Employees (formerly known as the
Cameron Iron Works, Co. Savings-Investment Plan for Hourly Employees and
hereinafter referred to as the "Plan"), effective as of January 1, 1984, for the
exclusive benefit of certain of its eligible hourly employees; and
WHEREAS, due to a reorganization, Cameron Iron Works, Inc. became
Cameron Iron Works, USA, Inc. a subsidiary of a newly created Cameron Iron
Works, Inc; and
WHEREAS, effective November 29, 1989, Cameron Iron Works, Inc. was
merged with and into Cooper Industries, Inc. (hereinafter referred to as the
"Cooper"); and
WHEREAS, effective November 29, 1989 Cameron Iron Works USA, Inc.
became a wholly owned subsidiary of Cooper and on December 29, 1989 was merged
with and into Cooper; and
WHEREAS, Cooper amended and restated the Plan, effective as of July 1,
1989, to comply with the provisions of the Tax Reform Act of 1986, the Omnibus
Budget Reconciliation Act of 1986, the Omnibus Budget Reconciliation Act of
1987, and the Technical and Miscellaneous Revenue Act of 1988; and
WHEREAS, Cooper again amended and restated the Plan effective as of
July 1, 1992; and
WHEREAS, Cooper has deemed it desirable to spinoff, effective as of the
January 1, 1995, assets and liabilities attributable to the former Cameron
Forged Products Company participants into the McGraw-Edison Company Consolidated
Retirement Plan; and
<PAGE> 6
WHEREAS, Cooper and its wholly owned subsidiary, Cooper Cameron
Corporation, have agreed that Cooper Cameron Corporation shall assume the
sponsorship of the Plan as of January 1, 1995 after such spinoff;
NOW, THEREFORE, effective as of January 1, 1995, Cooper Cameron
Corporation hereby assumes the Plan, renames the Plan as the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees, and restates the Plan
as hereinafter set forth.
-2-
<PAGE> 7
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following words and phrases as used
herein shall have the meanings hereinafter set forth unless a different meaning
is plainly required by the context or specified in Appendix A.
(1) The term "AFFILIATE" shall mean any member of a
controlled group of corporations (as determined under Section
414(b) of the Code) of which the Company is a member; any
member of a group of trades or businesses under common control
(as determined under Section 414(c) of the Code) with the
Company; any member of an affiliated service group (as
determined under Section 414(m) of the Code) of which the
Company is a member; and any other entity that is required to
be aggregated with any Affiliate by reason of Section 414(o)
of the Code.
(2) The term "AFFILIATED GROUP" shall mean the group
of entities which are Affiliates.
(3) The term "BENEFICIARY" shall mean the person or
persons who, in accordance with the provisions of Article IX,
is entitled to receive distribution hereunder in the event a
Participant, Inactive Participant, or former Participant dies
before his interest has been distributed to him in full.
(4) The term "BREAK IN SERVICE" shall mean any Plan
Year during which an Employee completes not more than 500
Hours of Service; provided, however, that for purposes of
Sections 3.3(b) and 8.3(ii) no employee shall incur a Break in
Service solely by reason of an absence due to (i) the birth of
a child of the Employee, (ii) the pregnancy of the Employee,
(iii) the placement of a child with the Employee on account of
the adoption of such child by such Employee, or (iv) the
caring for a child of an Employee for a period beginning
following the birth or placement of such child, with respect
to the Plan Year in which such absence begins, if the Employee
otherwise would have incurred a Break in Service or, in any
other case, in the immediately following Plan Year.
(5) The term "CODE" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation that
amends, supplements, or supersedes such section.
-3-
<PAGE> 8
(6) The term "COMPANY", shall mean Cooper Cameron
Corporation.
(7) The term "ELIGIBLE EARNINGS" shall mean the
compensation within the meaning of Section 415(c)(3) of the
Code, subject to the provisions of Section 414(q)(6), paid
during a Plan Year by the Employer to a Participant while a
Participant, including all base earnings computed on straight
time hourly rates for work performed, excluding however, shift
differential, leadman pay, trainer pay, overtime pay, bonuses,
incentive or other supplemental pay, and any Before-Tax
Contributions contributed under the Plan or other
extraordinary compensation with respect to such Participant
during such Plan Year and elective Employer Contributions made
on behalf of a Participant that are not includable in gross
income under Section 125, Section 402(a)(8), Section 402(h)
and Section 403(b) of the Code, but excluding reimbursements
or other expense allowances, fringe benefits, moving expenses,
deferred compensation (other than Before-Tax Contributions),
and welfare benefits. Notwithstanding the foregoing, in no
event shall the annual Eligible Earnings of a Participant
taken into account under the Plan exceed the OBRA '93 annual
compensation limit of $150,000, as adjusted for increases in
the cost of living in accordance with the provisions of
Section 401(a)(17(B) of the Code. The cost of living in effect
for a calendar year applies to any period, not exceeding 12
months, over which Eligible Earnings is determined (a
"determination period") beginning in such calendar year. If a
determination period consists of fewer of 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.
Eligible Earnings of a Participant's "family members" shall be
treated as Compensation of the Participant in accordance with
Section 414(q)(6) of the Code, as modified by Section
401(a)(17) of the Code. If, as result of the application of
such rules the adjusted compensation limitation is exceeded,
then the limitation shall be prorated among the affect
individuals in proportion to each such individual's
compensation as determined under this paragraph prior to the
application of this limitation.
(8) The term "ELIGIBLE EMPLOYEE" shall mean any Employee who
is credited with one-half Year of Participation Service in
accordance with the provisions of Section 3.3.
(9) The term "ELIGIBLE RETIREMENT PLAN" shall mean:
(a) an individual retirement account described in
Section 408(a) of the Code;
-4-
<PAGE> 9
(b) an individual retirement annuity described in
Section 408(b) of the code;
(c) a trust maintained pursuant to a plan described
in Section 414(i) of the Code that meets the
requirements of Section 401(a) of the Code; and
(d) an annuity plan described in Section 403(a) of
the Code.
(10) The term "ELIGIBLE ROLLOVER DISTRIBUTION" shall
mean all or any portion of a Plan distribution to a
Participant or a Beneficiary who is a deceased Participant's
surviving spouse or an alternate payee under a qualified
domestic relations order who is a Participant's spouse or
former spouse; provided, however, that such distribution is
not (i) one of a series of substantially equal periodic
payments made at least annually for over a specified period of
ten or more years or the life of the Participant or
Beneficiary or the joint lives of the Participant and a
designated beneficiary, (ii) a distribution to the extent such
distribution is required under Section 401(a)(9) of the Code;
or (iii) the portion of any distribution which is not
includable in gross income (determined without regard to any
exclusion of net unrealized appreciation with respect to
employer securities).
(11) The term "EMPLOYEE" shall mean any hourly-paid
Employee who is employed by the Employer at its Oil Tool
Division, and who is represented through or included in a
collective bargaining unit with which the Company has entered
into a collective bargaining agreement and with which the
Company has agreed to provide for coverage of such Employee
under the Plan.
(12) The Term "EMPLOYEE AFTER-TAX CONTRIBUTION
ACCOUNT" shall mean the subaccount of the Separate Account of
a Participant to which Employee After-Tax Contributions are
credited in accordance with the provisions of Sections 4.6 and
6.1.
(13) The term "EMPLOYEE AFTER-TAX CONTRIBUTIONS"
shall mean any voluntary contributions made to the Plan by the
Participant in accordance with the provisions of Sections 4.5
and 4.7.
(14) The term "EMPLOYEE BEFORE-TAX CONTRIBUTIONS"
shall mean any cash or deferred arrangement contribution made
to the Plan by the Employer on behalf of a Participant in
accordance with the provisions of Sections 4.1 and 4.2 and a
duly executed and filed Eligible Earnings reduction
authorization.
-5-
<PAGE> 10
(15) The term "EMPLOYEE BEFORE-TAX CONTRIBUTION
ACCOUNT" shall mean the subaccount of Separate Account of a
Participant to which Employee Before-Tax Contributions are
credited in accordance with the provisions of Sections 4.1 and
6.1.
(16) The term "EMPLOYER" shall mean the Company and
any Affiliate who adopts the Plan in accordance with the
provisions of Article X.
(17) The term "EMPLOYER MATCHING CONTRIBUTION
ACCOUNT" shall mean the subaccount of the Separate Account of
a Participant to which Employer Matching Contributions are
credited in accordance with the provisions of Sections 4.9,
4.11, and 6.1.
(18) The term "EMPLOYER MATCHING CONTRIBUTION" shall
mean the contributions which an Employer contributes to the
Plan in accordance with the provisions of Section 4.9.
(19) The term "EMPLOYMENT COMMENCEMENT DATE" shall
mean the date on which an individual first completes an Hour
of Service.
(20) The term "ENTRY DATE" shall mean each January 1,
April 1, July 1 and October 1 of a Plan Year.
(21) The term "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended from time
to time. Reference to a section of ERISA includes such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(22) The term "FUND" shall mean any of the investment
funds established and maintained in accordance with the
provisions of Article V.
(23) The term "HIGHLY COMPENSATED EMPLOYEE" shall
mean any Employee who during such Plan Year or during the
immediately preceding Plan Year:
(a) received compensation (as defined in
Appendix A of the Plan without regard to
Code Sections 125, 402(a)(8) and
402(h)(1)(B), and in the case of
contributions made pursuant to a salary
reduction agreement, without regard to Code
Section 403(b)) in excess of $75,000 (such
dollar limitation shall be adjusted
automatically in accordance with the maximum
amount permitted under Code Section 414(q));
or
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<PAGE> 11
(b) received compensation (as defined in
Appendix A of the Plan without regard to
Code Sections 125, 402(a)(8) and
402(h)(1)(B), and in the case of
contributions made pursuant to a salary
reduction agreement, without regard to Code
Section 403(b)) in excess of $50,000 (such
dollar limitation shall be adjusted
automatically in accordance with the maximum
amount permitted under Code Section 414(q))
and was in the Top-Paid Group which is the
group consisting of the top 20 percent of
the employees when ranked by compensation
paid during such year; or
(c) was at any time an officer of an Affiliate
and received compensation in excess of 50
percent of the amount in effect under
Section 415(b)(1)(A) of the Code, except as
otherwise hereinafter provided; or
(d) owned directly or indirectly 5% or more of
an Affiliate (so that he is a "5% owner" as
defined in Section 416(i)(1) of the Code);
provided, however, if an Employee was not a "Highly
Compensated Employee" during the immediately preceding Plan
Year, he shall not be a Highly Compensated Employee pursuant
to subparagraph (a), (b) or (c) unless he is one of the 100
Employees with the highest compensation (as defined in
Appendix A of the Plan without regard to Code Sections 125,
402(a)(8) and 402(h)(1)(B), and in the case of contributions
made pursuant to a salary reduction agreement, without regard
to Code Section 403(b)) for such Plan Year.
For purposes of subparagraph (c) the number of employees who
shall be counted as officers shall be limited as follows:
-7-
<PAGE> 12
<TABLE>
<CAPTION>
Total Number of Employees of Maximum Number of Officers
the Affiliated Group to be Counted
---------------------------- ---------------------------
<S> <C> <C>
30 or less 3
30 - 500 10% of total number of Employees
(fractions to be rounded to next highest
whole number)
Over 500 50
</TABLE>
If the number of officers for any Plan Year exceeds the
maximum number that may be counted, the officers shall be
ranked in order of compensation (as defined in Appendix A of
the Plan without regard to Code Sections 125, 402(a)(8) and
402(h)(1)(B), and in the case of contributions made pursuant
to a salary reduction agreement, without regard to Code
Section 403(b)) for the Plan Year, and only the maximum number
with the highest such compensation shall be counted as
officers. If for any Plan Year no Affiliate has an officer
with compensation greater than the compensation specified in
subparagraph (c) above, the highest paid officer among the
Affiliates shall nevertheless be treated as a Highly
Compensated Employee.
If during any Plan Year an Employee is a "family member" of a
Highly Compensated Employee described above in subparagraph
(d) or of a Highly Compensated Employee in the group
consisting of the ten Highly Compensated Employees paid the
greatest compensation during the Plan Year, then such "family
member" shall not be considered to be a separate Employee and
the compensation paid to such "family member" and any
applicable employer contribution under the Plan paid to or on
behalf of such "family member" shall be treated as if it were
paid to (or on behalf of) the related Highly-Compensated
Employee. As used herein, the term "family member" means with
respect to any Employee, the Employee's spouse, grandparent
(and spouse), great grandparent (and spouse), child (and
spouse), great grandchild (and spouse) and any other lineal
ascendants or descendants and their spouses and for purposes
of applying the limitation of Section 401(a)(17) to paragraph
(9) of this Section 1.1 shall mean the spouse of any Employee
and any lineal descendant thereof who has not attained age 19
before the close of the Plan Year. In addition, a former
Employee shall be considered a Highly Compensated Employee if
he was a Highly-Compensated Employee at the time his
employment terminated or at any time after attaining age 55.
Notwithstanding the foregoing provisions of this paragraph
(23), the sole purpose of this paragraph is to define and
apply the term Highly-Compensated Employee strictly (and only)
to the extent necessary to satisfy the minimum requirements of
Section 414(q)
-8-
<PAGE> 13
of the Code relating to "highly-compensated employees." This
paragraph shall be interpreted, applied and, if and to the
extent necessary, deemed modified without formal amendments of
language, so as to satisfy solely the minimum requirements of
Section 414(q) of the Code.
(24) The term "HOUR OF SERVICE" shall mean an hour
for which an individual is credited in accordance with the
provisions of Article II.
(25) The term "INACTIVE PARTICIPANT" shall mean any
Participant who ceases to be an Eligible Employee but who
continues to participate in the Plan in accordance with the
provisions of Section 3.4.
(26) The term "LEASED WORKER" shall mean a person
(other than a person who is an Employee without regard to this
paragraph (26)) engaged in performing services for an
Affiliate (the "Recipient") pursuant to an agreement between
the Recipient and any other person ("Leasing Organization")
who meets the following requirements:
(a) he has performed services for one or more
Affiliates (or for any other "related
persons" determined in accordance with
Section 414(n)(6) of the Code) on a
substantially full-time basis for a period
of at least one year;
(b) such services are of a type historically
performed in the business field of the
Recipient, in the United States, by
employees; and
(c) he is not participating in a "safe harbor
plan" of the Leasing Organization. (For this
purpose, a "safe harbor plan" is a plan that
satisfies the requirements of Section
414(n)(5) of the Code, which generally will
be a money purchase pension plan with a
nonintegrated employer contribution rate of
at least 10% of compensation and which
provides for immediate participation and
full and immediate vesting).
A person who is a Leased Worker shall also be considered an
employee of an Affiliate during such period (and solely for
the purpose of determining length of service for (i)
eligibility for participation, and (ii) vesting purposes, and
shall also be considered to have been an employee for any
earlier period in which he was a Leased Worker) but shall not
be a Participant and shall not otherwise be eligible to become
covered by the Plan during any period in which he is a Leased
Worker.
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<PAGE> 14
Notwithstanding the foregoing, the sole purpose of this
paragraph (26) is to define and apply the term "Leased Worker"
strictly (and only) to the extent necessary to satisfy the
minimum requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be interpreted,
applied and, if and to the extent necessary, deemed modified
without formal amendments of language, so as to satisfy solely
the minimum requirements of Section 414(n) of the Code.
(27) The term "PARTICIPANT" shall mean an Eligible
Employee who actively participates in the Plan in accordance
with the provisions of Article III.
(28) The term "PLAN" shall mean the defined
contribution profit sharing plan set forth herein which is
known as the Cooper Cameron Corporation Savings-Investment
Plan for Hourly Employees.
(29) The term "PLAN ADMINISTRATOR" shall mean the
Company, which is the administrator for purposes of ERISA and
the plan administrator for purposes of the Code.
(30) The term "PLAN YEAR" shall mean each
twelve-month period that commences each January 1 and
terminates on the subsequent December 31.
(31) The term "REEMPLOYMENT DATE" shall mean the
first date on which an Employee again completes an Hour of
Service following a Break in Service.
(32) The term "SEPARATE ACCOUNT" shall mean the
account maintained by the Trustee pursuant to the provisions
of Section 5.7 in the name of a Participant which reflects his
interest in the Funds and which includes any subaccount, such
as an Employee Before-Tax Contribution Account, an Employee
After-Tax Contribution Account and a Employer Matching
Contribution Account.
(33) The term "SETTLEMENT DATE" shall mean the date
on which a Participant ceases participation in the Plan in
accordance with the provisions of Section 8.1.
(34) The term "TRUST" shall mean the trust
established under the Trust Agreement to hold and invest
contributions made under the Plan.
(35) The term "TRUST AGREEMENT" shall mean the
agreement between the Company and the Trustee establishing the
Trust.
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<PAGE> 15
(36) The term "TRUSTEE" shall mean the trustee or
trustees qualified and acting under the Trust Agreement at any
time.
(37) The term "VALUATION DATE" shall mean each the
last day of each month or such other day as may be agreed upon
by the Company and the Trustee.
(38) The term "YEARS OF PARTICIPATION SERVICE" shall
mean the period of service credited to an Employee for
purposes of determining his eligibility to participate in the
Plan in accordance with the provisions of Section 3.3.
(39) The term "YEARS OF VESTING SERVICE" shall mean
the period of service credited to a Participant for purposes
of determining his vested interest in his Employer Matching
Contribution Account in accordance with the provisions of
Section 8.3.
1.2 CONSTRUCTION. Where necessary or appropriate to the
meaning hereof, the singular shall be deemed to include the plural, the
masculine to include the feminine and the feminine to include the masculine.
-11-
<PAGE> 16
ARTICLE II
HOURS OF SERVICE
2.1 CREDITING OF HOURS OF SERVICE. An Employee shall be
credited with an Hour of Service under the Plan for:
(a) each hour for which he is paid, or entitled to
payment, for the performance of duties for the Company or an
Affiliate;
(b) each hour for which he is paid, or entitled to
payment, by the Company or an Affiliate on account of a period
of time during which no duties are performed (irrespective of
whether he remains an Employee) due to vacation, holiday,
illness, incapacity (including disability), lay-off, jury
duty, military duty, or leave of absence, up to a maximum of
eight hours per day and 40 hours per week; provided, however,
that no more than 501 Hours of Service shall be credited to an
Employee on account of any single continuous period during
which he performs no duties (whether or not such period occurs
in a single Plan Year); provided further, that no Hours of
Service shall be credited for payment which is made or due
under a program maintained solely for the purpose of complying
with applicable Workers' Compensation, unemployment
compensation, or disability insurance laws; and provided
further, that no Hours of Service shall be credited to an
Employee for payment which is made or due solely as
reimbursement for medical or medically-related expenses
incurred by him;
(c) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Company or an Affiliate; provided, however, that the crediting
of Hours of Service for back pay awarded, or agreed to, with
respect to a period of employment or absence from employment
described in any other paragraph of this Section 2.1 shall be
subject to the limitations set forth therein and, if
applicable, in Section 2.2; and
(d) each hour for which he would have been scheduled
to work for the Company or an Affiliate during the period of
time that he is absent from work because of service with the
armed forces of the United States, but only if he returns to
work within the period during which he retains reemployment
rights pursuant to federal law, up to a maximum of eight hours
per day and 40 hours per week; provided, however, that Hours
of Service credited under this paragraph (d), when added to
Hours of Service credited under paragraph (b), if any, by
reason of such absence, shall not exceed a total of 1,000
Hours of Service for any one Plan Year.
-12-
<PAGE> 17
Notwithstanding anything to the contrary contained in this Section 2.1, no more
than one Hour of Service shall be credited to an Employee for any one hour of
his employment or absence from employment.
2.2 DETERMINATION OF NON-DUTY HOURS OF SERVICE. In the case of
a payment which is made or due from the Company or an Affiliate on account of a
period during which an Employee performs no duties, and which results in the
crediting of hours of service under paragraph (b) of Section 2.1, or in the case
of an award or agreement for back pay, to the extent that such award or
agreement is made with respect to a period described in such paragraph (b), the
number of Hours of Service to be credited shall be determined as follows:
(a) In the case of a payment made or due which is
calculated on the basis of units of time, such as hours, days,
weeks, or months, the number of Hours of Service to be
credited shall be the number of regularly scheduled working
hours included in the units of time on the basis of which the
payment is calculated.
(b) In the case of a payment made or due which is not
calculated on the basis of units of time, the number of Hours
of Service to be credited shall be equal to the amount of the
payment divided by the Employee's most recent rate of
compensation immediately prior to the period to which the
payment related.
(c) Notwithstanding the provisions of paragraphs (a)
and (b), no Employee shall be credited on account of a period
during which no duties are performed with a number of Hours of
Service which is greater than the number of regularly
scheduled working hours during such period.
(d) If an Employee is without a regular work
schedule, the number of "regularly scheduled working hours"
shall mean the average number of hours worked by Employees
during an equivalent, representative period.
For the purpose of crediting Hours of Service under paragraph (b) of Section
2.1, a payment shall be deemed to be made by or due from the Employer (i)
regardless of whether
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<PAGE> 18
such payment is made by or due from the Company or an Affiliate directly, or
indirectly through (among others) a trust fund or insurer to which the Employer
contributes or pays premiums, and (ii) regardless of whether contributions made
or due to such trust fund, insurer, or other entity are for the benefit of
particular persons or are on behalf of a group of persons in the aggregate.
2.3 ALLOCATION OF HOURS OF SERVICE TO PLAN YEARS. Hours of
Service credited under Section 2.1 shall be allocated to the appropriate Plan
Year in the following manner:
(a) Hours of Service described in paragraph (a) of
Section 2.1 shall be allocated to the Plan Year or Years in
which the duties are performed.
(b) Hours of Service described in paragraph (b) of
Section 2.1 shall be allocated as follows:
(i) Hours of Service credited to an Employee
on account of a payment which is calculated on the
basis of units of time, such as hours, days, weeks,
or months, shall be allocated to the Plan Year or
Years in which the period during which no duties are
performed occurs, beginning with the first unit of
time to which the payment relates; and
(ii) Hours of Service credited to an
Employee on account of a payment which is not
calculated on the basis of units of time shall be
allocated to the Plan Year in which the period during
which no duties are performed occurs, or if such
period extends beyond a Plan Year, such Hours of
Service shall be allocated equally between the first
two such Plan Years.
(c) Hours of Service described in paragraph (c) of
Section 2.1 shall be allocated to the Plan Year or Years to
which the award or agreement for back pay pertains, rather
than to the Plan Year in which the award, agreement, or
payment is made.
(d) Hours of Service described in paragraph (d) of
Section 2.1 shall be allocated to the Plan Year or Years
during which such absence occurred.
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<PAGE> 19
ARTICLE III
EMPLOYEE PARTICIPATION
3.1 PARTICIPATION. Each Eligible Employee who is a participant
in the Plan on December 31, 1994 shall continue as a Participant hereunder on
January 1, 1995. Each other Eligible Employee may become a Participant as of the
first Entry Date coinciding with or next following the date on which he becomes
an Eligible Employee by completing and filing a written election form as
prescribed by the Company.
3.2 NOTICE OF NEW PARTICIPANTS. As soon as practicable after
each Entry Date, the Company shall transmit to the Trustee a list of all
Eligible Employees who became Participants on such date. Upon becoming a
Participant hereunder, an Eligible Employee shall become entitled to the
benefits under the Plan and shall be bound by all provisions of the Plan.
3.3 CHANGES IN EMPLOYMENT STATUS; TRANSFERS OF EMPLOYMENT. If
a Participant ceases to be an Employee but continues in the employment of the
Employer in some other capacity or is employed by an Affiliate, he shall
nevertheless continue his participation in the Plan as an Inactive Participant
until his participation is otherwise terminated in accordance with the
provisions of the Plan. Moreover, if a person is transferred directly from
employment (a) with the Employer in a capacity other than as an Employee, or (b)
with an Affiliate to employment with the Employer as an Employee, his service
with the Employer or such Affiliate shall be included in determining his
Participation Service and his Vesting Service under Sections 3.3 and 8.2,
respectively.
3.4 REEMPLOYMENT OF A PARTICIPANT. If a retired or former
Participant is reemployed by the Employer or an Affiliate after he incurs a
Settlement Date, he shall again become a Participant on the date he is
reemployed by such Employer; provided, however,
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<PAGE> 20
that if he is not reemployed as an Employee, he shall again become a Participant
on the first day thereafter on which he does become an Employee.
-16-
<PAGE> 21
ARTICLE IV
CONTRIBUTIONS
4.1 ELECTION TO MAKE EMPLOYEE BEFORE-TAX CONTRIBUTIONS.
Commencing with the date as of which an Eligible Employee becomes a Participant,
such Participant may elect to have Employee Before-Tax Contributions, in
integral percentage of 1% to 20% of his Eligible Earnings, made on his behalf to
the Plan and credited to his Employee Before-Tax Contribution Account; provided,
however, that Employee Before-Tax Contributions and any elective deferrals made
by a Participant under all other plans as defined in Section 402(g)(3) of the
Code, shall not exceed $7,000 (or such higher dollar limit as shall be in effect
for such calendar year in accordance with the provisions of Sections 402(g)(5)
and 415(d) of the Code). An Eligible Earnings reduction authorization shall be
timely filed only if made in the form, time, and manner prescribed by the
Company. The entire balance of any Employee Before-Tax Contribution Account
maintained hereunder in the name of a Participant shall be fully vested at all
times. In the event it is determined that the limitation set forth in this
Section 4.1 may be exceeded with respect to any Participant, the Employee
Before-Tax Contributions made on behalf of such Participant shall be reduced
until such limitation is not exceeded. Notwithstanding the foregoing, if
Employee Before-Tax Contributions in excess of such limitation are made to the
Plan with respect to a Participant, such excess amount shall be distributed to
the Participant (together with an allocable share of Trust income) not later
than April 15 of the following Plan Year.
4.2 ELECTION TO CHANGE EMPLOYEE BEFORE-TAX CONTRIBUTIONS. Any
Participant may change the percentage of his Eligible Earnings which he has
contributed on his behalf to the Plan as Employee Before-Tax Contributions
effective as of any Entry Day by filing an amended Eligible Earnings reduction
authorization with the Company within such time period prescribed by the
Company; provided, however, that he shall be limited to selecting an amount of
his Eligible Earnings which does not exceed the limitations specified in
Sections 4.1 and 4.11.
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<PAGE> 22
4.3 EFFECT OF EMPLOYEE BEFORE-TAX CONTRIBUTIONS. In the event
a Participant elects to have Employee Before-Tax Contributions made on his
behalf to the Plan, his Eligible Earnings shall be reduced by the percentage he
elects to have contributed to the Plan as Employee Before-Tax Contributions. The
Employer shall deliver all Employee Before-Tax Contributions to the Trustee as
soon as practicable but in no event later than the 30th day of the next month
after such Employee Before-Tax Contributions are made.
4.4 SUSPENSION OF EMPLOYEE BEFORE-TAX CONTRIBUTIONS. Any
Participant who is making Employee Before-Tax Contributions under Section 4.1
may suspend such contributions as of the first day of any calendar month by
notifying the Company in the form, time, and manner prescribed by the Company.
Any such suspension shall be effective for at least one full calendar year
quarter and only one suspension of Employee Before-Tax Contributions may be made
in any calendar year.
4.5 ELECTION TO MAKE EMPLOYEE AFTER-TAX CONTRIBUTIONS.
Commencing with the date as of which an Eligible Employee becomes a Participant,
any Participant may elect to make Employee After-Tax Contributions in an
integral percentage of 1% to 20% of his Eligible Earnings by payroll deduction
to the Plan and to have such Employee After-Tax Contributions credited to his
Employee After-Tax Contribution Account; provided, however, that such percentage
when added to the Participant's percentage of Employee Before-Tax Contributions
does not exceed 20%; and provided further, that the Employee After-Tax
Contributions of Highly Compensated Employees for a Plan Year may be limited by
the Company to the extent necessary to insure that the requirements of Sections
401(k) and 401(m) of the Code are not exceeded.
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<PAGE> 23
4.6 ELECTION TO CHANGE EMPLOYEE AFTER-TAX CONTRIBUTIONS. Any
Participant may change the percentage of his Employee After-Tax Contributions
that he contributes to the Plan effective as of any Entry Date by filing an
amended payroll deduction authorization with the Company within such time period
prescribed by the Company; provided, however, that he shall be limited to
selecting an amount of his Eligible Earnings which does not exceed the
limitations specified in Section 4.6 and 4.9.
4.7 SUSPENSION OF EMPLOYEE AFTER-TAX CONTRIBUTIONS. Any
Participant who is making Employee After-Tax Contributions under Section 4.6 may
suspend such contributions as of the first day of any calendar month by
notifying the Company in the form, time, and manner prescribed by the Company.
Any such suspension shall be effective for at least one full calendar year
quarter and only one suspension of Employee After-Tax Contributions may be made
in any calendar year.
4.8 EMPLOYER MATCHING CONTRIBUTIONS. The Employer shall cause
to be paid to the Trustee as its Employer Contribution hereunder for each month
an amount which equals 50% of the Employee Before-Tax Contributions and Employee
After-Tax Contributions of each Participant for such month which are
attributable to amounts not in excess of 6% of such Participant's Eligible
Earnings for such month.
4.9 ALLOCATION OF EMPLOYER MATCHING CONTRIBUTIONS. The
Employer Matching Contribution of the Employer for any month shall be allocated
as of the last day of such month among Participants who had Employee Before-Tax
Contributions and/or Employee After-Tax Contributions made during such time
period. Each such Participant's allocated share of such Employer Matching
Contribution shall be equal to the 50% of the Employee Before-Tax Contributions
and/or Employee After-Tax Contributions attributable to amounts not in excess of
6% of his Eligible Earnings.
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<PAGE> 24
4.10 EXCESS ELECTIVE DEFERRALS. If a Participant who had
Employee Before-Tax Contributions made on his behalf for a Plan Year files with
the Company, within the time limit prescribed by the Company after the end of
such Plan Year, a written statement, on a form acceptable to the Company, that
he has elective deferrals within the meaning of Section 402(g) of the Code for
the taxable year in excess of the dollar limitation on elective deferrals in
effect for such taxable year, and specifying the amount of such excess the
Participant claims as allocable to the Plan, the amount of such excess, adjusted
for income or loss attributable to such excess elective deferral, shall be
distributed to the Participant by April 15 of the year following the year of the
excess elective deferral and Employer Matching Contributions thereon shall be
forfeited. Distributions pursuant to this Section 4.10 shall be made
proportionately from the subaccounts to which Employee Before-Tax Contributions
were made for such Plan Year.
4.11 LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS AND
EMPLOYEE AFTER-TAX CONTRIBUTIONS. Notwithstanding any other provision of the
Plan to the contrary, the Company shall take such action as it deems appropriate
to limit the amount of Employee After-Tax Contributions, Employer Matching
Contributions, and qualified nonelective contributions made by or on behalf of
each Highly Compensated Employee each Plan Year to the Plan to the extent
necessary to insure that the contribution percentage requirement under Section
401(m) of the Code is not exceeded. Such Code Section and regulations relating
thereto, including the regulation regarding the Multiple Use Test, are hereby
incorporated in the Plan by reference. If the aggregate amount of Employee
After-Tax Contributions, Employer Matching Contributions, and qualified
nonelective contributions for the Plan Year made by or on behalf of Participants
who are Highly Compensated Employees exceeds the maximum amount permitted under
the limits of this Section 4.11 (determined by reducing contributions on behalf
of Highly Compensated Employees in order of contribution
-20-
<PAGE> 25
percentages as defined in Section 401(m)(3) of the Code beginning with the
highest of such percentages) then the amount of such excess (hereinafter
referred to as "Excess Aggregate Contributions"), plus any income or minus any
loss allocable thereto, shall be forfeited to the extent not vested or, if
vested, distributed no later than the last day of the succeeding Plan Year to
the Participants on whose behalf such Excess Aggregate Contributions were made.
Corrections to the maximum amount shall be made by (i) reducing the actual
contribution ratio (ACR) of the Highly Compensated Employee with the highest ACR
to the extent necessary to cause such ratio to equal the ACR of the Highly
Compensated Employee with the next highest ratio; and (ii) by repeating this
process until the ACP test is satisfied. If a Highly Compensated Employee's ACR
ratio is determined under the family aggregation rules, the amount of excess
aggregate contributions shall be made as follows: the ACR is reduced in
accordance with the "leveling" method described in Section 1.401(m)-1(e)(2) of
the proposed Treasury Regulations and the excess aggregate contributions are
allocated among the family members in proportion to the contributions of each
family member that have been combined. The amount of Excess Aggregate
Contributions to be distributed to each such Participant shall be determined on
the basis of the portion, if any, of the Excess Aggregate Contributions
attributable to each of such Participants. Distribution of the portion of Excess
Aggregate Contributions allocable to a Participant under the Plan shall be made
from contributions for the Plan Year allocated to the Participant's Employee
After-Tax Contribution Account and Employer Matching Contribution Account. The
amount of any income or loss allocable to Excess Aggregate Contributions shall
be determined by the Company in accordance with applicable rules and
regulations. Notwithstanding any distributions pursuant to the foregoing
provisions, Excess Aggregate Contributions shall be treated as Annual Additions
for purposes of Appendix A. Distributions pursuant to this Section 4.11 shall be
made proportionately from subaccount to which Excess Aggregate Contributions
were made for such Plan Year.
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<PAGE> 26
4.12 LIMITATIONS ON EMPLOYEE BEFORE-TAX CONTRIBUTIONS.
Notwithstanding any other provision of the Plan to the contrary, the Company
shall take such action as it deems appropriate to limit the amount of Employee
Before-Tax Contributions under the Plan made on behalf of each Highly
Compensated Employee for each Plan Year to the extent necessary to insure that
the actual deferral percentage requirement under Section 401(k) of the Code is
not exceeded. This Section 4.11 shall be interpreted, applied, and to the extent
necessary, deemed modified without formal amendment thereto so as to satisfy
solely the minimum requirements of Section 401(k) of the Code. All or part of
the qualified nonelective contributions made for Participants under the case or
deferred arrangement (hereinafter referred to as the "CODA") being tested may be
treated as elective contributions provided that the nonelective contributions,
excluding those qualified nonelective contributions treated as elective
contributions for purposes of the actual deferral percentage (ADP) test in Code
Section 401(k), satisfy the requirements of Code Section 401(a)(4). (This shall
also apply to Section 4.2 of the Plan.) Consequently, in the event during any
Plan Year the Employee Before-Tax Contributions made on behalf of Highly
Compensated Employees exceed the greater of the following (calculated to the
nearest 1/100th of one percent):
(i) the actual deferral percentage of the non-Highly
Compensated Employees multiplied by 1.25, or
(ii) the actual deferral percentage of the non-Highly
Compensated Employees multiplied by 2.0; provided,
however, that the actual deferral percentage for
Highly Compensated Employees does not exceed the
actual deferral percentage of the non-Highly
Compensated Employees by more than 2% (hereinafter
referred to as the "401(k) test"),
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the following steps shall be taken by the Company to meet the requirements of
said Section 401(k). For any Highly Compensated Employee who has a family member
aggregated with him, any amount reduced shall be prorated in direct proportion
to the Before-Tax Employee Contributions.
(a) The Company shall reduce or suspend all Employee
Before-Tax Contributions of each Highly Compensated
Employee for the remainder of the Plan Year, in such
amount as is required for the 401(k) test to be met.
Any such reduction shall be made by reducing
uniformly the Before-Tax Contributions for those
Highly Compensated Employees who elected the highest
contribution percentage for the Plan Year pursuant to
Section 4.2 in 1/100ths of one percentage point until
their contribution percentage equals the contribution
percentage of Highly Compensated Employees with the
next highest contribution percentage and the 401(k)
test is met. If the 401(k) test still is not met,
such procedure shall be repeated and the contribution
percentages of the Highly Compensated Employees shall
be reduced uniformly in order of actual contribution
percentages beginning with the highest of such
percentages, until the 401(k) test is met.
(b) To the extent that the 401(k) test is not met after
the application of paragraph (a) above, the Company
shall distribute from the Employee Before-Tax
Contribution Account of each Participant who is a
Highly Compensated Employee and who made Before-Tax
Contributions during the Plan Year to such
Participant such amount (plus income allocable
thereto) as is required for the 401(k) test to be
met; provided, however, that any previous
distribution of Employee Before-Tax Contributions
with respect to a Highly Compensated Employee for his
taxable year ending with or within the Plan Year
shall be deemed to have been a distribution of excess
Employee Before-Tax Contributions for the purpose of
this Section (and will therefore reduce the amount
distributable under this Section). If such Employee
Before-Tax Contributions are distributed more than
2-1/2 months after the end of such Plan Year, an
excise tax equal to 10 percent of such excess
Employee Before-Tax Contributions will be imposed on
the Employer. Notwithstanding the foregoing, Employee
Before-Tax Contributions will be treated as Annual
Additions for purposes of Appendix A to the Plan.
Excess Employee Before-Tax Contributions
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shall be allocated to Highly Compensated Employees
who are subject to the family member aggregation
rules of Section 414(q)(6) of the Code in accordance
with regulations under such Section and Section
401(k) of the Code. Such amounts shall be distributed
to all affected Highly Compensated Employees by no
later than the March 15th following the Plan Year in
which such contributions were made, under the
following method (which method may be modified by the
Company to comply with Treasury Regulations
prescribed under Section 401(k)(8) of the Code):
(c) An amount of Employee Before-Tax Contributions for
those Highly Compensation Employees who elected the
highest actual deferral percentage for the Plan Year
pursuant to Section 4.2 shall be distributed to such
Employees in 1/100ths of one percentage point until
the 401(k) test is met. If the 401(k) test still is
not met, such procedure shall be repeated and the
Employee Before-Tax Contributions of the Highly
Compensated Employees shall be distributed so as to
reduce the actual deferred percentage of such Highly
Compensated Employees in order of actual contribution
percentages beginning with the highest of such
percentages, until the 401(k) test is met.
As used herein, "actual deferral percentage" means for each specified group of
Participants, the average percentage for the group that is derived by
calculating separately for each Employee who is a Participant in the Plan:
(i) Employee Before-Tax Contributions
allocated to his Separate Account for the Plan Year,
divided by
(ii) Such Participant's compensation as
defined in paragraph 1.1(9) of Section 1.1 for the
Plan Year, as determined before giving effect to any
Eligible Compensation reduction agreement.
Notwithstanding any other provision to the contrary, any excess Employee
Before-Tax Contributions distributed to any Participant pursuant to Section 4.2
shall be included in the 401(k) test. For purposes of the 401(k) test, the
following rules shall apply:
1. The Plan will take into account the actual
deferral ratios of all Eligible Employees
for purposes of the actual deferral
percentage (ADP) test in
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section 401(k). For this purpose, an
Eligible Employee is any Employee who is
directly or indirectly eligible to make a
cash or deferred election under the Plan for
all or a portion of a Plan Year and
includes: (i) an Employee who would be a
Plan Participant but for the failure to make
required contributions; (ii) an Employee
whose eligibility to make elective
contributions has been suspended because of
an election (other than certain one-time
elections) not to participate, a
distribution, or a loan; and (iii) an
Employee who cannot defer because of the
section 415 limits on annual additions. In
the case of an Eligible Employee who makes
no elective contributions, the deferral
ratio that is to be included in determining
the ADP is zero.
2. An Employee Before-Tax Contribution will be
taken into account under the actual deferral
percentage test of Section 401(k)(3)(A) of
the Code for a Plan Year only if it relates
to compensation that either would have been
received by the Participant in the Plan Year
(but for the deferral election) or is
attributable to services performed by the
Participant in the Plan Year and would have
been received by the Participant within
2-1/2 months after the close of the Plan
Year (but for the deferral election).
3. An Employee Before-Tax Contribution will be
taken into account under the actual deferral
percentage test of Section 401(k)(3)(A) of
the Code for a Plan Year only if it is
allocated to the Participant as of a date
within the Plan Year. For this purpose, a
Before-Tax Contribution is considered
allocated as of a date within a Plan Year if
the allocation is not contingent on
participation or performance of services
after such date and the Before-Tax
Contribution is actually paid to the trust
no later than 12 months after the Plan Year
to which the contribution relates.
4. For purposes of determining whether the Plan
satisfies the actual deferral percentage
test of Section 401(k) of the Code, all
elective contributions that are made under
two or more plans that are aggregated for
purposes of Section 401(a)(4) or 410(b)
(other than Section 410(b)(12)(A)(ii) of the
Code are to be treated as made under a
single plan and that if two or more
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plans are permissively aggregated for
purposes of Section 401(k) of the code, the
aggregated plans must also satisfy Sections
401(a)(4) and 410(b) as though they were a
single plan; provided, however, that a plan
that benefits a unit of employees covered by
a collective bargaining agreement is treated
as comprising a separate plan (i.e., not
aggregated).
5. In calculating the actual deferral
percentage for purposes of Section 401(k) of
the Code, the actual deferral ratio of a
Highly Compensated Employee will be
determined by treating all cash or deferred
arrangements under which the Highly
Compensated Employee is eligible (other than
those that may not be permissively
aggregated as a single arrangement);
provided, however, that allocations made to
a collective bargaining plan and made to
plan (not collective bargained) will be
treated as two separate arrangements.
6. The amount of excess contributions to be
distributed shall be reduced by excess
deferrals previously distributed for the
taxable year ending in the same Plan Year
and excess deferrals to be distributed for a
taxable year will be reduced by excess
contributions previously distributed for the
plan beginning in such taxable year.
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ARTICLE V
FUNDS AND PARTICIPANT ACCOUNTS
5.1 FUNDS. The Trustee shall maintain at least three Funds for
the investment of the Separate Accounts of Participants. The interest of each
Participant, Inactive Participant, former Participant, and Beneficiary in each
Fund shall be an undivided interest.
5.2 INCOME ON TRUST FUNDS. Unless specifically provided
otherwise in the Plan or the Trust Agreement, any dividends, interest,
distributions, or other income received by the Trustee in respect of a Fund
shall be reinvested by the Trustee in the Fund with respect to which such income
was received by it.
5.3 SEPARATE ACCOUNTS. As of the date an Eligible Employee
first becomes a Participant, there shall be established a Separate Account in
his name with subaccounts which are dependent upon contributions made on his
behalf under the Plan as well as the manner in which the assets are invested.
Such subaccounts shall be as follows: (a) an Employer Matching Contribution
Account, which shall reflect Employer Matching Contributions, if any, allocated
to a Participant; (b) an Employee Before-Tax Contribution Account which shall
reflect Employee Before-Tax Contributions, if any, made on behalf of a
Participant; and (c) an Employee After-Tax Contribution Account which shall
reflect Employee After-Tax Contributions, if any, made by a Participant. Each
such subaccount shall also reflect such subaccount's pro rata share of the net
increase or decrease in the value of the assets of the Funds in which it is
invested.
5.4 INVESTMENT ELECTION. Subject to procedures established by
the Company, a Participant may elect to have all of his Separate Account
invested in one Fund or 50% of his Separate Account invested in each of two
Funds. A Participant may elect to change such investment election as to future
contributions as of any Entry Date by filing the appropriate
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form with the Company within such time period as the Company shall prescribe.
Moreover, subject to procedures established by the Company, a Participant may
elect to transfer, in 10% increments, any past contributions invested in any
Fund as of any January 31, April 30, July 30, and October 31 by filing the
appropriate form with the Company within such time period as the Company shall
prescribe; provided, however, that only one such transfer shall be made in any
six-month period.
5.5 ACCOUNT BALANCES. For all Plan purposes, the balance of
each Separate Account of a Participant as of any date shall be the balance of
such Separate Account after all credits and charges thereto for and as of such
date have been made as provided in the Plan.
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ARTICLE VI
ALLOCATIONS TO ACCOUNTS AND VALUATIONS
6.1 CREDITING OF CONTRIBUTIONS. As of each Valuation Date, the
Employee Before-Tax Contribution Account, the Employee After-Tax Contribution
Account, and the Employer Matching Contribution Account of each Participant
shall be credited with the Employee Before-Tax Contributions, the Employees
After-Tax Contributions, and the Employer Matching Contributions, respectively,
made on his behalf since the immediately preceding Valuation Date in accordance
with the provisions of Section 4.1.
6.2 VALUATION OF PARTICIPANT'S INTEREST. As of each Valuation
Date hereunder, the Trustee shall adjust the Separate Account of each
Participant to reflect any increase or decrease in the net worth of the Funds
since the immediately preceding Valuation Date, in the following manner:
(a) The Trustee shall value all of the assets of the
Funds at fair market value.
(b) The Trustee then shall, on the basis of the
valuation provided under paragraph (a) and after making
appropriate adjustments for any distributions, and
withdrawals, ascertain the net increase or decrease in net
worth of each Fund which is attributable to net earnings and
all profits and losses, realized and unrealized, since the
immediately preceding Valuation Date.
(c) The Trustee then shall allocate the net increase
or decrease in the net worth of each Fund as thus determined
among all Participants and Inactive Participants who have an
interest in such Fund, in the ratio that the balance of the
portion of each Separate Account of each such Participant
invested in such Fund on the day immediately preceding such
Valuation Date bears to the aggregate of the balances of all
such accounts on the day immediately preceding such Valuation
Date, and shall credit or charge, as the case may be, each
such account with the amount of its allocated share.
(d) The Trustee then shall credit the Employee
Before-Tax Contribution Account, the Employee After-Tax
Contribution Account, and the Employer Matching Contribution
Account of each Participant with the Employee Before-Tax
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Contributions, Employee After-Tax Contributions and Employer
Matching Contributions allocated to him pursuant to Article
IV.
6.3 FINALITY OF TRUSTEE'S DETERMINATION. The Trustee shall
have the responsibility for determining the net income, liabilities, and value
of the assets of the Funds, as well as determining the balance of each Separate
Account maintained thereunder.
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ARTICLE VII
LOANS AND WITHDRAWALS
7.1 LOANS. Any Participant of the Plan may elect to borrow
from his Employee After-Tax Savings Account and, if vested, his Employer
Matching Contribution Account pursuant to the provisions of this Section 7.1.
Loans shall be made available to Participants on a reasonably equivalent basis
and shall not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Participants. No loan to any
Participant shall be made to the extent that such loan would exceed 50% of the
Participant's total vested balance in his Separate Account or the total value,
as of the Valuation Date immediately preceding the date of the loan, of the sum
of his Employee After-Tax Contribution Account and his vested interest, if any,
in his Employer Matching Contribution Account; provided, however, that no loan
shall be made in amounts greater than the lesser of (i) $50,000 minus the
highest outstanding balance of any plan loan of the Participant during the
preceding 12 months, or (ii) the greater of one-half of the Participant's total
vested balance. In addition to such rules as the Company may adopt, all loans
shall comply with the following terms and conditions:
(i) An application for a loan by a Participant shall
be made in writing to the Company.
(ii) The period of repayment for any loan shall be
determined by mutual agreement of the Company and the
borrowing Participant, but such period shall be one, two,
three, four or five years.
(iii) Each loan shall be made against collateral,
being a security interest in the Participant's entire right,
title and interest in and to his total vested balance of his
Separate Account, supported by the Participant's promissory
note for the amount of the loan, including interest, payable
to the order of the Trustee.
(iv) Each loan shall bear interest at a reasonable
rate to be fixed, from time to time, in accordance with
procedures adopted by the Company.
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<PAGE> 36
(v) A Participant may have no more than one loan
outstanding at any time, and a period of six months must have
elapsed from the repayment of a loan by a Participant before
another loan shall be made to said Participant.
(vi) A loan shall be made in $100 increments,
provided, however, that no loan shall be less than $1,000.
(vii) The method of repayment shall be by payroll
deduction, which, to the extent permitted by law, shall be
irrevocable until the loan has been repaid in full, and full
lump sum repayment will be allowed without penalty at the end
of any month. In the event that a Participant is no longer
subject to payroll deductions for any reason, including but
not limited to termination of employment, retirement,
disability or authorized leave of absence, the Participant
shall be required to continue to make all loan payments when
due.
(viii) Loans shall be made on a pro-rata basis from
the Participant's Employee After-Tax Contributions Account and
Employer Matching
Contribution Account.
(ix) Repayments of loans shall be made to the
Participant's Separate Account in accordance with his current
applicable investment election.
(x) In the event of death or default, the Participant
will be deemed to have received a distribution of his entire
Employee After-Tax Contribution Account, and if vested, his
Employer Matching Contribution Account, which amounts shall
first be applied to repay the entire unpaid principal balance
plus interest accrued.
7.2 WITHDRAWAL OF EMPLOYEE AFTER-TAX CONTRIBUTIONS AND
EMPLOYER MATCHING CONTRIBUTIONS. Any Participant who has vested interest in his
Employer Matching Contribution Account may withdraw all, but no less than all,
of the balance in his Employee After-Tax Contribution Account and his Employer
Matching Contribution Account. Any Participant who does not have a vested
interest in his Employer Matching Contribution Account may withdraw all, but not
less than all, of the balance in his Employee After-Tax Contribution Account.
Either of such withdrawals shall be requested at least ten days prior to the
date thereof by notifying the Company in writing and such withdrawal may be made
only as of the last day of a calendar month. In the event that a Participant
makes
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such a withdrawal, he shall not be permitted to make any contributions to his
Employee After-Tax Contribution Account or Employee Before-Tax Contribution
Account for a period of at least six months following the date of such
withdrawal. If a Participant makes a withdrawal pursuant to this Section 7.2, he
may not make another such withdrawal until he has resumed his Employee After-Tax
Contributions and/or Employee Before-Tax Contributions for at least twelve
months. In the event a Participant who does not have a vested interest in his
Employer Matching Contribution Account withdraws the balance in his Employee
After-Tax Contribution Account, the balance in his Employer Matching
Contribution Account shall be forfeited and such forfeiture shall be applied to
the next Employer Matching Contribution obligation of the Employer.
Notwithstanding the foregoing, in the event of such a forfeiture, the
withdrawing Participant shall have the right to repay the amount withdrawn by
him and, upon such repayment, the balances of his Employee After-Tax
Contribution Account and Employer Matching Contribution Account shall be
restored to the amounts they were at the time of such withdrawal, unadjusted by
any subsequent gains or losses of the Trust Fund; provided, however, that such
right to repay will expire upon such Participant incurring five One-Year
Breaks-in-Service, commencing after such withdrawal, or at such earlier time as
is permitted to be required by Treasury Regulations.
7.3 HARDSHIP WITHDRAWALS. Upon proper written application of a
Participant in such form as the Company may specify, and to the extent
consistent with applicable law, the Committee in its sole discretion may permit
the Participant to withdraw a portion or all of the balance of his Employee
Before-Tax Contribution Account as of the last day of a calendar month, provided
that the Participant has already withdrawn the entire balances of his Employee
After-Tax Contribution Account and his Employer Matching Contribution Account in
accordance with Section 7.2 and if the reason for such withdrawal is to enable
the
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Participant to meet unusual or special situations in his financial affairs
resulting in immediate and heavy financial needs of the Participant which meet
the requirements of Section 401(k) of the Code and regulations thereunder. Any
withdrawal hereunder may not exceed the amount required to meet the immediate
financial need and provided such amount is not available from other resources of
the Participant, and in no event shall such withdrawals exceed, in the
aggregate, the Participant's cumulative Employee Before-Tax Contributions to the
Plan. In granting or refusing any request for withdrawal, the Company shall
apply uniform standards consistently and such discretionary power shall not be
applied so as to discriminate in favor of officers, stockholders, or highly
compensated participants. In the event that a Participant makes such a
withdrawal, he shall not be permitted to make any contributions to his Employee
Before-Tax Contribution Account or Employee After-Tax Contribution Account for a
period of at least twelve months following the date of such withdrawal. If a
Participant makes a withdrawal pursuant to this Section 7.3, he may not make
another such withdrawal until he has resumed his Employee After-Tax
Contributions and/or Employee Before-Tax Contributions for at least twelve
months.
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ARTICLE VIII
TERMINATION OF PARTICIPATION AND DISTRIBUTION
8.1 TERMINATION OF PARTICIPATION. Each Participant shall cease
to be a Participant hereunder upon the first to occur of the following dates,
which shall be his Settlement Date for purposes of the Plan:
(a) the date such Participant's employment with the
Employer or an Affiliate is terminated at or after attainment
of age 55;
(b) the date such Participant's employment with the
Employer or an Affiliate is terminated because of physical or
mental disability;
(c) the date such Participant's employment with the
Employer or an Affiliate is terminated because of the death of
such Participant; or
(d) the date of such Participant's separation from
service with the Affiliated Group under any other
circumstances.
Notwithstanding any other provisions of the Plan to the contrary, a Participant
shall be fully vested in his Separate Account upon attainment of age 65.
8.2 VESTING. A Participant whose employment terminates in
accordance with the provisions of paragraph (a), (b), or (c) of Section 8.1 and
a Participant whose employment terminates in accordance with the provisions of
paragraph (d) of Section 8.1 after at least five Years of Service shall be fully
vested in the balance of his Separate Account. A Participant whose employment
terminates in accordance with the provisions of paragraph (d) of Section 8.1
prior to being credited with five Years of Service shall be fully vested in the
portion of his Separate Account attributable to contributions other than
Employer Matching Contributions and shall forfeit the balance of his Employer
Matching Contribution Account. Upon the forfeiture of such a Participant's
Employer Matching Contribution Account, such forfeited amount shall be applied
against the Employer's next Employer Matching Contribution obligation. If a
Participant who incurs such a forfeiture is
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reemployed by the Affiliated Group prior to incurring a five year period of
severance, the amount of his forfeiture shall be restored to his Separate
Account. Any restoration shall be made from a special contribution of the
Employer which shall not constitute an "annual addition" within the meaning of
Section 415 of the Code.
8.3 CREDITING OF VESTING SERVICE. Vesting Service shall be
credited to a Participant in accordance with the following provisions:
(a) Vesting Service prior to January 1, 1995. Each person
who is an Employee on January 1, 1995, shall be
credited with Years of Vesting Service for purposes
of the Plan with respect to any periods of employment
prior to such date in an amount equal to the Years of
Vesting Service with which he had been credited in
accordance with the Plan provisions in effect as of
December 31, 1994.
(b) Years of Vesting Service on and after January 1,
1995. Subject to the provisions of hereinafter set
forth in this Section 8.3, each person who is an
Employee on or after January 1, 1995, shall be
credited with a Year of Vesting Service for each Plan
Year on and after such date for which he is credited
with at least 1,000 Hours of Service; provided,
however, that Years of Vesting Service credited to a
person shall be subject to the following:
(i) Any person who transfers or re-transfers to
employment with an Employer as an Employee
directly from other employment (i) with the
employer in a capacity other than as an
Employee or (ii) with an Affiliate, shall be
credited with Years of Vesting Service, for
such other employments as if such other
employment were employment with an Employer
as an Employee for the entire period of
employment.
(ii) Any person who transfers from employment
with an Employer as an Employee directly to
other employment (i) with an Employer in a
capacity other than as an Employee or (ii)
with an Affiliate, shall be deemed by such
transfer not to lose his credited Years of
Vesting Service,and shall be deemed not to
retire or otherwise terminate his employment
as an Employee until such time as he is no
longer in the employment of an Affiliate, at
which time he shall become entitled to
benefits, if he is otherwise eligible
therefor under the provisions of the Plan;
provided, however, that up to such time he
shall receive credit for Years of Vesting
Service for such other employment as if such
other employment were employment with the
Employer as an Employee.
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<PAGE> 41
Except as otherwise specifically provided in this
Section 8.3, a Participant's Years of Vesting Service
shall be lost if he retires or if his employment with
an Employer and its Affiliates terminates for any
other reason and, if he thereafter returns to
employment as an Employee, he shall be treated for
Plan purposes as a new Employee. Notwithstanding the
foregoing provisions, a retired or former Participant
who returns to employment with an Employer or an
Affiliate shall be reinstated with the Years of
Vesting Service with which he was credited at the
time of his prior retirement or other termination of
employment if:
(i) he was eligible for a benefit from
his Employer Matching Contribution
Account at the time of his previous
retirement or other termination of
employment, or
(ii) he terminated his employment before
satisfying the conditions of
eligibility for a benefit from his
Employer Matching Contribution
Account and the number of his
consecutive one-year Breaks in
Service is less than five or the
aggregate number of his Years of
Vesting Service at the time of such
prior termination of employment was
greater than the number of his
consecutive one-year Breaks in
Service (the aggregated number of
Years of Vesting Service not to
include any Years of Vesting
Service not required to be taken
into account due to previous Breaks
in Service); provided, however,
that if he should return to
employment with an Employer or an
Affiliate in a capacity other than
as an Employee, his period of
employment shall be treated for
purposes of the Plan in accordance
with the provisions of paragraph
(b) above.
8.4 DISTRIBUTION. As of earlier of the Valuation Date
coinciding with or immediately following a Participant's Settlement Date,
distribution of the entire balance of the Participant's Separate Accounts as of
such Settlement Date shall be made in the manner hereinafter set forth.
a. Distributions of $3,500 or Less. If the value of
the vested portion of the Separate Account of an eligible
Participant, Inactive Participant, former Participant or
Beneficiary is $3,500.00 or less, distribution thereof shall
be made to such Participant or Beneficiary as soon as
practicable in a single lump-sum payment.
b. Distributions of Over $3,500. If the value of the
vested portion of the Separate Account of an eligible
Participant, Inactive Participant, former Participant or
Beneficiary is in
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excess of $3,500, the Participant may elect to receive
distribution thereof in a single lump-sum payment at any time
prior to attainment of age 70-1/2. Except as specified
otherwise, any such distribution to a Participant, Inactive
Participant, former Participant, or Beneficiary hereunder
shall occur as soon as practicable after such Participant's or
Beneficiary's eligibility to receive such amount.
Notwithstanding the foregoing, no distribution may be made to
a Participant, Inactive Participant, former Participant, or
Beneficiary if the value of the vested portion of the Separate
Account of the Participant, Inactive Participant, former
Participant, or Beneficiary is in excess of $3,500, unless
such Member or Beneficiary consents in writing to such
distribution.
Notwithstanding any other provision of the Plan to the contrary, unless the
Participant, Inactive Participant, or former Participant otherwise elects (or is
deemed to elect otherwise because the present value of such Participant's
nonforfeitable benefit exceeds $3,500 and he fails to consent to a distribution
while his benefit is immediately distributable within the meaning of Treasury
Regulations), the payment of benefits under the Plan to such Participant shall
begin not later than the 60th day after the close of the Plan Year in which the
latest of the following events occurs:
(i) The date on which such Participant attains
age 65;
(ii) The tenth anniversary of the date on which
such Participant commenced participation in
the Plan; and
(iii) The date on which such Participant
terminates service with the Employer.
8.5 LIMITATION ON COMMENCEMENT OF DISTRIBUTION.
Notwithstanding any provision in the Plan to the contrary, all distributions
required under this Article VIII shall be determined and made in accordance with
the proposed regulations under Section 401(a)(9) of the Code, including the
minimum distribution incidental benefit requirements of Section 1.401(a)(9)-2 of
proposed Treasury Regulations. Accordingly, the entire interest of a Participant
in his Separate Account must be distributed or must begin to be distributed no
later than the Participant's Mandatory Distribution Date. A Participant's
Mandatory Distribution Date shall be determined as follows:
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(i) The Mandatory Distribution Date of a Participant
who attains age 70-1/2 on or after January 1, 1988 shall be
April 1, 1990, or the first day of April following the
calendar year in which the Participant attains age 70-1/2,
whichever is later.
(ii) The Mandatory Distribution Date of a Participant
who has attained age 70-1/2 before January 1, 1988 shall be
the first day of April of the calendar year following the
calendar year in which the later of the Participant's
termination of employment or attainment of age 70-1/2 occurs.
Distributions to a Participant who has attained age 70-1/2 and who has not
terminated employment shall be made as of his Mandatory Distribution Date
subject to the following minimum distribution rules:
(1) The value of the Participant's Separate Account shall
be distributed in installments while such Member is
still employed over (i) a period not extending beyond
the life expectancy of the Participant or the joint
life and last survivor expectancy of the Participant
and his Beneficiary, or (ii) a period not extending
beyond the life expectancy of his Beneficiary, and
the amount of the Required Minimum Distribution for
each calendar year beginning with distributions for
the first distribution calendar year, must at least
equal the quotient obtained by dividing the Mandatory
Distribution Value of the Participant's Separate
Account by the lesser of (1) the applicable life
expectancy or (2) if the Participant's spouse is not
the Beneficiary, the applicable divisor determined
from the table set forth in Q&A-4 of Section
1.401(a)(9)-2 of the proposed regulations.
Distributions after the death of the Participant
shall be distributed using the applicable life
expectancy referred to in clause (ii)(1), above as
the relevant divisor without regard to clause (2).
(2) The Required Minimum Distribution for the
Participant's first distribution calendar year must
be made on or before the Participant's Mandatory
Distribution Date. The Required Minimum Distribution
for other calendar years, including the Required
Minimum Distribution for the calendar year in which
the Participant's Mandatory Distribution Date occurs,
must be made on or before December 31 of such
calendar year.
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(3) Upon such Participant's termination of employment,
any remaining balance in his Separate Account shall
be distributed in a single sum pursuant to the
provisions of Section 8.4.
If the Participant dies on or after the Participant's
Mandatory Distribution Date, the remaining portion of the
Participant's Separate Account must continue to be distributed
at least as rapidly as under the method of distribution in
effect at the Participant's death. If, however, the
Participant dies before the Participant's Mandatory
Distribution Date, distribution of the Participant's Separate
Account must be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death.
For purposes of this Section 8.5, the words and phrases
hereinafter set forth shall have the following meanings:
(1) Applicable Life Expectancy. The life expectancy (or
joint and last survivor expectancy) calculated using
the attained age of the Participant (or Beneficiary)
as of the Participant's (or Beneficiary's) birthday
in the applicable calendar year reduced by one for
each calendar year which has elapsed since the date
life expectancy was first calculated.
(2) Distribution Calendar Year; First Distribution
Calendar Year. A distribution calendar year is a
calendar year for which a minimum distribution is
required. For distributions beginning before the
Participant's death, the first distribution calendar
year is the calendar year immediately preceding the
calendar year which contains the Participant's
Mandatory Distribution Date. For distributions
beginning after the Participant's death, the first
distribution calendar year is the calendar year in
which distributions are required to begin.
(3) Life Expectancy. Life expectancy and joint and last
survivor expectancy shall be computed by use of the
expected return multiples in Tables V and VI of
Section 1.72-9 of the Income Tax Regulations. Except
as may be required pursuant to regulations under
Section 401(a)(9) of the Code in the case where a new
Beneficiary is designated, life expectancies shall
not be recalculated after the first distribution
calendar year.
(4) Mandatory Distribution Values of a Participant's
Separate Account.
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(i) The balance of the Participant's Separate
Accounts as of the last Valuation Date in
the calendar year immediately preceding the
distribution calendar year (the "valuation
calendar year") increased by the amount of
any contributions allocated to the Separate
Account as of dates in the valuation
calendar year after the Valuation Date and
decreased by distributions made in the
valuation calendar year after the Valuation
Date.
(ii) For purposes of subparagraph (i), above, if
any portion of the minimum distribution for
the first distribution calendar year is made
in the second distribution calendar year on
or before the Mandatory Distribution Date,
the amount of such minimum distribution made
in the second distribution calendar year
shall be treated as if it had been made in
the immediately preceding distribution
calendar year.
8.6 ELECTION OF FORMER VESTING SCHEDULE. In the event the
Company adopts an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his Separate Account,
any Participant with three or more Years of Vesting Service shall have a right
to have his nonforfeitable interest in his Separate Account, any Participant
with three or more Years of Vesting Service shall have a right to have his
nonforfeitable interest in his Employer Matching Contribution Account continue
to be determined under the vesting schedule in effect prior to such amendment
rather than under the new vesting Schedule, unless the nonforfeitable interest
of such Participant in his Employer Matching Contribution Account under the
Plan, as amended, at any time is not less than such interest determined without
regard to such amendment. Such Participant shall exercise such right by giving
written notice of his exercise thereof to the Company within 60 days after the
latest of (a) the date he receives notice of such amendment from the Company,
(b) the effective date of the amendment, or (c) the date the amendment is
adopted. Notwithstanding the foregoing provisions of this Section 8.6, the
vested interest of each Participant on the effective date of such amendment
shall not be less than his vested interest under the Plan as in effect
immediately prior to the later of the effective date or adoption thereof.
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8.7 RESTRICTIONS ON ALIENATION. Except as provided in Section
414(p) of the Code relating to qualified domestic relations orders, no right or
interest under the Plan at any time shall be subject in any manner to
anticipation, alienation, assignment (either by law or in equity), encumbrance,
garnishment, levy, execution, or other legal or equitable process. No person
shall have power in any manner to anticipate, transfer, assign (either at law or
in equity), alienate, or subject to attachment, garnishment, levy, execution, or
other legal or equitable process, or in any way encumber his rights or interests
under the Plan, and any attempt to do so shall be void.
8.8 PAYMENTS IN THE EVENT OF INCAPACITY. In the event that it
shall be found that any person to whom an amount is payable hereunder is
incapable of attending to his financial affairs because of minority or any
mental or physical condition, including the infirmities of advanced age, such
amount (unless prior claim therefor shall have been made by a duly qualified
guardian or other legal representative) may, in the discretion of the Trustee,
be paid to another person for the use or benefit of the person found incapable
of legal obligations incurred by or on behalf of such person. Any such payment
shall be charged to the Separate Account of the person found incapable of
attending to his financial affairs and shall be a complete discharge of any
liability therefor under this Agreement.
8.9 DISTRIBUTION TO OTHER QUALIFIED PLANS. In the event a
former Participant whose Separate Account has not been fully distributed becomes
a Participant in a plan qualified under Section 401(a) of the Code, the Company
may direct the Trustee to transfer the amount of such former Participant's
Separate Account to any such plan provided the plan to receive such transfer
authorizes acceptance of such transfer, specifies that assets transferred shall
be held in a separate account, and requires that the assets transferred shall
not be subject to any forfeiture provisions. Upon any such transfer, the Trustee
shall be completely discharged of any responsibility or liability therefor.
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8.10 ELIGIBLE ROLLOVER DISTRIBUTIONS. Each Participant and
Beneficiary who receives an Eligible Rollover Distribution may elect in the time
and in a manner prescribed by the Company to receive all or any portion of such
Eligible Rollover Distribution for transfer to an Eligible Retirement Plan;
provided, however, that only one such transfer may be made with respect to a
Eligible Rollover Distribution to an Eligible Retirement Plan. Notwithstanding
the foregoing, the Member may elect, after receiving the notice required under
Section 402(f) of the Code, to receive such Eligible Rollover Distribution prior
to the expiration of the 30-day period beginning on the date such Member is
issued such notice; provided that the Member or Beneficiary is permitted to
consider his decision for at least 30 days and is advised of such right in
writing.
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ARTICLE IX
BENEFICIARIES
9.1 DESIGNATION OF BENEFICIARY. A Participant, Inactive
Participant, or former Participant may designate a Beneficiary to whom
distribution shall be made hereunder in the event such Participant dies before
his interest is distributed to him in full. If such Participant has a spouse,
his spouse shall be his Beneficiary and receive distribution of his remaining
interest in accordance with the provisions of Section 8.4; provided, however,
such a Participant may designate a person or persons other than his spouse as
his Beneficiary if the requirements of Section 9.3 are met. Any such designation
or change of designation shall be subject to the provisions of Section 9.3 and
shall be made in writing in the form prescribed by the Plan Administrator and
shall become effective only when filed by the Participant or former Participant
with the Employer; provided, however, that any such designation or change of
designation which is received by the Employer after the death of the Participant
or former Participant shall be disregarded.
9.2 BENEFICIARY IN ABSENCE OF A DESIGNATED BENEFICIARY. If (i)
a Participant or former Participant who dies does not have a surviving spouse
and (ii) either no Beneficiary has been designated pursuant to the provisions of
Section 9.1 and 9.3 or no Beneficiary survives such Participant or former
Participant, then the Beneficiary shall be the estate of such Participant or
former Participant. If any Beneficiary designated pursuant to Section 9.1 dies
after becoming entitled to receive distributions hereunder and before such
distributions are made in full, and if no other person or persons have been
designated to receive the balance of such distributions upon the happening of
such contingency, the estate of such deceased Beneficiary shall become the
Beneficiary as to such balance.
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9.3 SPOUSAL CONSENT TO BENEFICIARY DESIGNATION. In the event a
Participant or former Participant is married, any Beneficiary designation, other
than a designation of his spouse as Beneficiary, shall be effective only if his
spouse consents in writing thereto and such consent acknowledges the effect of
such action and is witnessed by a Plan representative or a notary public, unless
a Plan representative finds that such consent cannot be obtained because the
spouse cannot be located or because of other circumstances set forth in Section
401(a)(11) of the Code and regulations issued thereunder.
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ARTICLE X
PLAN ADMINISTRATION
10.1 PLAN ADMINISTRATOR. For purposes of ERISA, the Company
shall be the Plan Administrator and, as such, shall be responsible for the
compliance of the Plan with the reporting and disclosure provisions of ERISA.
10.2 AUTHORITY OF THE COMPANY. The Company shall have all the
powers and authority expressly conferred upon it herein and, further, shall have
the sole right to interpret and construe the Plan, and to determine any disputes
arising thereunder, subject to the provisions of Section 7.9. In exercising such
powers and authority, the Company at all times shall exercise good faith, apply
standards of uniform application, and refrain from arbitrary action. Any
decision of the Company in such exercise of its powers, authorities and duties
shall be final and binding upon all affected parties. The Company may employ
such attorneys, agents, and accountants as it may deem necessary or advisable to
assist it in carrying out its duties hereunder. The Company shall be a "named
fiduciary" as that term is defined in Section 402(a)(2) of ERISA. The Company
may:
(a) allocate any of the powers, authorities, or
responsibilities for the operation and administration
of the Plan, which are retained by it or granted to
it by this Article III, to the Trustee; and
(b) designate a person or persons other than itself to
carry out any of such powers, authorities, or
responsibilities;
provided, however, that no powers, authorities, or responsibilities of the
Trustee shall be subject to the provisions of paragraph (b) of this Section
10.2; and provided further, that no allocation or delegation by the Company of
any of its powers, authorities, or responsibilities to the Trustee shall become
effective unless such allocation or delegation first shall be accepted by the
Trustee in a writing signed by it and delivered to the Company.
10.3 ACTION OF THE COMPANY. Any act authorized, permitted, or
required to be taken by the Company under the Plan, which has not been delegated
in accordance with
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Section 10.2, may be taken by a majority of the members of the Board of
Directors of the Company, either by vote at a meeting, or in writing without a
meeting. All notices, advices, directions, certifications, approvals, and
instructions required or authorized to be given by the Company under the Plan
shall be in writing and signed by either (i) a majority of the members of the
Board of Directors of the Company, or by such member or members as may be
designated by an instrument in writing, signed by all the members thereof, as
having authority to execute such documents on its behalf, or (ii) a person who
becomes authorized to act for the Company in accordance with the provisions of
paragraph (b) of Section 10.2. Subject to the provisions of Section 10.4, any
action taken by the Company which is authorized, permitted, or required under
the Plan shall be final and binding upon the Company and the Trustees, all
persons who have or who claim an interest under the Plan, and all third parties
dealing with any Trustee or the Company.
10.4 CLAIMS REVIEW PROCEDURE. Whenever the Company decides for
whatever reason to deny, whether in whole or in part, a claim for benefits filed
by any person (hereinafter referred to as the "Claimant"), the Company shall
transmit to the Claimant a written notice of its decision, which notice shall be
written in a manner calculated to be understood by the Claimant and shall
contain a statement of the specific reasons for the denial of the claim and a
statement advising the Claimant that, within 60 days of the date on which he
receives such notice, he may obtain review of the decision of the Company in
accordance with the procedures hereinafter set forth. Within such 60-day period,
the Claimant or his authorized representative may request that the claim denial
be reviewed by filing with the Company a written request therefor, which request
shall contain the following information:
(a) the date on which the Claimant's request was filed
with the Company; provided that the date on which the
Claimant's request for review was in fact filed with
the Company shall control in the event that the date
of the actual filing is later than the date stated by
the Claimant pursuant to this paragraph (a);
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(b) the specific portions of the denial of his claim
which the Claimant requests the Company to review;
(c) a statement of the Claimant setting forth the basis
upon which he believes the Company should reverse its
previous denial of his claim for benefits and accept
his claim as made; and
(d) any written material (offered as exhibits) which the
Claimant desires the Company to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section 10.4.
Within 60 days of the date determined pursuant to paragraph (a) of this Section
10.4, the Company shall conduct a full and fair review of its decision denying
the Claimant's claim for benefits. Within 60 days of the date of such hearing,
the Company shall render its written decision on review, written in a manner
calculated to be understood by the Claimant, specifying the reasons and Plan
provisions upon which its decision was based.
10.5 QUALIFIED DOMESTIC RELATIONS ORDERS. The Company shall
establish reasonable procedures to determine the status of domestic relations
orders and to administer distributions under domestic relations orders which are
deemed to be qualified orders. Such procedures shall be in writing and shall
comply with the provisions of Section 414(p) of the Code and regulations issued
thereunder.
10.6 INDEMNIFICATION. In addition to whatever rights of
indemnification the members of the Board of Directors of the Company, or any
other person or persons (other than the Trustees) to whom any power, authority,
or responsibility of the Company is allocated or delegated pursuant to paragraph
(b) of Section 10.2, may be entitled under the articles of incorporation,
regulations, or bylaws of the Company, under any provision of law, or under any
other agreement, the Company shall satisfy such liability actually and
reasonably incurred by any such member or such other person or persons,
including expenses, attorneys' fees, judgments, fines, and amounts paid in
settlement, in connection
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with any threatened, pending, or completed action, suit, or proceeding which is
related to the exercise, or failure to exercise, by such member or such other
person or persons of any of the powers, authorities, responsibilities, or
discretion of the Company as provided under the Plan and the Trust Agreement, or
reasonably believed by such member or such other person or persons to be
provided thereunder, and any action taken by such member or such other person or
persons in connection therewith.
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ARTICLE XI
ADOPTION BY SUBSIDIARIES
Any subsidiary of the Company which at the time is not an
Employer may, with the consent of the Company, adopt the Plan and become an
Employer hereunder by causing an appropriate written instrument evidencing such
adoption to be delivered by the Company.
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ARTICLE XII
AMENDMENT AND TERMINATION
12.1 AMENDMENT. The Company may, at any time and from time to
time, amend the Plan.
12.2 LIMITATION ON AMENDMENT. The Company shall make no
amendment to the Plan which shall result in the forfeiture or reduction of the
interest of any Participant, former Participant, or Beneficiary in the Plan;
provided, however, that nothing herein contained shall restrict the right to
amend the provisions hereof relating to the administration of the Plan and
Trust. Moreover, except as specified in Section 12.6, no such amendment shall be
made hereunder which shall permit any part of the Trust property to revert to an
Employer or an Affiliate or to be used for or to be diverted to purposes other
than the exclusive benefit of the Participants, former Participants, and their
Beneficiaries.
12.3 TERMINATION. The Company reserves the right to terminate
the Plan at any time, which termination shall become effective upon notice in
writing to the Trustee. Moreover, the Plan shall terminate automatically if
there shall be a complete discontinuance of contributions hereunder by the
Employers. The effective date of such termination or discontinuance of
contributions being hereinafter referred to as the "termination date". In the
event of the termination of the Plan by the Company, written notice thereof
shall be given to all persons who have a vested interest hereunder and to the
Trustee. Upon any such termination of the Plan, the Trustees shall take the
following actions for the benefit of Participants, former Participants, and
Beneficiaries:
(a) As of the termination date, the Trustee shall
value the Funds and adjust all accounts in the manner provided
in Section 6.2. The termination date shall become a Valuation
Date for purposes of Article VI and the termination of the
Plan shall be deemed to occur after the readjustments of the
accounts as heretofore set forth. In determining the net worth
of the Funds, the Trustee shall include as a liability such
amounts as in its judgment shall be necessary to pay all
expenses in connection
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with the termination of the Trust and the liquidation and
distribution of the Trust property, as well as other expenses,
whether or not accrued, and shall include as an asset all
accrued income.
(b) The Trustee shall then dispose of the Separate
Account to or for the benefit of such Participant, Inactive
Participant, former Participant, or Beneficiary, in accordance
with the provisions of Section 8.4, provided that any
Participant or Inactive Participant to whom a distribution is
to be made has attained age 59-1/2, unless he separates from
service.
Notwithstanding anything to the contrary contained in the Plan, upon any such
Plan termination, the interest of each Participant, Inactive Participant, former
Participant, and Beneficiary shall become fully vested and nonforfeitable; and,
if there is a partial termination of the Plan, the interest of each Participant,
Inactive Participant, former Participant, and Beneficiary who is affected by
such partial termination shall become fully vested and nonforfeitable.
Notwithstanding any termination of the Plan, the Trust shall continue in
existence for all purposes of administration until its assets have been
completely distributed by the Trustee, at which time the Trust shall
automatically terminate.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 NO COMMITMENT AS TO EMPLOYMENT. Nothing contained in the
Plan shall be construed as a commitment or agreement upon the part of any
Participant hereunder to continue his employment with an Employer, and nothing
herein contained shall be construed as a commitment on the part of an Employer
to continue the employment or rate of compensation of any Participant hereunder
for any period.
13.2 BENEFITS. Nothing contained in the Plan shall be
construed to confer any right or claim upon any person other than the parties
hereto, Participants, Inactive Participants, former Participants, and
Beneficiaries.
13.3 NO GUARANTEES. Neither any Employer nor the Trustee
guarantees the Trust from loss or depreciation, nor the payment of any amount
which may become due to any person hereunder.
13.4 PRECEDENT. Except as otherwise specifically provided, no
action taken in accordance with the provisions of the Plan by the Company shall
be construed or relied upon as a precedent for similar action under similar
circumstances.
13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS. The
Plan shall not be merged or consolidated with any other plan, nor shall any of
its assets or liabilities be transferred to another plan, unless, immediately
after such merger, consolidation, or transfer of assets or liabilities, each
Participant in the Plan would receive a benefit under the Plan which is at least
equal to the benefit he would have received immediately prior to such merger,
consolidation, or transfer of assets or liabilities (assuming in each instance
that the Plan had then terminated).
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13.6 INTERNAL REVENUE SERVICE DETERMINATION. Notwithstanding
any other provision of the Plan to the contrary, each contribution of the
Employer made to the Trust Fund is conditioned upon the requirement that the
amount of the contribution shall be deductible under Section 404 of the Code. In
the event that any contribution, or portion thereof, is disallowed or made due
to a mistake of fact, such contribution or portion shall be returned by the
Trustee to the Employer, if demand therefor is made by the Employer within the
time allowed by law.
Executed at Houston, Texas, this 18th day of January, 1995.
COOPER CAMERON CORPORATION
By /s/ Michael Sebastian
---------------------------------
Title: Executive Vice President
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APPENDIX A
SECTION 415 LIMITATIONS
A.1 DEFINITIONS
For purposes of this Appendix A, the following definitions and
rules of interpretation shall apply:
(a) The term "ANNUAL ADDITIONS" shall mean the sum of the
following amounts credited to a Participant's
Separate Accounts for a Limitation Year:
(a) Employer contributions;
(b) forfeitures, if any;
(c) all contributions made by a Participant to
the Plan for such Limitation Year (excluding
any rollover contributions);
(d) the amount, if any, of Employer
contributions and forfeitures which are
credited to the Participant under any other
defined contribution plan (whether or not
terminated) maintained by an Employer or an
Affiliate concurrently with the Plan;
(e) contributions to an individual medical
account established pursuant to the
requirements of Section 401(h) of the Code
under the Plan or any other defined
contribution plan or under any defined
benefit plan maintained by an Employer or an
Affiliate on behalf of a Participant who is
a key employee as defined in Section
416(i)(1) of the Code; and
(f) any amount derived from contributions which
are attributable to post-retirement medical
benefits allocated to a separate account of
a key employee as defined in Section
416(i)(1) of the Code under a welfare
benefit fund (as defined in Section 419A of
the Code) maintained by an Employer or an
Affiliate.
For purposes hereof, rollover contributions are
contributions as defined in Section 402(a)(5),
403(a)(4), and 408(d)(3) of the Code.
(b) The term "LIMITATION YEAR" shall mean the Plan Year
or such other 12-month period elected pursuant to
regulations and rulings under Section 415 of the
Code.
(c) The term "PROJECTED ANNUAL BENEFIT" shall mean a
Participant's Annual Benefit as defined in paragraph
(e) based on the assumptions that the Participant
will continue employment until social security
retirement age as defined in Section 415(b)(8) of the
Code (or current age, if later) and that
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his Compensation and all other relevant factors used
to determine benefits under the Plan will remain
constant as of the current Limitation Year for all
future Limitation Years.
(d) The term "COMPENSATION" shall mean a Participant's
wages, salaries, and other amounts received for
personal services actually rendered in the course of
employment with the Company or an Affiliate,
excluding, however, (i) contributions made by an
Employer or an Affiliate to a plan of deferred
compensation to the extent that, before the
application of the limitations of Section 415 to such
plan, the contributions are not includable in the
gross income of the Participant for the taxable year
in which contributed, (ii) contributions made by an
Employer or an Affiliate on his behalf to a
simplified employee pension plan described in Section
408(k) of the Code, (iii) any distributions from a
plan of deferred compensation (other than amounts
received pursuant to an unfunded non-qualified plan
in the year such amounts are includable in the gross
income of the Participant), (iv) amounts received
from the exercise of a non-qualified stock option or
when restricted stock or other property held by the
Participant becomes freely transferable or is no
longer subject to substantial risk of forfeiture, (v)
amounts received from the sale, exchange, or other
disposition of stock acquired under a qualified stock
option, and (vi) any other amounts that receive
special tax benefits, such as premiums for group term
life insurance (but only to the extent that the
premiums are not includable in the gross income of
the Participant).
(e) The term "ANNUAL BENEFIT" shall mean a retirement
benefit under a defined benefit plan which is payable
annually in the form of a straight-life annuity.
Except as provided below, a benefit payable in a form
other than a straight-life annuity must be adjusted
to an actuarially equivalent straight-life annuity
before applying the limitations of Section 415 of the
Code. The interest rate assumption used to determine
actuarial equivalence shall not be less than the
greater of the interest rate specified in the Plan or
five percent. The Annual Benefit does not include any
benefits attributable to employee contributions or
Rollover Contributions, or the assets transferred
from a qualified plan that was not maintained by the
Employer. No actuarial adjustment to the benefit is
required for (i) the value of a qualified joint and
survivor annuity, (ii) the value of benefits that are
not directly related to retirement benefits (such as
disability benefits, pre-retirement death benefits
and post-retirement medical benefits), and (iii) the
value of post-retirement cost of living increases
made in accordance with regulations under the Code.
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A.2 LIMITATION ON CONTRIBUTIONS
Notwithstanding any other provision of the Plan, for each
Limitation Year, the Annual Additions with respect to a Participant shall not
exceed the lesser of (i) $30,000 (except that beginning January 1, 1988, such
amount shall be adjusted in accordance with regulations prescribed by the
Secretary of the Treasury for increases in the cost of living), or (ii) 25
percent of such Participant's compensation paid for such Limitation Year.
A.3 ADJUSTMENT TO CONTRIBUTIONS
In no event shall the Employers make a contribution to the
Plan which would result in an Annual Addition to any Participant's Employer
Contribution Account in excess of the maximum permissible amount. However, if a
Participant's aggregate Annual Addition exceeds the maximum permissible amount
due to forfeitures or a reasonable error in estimating a Participant's
compensation, any contributions made by the Participant for the Plan Year, to
the extent of the excess, shall be returned to the Participant. If, after
returning such contributions to the Participant, an excess still exists, such
excess shall be applied to reduce the Employer's future contributions to the
Plan. Notwithstanding the foregoing, the otherwise permissible Annual Addition
for any Participant under the Plan may be further reduced to the extent
necessary, as determined by the Company, to prevent disqualification of the Plan
under Section 415 of the Code, which imposes additional limitations on the
benefits payable to Participants who also may be participating in another tax
qualified pension, profit sharing, savings or stock bonus plan of an Employer or
an Affiliate. The Company shall advise affected Participants of any such
additional limitations on their Annual Addition.
A.4 OVERALL LIMITATIONS ON BENEFITS AND CONTRIBUTIONS
If any Participant in the Plan also shall be covered by a
qualified defined benefit plan (whether or not terminated) maintained by an
Employer or by an Affiliate concurrently with the Plan, the sum of the defined
benefit plan fraction with respect to such Participant and the defined
contribution plan fraction with respect to such Participant for any Limitation
Year ending on or before December 31, 1982, shall not exceed 1.4, and for any
Limitation Year after December 31, 1982, shall not exceed 1.0. For purposes of
this Section A.4, defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) The term "DEFINED BENEFIT PLAN FRACTION" shall mean a
fraction, the numerator of which is the projected annual
benefit of such Participant under all such plans (determined
as of the close of such Limitation Year) and the denominator
of which is the lesser of (i) the product of 1.25 (1.0 prior
to 1983) multiplied by the dollar limitation in effect under
Section 415(b)(1)(A) of the Code for such year or (ii) the
product of 1.4 (1.0 prior to 1983) multiplied by the amount
which may be taken into account under Section 415(b)(1)(B) of
the Code with respect to such Participant for such year;
provided, however, that (A) if a Participant was a participant
prior to January 1, 1983, and on December 31, 1982, his
accrued benefit exceeded
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the maximum defined benefit dollar limitation, on January 1,
1983, or (B) if a Participant was a participant prior to
January 1, 1987, and his accrued benefit on December 31, 1986
exceed the maximum defined benefit dollar limitation on
January 1, 1987, then such limitation with respect to such
Participant shall be equal to the greater of his accrued
benefits as of December 31, 1982 or December 31, 1986, as the
case may be.
(b) The term "DEFINED CONTRIBUTION PLAN FRACTION" shall mean a
fraction, the numerator of which is the sum of the aggregate
Annual Additions of the Participant under the Plan and any
other defined contribution plan as of the close of the
Limitation Year and the denominator of which is the sum of the
lesser of the following amounts determined for such year and
each prior year of service with an Employer or an Affiliate:
(i) the product of 1.25 (1.0 prior to 1983) multiplied by the
dollar limitation in effect under Section 415(c)(1)(A) of the
Code for such year, determined without regard to Section
415(c)(6) of the Code, or (ii) the product of 1.4 (1.0 prior
to 1983) multiplied by the amount which may be taken into
account under Section 415(c)(1)(B) of the Code with respect to
such Participant for such year; provided, however, that the
denominator may be determined under any transitional rules for
years ending prior to January 1, 1983, prescribed by the Code
(including the special transitional rule set forth in Section
415(e)(6) of the Code, if the Plan Administrator so elects).
In the event the special limitation contained in this Section
A.4 is exceeded, the benefits otherwise payable to the Participant under any
such qualified defined benefit plan shall be reduced to the extent necessary to
meet such limitation. In the event that a Participant is covered by any other
qualified defined contribution plan (whether or not terminated) maintained by an
Employer or an Affiliate concurrently with the Plan, then the total Annual
Additions to the Participant's accounts under all such plans shall not exceed
the limitation set forth in Section A.2. For purposes of this Section A.4,
Annual Additions under the Plan shall be deemed to have been made or provided
before Annual Additions to all other defined contribution plans subject to the
limitations set forth in Section A.2; thus contributions under the Plan shall be
affected by the limitations after contributions under all other defined
contribution plans are affected.
A.5 APPLICATION
It is the intent of this Appendix A to set forth a set of
benefit and contribution limitation provisions applicable to the qualified plans
maintained by the Employers. The limitations in this Appendix A are intended to
comply with the provisions of Section 415 of the Code so that the maximum
benefits provided under the qualified plans maintained by the Employers shall
not exceed the maximum amounts allowed under Section 415 of the Code. If there
is any discrepancy between the provisions in this Appendix A and the provisions
of Section 415 of the Code, such discrepancy shall be resolved in such a way as
to give full effect to the provisions of Section 415 of the Code and regulations
issued thereunder which are hereby incorporated by reference.
A-4
<PAGE> 1
Exhibit 5.1
[Cooper Cameron Letterhead]
April 16, 1999
Cooper Cameron Corporation
515 Post Oak Boulevard, Suite 1200
Houston, Texas 77027
Gentlemen:
I am the General Counsel for Cooper Cameron Corporation, a Delaware
corporation (the "Company"), and have acted in such capacity in connection with
the registration under the Securities Act of 1933, as amended, of 4,000 shares
(the "Shares") of the Company's common stock, $.01 par value (the "Common
Stock"), to be offered upon the terms and subject to the conditions set forth in
the Company's Registration Statements on Form S-8 (the "Registration
Statements") to be filed with the Securities and Exchange Commission relating to
the following plan:
Cooper Cameron Corporation Savings-Investment Plan for Hourly
Employees.
In connection therewith, I have examined originals or copies certified
or otherwise identified to my satisfaction of the Amended and Restated
Certificate of Incorporation of the Company, the Certificate of Amendment to the
Amended and Restated Certificate of Incorporation of the Company, the First
Amended and Restated By-laws of the Company, the corporate proceedings with
respect to the offering of the Shares and such other documents and instruments
as I have deemed necessary or appropriate for the expression of the opinions
contained herein.
I have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to me as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to me as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to me as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that I have examined.
Based upon the foregoing, and having a regard for such legal
considerations as I have deemed relevant, I am of the opinion that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Delaware.
<PAGE> 2
(ii) The Shares proposed to be sold by the Company have been
duly and validly authorized for issuance and, when issued in accordance
with the terms of the Registration Statements, and subject to
compliance with any applicable Blue Sky laws, will be validly issued,
fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statements.
Very truly yours,
/s/ Franklin Myers
--------------------------------------
Franklin Myers
Senior Vice President, General Counsel
and Secretary
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Cooper Cameron Corporation
Savings-Investment Plan for Hourly Employees and to the incorporation by
reference therein of our of our report dated January 28, 1999, with respect to
the consolidated financial statements of Cooper Cameron Corporation incorporated
by reference in its Annual Report (Form 10-K) for the year ended December 31,
1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Houston, Texas
April 27, 1999
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
COOPER CAMERON CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Cooper Cameron Corporation (hereinafter referred to as the
"Company"), does hereby constitute and appoint SHELDON R. ERIKSON, THOMAS R. HIX
and FRANKLIN MYERS, respectively, and each of them, with full power and
substitution, his true and lawful attorneys and agents (each with authority to
act alone), to do any and all acts and things and to execute any and all
instruments which said attorneys and agents or any of them may deem necessary or
advisable: (i) to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the said Securities Act of Common Stock of the Company, par value $0.01
per share (the "Stock"), issued or to be issued by the Company and indeterminate
amount of interest to be offered or sold pursuant to the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign for and on behalf of the undersigned the name of the
undersigned as officer and/or director of the Company to one or more
Registration Statements on Form S-8, as the case may be, or to any amendments
thereto (including any post-effective amendments) filed with the Securities and
Exchange Commission with respect to the Stock, and to any instrument or document
filed as part of, as an exhibit to, or in connection with said Registration
Statements or amendments; and (ii) to register or qualify the Stock for sale and
to register or license the Company as a broker or dealer in the Stock under the
securities or Blue Sky laws of all such states as may be necessary or
appropriate to permit the offering and sale as contemplated by said Registration
Statements, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for and on behalf of the undersigned
the name of the undersigned as officer and/or director of the Company to any
application, statement, petition, prospectus, notice or other instrument or
document, or to any amendment thereto, or to any exhibit filed as part thereof
or in connection therewith, which is required to be signed by the undersigned
and to be filed with the public authority or authorities administering said
securities or Blue Sky laws for the purpose of so registering or qualifying the
Stock or registering or licensing the Company; and the undersigned does hereby
ratify and confirm as his own act and deed all that said attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents, this
16th day of April, 1999.
/s/ C. Baker Cunningham
----------------------------------
C. Baker Cunningham
<PAGE> 2
Exhibit 24.1
POWER OF ATTORNEY
COOPER CAMERON CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Cooper Cameron Corporation (hereinafter referred to as the
"Company"), does hereby constitute and appoint SHELDON R. ERIKSON, THOMAS R. HIX
and FRANKLIN MYERS, respectively, and each of them, with full power and
substitution, his true and lawful attorneys and agents (each with authority to
act alone), to do any and all acts and things and to execute any and all
instruments which said attorneys and agents or any of them may deem necessary or
advisable: (i) to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the said Securities Act of Common Stock of the Company, par value $0.01
per share (the "Stock"), issued or to be issued by the Company and indeterminate
amount of interest to be offered or sold pursuant to the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign for and on behalf of the undersigned the name of the
undersigned as officer and/or director of the Company to one or more
Registration Statements on Form S-8, as the case may be, or to any amendments
thereto (including any post-effective amendments) filed with the Securities and
Exchange Commission with respect to the Stock, and to any instrument or document
filed as part of, as an exhibit to, or in connection with said Registration
Statements or amendments; and (ii) to register or qualify the Stock for sale and
to register or license the Company as a broker or dealer in the Stock under the
securities or Blue Sky laws of all such states as may be necessary or
appropriate to permit the offering and sale as contemplated by said Registration
Statements, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for and on behalf of the undersigned
the name of the undersigned as officer and/or director of the Company to any
application, statement, petition, prospectus, notice or other instrument or
document, or to any amendment thereto, or to any exhibit filed as part thereof
or in connection therewith, which is required to be signed by the undersigned
and to be filed with the public authority or authorities administering said
securities or Blue Sky laws for the purpose of so registering or qualifying the
Stock or registering or licensing the Company; and the undersigned does hereby
ratify and confirm as his own act and deed all that said attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents, this
16th day of April, 1999.
/s/ Grant A. Dove
--------------------------------------
Grant A. Dove
<PAGE> 3
Exhibit 24.1
POWER OF ATTORNEY
COOPER CAMERON CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Cooper Cameron Corporation (hereinafter referred to as the
"Company"), does hereby constitute and appoint SHELDON R. ERIKSON, THOMAS R. HIX
and FRANKLIN MYERS, respectively, and each of them, with full power and
substitution, his true and lawful attorneys and agents (each with authority to
act alone), to do any and all acts and things and to execute any and all
instruments which said attorneys and agents or any of them may deem necessary or
advisable: (i) to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the said Securities Act of Common Stock of the Company, par value $0.01
per share (the "Stock"), issued or to be issued by the Company and indeterminate
amount of interest to be offered or sold pursuant to the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign for and on behalf of the undersigned the name of the
undersigned as officer and/or director of the Company to one or more
Registration Statements on Form S-8, as the case may be, or to any amendments
thereto (including any post-effective amendments) filed with the Securities and
Exchange Commission with respect to the Stock, and to any instrument or document
filed as part of, as an exhibit to, or in connection with said Registration
Statements or amendments; and (ii) to register or qualify the Stock for sale and
to register or license the Company as a broker or dealer in the Stock under the
securities or Blue Sky laws of all such states as may be necessary or
appropriate to permit the offering and sale as contemplated by said Registration
Statements, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for and on behalf of the undersigned
the name of the undersigned as officer and/or director of the Company to any
application, statement, petition, prospectus, notice or other instrument or
document, or to any amendment thereto, or to any exhibit filed as part thereof
or in connection therewith, which is required to be signed by the undersigned
and to be filed with the public authority or authorities administering said
securities or Blue Sky laws for the purpose of so registering or qualifying the
Stock or registering or licensing the Company; and the undersigned does hereby
ratify and confirm as his own act and deed all that said attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents, this
16h day of April, 1999.
/s/ Michael E. Patrick
--------------------------------------
Michael E. Patrick
<PAGE> 4
Exhibit 24.1
POWER OF ATTORNEY
COOPER CAMERON CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Cooper Cameron Corporation (hereinafter referred to as the
"Company"), does hereby constitute and appoint SHELDON R. ERIKSON, THOMAS R. HIX
and FRANKLIN MYERS, respectively, and each of them, with full power and
substitution, his true and lawful attorneys and agents (each with authority to
act alone), to do any and all acts and things and to execute any and all
instruments which said attorneys and agents or any of them may deem necessary or
advisable: (i) to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the said Securities Act of Common Stock of the Company, par value $0.01
per share (the "Stock"), issued or to be issued by the Company and indeterminate
amount of interest to be offered or sold pursuant to the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign for and on behalf of the undersigned the name of the
undersigned as officer and/or director of the Company to one or more
Registration Statements on Form S-8, as the case may be, or to any amendments
thereto (including any post-effective amendments) filed with the Securities and
Exchange Commission with respect to the Stock, and to any instrument or document
filed as part of, as an exhibit to, or in connection with said Registration
Statements or amendments; and (ii) to register or qualify the Stock for sale and
to register or license the Company as a broker or dealer in the Stock under the
securities or Blue Sky laws of all such states as may be necessary or
appropriate to permit the offering and sale as contemplated by said Registration
Statements, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for and on behalf of the undersigned
the name of the undersigned as officer and/or director of the Company to any
application, statement, petition, prospectus, notice or other instrument or
document, or to any amendment thereto, or to any exhibit filed as part thereof
or in connection therewith, which is required to be signed by the undersigned
and to be filed with the public authority or authorities administering said
securities or Blue Sky laws for the purpose of so registering or qualifying the
Stock or registering or licensing the Company; and the undersigned does hereby
ratify and confirm as his own act and deed all that said attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents, this
16th day of April, 1999.
/s/ David Ross
----------------------------------
David Ross
<PAGE> 5
Exhibit 24.1
POWER OF ATTORNEY
COOPER CAMERON CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of Cooper Cameron Corporation (hereinafter referred to as the
"Company"), does hereby constitute and appoint SHELDON R. ERIKSON, THOMAS R. HIX
and FRANKLIN MYERS, respectively, and each of them, with full power and
substitution, his true and lawful attorneys and agents (each with authority to
act alone), to do any and all acts and things and to execute any and all
instruments which said attorneys and agents or any of them may deem necessary or
advisable: (i) to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the said Securities Act of Common Stock of the Company, par value $0.01
per share (the "Stock"), issued or to be issued by the Company and indeterminate
amount of interest to be offered or sold pursuant to the Cooper Cameron
Corporation Savings-Investment Plan for Hourly Employees; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign for and on behalf of the undersigned the name of the
undersigned as officer and/or director of the Company to one or more
Registration Statements on Form S-8, as the case may be, or to any amendments
thereto (including any post-effective amendments) filed with the Securities and
Exchange Commission with respect to the Stock, and to any instrument or document
filed as part of, as an exhibit to, or in connection with said Registration
Statements or amendments; and (ii) to register or qualify the Stock for sale and
to register or license the Company as a broker or dealer in the Stock under the
securities or Blue Sky laws of all such states as may be necessary or
appropriate to permit the offering and sale as contemplated by said Registration
Statements, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for and on behalf of the undersigned
the name of the undersigned as officer and/or director of the Company to any
application, statement, petition, prospectus, notice or other instrument or
document, or to any amendment thereto, or to any exhibit filed as part thereof
or in connection therewith, which is required to be signed by the undersigned
and to be filed with the public authority or authorities administering said
securities or Blue Sky laws for the purpose of so registering or qualifying the
Stock or registering or licensing the Company; and the undersigned does hereby
ratify and confirm as his own act and deed all that said attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents, this
16th day of April, 1999.
/s/ Michael Sebastian
----------------------------------
Michael Sebastian
<PAGE> 1
EXHIBIT 24.2
[Cooper Cameron Corporation Letterhead]
I, the undersigned, FRANKLIN MYERS, Secretary of COOPER CAMERON
CORPORATION, a Delaware company (hereinafter called the "Company"), do hereby
certify that pursuant to a unanimous Written Consent of the Board of Directors
of the Company, dated April 16, 1999, the following resolutions were duly
adopted:
RESOLVED, that the appropriate officers of the Company be, and
each hereby is, authorized and empowered for, in the name and on behalf
of the Company to prepare or cause to be prepared for filing and to
file with the Securities and Exchange Commission (the "SEC") a
registration statement with respect to the shares provided for under
the following plans as prescribed by the SEC,
Cooper Cameron Corporation Savings-Investment Plan for
Hourly Employees (the "Savings-Investment Plan"),
together with all such information and data in connection therewith,
and exhibits, amendments and supplements thereto as may be recommended
by counsel for the Company or required by the SEC, and to do any and
all acts and things such officer shall deem necessary or appropriate in
order that the Registration Statements may continue in effect in
compliance with the Securities Act of 1933 and the rules and
regulations promulgated thereunder; and
FURTHER RESOLVED, that each director and officer of the
Company who may be required to execute said Registration Statements or
any amendments thereto be, and each hereby is, authorized and empowered
to execute a power of attorney appointing Sheldon R. Erikson, Thomas R.
Hix and Franklin Myers, and each of them severally, his or her true and
lawful attorneys or attorney with power to act with or without the
other and with full power of substitution, or resubstitution, to
execute in his or her name, place and stead, in his or her capacity as
a director or officer, or both, of the Company, said Registration
Statements and any and all amendments thereto and any and all
instruments and documents necessary or incidental in connection
therewith, and to file the same with the SEC; that each of said
attorneys shall have full power and authority to do and perform in the
name and on behalf of said directors or officers, as the case may be,
every act whatsoever necessary of desirable to be done in the premises
as fully to all intents and purposes as each of said directors and
officers might or could do in person; and
FURTHER RESOLVED, that it is desirable and in the best
interest of the Company that the Common Stock to be offered under the
above named Savings-Investment Plan be qualified or registered for sale
in various states; that the Chief Executive Officer, the President, any
Vice President, the Treasurer and the Secretary or any Assistant
Secretary be, and each of them hereby is, authorized to determined the
states in which appropriate action shall be taken to qualify or
register for sale all or such part of the securities that may be
offered under the Savings-Investment Plan as said officers may deem
advisable in order to comply
<PAGE> 2
with applicable laws of such states, and in connection therewith to
execute and file all requisite papers and documents, including, but not
limited to, applications, reports, surety bonds, irrevocable consents
and appointments of attorneys for service of process; and the execution
by such officers of any such instrument or document or the doing by
them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from the Company of the
instruments and documents so executed and the action so taken; and
FURTHER RESOLVED, that the appropriate officers of the Company
be, and each hereby is, authorized and empowered to prepare and file or
to cause to be prepared and to be filed applications for the listing on
The New York Stock Exchange of the Common Stock to be issued pursuant
to the Savings-Investment Plan; and Sheldon R. Erikson, Thomas R. Hix
and Franklin Myers are hereby designated as the representatives of the
Company to appear before the officials of such exchange and to modify
or change the applications, if necessary, and to take such other steps
as may be necessary to effect the listing of said securities on The New
York Stock Exchange; and
FURTHER RESOLVED, that the appropriate officers of the Company
be, and each hereby is, authorized and empowered, for and on behalf of
the Company, to take or cause to be taken all such other and further
actions, and to execute, acknowledge and deliver any and all such
instruments as they may deem necessary or advisable to carry out the
purposes and intent of the foregoing resolutions.
I further certify that the foregoing resolutions have not been
modified, revoked or rescinded and are in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
COOPER CAMERON CORPORATION, this 16th day of April, 1999.
/s/ Franklin Myers
----------------------------------
Franklin Myers
Secretary
(CORPORATE SEAL)
