AMPCO-PITTSBURGH CORPORATION
1988 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(as amended and restated April 23, 1996)
The purpose of this Supplemental Executive
Retirement Plan (the "Plan") is to provide a further means
whereby Ampco-Pittsburgh Corporation (the "Company") may
attract, retain and encourage the productive efforts of a
select group of officers and senior executives who render
valuable services to the Company constituting an important
contribution towards the Company's continued growth and
success. The Plan provides retirement benefits to
participants who qualify for such benefits (generally
described in Article III) and may also provide benefits to a
surviving spouse following a qualifying participant's death
before retirement (generally described in Article IV).
The Plan reads as follows:
ARTICLE I
DEFINITIONS
The following terms when used in this Plan shall
have the designated meaning, unless a different meaning is
clearly required by the context. All other capitalized
terms in the Plan shall have the meaning defined in the
Ampco-Pittsburgh Corporation Retirement Plan, as in effect
from time to time (the "Retirement Plan").
1.1 Cause means the willful engaging by the
Participant in misconduct which is materially injurious to
the Company. For purposes of this definition, no act, or
failure to act, on the Participant s part shall be
considered "willful" unless done, or omitted
to be done, by the Participant in bad faith and without reasonable
belief that his action or omission was in the best interests of the
Company.
1.2 Participant means an individual who has been
designated as a Participant pursuant to Article II.
1.3 Qualified Plan Pension Benefit means all
amounts paid or payable to or in respect of any Participant
(other than in respect of pre-tax or after-tax employee
contributions) from the Retirement Plan or from any other
plan which is tax-qualified under section 401(a) or 403(a)
of the Code to which the Company, any Affiliate, or any
other prior employer of the Participant contributed. The
Participant s Qualified Plan Pension Benefit shall be
expressed as a monthly amount in the same form (using the
actuarial assumptions used in each such plan) and commencing
at the same time as the monthly benefit payable hereunder.
1.4 Early Retirement Date means the date a
Participant attains age fifty-five (55) and completes ten
(10) years of Continuous Service.
1.5 Change in Control shall be deemed to have
occurred if:
(i) any "person" (as defined in
Sections 13(d) and 14(d) of the Exchange Act) other
than the persons or the group of persons in control of
the Company on the date hereof is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of
the combined voting power of the Corporation's then
outstanding securities;
(ii) within any period of two consecutive
years (not including any period prior to the effective
date of this Plan) there shall cease to be a majority
of the Board comprised as follows: individuals who at
the beginning of such period constitute the Board and
any new director(s) whose election was approved by a
vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the
beginning of the period or whose election or nomination
for election was previously so approved;
(iii) the shareholders of the Company approve
a merger of, or consolidation involving, the Company in
which (A) the Company's Common Stock, par value $1.00
per share (such stock, or any other securities of the
Company into which such stock shall have been converted
through a reincorporation, recapitalization or similar
transaction, hereinafter called "Common Stock of the
Company"), is converted into shares or securities of
another corporation, or into cash or other property, or
(B) the Common Stock of the Company is not converted as
described in Clause (A), but in which more than forty
percent (40%) of the Common Stock of the surviving
corporation in the merger is owned by Shareholders
other than those who owned such amount prior to the
merger; or any other transaction after which the
Company's Common Stock is no longer to be publicly
traded; in each case, other than a transaction solely
for the purpose of reincorporating the Company in
another jurisdiction or recapitalizing the Common Stock
of the Company; or
(iv) the shareholders of the Company approve
a plan of complete liquidation of the Company, or an
agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets,
either of which is followed by a distribution of all or
substantially all of the proceeds to the shareholders.
1.6 Good Reason means, without a Participant s
express written consent, the occurrence after a Change in
Control of any one or more of the following:
(i) the assignment to such Participant of
duties inconsistent with such Participant's duties,
responsibilities and status immediately before the
Change in Control or a reduction or alteration in the
nature or status of such Participant's responsibilities
from those in effect immediately before the Change in
Control;
(ii) a reduction by the Company in such
Participant's base salary as in effect immediately
before the Change in Control, a failure to increase
such base salary at the same intervals as prevailed
before the Change in Control in an amount at least
equal to the same percentage increase as the last
increase prior to the Change in Control, or a reduction
in bonus after the Change in Control over the last
bonus paid before the Change in Control unless there
are equivalent reductions in bonuses for all executives
of the Company;
(iii) the requirement that such Participant
be based at a location in excess of twenty-five (25)
miles from the location where such Participant is based
immediately before the Change in Control;
(iv) the failure by the Company to continue
in effect any of the Company's employee benefit plans,
policies, practices or arrangements in which such
Participant participates or under which such
Participant is entitled to benefits, or the failure by
the Company to continue such Participant's therein or
benefits thereunder on substantially the same basis,
both in terms of the amount of benefits provided and
the level of such Participant's participation relative
to other participants, as existed immediately prior to
the Change in Control; or
(v) the failure of the Company to obtain a
satisfactory agreement from any successor to the
Company to assume and agree to perform this Plan.
ARTICLE II
ELIGIBILITY
2.1 Original Participants. The individuals
listed on Schedule A were Participants as of April 23, 1996.
2.2 New Participants. In addition to the
individuals listed on Schedule A, the Board may, from time
to time, designate other individuals as Participants.
ARTICLE III
RETIREMENT BENEFITS
3.1 Normal Retirement Benefit. If a
Participant's employment is terminated voluntarily or
involuntarily without Cause on or after his Normal
Retirement Date, the Company will pay the Participant,
commencing on the first day of the month coincident with or
next following the date of such termination, a retirement
benefit payable in the Normal Form, in the case of an
unmarried Participant, or as a Qualified Joint and Survivor
Annuity, in the case of a married Participant, unless the
Participant irrevocably elects, prior to the date his
participation becomes effective, on a form prescribed by the
Committee, another form of payment, including a survivor
annuity with an annuitant other than participant's spouse
(and such elected form of payment does not become
ineffective before the date such payments commence because
of the death of a contingent annuitant), in an amount equal
to (a) fifty percent (50%) of his Final Average Earnings
(determined without regard to any limit on compensation
under section 401(a)17) of the Code) less (b) his Qualified
Plan Pension Benefit. In no event shall the requirements
for spousal consent to the election of forms of payment
provided in the Retirement Plan apply to this Plan.
3.2 Early Retirement Benefit. If a Participant's
employment is terminated voluntarily or involuntarily
without Cause on or after his Early Retirement Date (and
before his Normal Retirement Date), the Company will pay the
Participant the retirement benefit provided or elected under
Section 3.1, in the form of payment provided or elected
under Section 3.1, commencing on the first day of the month
coincident with or next following the date of such
termination, and reduced for early payment to the extent
provided in the Retirement Plan with respect to benefits
then payable thereunder in such form (whether or not the
Participant elects to receive benefits from the Retirement
Plan at such time or in such form).
3.3 Vesting. Except as provided in Section 3.5,
Participants are vested in their benefits under the Plan on
their Early Retirement Date unless vested earlier as
provided in Section 3.6. Except as provided in Section 3.6,
if a Participant's employment is terminated voluntarily or
involuntarily before his Early Retirement Date, no benefits
will be payable to the Participant under this Plan.
3.4 Disability Retirement Benefit.
(a) A Participant who has incurred a
Disability shall be eligible to retire, if his period of
Disability continues to or beyond his Normal Retirement
Date, on the date on which he ceases to receive benefits
under the Disability Plan. Upon such retirement on or after
his Normal Retirement Date, the Company will pay the
Participant the retirement benefit provided under
Section 3.1, in the form of payment provided or elected
under Section 3.1, commencing on the first day of the month
coincident with or next following the date of such
retirement.
(b) If, before a Participant's Normal
Retirement Date, but after his Early Retirement Date (i) the
Participant recovers from the Disability, (ii) the Company
offers the Participant the opportunity to resume active
employment within thirty (30) days
of notification of such recovery, and (iii) the Participant declines
to resume active employment with the Company within thirty (30) days
of the date of the Company's offer, the Company will pay the
Participant the retirement benefit provided under
Section 3.1, in the form of payment provided or elected
under Section 3.1, commencing on the first day of the month
coincident with or next following the date the Company is
notified by the Participant that he is declining such offer,
and reduced for early payment to the extent provided in the
Retirement Plan with respect to benefits then payable
thereunder in such form (whether or not the Participant
elects to receive benefits from the Retirement Plan at such
time or in such form).
(c) If, before the Participant's Normal
Retirement Date, but after his Early Retirement Date, the
Participant recovers from the Disability and the Company
does not offer the Participant the opportunity to resume
active employment within thirty (30) days of notification of
such recovery, the Company will pay the Participant the
retirement benefit provided under Section 3.1, in the form
of benefit provided or elected under Section 3.1, commencing
on the first day of the month coincident with or next
following the end of such thirty (30) day period, without
any reduction for early payment.
(d) If, before a Participant's Early
Retirement Date the Participant recovers from the
Disability, and does not return to employment with the
Company for any reason, including a failure of the Company
to offer the Participant the opportunity to resume active
employment, no benefits will be payable to the Participant
under this Plan.
3.5 Termination for Cause. If the Company
terminates the Participant's employment for Cause, no
benefits will be payable to the Participant under this Plan,
whether or not he has attained his Early Retirement Date or
Normal Retirement Date.
3.6 Change in Control. Notwithstanding any
provision herein to the contrary, if within twenty-four (24)
months after a Change in Control (i) the Company
terminates a Participant's employment without Cause or (ii) a
Participant terminates his employment for Good Reason, in
either case on or after his completion of five (5) years of
Continuous Service (including any period before a Change in
Control), the Company will pay the Participant a retirement
benefit in the form of a lump sum payment, which shall be
the amount (i) in the case of a Participant who has attained
his Early Retirement Date on or before such termination
date, equal to the present value on such termination date of
such retirement benefits (without any reduction for early
retirement); and (ii) in the case of a Participant who has
not yet attained his Early Retirement Date, equal to the
present value on such termination date of the benefits to
which such Participant would have been entitled hereunder if
such termination date were such Participant's Early
Retirement Date (without any reduction for early
retirement); provided, however, that such amount shall be
further discounted in the case of such Participant described
in this clause (ii) so that such payment will be the present
value on such termination date of the amount otherwise
payable on the Participant's Early Retirement Date. The
discount rates to be used to calculate the present value of
the lump sum payments will be the lesser of PBGC interest
rates in effect on the first day of the Company's fiscal
year or the date upon which the Change in Control occurs.
For purposes of this section, PBGC interest rates means the
PBGC rates used to value the liabilities of qualified single
employer plans terminating as of the applicable date. The
actuarial basis for mortality used to calculate the lump sum
payments will be the PBGC mortality for healthy lives for
qualified single employer plans terminating as of the
applicable date. Payment under this Section 3.6 shall be
made on the first day of the month next following the date
of the Participant's termination. If a Participant receives
a lump sum payment under this Section 3.6, he shall not
receive any other benefits under the Plan and his spouse
shall not be eligible for a pre-retirement survivor benefit
under Article IV.
3.7 No Duplication. In no event shall benefits
become payable to any Participant under more than one
Section of this Article III.
ARTICLE IV
PRE-RETIREMENT SURVIVOR BENEFITS
4.1 Death After Age 55. If a married Participant
dies (i) while employed by the Company, and (ii) after he
attains age fifty-five (55) and completes five (5) years of
Continuous Service, the Company will pay the surviving
spouse a retirement benefit equal to the monthly benefit to
which the surviving spouse would have been entitled if the
Participant had retired on the day before the date of his
death and had commenced receiving benefits with a Qualified
Joint and Survivor Annuity in effect, without any reduction
for early payment. No payment shall be made to any person
under the benefit form provided or elected under
Section 3.1.
4.2 Death Before Age 55. If a married
Participant dies (i) while employed by the Company,
(ii) after he completes five (5) years of Continuous Service
and (iii) before he attains age fifty-five (55), the Company
will pay his surviving spouse a retirement benefit equal to
the monthly benefit to which the surviving spouse would have
been entitled if the Participant had survived until the day
following his attainment of age fifty-five (55), the
Participant had retired on the day before the date of his
death, and had commenced receiving benefits with a Qualified
Joint and Survivor Annuity in effect, without any reduction
for early payment. No payment shall be made to any person
under the benefit form provided or elected under
Section 3.1.
4.3 Death After Termination of Employment. If a
married Participant dies (i) after his employment in
terminated voluntarily or involuntarily and (ii) before his
Early Retirement Date, no pre-retirement survivor benefits
will be payable under this Article IV.
4.4 Commencement of Survivor Benefits. The
retirement benefits under this Article IV shall commence on
the first day of the month coincident with or next following
(i) the date of the Participant's death (if the Participant
dies after he attains age fifty-five (55)), or (ii) the date
that he would have attained age fifty-five (55) (if the
Participant dies before he attains age fifty-five (55)).
ARTICLE V
CONDITIONS RELATED TO BENEFITS
5.1 Administration of Plan. The Committee shall
administer the Plan and shall have the sole and exclusive
authority to interpret, construe and apply its provisions.
The Committee shall have the power to establish, adopt and
revise such rules and regulations as it may deem necessary
or advisable for the administration of the Plan and the
operation of the Committee's activities in connection
therewith. All decisions of the Committee shall be by vote
or written consent of the majority of its members and shall
be final and binding. Members of the Committee shall be
eligible to participate in the Plan while serving as a
member of the Committee, but a member of the Committee shall
not vote or act upon any matter which relates solely to such
member or in his capacity as a Participant.
5.2 Grantor Trust. The Company may create a
grantor trust (within the meaning of section 671 of the
Code) in connection with the adoption of this Plan and may,
from time to time, contribute to such trust amounts
determined by the Board, in its sole discretion.
Notwithstanding the creation of such trust, the benefits
hereunder shall be general obligations of the Company.
Payment of benefits from such trust shall, to that extent,
discharge the Company s obligations under this Plan. A
Participant shall have only
a contractual right as a general creditor of the Company to the
amounts, if any, payable hereunder and such right shall not be
secured by any assets of the Company or the trust.
5.3 No Right to Company Assets. Neither a
Participant nor any other person shall acquire by reason of
the Plan any right in or title to any assets, funds or
property of the Company whatsoever including, without
limiting the generality of the foregoing, any specific funds
or assets which the Company may set aside in anticipation of
a liability hereunder or any policy or policies of insurance
on the life of a Participant owned by the Company.
5.4 No Employment Rights. Nothing herein shall
constitute a contract of continuing employment or in any
manner obligate the Company or any Affiliate to continue the
service of a Participant, or obligate a Participant to
continue in the service of the Company or any Affiliate, and
nothing herein shall be construed as fixing or regulating
the compensation paid to a Participant.
5.5 Company s Right to Terminate and Amend. The
Company reserves the right in its sole discretion at any
time to amend the Plan in any respect or terminate the Plan.
Notwithstanding the foregoing, (i) no such amendment or
termination shall reduce the amount of the benefit
theretofore accrued by any Participant or change the
conditions required to be satisfied to receive payment of
such past accrued benefit (including contingent spousal
death benefits) based on the provisions of the Plan as
theretofore in effect (in each case, unless the Participant
expressly consents thereto in writing) and (ii) no amendment
to Section 3.6 shall be permitted during the 24-month period
following a Change in Control.
5.6 Protective Provisions. The Participant shall
cooperate with the Company by furnishing any and all
information requested by the Company in order to facilitate
the payment of benefits hereunder.
5.7 No Third Party Rights. Nothing in this Plan
or any trust established pursuant to Section 5.2 shall be
construed to create any rights hereunder in favor of the
spouse or designated beneficiary of any Participant prior to
the Participant's death or in favor of any other person
(other than the Company and any Participant) or to limit the
Company's right to amend or terminate the Plan in any manner
subject to the consent of the Participant to the extent
provided in Section 5.5 notwithstanding that such amendment
or termination might result in such spouse or designated
beneficiary receiving no benefits under the Plan.
ARTICLE VI
MISCELLANEOUS
6.1 Nonassignability. No rights or payments to
any Participant or his spouse or designated beneficiary
shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge,
whether voluntary or involuntary, and no attempt so to
anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge the same shall be valid, nor shall any
such benefit or payment be in any way liable for or subject
to the debts, contracts, liabilities, engagements or torts
of any person entitled to such benefit or payment or subject
to levy, garnishment, attachment, execution or other legal
or equitable process. No part of the amounts payable shall,
prior to actual payment, be subject to seizure or
sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant, his
spouse or his designated beneficiary or be transferable by
operation of law in the event of a Participant's or his
spouse s or designated beneficiary's bankruptcy or
insolvency.
6.2 Withholding. To the extent required by law
the Company shall be entitled to withhold from any payments
due hereunder any federal, state and local taxes required to
be withheld in connection with such payment.
6.3 Gender and Number. Wherever appropriate
herein, the masculine shall mean the feminine and the
singular shall mean the plural or vice versa.
6.4 Notice. Any notice required or permitted to
be made under the Plan shall be sufficient if in writing and
hand delivered, or sent by registered or certified mail, to
(a) in the case of notice to the Company or the Committee,
the principal office of the Company, directed to the
attention of the Secretary of the Committee, and (b) in the
case of a Participant or his spouse or his designated
beneficiary, the Participant's or such spouse s or
designated beneficiary's mailing address maintained in the
Company's personnel records. Such notice shall be deemed
given as of the date of delivery or, if delivery is made by
mail, as of the date shown on the postmark or on the receipt
for registration or certification.
6.5 Validity. In the event any provision of this
Plan is held invalid, void or unenforceable, the same shall
not affect, in any respect whatsoever, the validity of any
other provision of this Plan.
6.6 Applicable Law. This Plan shall be governed
and construed in accordance with the laws of the State of
Pennsylvania.
IN WITNESS WHEREOF, the Company has caused this
AMPCO-PITTSBURGH CORPORATION 1988 SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN (as amended and restated April 23, 1996) to
be executed by its duly authorized officers and its
corporate seal to be hereunto, effective as of the 23rd day
of April, 1996.
AMPCO-PITTSBURGH CORPORATION
By:
Its:
Attest:
[Seal]
Schedule A to Ampco-Pittsburgh
Corporation 1988 Supplemental
Executive Retirement Plan
(as amended and restated April 23, 1996)
Marshall L. Berkman (widow)
Ronald L. Cale (widow)
Edward H. Moores
Robert A. Paul
Robert Schultz
Ernest G. Siddons
Linda J. Sismondo
Sidney Wasser