Exhibit 10.6
BUCYRUS INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective October 20, 2006
BUCYRUS INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective October 20, 2006
I. PURPOSE AND EFFECTIVE DATE.
1.1. Purpose. The Bucyrus International, Inc. Supplemental Executive
Retirement Plan (the "Plan") has been established by Bucyrus
International, Inc. to attract and retain certain key employees by
supplementing such key employees' retirement income available under
the Bucyrus International, Inc. Salaried Employees' Retirement Plan
(the "Qualified Plan"), which retirement income is otherwise limited
by Sections 415 and 401(a)(17) of the Internal Revenue Code of 1986,
as amended, and the regulations issued thereunder.
1.2. Effective Date. The Plan shall be effective October 20, 2006 and
shall remain in effect until terminated in accordance with Section
7.5.
II. DEFINITIONS.
When used in the Plan and initially capitalized, the following words and
phrases shall have the meanings indicated:
2.1. "Account" means the bookkeeping account established for purposes of
accounting for the amount of a Participant's Supplemental Benefits
Amount determined and credited in accordance with Article IV each
year, if any, as adjusted periodically to reflect interest earnings
on such amounts in accordance with Article V.
2.2. "Administrator" means the Bucyrus International, Inc. Benefits
Committee or such other committee as may be appointed by the
Committee to administer the Plan.
2.3. "Affiliate" means any corporation, partnership, joint venture,
trust, association or other business enterprise which is a member of
the same controlled group of corporations, trades or businesses as
the Company, within the meaning of Code Section 414(b) or (c).
2.4. "Beneficiary" means the person or entity designated by the
Participant to receive a Participant's Supplemental Benefits Amounts
in the event of the Participant's death. If the Participant does not
designate a Beneficiary, or if the Participant's designated
Beneficiary predeceases the Participant, the Participant's
beneficiary under the Qualified Plan shall be the Beneficiary.
2.5. "Board" means the Board of Directors of the Company.
2.6. "Cash Balance Account" shall have the meaning set forth in the
Qualified Plan.
2.7. "Cash Balance Participant" shall have the meaning set forth in the
Qualified Plan.
2.8. "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a specific provision of the Code shall be deemed to
include reference to any successor provision thereto.
2.9. "Committee" means the Compensation Committee of the Board.
2.10. "Company" means Bucyrus International, Inc. and any successor
thereto.
2.11. "Compensation" shall have the meaning set forth in the Qualified
Plan.
2.12. "Eligible Employee" means a common-law U.S. employee of an Employer
who (i) is a Cash Balance Participant, and (ii) who is employed in
the position of a General Manager, Vice President or above on the
date the allocation described in Section 4.1 is to be made to the
individual's Account.
2.13. "Employer" means the Company and each Affiliate that, with the
consent of the Company, has elected to participate in the Plan.
2.14. "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Any reference to a specific provision of ERISA shall be
deemed to include reference to any successor provision thereto.
2.15. "Participant" means an Eligible Employee who has become a
participant in the Plan in accordance with Section 3.1.
2.16. "Plan" means the Bucyrus International, Inc. Supplemental Executive
Retirement Plan, as set forth herein and as amended from time to
time.
2.17. "Plan Year" means the calendar year. The initial Plan Year shall
begin January 1, 2006.
2.18. "Qualified Plan" means the Bucyrus International, Inc. Salaried
Employees' Retirement Plan, or any successor plan thereto.
2.19. "Separation from Service" means the date on which a Participant
terminates employment with the Company and all of its Affiliates,
within the meaning of Code Section 409A. A Participant has not
incurred a Separation from Service if the Participant is absent from
active employment due to military leave, sick leave or other bona
fide leave of absence if the period of such leave does not exceed
the greater of (1) six (6) months or (2) the period during which the
Participant's right to reemployment by the Company or an Affiliate
is provided either by statute or by contract.
2.20. "Supplemental Benefit Amounts" means the amounts credited to the
Participant's Account in accordance with Article IV.
2.21. "Valuation Date" means any date on which a Participant's Account is
valued, which shall be each business day of a Plan Year unless
determined otherwise by the Administrator.
III. PARTICIPATION.
3.1. Participation. An employee shall automatically become a Participant
in the Plan on the date he or she is hired or promoted into the
position of an Eligible Employee. In addition, any employee who is
an Eligible Employee on the Effective Date of the Plan shall
automatically become a Participant on the Effective Date. An
Eligible Employee shall cease to receive Supplemental Benefit
Amounts, although his or her Account will continue to be credited
with interest credits, on the date the individual ceases to be an
Eligible Employee.
3.2. ERISA Exemption. It is the intent of the Company that the Plan be
exempt from Parts 2, 3 and 4 of Subtitle B of Title I of ERISA, as
an unfunded plan that is maintained by the Company primarily for the
purpose of providing deferred compensation for a select group of
management and highly compensated employees (the "ERISA Exemption").
Notwithstanding anything to the contrary in Section 3.1 or in any
other provision of the Plan, the Committee may, in its sole
discretion, exclude any one or more employees from eligibility to
participate or from participation in the Plan, exclude any
Participant from continued participation in the Plan, and take any
further action permissible under Code Section 409A that it considers
necessary or appropriate if the Committee reasonably determines in
good faith that such exclusion or further action is necessary in
order for the Plan to qualify for, or to continue to qualify for,
the ERISA Exemption.
IV. SUPPLEMENTAL BENEFIT AMOUNTS.
4.1. Computation of Supplemental Benefit Amounts. A Participant shall be
entitled to Supplemental Benefit Amounts for each Plan Year that he
or she is an Eligible Employee. Such Supplemental Benefit Amount
shall be equal to the excess, if any, of:
(i) the amount the Eligible Employee otherwise would have
been entitled to have credited to his or her Cash
Balance Account as a pay credit for the Plan Year under
the Qualified Plan if such benefit was calculated
without regard to Code Sections 401(a)(17) and 415, over
(ii) the amount which is credited to the Eligible Employee's
Cash Balance Account as a pay credit for such Plan Year
under the Qualified Plan.
4.2. Vesting. A Participant's Account shall vest in accordance with the
same vesting schedule that applies to the Participants' Cash Balance
Account under the Qualified Plan. If a Participant who Separates
from Service is not vested in his or her Account, such Account shall
be forfeited and the Participant shall not be entitled to any
payments hereunder.
4.3. Crediting of Supplemental Benefit Amounts. The Supplemental Benefit
Amount computed in Section 4.1 above for each Plan Year shall be
credited to the Participant's Account as of the last day of the Plan
Year. Notwithstanding the foregoing, if the Participant Separates
from Service during the Plan Year, the Supplemental Benefit Amount
shall be credited as of the last day of the month in which such
Separation from Service occurs.
V. ACCOUNTS AND INVESTMENTS.
5.1. Valuation of Accounts. The Administrator shall establish an Account
for each Participant who has been credited with a Supplemental
Benefit Amount. Such Account shall be credited with a Participant's
Supplemental Benefit Amount as set forth in Sections 4.3. As of each
Valuation Date, the Participants' Accounts shall be adjusted upward
or downward to reflect:
(a) the interest earnings to be credited as of such Valuation Date
pursuant to Section 5.2 below, and
(b) the amount of distributions, if any, to be debited as of that
Valuation Date under Article VI.
5.2. Interest Credits. Accounts shall be credited with interest credits
on the last day of each calendar month. Such interest credit shall
mirror the interest credit on Cash Balance Accounts (as defined by
the terms of the Qualified Plan) and shall be determined in the same
manner as under the Qualified Plan. A Participant's Account shall
continue to be credited with such interest credits until the date on
which the Participant's Account is paid out in full.
VI. DISTRIBUTIONS.
6.1. Election. An Eligible Employee shall make a distribution election
with respect to his or her vested Account within the first thirty
(30) days following his or her initial participation date under
Section 3.1. The election shall be in such form as the Administrator
shall prescribe. The distribution election shall specify whether
payment of the Participant's benefits are to begin upon the
Participant's
Separation from Service, or such later age as is specified by the
Participant. The distribution election shall also specify that
distribution of the Participant's Account be made in accordance with
one of the following options:
(a) A single lump sum payment of the vested Account, valued as of
the Valuation Date immediately preceding distribution; or
(b) 5 or 10 annual installments of the vested Account, with the
amount of each installment equal to the balance of the
Participant's Account as of the December 31 immediately
preceding the distribution date divided by the number of
installments remaining to be paid (and with the final
distribution being equal to the balance in the Participant's
Account as of the Valuation Date immediately preceding the
distribution date).
If no election is in effect, the Participant will be deemed to have
elected to receive payment in the form of a single lump sum upon
Separation from Service.
6.2. Modified Distribution Election.
(a) Prior to January 1, 2008. Provided that distribution of a
Participant's Account has not been commenced and is not
scheduled to commence during 2007, a Participant may change
his or her distribution election until December 31, 2007.
(b) After December 31, 2007. A Participant may change his or her
distribution election (regarding the time or form of payment
or both) only in accordance with the following rules:
(i) the revised distribution election must be made at
least twelve (12) months prior to the date on which the
payment was scheduled to be paid (or begin to be paid,
if installments were elected) and may not be given
effect until the end of such twelve (12) month period;
and
(ii) the date of distribution must be delayed for at
least five (5) years from the date on which the payment
was scheduled to be paid (or begin to be paid, if
installments were elected).
6.3. Distribution Commencement Date.
(a) In General. Except as provided in subsection (b) below,
distribution of the Participant's vested Account will be made
or commence in February of the calendar year following the
calendar year in which the Participant's Account becomes
payable, or as soon thereafter as is administratively
practicable. For any Participant whose vested Account is
distributable in annual installments, each annual installment
after the initial payment will
be paid in February, or as soon thereafter as is
administratively practicable.
(b) Distributions Due to Separation from Service. Notwithstanding
the foregoing, if the Participant's vested Account is payable
by reason of the Participant's Separation from Service (other
than Separation from Service occurring by reason of the
Participant's death), distribution of the Participant's vested
account will be made or begin in the month that follows the
six month anniversary of the Participant's Separation from
Service, or as soon thereafter as is administratively
practicable, if such date is later than the date specified in
Paragraph (a).
6.4. Form of Distribution, All payments shall be made in cash.
6.5. Distribution of Small Benefits. Notwithstanding anything to the
contrary herein, including any election made by a Participant as to
the form or timing of distribution, if the vested balance of a
Participant's Account is $10,000 or less as of the Valuation Date
immediately preceding the date the Participant's Account is to be
distributed, the vested balance of such Participant's Account shall
be distributed in a lump sum upon the Participant's Separation from
Service (subject to the timing rules of Section 6.3).
6.6. Acceleration of Payments. Notwithstanding any other provision of the
Plan, if the Committee determines that all or any portion of a
Participant's Account is required to be included in the
Participant's income as a result of a failure to comply with the
requirements of Code Section 409A and the regulations promulgated
thereunder, the Company or applicable Affiliate shall immediately
make distribution from the Plan to the Participant or Beneficiary,
in one lump sum, of the vested amount (but not exceeding the amount)
that is so taxable.
6.7. Hardship Withdrawals. A Participant who has incurred an
"unforeseeable emergency" may request, and the Committee may (but
need not) approve a distribution of part or all of the Participant's
vested Account balance, in accordance with and subject to the
limitations set forth in this Section. An "unforeseeable emergency"
means a severe financial hardship to the Participant resulting from
an illness or accident of the Participant, the Participant's spouse,
or the Participant's dependent (as defined in Code Section 152(a)),
loss of the Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. The amount authorized
by the Committee for distribution with respect to an emergency may
not exceed the amounts necessary to satisfy the emergency plus
amounts necessary to pay taxes reasonably anticipated as a result of
the distribution, after taking into account the extent to which such
hardship is or may be relieved through reimbursement or compensation
by insurance or otherwise or by liquidation of the Participant's
assets, to the extent that liquidation of such assets would not
itself cause severe financial hardship.
6.8. Distribution of Remaining Account Following Participant's Death. In
the event of the Participant's death, the Participant's remaining
undistributed vested interest will be distributed to the
Participant's Beneficiary in a single sum on the first day of the
month that is at least 90 days following the Participant's death, or
as soon thereafter as is administratively practicable.
VII. GENERAL PROVISIONS
7.1. Administration. The Committee or (subject to such rules as the
Committee may prescribe) the Administrator shall administer and
interpret the Plan and supervise preparation of Participant
elections, forms, and any amendments thereto. The Committee or
(subject to such rules as the Committee may prescribe) the
Administrator may, in their discretion, delegate any or all of their
authority and responsibility, and to the extent of any such
delegation, any references herein to the Committee and/or the
Administrator shall be deemed references to such delegee; provided
that any such delegee shall not act in any non-ministerial fashion
in a matter affecting the delegee's own participation or interest in
the Plan. Interpretation of the Plan shall be within the sole
discretion of the Committee or (subject to such rules as the
Committee may prescribe) the Administrator, and any interpretations,
actions, decisions or findings of the Committee or Administrator
shall be final and binding upon each Participant and Beneficiary.
The Committee or (subject to such rules as the Committee may
prescribe) the Administrator may adopt and modify rules and
regulations relating to the Plan as they deem necessary or advisable
for the administration of the Plan. Notwithstanding anything to the
contrary, the Administrator shall not act in any non-ministerial
fashion in any matter that affects one or more of the members of the
committee that is the Administrator (unless such action affects all
Participants uniformly) and any such action will be taken or
decision made by the Committee
7.2. Claims Procedures.
(a) Initial Claim. If a Participant or Beneficiary (the
"claimant") believes that he or she is entitled to a benefit
under the Plan that is not provided, the claimant or his or
her legal representative shall file a written claim for such
benefit with the Administrator; provided that if the claimant
is a member of the committee that comprises the Administrator,
the claim shall be submitted directly to the Committee and all
references in this subsection (a) to the Administrator shall
instead refer to the Committee. The Administrator shall review
the claim within 90 days following the date of receipt of the
claim; provided that the Administrator may determine that an
additional 90-day extension is necessary due to circumstances
beyond the Administrator's control, in which event the
Administrator shall notify the claimant prior to the end of
the initial period that an extension is needed, the reason
therefor and the date by which the Administrator expects to
render a decision. If the claimant's claim is
denied in whole or part, the Administrator shall provide
written notice to the claimant of such denial. The written
notice shall include the specific reason(s) for the denial;
reference to specific Plan provisions upon which the denial is
based; a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and a description of the Plan's review procedures (as set
forth in subsection (b)) and the time limits applicable to
such procedures, including a statement of the claimant's right
to bring a civil action under section 502(a) of ERISA
following an adverse determination upon review.
(b) Appeal of Denied Claim. The claimant has the right to appeal
the Administrator's decision by filing a written appeal to the
Committee within 60 days after claimant's receipt of the
decision or deemed denial. The claimant will have the
opportunity, upon request and free of charge, to have
reasonable access to and copies of all documents, records and
other information relevant to the claimant's appeal. The
claimant may submit written comments, documents, records and
other information relating to his or her claim with the
appeal. The Committee will review all comments, documents,
records and other information submitted by the claimant
relating to the claim, regardless of whether such information
was submitted or considered in the initial claim
determination. The Committee shall make a determination on the
appeal within 60 days after receiving the claimant's written
appeal; provided that the Committee may determine that an
additional 60-day extension is necessary due to circumstances
beyond the Committee's control, in which event the Committee
shall notify the claimant prior to the end of the initial
period that an extension is needed, the reason therefor and
the date by which the Committee expects to render a decision.
If the claimant's appeal is denied in whole or part, the
Committee shall provide written notice to the claimant of such
denial. The written notice shall include the specific
reason(s) for the denial; reference to specific Plan
provisions upon which the denial is based; a statement that
the claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all documents,
records, and other information relevant to the claimant's
claim; and a statement of the claimant's right to bring a
civil action under section 502(a) of ERISA.
(c) Deemed Denial. If the Administrator fails to render a decision
on a claimant's initial claim for benefits under the Plan or
the Committee fails to render a decision on the claimant's
subsequent appeal of the Administrator's decision, such claim
or appeal will be deemed to be denied.
7.3. Participant Rights Unsecured.
(a) Unsecured Claim. The right of a Participant or a Beneficiary
to receive a distribution hereunder shall be an unsecured
claim, and neither the Participant nor any Beneficiary shall
have any rights in or against any amount credited to his or
her Account by an Employer or to any other specific assets of
an Employer. The right of a Participant or Beneficiary to the
payment of benefits under this Plan shall not be assigned,
encumbered, or transferred, except by will or the laws of
descent and distribution. The rights of a Participant
hereunder are exercisable during the Participant's lifetime
only by the Participant or his or her guardian or legal
representative.
(b) Contractual Obligation. Each Employer shall be responsible for
the payment of benefits attributable to Participants in its
employ. An Employer may authorize the creation of a trust or
other arrangements to assist it in meeting the obligations
created under the Plan. However, any liability to any person
with respect to the Plan shall be based solely upon any
contractual obligations that may be created pursuant to the
Plan. No obligation of an Employer shall be deemed to be
secured by any pledge of, or other encumbrance on, any
property of an Employer. Nothing contained in this Plan and no
action taken pursuant to its terms shall create or be
construed to create a trust of any kind, or a fiduciary
relationship between an Employer and any Participant or
Beneficiary, or any other person.
7.4. Distributions for Tax Withholding and Payment.
(a) FICA Taxes. Notwithstanding the time or schedule of payments
otherwise applicable to the Participant, the Administrator may
direct that distribution from a Participant's vested Account
be made (i) to pay the Federal Insurance Contributions Act
("FICA") tax imposed under Code Sections 3101, 3121(a) and
3121(v)(2) with respect to compensation deferred under the
Plan, (ii) to pay the income tax at source on wages imposed
under Code Section 3401 or the corresponding withholding
provisions of applicable state, local, or foreign tax laws as
a result of the payment of FICA taxes, and (iii) to pay the
additional income tax at source on wages attributable to the
"pyramiding" of Code Section 3401 wages and taxes; provided
that the total amount distributed under this provision must
not exceed the aggregate of the FICA tax and the income tax
withholding related to such FICA tax. In addition or
alternatively, the Administrator may direct that all FICA
taxes due in connection with any allocation hereunder be
withheld from other compensation owed to a Participant.
(b) Other Withholding Taxes. The amount actually distributed to
the Participant or a Beneficiary will be reduced by applicable
tax withholding
except to the extent such withholding requirements previously
were satisfied in accordance with subsection (a) above.
7.5. Amendment or Termination of Plan.
(a) Amendment. The Committee may at any time amend the Plan,
including but not limited to modifying the terms and
conditions applicable to (or otherwise eliminating) receiving
allocations and/or interest credits to be made on or after the
amendment date; provided, however, that no amendment or
termination may reduce or eliminate any Account balance
accrued to the date of such amendment or termination (except
as such Account balance may be reduced as a result of
investment losses allocable to such Account).
(b) Termination. There shall be no time limit on the duration of
the Plan. The Board may terminate the Plan (or the Plan shall
automatically terminate) in accordance with and subject to the
following rules:
(i) The Board at any time may terminate the Plan
and require that all benefits accrued be distributed to
Participants and Beneficiaries in a single sum without
regard to a Participant's prior election as to the form
of benefit payments, if (A) all plans or arrangements of
the same type (as defined in regulations issued by the
Secretary of the Treasury under Code Section 409A) are
terminated with respect to all participants, (B) no
payments other than those payable under the pre-existing
terms of the Plan are made within 12 months of the date
on which the arrangement is terminated, (C) all payments
are completed within 24 months of the termination, and
(D) the Company or Affiliate does not, for the five
years following the date of termination, maintain an
arrangement that benefits any Participant and that,
under rules prescribed by the Secretary of the Treasury,
is required to be aggregated with any of the terminated
arrangements.
(ii) The Plan will automatically terminate and all
benefits accrued will be distributed to Participants and
Beneficiaries in a single sum without regard to a
Participant's prior election as to the form and timing
of benefit payments, with respect to any Participant (or
the Beneficiary of a deceased Participant) who is
affected by a "change in control event". For purposes of
this Paragraph (iii), the term "change in control event"
has the meaning specified by the Secretary of the
Treasury for purposes of Code Section 409A. Payment
shall be made within ten (10) business days of the
occurrence of the "change in control event". If payment
is delayed beyond such payment deadline for
any reason, the balance to be paid out shall become
fixed as of such tenth (10th) day, and shall be the
balance of the Participant's Account as of the Valuation
Date immediately preceding the change in control event,
except that such amount shall be increased in an amount
equivalent to interest on such fixed amount, to the date
of actual payment, at a rate equal to two times the
applicable federal rate, as determined under Code
Section 1274 as of the date of payment.
(iii) The Plan shall terminate and all benefits
accrued will be distributed in a single sum without
regard to a Participant's prior election as to the form
of benefit payments, if (A) payment is made upon a
complete dissolution that is taxed under Code Section
331 or upon approval of a bankruptcy court pursuant to
Section 503(b)(1)(A) of Title 11 of the United States
Code, and (B) the amounts deferred under the Plan are
included in the gross income of Participants and
Beneficiaries by the latest of (i) the calendar year in
which the Plan termination occurs, (ii) the calendar
year in which the amounts are no longer subject to a
substantial risk of forfeiture, or (iii) the first
calendar year in which the payment is administratively
practicable.
Except as provided in paragraphs (i), (ii) and (iii)
above or as otherwise permitted in regulations promulgated by the
Secretary of the Treasury under Code Section 409A, any action that
purports to terminate the Plan shall instead be construed as an
amendment to discontinue further benefit accruals, but the Plan will
continue to operate, in accordance with its terms as from time to
time amended and in accordance with applicable Participant
elections, with respect to the Participant's benefit accrued through
the date of termination, and in no event shall any such action
purporting to terminate the Plan form the basis for accelerating
distributions to Participants and Beneficiaries.
7.6. Administrative Expenses. Costs of establishing and administering the
Plan will be paid by the Employers.
7.7. Successors and Assigns. This Plan shall be binding upon and inure to
the benefit of the Employers, their successors and assigns and the
Participants and their heirs, executors, administrators, and legal
representatives.
7.8. Right of Offset. The Employers shall have the right to offset from
the benefits payable hereunder any amount that the Participant owes
to the Company or an Affiliate or other entity in which the Company
or an Affiliate maintains an ownership interest. The Company may
effectuate the offset without the consent of the Participant (or, in
the event of the Participant' death, without the consent of the
Participant's spouse or Beneficiary).
7.9. Not a Contract of Employment. This Plan may not be construed as
giving any person the right to be retained as an employee of the
Company or any Affiliate.
7.10. Miscellaneous Distribution Rules. The following rules will supersede
any inconsistent distribution provisions of the Plan. In the
circumstances described in subsections (a) and (b) below, a payment
that would otherwise be due and payable under the terms of the Plan
will be delayed, and payment will be made in accordance with this
Section.
(a) Loan Covenants or Similar Contractual Requirements. If and to
the extent that the Company reasonably anticipates that the
making of a payment will violate a term of a loan agreement to
which the Company or an Affiliate is a party, or other similar
contract to which the Company or an Affiliate is a party, and
such violation will cause material harm to the Company or an
Affiliate, the payment shall be deferred until the earliest
date at which the Company or Affiliate reasonably anticipates
that the making of the payment will not cause such violation
or such violation will not cause material harm to the Company
or Affiliate. The foregoing rule shall apply only if the
Company or Affiliate entered into the loan agreement
(including the loan covenant) or other similar contract for
legitimate business reasons and not for the purpose of
deferring distribution of amounts subject to Code Section
409A.
(b) Federal Securities and Other Applicable Law. If and to the
extent that the Company reasonably anticipates that the making
of a payment will violate Federal securities laws or other
applicable law, the payment shall be deferred until the
earliest date at which the Company reasonably anticipates that
the making of the payment will not cause such violation. For
this purpose, the making of a payment is not treated as a
violation of applicable law because the payment would cause
the inclusion of amounts in gross income of the recipient or
result in a penalty or any provision of the Code being or
becoming applicable.
7.11. Nontransferability. Prior to payment thereof, no benefit under the
Plan shall be assignable or subject to any manner of alienation,
sale, transfer, claims of creditors, pledge, attachment or
encumbrances of any kind.
7.12. Governing Law and Limitations on Actions.
(a) Governing Law. This Plan is intended to be a plan of deferred
compensation maintained for a select group of management or
highly compensated employees as that term is used in ERISA,
and shall be interpreted so as to comply with the applicable
requirements thereof. In all other respects, the Plan is to be
construed and its validity determined according to the laws of
the State of Wisconsin (without reference to
conflict of law principles thereof) to the extent such laws
are not preempted by federal law.
(b) Limitation on Actions. Any action or other legal proceeding
with respect to the Plan may be brought only after the claims
and appeals procedures of Section 7.2 are exhausted and only
within period ending on the earlier of (1) one year after the
date claimant receives notice or deemed notice of a denial
upon appeal under Section 7.2(b), or (2) the expiration of the
applicable statute of limitations period under applicable
federal law.
* * *
IN WITNESS WHEREOF, the undersigned has caused this Plan to be executed
this 20th day of October, 2006.
BUCYRUS INTERNATIONAL, INC.
By:/s/ C.R. Mackus
-------------------------------------
Its:CFO and Secretary
------------------------------------