<PAGE> 1
File No. 333-_____
As filed with the Securities and Exchange Commission on July 8, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------
UNICCO SERVICE COMPANY
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-287-2501
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
FOUR COPLEY PLACE, BOSTON, MASSACHUSETTS 02116
(Address of Principal Executive Offices)
UNICCO SERVICE COMPANY DEFERRED COMPENSATION PLAN
(Full title of the Plan)
GEORGE A. KECHES
Chief Financial Officer and Treasurer
UNICCO Service Company
Four Copley Place
Boston, Massachusetts 02116
(Name and address of agent for services)
(617) 859-9100
(Telephone number, including area code,
of agent for service)
copy to:
MICHAEL L. ANDRESINO, ESQ
Posternak, Blankstein & Lund, L.L.P.
100 Charles River Plaza
Boston, MA 02114-2723
(617) 973-6100
--------------------
================================================================================
Calculation of Registration Fee
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered Per Share Price(1) Fee
------------- ------------ ---------- --------- ------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations - - $5,000,000 $1,390
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h), based on an estimated amount of compensation to
be deferred under the Plan (as defined herein).
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
UNICCO Service Company (the "Registrant" or the "Company") hereby
incorporates by reference the following documents which have previously been
filed with the Securities and Exchange Commission:
a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 28, 1998;
b) The Company's Quarterly Reports on Form 10-Q for the quarters
ending September 27, 1998, December 27, 1998 and March 28, 1999;
and
c) The Company's Current Reports on Form 8-K filed on November 2,
1998 and January 11, 1999.
All documents that the Registrant subsequently files pursuant to Section
13(a), Section 13(c), Section 14 and Section 15(d) of the Securities Exchange
Act of 1934 before it files a post-effective amendment to this registration
statement that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold will be deemed incorporated
herein by reference from the date they are filed.
Item 4. Description of Securities.
The securities being registered represent obligations (the
"Obligations") of the Registrant to pay to the participants in the UNICCO
Service Company Deferred Compensation Plan (the "Plan"), upon their retirement,
salary as to which the participants have elected to defer receipt. The
Obligations may also represent amounts that the Registrant has elected to credit
to a participant's account under the Plan. Amounts credited to a participant's
account are credited with earnings based on a notional investment measurement,
which may be shares in investment companies registered under the Investment
Company Act of 1940, bank obligations, direct or guaranteed federal or state
governmental obligations and shares of common stock that are listed on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market.
The Obligations are payable in cash upon the earlier of a participant's
retirement, disability or the termination of the participant's employment, in a
lump-sum distribution or in installments, at the election of the participant
made in accordance with the Plan. There is no trading market for the
Obligations.
The Obligations are unsecured general obligations of the Registrant and
rank pari passu with other unsecured and unsubordinated indebtedness of the
Registrant. The Obligations are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment. Any attempt by any person to transfer or assign
<PAGE> 3
benefits under the Plan, other than a claim for benefits by a participant or his
or her beneficiary(ies), will be null and void.
The Obligations are not convertible into any other security of the
Registrant. No trustee has been appointed to take action with respect to the
Obligations and each participant in the Plan will be responsible for enforcing
his or her own rights with respect to the Obligations. The Registrant intends to
establish a "rabbi trust" to serve as a source of funds from which it can
satisfy the obligations. Participants in the Plan will have no rights to any
assets held by a rabbi trust, except as general creditors of the Registrant.
Assets of any rabbi trust will at all times be subject to the claims of the
Registrant's general creditors.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VIII of the Company's Declaration of Trust provides that the
Trustees are entitled to reimbursement and exoneration out of the trust estate
for any liability incurred by the Trust or Trustees, except for the Trustees'
own acts, negligence and defaults in bad faith. Article 3 of the Company's
by-laws provides for indemnification of Trustees and officers and duly appointed
agents of Company against liabilities in connection with the defense of any
action, suit or proceeding to which such persons are made a party by reason of
being a Trustee, officer or duly appointed agent of the Company, except in
relation to matters as to which such persons are adjudged liable for negligence
or misconduct in the performance of their duties.
The Company maintains directors' and officers' liability insurance which
may cover liabilities under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE> 4
Item 8. Exhibits.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement:
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C>
4.1 UNICCO Service Company Deferred Compensation Plan
5.1 Opinion of Posternak, Blankstein & Lund, L.L.P. as to the legality of
the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Posternak, Blankstein & Lund, L.L.P. (included in its
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
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,
(A) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, (B) 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, and (C) to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(A) and (a)(1)(B) shall not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in 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 herein, 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.
<PAGE> 5
(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
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 6
SIGNATURES
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, on this
8th day of July, 1999.
UNICCO SERVICE COMPANY
By: /s/ Steven C. Kletjian
-----------------------
Steven C. Kletjian
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints
Steven C. Kletjian and George A. Keches, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution, for him and
in his name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amendments to this registration statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven C. Kletjian Chief Executive July 8, 1999
- --------------------------- Officer and Chairman
Steven C. Kletjian of the Board of Trustees
(Principal Executive Officer)
/s/ George A. Keches Executive Vice President, July 8, 1999
- --------------------------- Chief Financial Officer and
George A. Keches Treasurer (Principal Financial
and Accounting Officer)
/s/ Richard J. Kletjian Vice Chairman of the July 8, 1999
- --------------------------- Board of Trustees
Richard J. Kletjian
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Robert P. Kletjian Vice President and Vice July 8, 1999
- --------------------------- Chairman of the Board
Robert P. Kletjian of Trustees
/s/ Sharkay Kletjian Trustee July 8, 1999
- ---------------------------
Sharkay Kletjian
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 UNICCO Service Company Deferred Compensation Plan.
5.1 Opinion of Posternak, Blankstein & Lund, L.L.P. as to the
legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Posternak, Blankstein & Lund, L.L.P. (included in
its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
- ---------------------------
<PAGE> 1
EXHIBIT 4.1
UNICCO SERVICE COMPANY
DEFERRED COMPENSATION PLAN
Effective as of July 1, 1999
RECITALS
This UNICCO Service Company Deferred Compensation Plan (the Plan) is adopted by
UNICCO Service Company (the Employer) for the benefit of certain of its
executive employees. The purpose of the Plan is to provide those employees with
supplemental retirement income and to offer those employees an opportunity to
elect to defer the receipt of compensation in order to provide termination of
employment and related benefits pursuant to Section 451 of the Internal Revenue
Code of 1986, as amended (the Code). The Plan is intended to be a top-hat plan
(i.e., an unfunded deferred compensation plan maintained for a select group of
management or highly compensated employees) under Sections 201(2), 301(a)(3),
and 401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
Accordingly, the following Plan is adopted.
Article I - Definitions
Whenever used in this Plan, the following terms shall have the meanings set
forth in this Article I unless a different meaning is clearly required by the
context.
1.1 ACCOUNT means the balance credited to a Participant's or Beneficiary's
Plan account, including contribution credits and deemed income, gains and
losses (to the extent realized, as determined by the Employer in its
discretion) credited thereto. A Participant's or Beneficiary's Account
shall be determined as of the date of reference.
1.2 BENEFICIARY means the person, persons or legal entity entitled to receive
benefits under this Plan that become payable in the event of a
Participant's death.
1.3 BOARD means the Board of Advisors of the Employer.
1.4 CODE means the Internal Revenue Code of 1986, as amended, and includes the
regulations thereunder, as amended from time to time.
1.5 COMMITTEE means the Compensation Committee of the Board.
1.6 COMPENSATION means the annual base salary paid by the Employer to an
Eligible Employee with respect to his or her service for the Employer (as
determined by the Employer).
1.7 DESIGNATION DATE means the date as of which a designation of deemed
investment directions by an individual pursuant to Section 4.5, or any
change in a prior designation of deemed investment directions by an
individual pursuant to
1
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Section 4.5, shall become effective. The Designation Dates in any Plan
Year shall be designated by the Employer.
1.8 EFFECTIVE DATE means the effective date of the Plan, which shall be July
1, 1999.
1.9 ELIGIBLE EMPLOYEE means, for any Plan Year (or applicable portion
thereof), a person employed by the Employer who is determined by the
Committee to be a member of a select group of management or highly
compensated employees and who is designated by the Committee to be an
Eligible Employee under the Plan. By each February 1st commencing with
February 1, 2000, the Committee shall notify those individuals, if any,
who will be Eligible Employees for the next Plan Year. If the Committee
determines that an individual first becomes an Eligible Employee during a
Plan Year, the Committee shall notify such individual of its determination
and of the date during the Plan Year on which the individual shall first
become an Eligible Employee.
1.10 EMPLOYER means UNICCO Service Company, a Massachusetts business trust, and
its successors and assigns unless otherwise herein provided, or any other
corporation or business organization that, with the consent of UNICCO
Service Company or its successors or assigns, assumes the Employer's
obligations hereunder, or any other corporation or business organization
that agrees, with the consent of UNICCO Service Company, to become a party
to the Plan.
1.11 ENTRY DATE, with respect to an individual, means the first day of the
first pay period following the date on which such individual first becomes
an Eligible Employee.
1.12 PARTICIPANT means any person so designated in accordance with the
provisions of Article II, including, where appropriate according to the
context of the Plan, any former employee who is or may become (or whose
Beneficiary may become) eligible to receive benefits under the Plan.
1.13 PARTICIPANT ENROLLMENT AND ELECTION FORM means the form on which a
Participant elects to defer Compensation hereunder and on which the
Participant makes certain other designations as required thereon.
1.14 PLAN means this UNICCO Service Company Deferred Compensation Plan, as
amended from time to time.
1.15 PLAN YEAR means the twelve (12) month period ending on June 30 of each
year during which the Plan is in effect.
1.16 TRUST means the "rabbi trust" established by the Employer in connection
with this Plan to provide the benefits described in this Plan.
1.17 TRUSTEE means the trustee named in the agreement establishing the Trust
and such successor and/or additional trustees as may be named pursuant to
the terms of the agreement establishing the Trust.
1.18 VALUATION DATE means June 30 of each Plan Year and any other date that the
Employer, in its sole discretion, designates as a Valuation Date.
2
<PAGE> 3
1.19 YEAR OF SERVICE - means Year of Service as defined in the UNICCo Service
Company 401(k) Investment Savings Plan, as amended from time to time (the
401(k) Plan).
Article II - Eligibility and Participation
2.1 REQUIREMENTS. Every Eligible Employee on the Effective Date shall be
eligible to become a Participant on the Effective Date. Every other
Eligible Employee shall be eligible to become a Participant on the first
Entry Date occurring on or after the date on which he or she becomes an
Eligible Employee. No individual shall become a Participant, however, if
he or she is not an Eligible Employee on the date his or her participation
is to begin.
Participation in the Plan is voluntary. In order to participate, an
otherwise Eligible Employee must complete and file a Participant
Enrollment and Election Form in such manner as may be required by Section
3.1 and by the Employer and must agree to make Compensation Deferrals as
provided in Article III.
2.2 REEMPLOYMENT. If a Participant whose employment with the Employer is
terminated is subsequently reemployed, he or she shall become a
Participant after reemployment in accordance with the provisions of
Section 2.1.
2.3 CHANGE OF EMPLOYMENT CATEGORY. During any period in which a Participant
remains in the employ of the Employer, but ceases to be an Eligible
Employee, he or she shall not be eligible to make Compensation Deferrals
hereunder.
Article III - Contributions and Credits
3.1 PARTICIPANT COMPENSATION DEFERRALS. In accordance with rules established
by the Employer, a Participant may elect to defer Compensation that is due
to be earned and would otherwise be paid to, the Participant in a
percentage up to 13% of his or her Compensation, in increments of 1% of
Compensation, as designated by the Participant. Amounts so deferred will
be considered a Participant's "Compensation Deferrals."
For the year in which the Plan is first implemented, each Eligible
Employee on the Effective Date who becomes a Participant shall have made
an election on or before May 27, 1999, to defer Compensation for services
to be performed subsequent to the Effective Date. Each individual who
first becomes an Eligible Employee after the Effective Date shall, in
order to become a Participant during the first Plan Year in which such
individual becomes an Eligible Employee, make an election to defer
Compensation, for services to be performed subsequent to such election,
within thirty (30) days after the date such individual becomes an Eligible
Employee. Except as otherwise provided herein, an election to defer
payment of Compensation shall be made at least thirty (30) days prior to
the calendar year for which the Compensation is payable.
Compensation Deferrals shall be made through regular payroll deductions.
Bonuses may not be deferred. A Participant may reduce his or her payroll
deduction
3
<PAGE> 4
Compensation Deferral amount as of, and by written notice delivered to the
Employer at least thirty (30) days prior to, the beginning of the period
of service for which the Compensation is payable, which period is the
calendar year. Such reduction shall be first effective for Compensation to
be earned in that period of service. Once made, a Compensation Deferral
payroll deduction election shall continue in force indefinitely, until
changed by the Participant on a subsequent Participant Enrollment and
Election Form provided by the Employer.
3.2 PARTICIPANT ACCOUNTS; EMPLOYER CONTRIBUTION CREDITS. The Employer shall
establish and maintain for, and in the name of, each Participant (or for
the designated Beneficiary of a Participant following such Participant's
death) a separate Plan Account. The amount of each Participant's
Compensation Deferrals shall be credited to such Participant's Account as
of the date the deferred Compensation would otherwise have been payable to
such Participant. There shall also be credited to each Participant's
Account, as of the end of each payroll period, an amount equal to the
lesser of (i) three percent (3%) of that portion of such Participant's
Compensation that shall have been earned during such payroll period, or
(ii) the amount of such Participant's Compensation Deferral for such
payroll period; provided, however, that, if, for any Plan Year, the
Employer match under the 401(k) Plan for highly compensated employees is
less than one and one-half percent (1-1/2 %), then the three percent (3%)
Employer contribution credit provided by clause (i) of this sentence shall
be increased for such Plan Year by the amount by which one and one-half
percent (1-1/2%) exceeds the percentage Employer match under the 401(k)
Plan for such Plan Year.
3.3 PAYMENT TO TRUSTEE. An amount equal to the Compensation Deferrals under
Section 3.1 hereof and the Employer contribution credits under Section 3.2
hereof for any payroll period will be paid by the Employer to the Trustee,
to be held and administered in accordance with the terms of the Trust,
with reasonable promptness after the total of such Compensation Deferrals
and Employer contribution credits for such payroll period has been
determined.
3.4 VESTING. An Eligible Employee shall always be one hundred percent (100%)
vested in his or her Participant Compensation Deferrals and the earnings
or losses allocated thereto.
The interest of each Participant (and his or her Beneficiary) in the
Employer contributions credited to such Participant's Plan Account under
Section 3.2 hereof shall be contingent only and shall be subject to
forfeiture in the following manner and to the following extent: If a
Participant's employment with the Employer is terminated for any reason
other than death, disability, retirement at or after reaching normal
retirement age (which, for purposes of this Plan, shall be age 65), or a
Change of Control (as defined in Section 5.2 hereof) of the Employer,
then, except as hereinafter provided, such Participant shall have a vested
interest in the Employer contributions credited to such Participant's Plan
Account under Section 3.2 hereof (and any earnings and gains (or losses)
on his or her Account attributable thereto) equal to a percentage thereof
as of the date of termination of employment, which percentage shall be
determined in accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Service After Vested Forfeitable
Becoming A Participant Percentage Percentage
---------------------- ---------- ----------
<S> <C> <C>
</TABLE>
4
<PAGE> 5
<TABLE>
<S> <C> <C>
Less than one 0% 100%
At least one, but less than two 20% 80%
At least two, but less than three 40% 60%
At least three, but less than four 60% 40%
At least four, but less than five 40% 60%
At least five 100% 0%
</TABLE>
Notwithstanding the foregoing, if the Employer shall discharge a
Participant for theft, embezzlement, obtaining funds or property under
false pretenses, or for any similar action, or if the Employer shall
discharge a Participant for assisting a competitor without permission,
interfering with the Employer's relationship with any customer, or for any
similar action, such Participant shall, as of the date of termination of
employment, have a Vested Percentage of 0% (notwithstanding the number of
his or her Years of Service after becoming a Participant) and a
Forfeitable Percentage of 100%. In the event of a Participant's
termination of employment for any reason other than death, disability,
retirement at or after reaching normal retirement age, or a Change of
Control of the Employer, (i) the amount which represents his or her Vested
Percentage in the Employer contributions credited to such Participant's
Plan Account under Section 3.2 hereof (and any earnings and gains (or
losses) on his or her Account attributable thereto) shall be retained in
such Participant's Account (subject to distribution in accordance with the
Plan), and (ii) the amount which represents his or her Forfeitable
Percentage therein shall be debited against such Participant's Account and
credited against future Employer contributions to the Plan pursuant to
Section 3.2 hereof.
In the event of a Participant's termination of employment by reason of his
or her death, disability, or retirement at or after reaching normal
retirement age, or by reason of a Change of Control of the Employer, such
Participant shall, as of the date of termination of employment, be fully
vested in the Employer contributions credited to such Participant's Plan
Account under Section 3.2 hereof (and any earnings and gains (or losses)
on his or her Account attributable thereto), and the entire amount thereof
shall be retained in his or her Account subject to distribution in
accordance with the Plan.
Article IV - Allocation of Funds
4.1 ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS. Pursuant to Section
4.5 hereof, each Participant shall have the right to direct the Employer
as to how amounts in his or her Plan Account shall be deemed to be
invested. In such a case, the Employer may direct the Trustee to invest
the Account maintained in the Trust on behalf of such Participant pursuant
to the direction the Employer has received from that Participant. Each
Participant's Plan Account will be credited or debited with the increase
or decrease in the realizable net asset value or credited interest, as
applicable, of the designated deemed investments, as follows: As of each
Valuation Date, an amount equal to the net increase or decrease in
realizable net asset value or credited interest, as applicable (as
determined by the Employer), of each deemed investment option within the
Trust since the preceding Valuation Date shall be allocated among all
Participant Accounts deemed to be invested in that investment option in
accordance with the ratio that the portion of the Account of each
Participant that is deemed to be invested within that investment option,
determined
5
<PAGE> 6
as provided herein, bears to the aggregate of all Account amounts deemed
to be invested within that investment option.
4.2 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution
hereunder, the distribution to a Participant or his or her Beneficiary or
Beneficiaries shall be charged to such Participant's Account.
4.3 SEPARATE ACOUNTS. A separate account under the Plan shall be established
and maintained by the Employer to reflect the Account for each Participant
with subaccounts to show separately the deemed earnings and losses
credited or debited to such Account and the applicable deemed investments
of the Account.
4.4 INTERIM VALUATIONS. If it is determined by the Employer that the value of
the Trust as of any date on which distributions are to be made differs
materially from the value of the Trust on the prior Valuation Date upon
which the distribution is to be based, the Employer, in its discretion,
shall have the right to designate any date in the interim as a Valuation
Date for the purpose of revaluing the Trust so that the Account from which
the distribution is being made will, prior to the distribution, reflect
its share of such material difference in value.
4.5 DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS. Subject to such limitations
as may from time to time be required by law, imposed by the Employer or
the Trustee, or contained elsewhere in the Plan, and subject to such
operating rules and procedures as may be imposed from time to time by the
Employer or the Trustee, prior to and effective for each Designation Date,
each Participant may communicate to the Employer a direction as to how his
or her Account should be deemed to be invested among such categories of
deemed investments as may be made available by the Employer hereunder.
Such direction shall designate the percentage (in any whole percent
multiples) of each portion of the Participant's Account that is requested
to be deemed to be invested in such categories of deemed investments and
shall be subject to the following rules:
(a) Any initial or subsequent deemed investment
direction shall be in writing, on a form supplied by and
filed with the Employer, and shall be effective as of
the next Designation Date that is at least ten (10)
business days after such filing.
(b) All amounts credited to the Participant's
Account shall be deemed to be invested in accordance
with the then effective deemed investment direction,
and, as of the effective date of any new deemed
investment direction, all or a portion of the
Participant's Account at that date shall be reallocated
among the designated deemed investment funds according
to the percentages specified in the new deemed
investment direction unless and until a subsequent
deemed investment election shall be filed and become
effective. An election concerning deemed investment
choices shall continue indefinitely as provided in the
Participant's most recent Participant Enrollment and
Election Form or other form specified by the Employer.
6
<PAGE> 7
(c) If the Employer receives an initial or revised
deemed investment direction that it deems to be
incomplete, unclear, or improper, the Participant's
investment direction then in effect shall remain in
effect (or, in the case of a deficiency in an initial
deemed investment direction, the Participant shall be
deemed to have filed no deemed investment direction)
until the next Designation Date, unless the Employer
provides for, and permits the application of,
corrective action prior thereto.
(d) If the Employer possesses at any time directions
as to the deemed investment of less than all of a
Participant's Account, the Participant shall be deemed
to have directed that the undesignated portion of the
Account be deemed to be invested in a money market,
fixed income, or similar fund made available under the
Plan as determined by the Employer in its discretion.
(e) Each Participant hereunder, as a condition to his
or her participation hereunder, agrees to indemnify and
hold harmless the Employer and its agents and
representatives from any losses or damages of any kind
relating to the deemed investment of the Participant's
Account hereunder.
(f) Each reference in this Section to a Participant
shall be deemed to include, where applicable, a
reference to such Participant's Beneficiary.
Article V - Entitlement to Benefits
5.1 TERMINATION OF EMPLOYMENT. If a Participant terminates employment with the
Employer for any reason, the Participant's Plan Account at the date of
termination shall be valued and payable according to the provisions of
Article VI hereof (subject to potential forfeiture of a portion of the
Account pursuant to Section 3.4 hereof).
5.2 CHANGE OF CONTROL. If a Change of Control of the Employer occurs, the
Participant's Plan Account at the date of the Change of Control shall be
valued and payable according to the provisions of Article VI. For purposes
of this Section, a "Change of Control" shall mean (i) the purchase or
other acquisition by any person, entity, or group of persons (other than
members of the Kletjian family and their affiliates), within the meaning
of section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the
"Act"), or any comparable successor provisions, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Act) of thirty
percent (30%) or more of either the outstanding shares of the Employer's
common stock or the combined voting power of the Employer's then
outstanding voting securities entitled to vote generally, (ii) the
approval by the stockholders of the Employer of a reorganization, merger,
or consolidation with respect to which persons who are stockholders of the
Employer immediately prior to such transaction will not, immediately after
the consummation thereof, own more than fifty percent (50%) of the
combined voting power entitled to vote generally in the election of
directors of the
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<PAGE> 8
company surviving or resulting from such transaction, or (iii) the
liquidation or dissolution of the Employer or the sale of all or
substantially all of the Employer's assets.
5.3 REEMPLOYMENT OF RECIPIENT. If a Participant receiving installment
distributions pursuant to Section 6.2 hereof following the termination of
such Participant's employment with the Employer is reemployed by the
Employer, the remaining distributions due to the Participant shall be
suspended until such time as the Participant (or his or her Beneficiary)
once again becomes eligible for benefits under Section 5.1, Section 5.2,
or Section 5.4 hereof, at which time such distribution shall again
commence, subject to the limitations and conditions contained in this
Plan.
5.4 DATE CERTAIN. Upon becoming a Participant under the Plan, an Eligible
Employee may designate a date certain (which must occur no sooner than the
first day of the second calendar year commencing after the date on which
such Eligible Employee makes such designation) upon the occurrence of
which (the Distribution Date) while such Eligible Employee/Participant is
employed by the Employer, and prior to the occurrence of a Change of
Control of the Employer, such Eligible Employee/Participant's Plan Account
shall be valued and payable according to the provisions of Article VI
hereof (subject to potential forfeiture of a portion of the Account
pursuant to Section 3.4 hereof). The occurrence of such Distribution Date
while such Eligible Employee/Participant is employed by the Employer (and
prior to the occurrence of a Change of Control of the Employer) shall not,
in and of itself, terminate such individual's status as a Participant in
the Plan thereafter. A Participant who has designated a Distribution Date
under, and in accordance with, the provisions of this Section 5.4, may
change such Distribution Date to a later Distribution Date, at any time at
least ninety (90) days before the occurrence of the Distribution Date
being changed, by notifying the Employer in writing of such change. For
purposes of applying the provisions of Section 3.4 hereof, a Participant
who has designated a Distribution Date pursuant to this Section 5.4 shall,
upon the occurrence of such Distribution Date while such Participant is
employed by the Employer, be deemed to have terminated his or her
employment with the Employer other than by reason of such Participant's
death, disability, or retirement at or after reaching normal retirement
age.
Article VI - Distribution of Benefits
6.1 AMOUNT. A Participant (or his or her Beneficiary) shall become entitled to
receive, upon the first to occur of the Participant's termination of
employment with the Employer, a Change of Control of the Employer, or the
occurrence of the Distribution Date (if any) designated by such
Participant pursuant to Section 5.4 hereof, a distribution in an aggregate
amount equal to the Participant's Account, which amount, depending on (a)
the performance of the deemed investments elected from time to time by the
Participant, the Beneficiary, and/or the Employer, as applicable, and (b)
the extent to which the investments of the Trust relating to the
Participant's deemed investments under Sections 4.1 and 4.5 hereof
actually are realized by the Trust, may be less than, equal to, or greater
than the aggregate amount of the Participant's Compensation Deferrals and
the Employer contributions allocated to such Participant's Account
pursuant to Section 3.2 hereof. Any payment due
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<PAGE> 9
hereunder from the Trust that is not paid by the Trust will be paid by the
Employer from its general assets.
6.2 METHOD OF PAYMENT.
(a) Cash Payments. All payments under the Plan shall
be made in cash.
(b) Timing and Manner of Payment. In the event of a
Change of Control, within the meaning of Section 5.2
hereof, an aggregate amount equal to each Participant's
Account will be paid by the Trust or the Employer, as
provided in Section 6.1, in a lump sum to such
Participant or his or her Beneficiary. In the event a
Participant becomes entitled to benefits under Section
5.1 or Section 5.4 hereof, an aggregate amount equal to
such Participant's Account will be paid by the Trust or
the Employer, as provided in Section 6.1, in a lump sum,
on or about the date of the Participant's termination of
employment, or the Distribution Date, as the case may
be, or in annual installments made over a period
selected by the Participant not less than thirty (30)
days prior to termination of employment, or the
Distribution Date, as the case may be. If a Participant
fails to designate properly the manner of payment of the
Participant's benefit under the Plan, such payment will
be in a lump sum on or about the date of the
Participant's termination of employment, or the
Distribution Date, as the case may be.
If the whole or any part of a payment hereunder by the Trust or the
Employer is to be in installments, the total to be so paid shall continue
to be invested pursuant to Sections 4.1 and 4.5 under such procedures as
the Employer may establish, in which case, subject to the limitations of
Section 6.1, any deemed income, gain or loss attributable thereto (to the
extent realized, as determined by the Employer, in its discretion) shall
be reflected in the installment payments, in such equitable manner as the
Employer may determine.
6.3 DEATH BENEFITS. If a Participant 's employment with the Employer is
terminated by reason of his or her death and before the commencement of
payments to such Participant hereunder, the entire value of the
Participant's Account shall be paid, as provided in Section 6.2, to such
Participant's Beneficiary.
Following the death of a Participant after payments hereunder have begun
but before he or she has received all payments to which he or she is
entitled under the Plan, the remaining benefit payments shall be paid to
such Participant's Beneficiary in the manner in which such benefits were
payable to the Participant, unless the Beneficiary elects, within sixty
(60) days after such Participant's death, a more rapid form or schedule of
distribution.
6.4 HARDSHIP DISTRIBUTIONS. Notwithstanding anything to the contrary herein
contained, a Participant may request a distribution from his or her
Account due to Unforeseeable Emergency (as hereinafter defined) by
submitting a written request to the Employer accompanied by evidence to
demonstrate that the circumstances being experienced qualify as an
Unforeseeable Emergency. The Employer shall have the authority to require
such evidence as it deems necessary to determine if a
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<PAGE> 10
distribution is warranted. If an application for a hardship distribution
due to an Unforeseeable Emergency is approved, the distribution shall be
limited to the amount necessary to meet the emergency. The allowed
distribution shall be payable pursuant to a method determined by the
Employer as soon as possible after approval of such distribution.
A Participant who has commenced receiving installment payments under the
Plan may, notwithstanding anything to the contrary contained herein,
request acceleration of such payments in the event of an Unforeseeable
Emergency. The Employer may permit accelerated payments to the extent that
the aggregate amount thereof does not exceed the amount necessary to meet
the emergency.
For purposes of this Section 6.4, "Unforeseeable Emergency" shall mean,
with respect to a Participant, a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident of
the Participant or of a dependent of the Participant, 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 circumstances that will constitute an
"Unforeseeable Emergency" will depend upon the facts of each case, but, in
any case, payment may not be made in the event that such hardship is or
may be relieved:
(1) through reimbursement or compensation by insurance or otherwise,
(2) by liquidation of the Participant's assets, to the extent that
liquidation of such assets would not itself cause severe financial
hardship, or
(3) by cessation of Compensation Deferrals under the Plan.
The need to send a Participant's child to college or the desire to
purchase a home shall not be an Unforeseeable Emergency.
Article VII - Beneficiaries; Participant Data
7.1 DESIGNATION OF BENEFICIARIES. Each Participant from time to time may
designate any person or persons (who may be named contingently or
successively) to receive such benefits as may be payable under the Plan
upon or after the Participant's death, and such designation may be changed
from time to time by the Participant by filing a new designation. Each
designation will revoke all prior designations by the same Participant,
shall be in a form prescribed by the Employer, and will be effective only
when filed in writing with the Employer during the Participant's lifetime.
In the absence of a valid Beneficiary designation, or if, at the time any
benefit payment is due to a Beneficiary, there is no living Beneficiary
validly named by the Participant, the Employer shall make any such benefit
payment to the Participant's spouse, if then living, but otherwise to the
Participant's then living descendants, if any, per stirpes, but, if none,
to the Participant's estate. In determining the existence or identity of
anyone entitled to a benefit payment, the Employer may rely conclusively
upon information supplied by the Participant's executor, administrator, or
other legal representative. If a question arises as to the existence or
identity of
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<PAGE> 11
anyone entitled to receive a benefit payment as aforesaid, or if a dispute
arises with respect to any such payment, then, notwithstanding the
foregoing, the Employer, in its sole discretion, may distribute such
payment to the Participant's estate without liability for any tax or other
consequences that might flow therefrom or may take such other action as
the Employer, in its sole discretion, deems to be appropriate.
7.2 INFORMATION TO BE FURNISHED TO PARTICIPANTS AND BENEFICIARIES; INABILITY
TO LOCATE PARTICIPANTS OR BENEFICIARIES. Any communication, statement or
notice addressed to a Participant or to a Beneficiary at his or her last
post office address as shown on the Employer's records shall be binding on
the Participant or Beneficiary for all purposes of the Plan. The Employer
shall not be obliged to search for any Participant or Beneficiary beyond
the sending of a registered letter to such last known address. If the
Employer notifies any Participant or Beneficiary that he or she is
entitled to an amount under the Plan and the Participant or Beneficiary
fails to claim such amount or make his or her location known to the
Employer within three (3) years thereafter, then, except as otherwise
required by law, if the location of one or more of the next kin of the
Participant is known to the Employer, the Employer may direct distribution
of such amount to any one or more or all of such next of kin, and in such
proportions as the Employer may determine. If the location of none of the
foregoing persons can be determined, the Employer shall have the right to
direct that the amount payable shall be deemed to be a forfeiture, except
that the dollar amount of the forfeiture, unadjusted for deemed gains or
losses in the interim, shall be paid by the Employer if a claim for the
benefit is subsequently made by the Participant or the Beneficiary to whom
it was payable. If a benefit payable to an unlocated Participant or
Beneficiary is subject to escheat pursuant to applicable state law, the
Employer shall not be liable to any person for any payment in accordance
with such law.
Article VIII - The Trust
8.1 ESTABLISHMENT OF TRUST. The Employer shall establish the Trust with the
Trustee, pursuant to such terms and conditions as are set forth in the
Trust agreement to be entered into between the Employer and the Trustee.
The Trust is intended to be treated as a grantor trust under the Code, and
the establishment of the Trust is not intended to cause Participants to
realize current income on amounts contributed thereto, and the Trust shall
be so interpreted.
Article IX - Administration
9.1 ADMINISTRATIVE AUTHORITY. Except as otherwise specifically provided
herein, the Committee shall have sole responsibility for, and the sole
control of, the operation and administration of the Plan and shall have
the power and authority to take all action and to make all decisions and
interpretations that may be necessary or appropriate in order to
administer and operate the Plan, including, without limiting the
generality of the foregoing, the power, duty and responsibility to
(a) Resolve and determine all disputes or questions
arising under the Plan, including the power to determine
the rights of Eligible Employees, Participants, and
Beneficiaries, and their respective benefits, and to
remedy any ambiguities, inconsistencies,
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or omissions in the Plan.
(b) Adopt such rules of procedure and regulations as
in its opinion may be necessary for the proper and
efficient administration of the Plan and as are
consistent with the Plan.
(c) Implement the Plan in accordance with its terms
and the rules and regulations adopted as above.
(d) Make determinations with respect to the
eligibility of any Eligible Employee as a Participant
and make determinations concerning the crediting and
distribution of Plan Accounts.
(e) Appoint any persons or firms to provide, or
otherwise act to secure, specialized advice or
assistance, as it seems necessary or desirable in
connection with the administration and operation of the
Plan, and the Employer shall be entitled to rely
conclusively upon, and shall be fully protected in any
action or omission taken by it in its good faith
reliance upon, the advice or opinions of such firms or
persons. The Committee shall have the power and
authority to delegate from time to time by written
instrument all or any part of its duties, powers, or
responsibilities under the Plan, both ministerial and
discretionary, as it deems appropriate, to any person or
committee, and in the same manner to revoke any such
delegation of duties, powers, or responsibilities. Any
action of such person or committee in the exercise of
such delegated duties, powers, or responsibilities shall
have the same force and effect for all purposes
hereunder as if such action had been taken by the
Committee. Further, the Committee may authorize one or
more persons to execute any certificate or document on
behalf of the Employer, in which event any person
notified by the Committee of such authorization shall be
entitled to accept and conclusively rely upon any such
certificate or document executed by such person as
representing action by the Employer until such third
person shall have been notified of the revocation of
such authority.
9.2 MUTUAL EXCLUSION OF RESPONSIBILITY. Neither the Trustee nor the Employer
shall be obliged to inquire into or be responsible for any act or failure
to act, or the authority therefor, on the part of the other.
9.3 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or
operation of the Plan discretionary actions by the Employer are required
or permitted, such actions shall be consistently and uniformly applied to
all persons similarly situated, and no such action shall be taken that
shall discriminate in favor of any particular person or group of persons.
9.4 LITIGATION. Except as may otherwise be required by law, in any action or
judicial proceeding affecting the Plan, no Participant or Beneficiary
shall be entitled to any notice or service of process, and any final
judgment entered in such action shall be binding on all persons interested
in, or claiming under, the Plan.
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<PAGE> 13
9.5 PAYMENT OF ADMINISTRATION EXPENSES. All expenses incurred in the
administration and operation of the Plan and the Trust, including any
taxes payable by the Employer in respect of the Plan or Trust or payable
by or from the Trust pursuant to its terms, shall be paid by the Employer.
9.6 CLAIMS PROCEDURE. Any person claiming a benefit under the Plan (a
"Claimant") shall present the claim, in writing, to the Employer, and the
Employer shall respond in writing. If the claim is denied, the written
notice of denial shall state, in a manner calculated to be understood by
the Claimant:
(a) the specific reason or reasons for the denial,
with specific references to the Plan provisions on which
the denial is based;
(b) a description of any additional material or
information necessary for the Claimant to perfect his or
her claim and an explanation of why such material or
information is necessary; and
(c) an explanation of the Plan's claims review
procedure.
The written notice denying or granting the Claimant's claim shall be
provided to the Claimant within ninety (90) days after the Employer's
receipt of the claim, unless special circumstances require an extension of
time for processing the claim. If such an extension is required, written
notice of the extension shall be furnished by the Employer to the Claimant
within the initial ninety (90) day period and in no event shall such
extension exceed a period of ninety (90) days from the end of the initial
ninety (90) day period. Any extension notice shall indicate the special
circumstances requiring the extension and the date on which the Employer
expects to render a decision on the claim. Any claim not granted or denied
within the period noted above shall be deemed to have been denied.
Any Claimant whose claim is denied or deemed to have been denied under the
preceding sentence (or such Claimant's authorized representative) may,
within sixty (60) days after the Claimant's receipt of notice of the
denial or after the date of the deemed denial, request a review of the
denial by notice given, in writing, to the Employer. Upon such a request
for review, the claim shall be reviewed by the Employer (or its designated
representative), which may, but shall not be required to, grant the
Claimant a hearing. In connection with the review, the Claimant may have
representation, may examine pertinent documents, and may submit issues and
comments in writing.
The decision on review normally shall be made within sixty (60) days of
the Employer's receipt of the request for review. If an extension of time
is required due to special circumstances, the Claimant shall be notified,
in writing, by the Employer, and the time limit for the decision on review
shall be extended to one hundred twenty (120) days. The decision on review
shall be in writing and shall state, in a manner calculated to be
understood by the Claimant, the specific reasons for the decision and
shall include references to the relevant Plan provisions on which the
decision is based. The written decision on review shall be given to the
Claimant within the sixty
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<PAGE> 14
(60) day (or, if applicable, the one hundred twenty (120) day) time limit
discussed above. If the decision on review is not communicated to the
Claimant within the sixty (60) day (or, if applicable, the one hundred
twenty (120) day) time limit discussed above, the claim shall be deemed to
have been denied upon review. All decisions on review shall be final and
binding with respect to all concerned parties.
Article X - Amendment
10.1 RIGHT TO AMEND. The Employer, by written instrument executed by the
Employer, shall have the right to amend the Plan, at any time and with
respect to any provisions hereof, and all parties hereto or claiming any
interest hereunder shall be bound by such amendment; provided, however,
that no such amendment shall deprive a Participant or a Beneficiary of a
right accrued hereunder prior to the effective date of the amendment.
10.2 AMENDMENTS TO ASSURE PROPER CHARACTERIZATION OF PLAN. Notwithstanding the
provisions of Section 10.1, the Plan and the Trust agreement may be
amended by the Employer at any time, retroactively if required, if found
necessary, in the opinion of the Employer, in order to ensure that the
Plan is characterized as a top hat plan of deferred compensation
maintained for a select group of management or highly compensated
employees as described under ERISA Sections 201(2), 301(a)(3), and
401(a)(1) and to conform the Plan to the provisions and requirements of
any applicable law (including ERISA and the Code). No such amendment shall
be considered prejudicial to any interest of any Participant or
Beneficiary hereunder.
Article XI - Termination
11.1 EMPLOYER'S RIGHT TO TERMINATE OR SUSPEND PLAN. The Employer reserves the
right, at any time, to terminate the Plan and/or its obligation to make
further credits to Plan accounts. The Employer also reserves the right, at
any time, to suspend the operation of the Plan for a fixed or
indeterminate period of time.
11.2 SUSPENSION OF DEFERRALS. In the event of a suspension of the Plan, the
Employer shall continue all aspects of the Plan, other than Compensation
Deferrals under Section 3.1 hereof and Employer contribution credits under
Section 3.2 hereof, during the period of the suspension, in which event
payments hereunder will continue to be made during the period of the
suspension in accordance with Articles V and VI.
11.3 ALLOCATION AND DISTRIBUTION. This Section shall become operative upon a
complete termination of the Plan. The provisions of this Section also
shall become operative in the event of a partial termination of the Plan,
as determined by the Employer, but only with respect to that portion of
the Plan attributable to the Participants to whom the partial termination
is applicable. Upon the effective date of any such event, notwithstanding
any other provision of the Plan, (i) no persons who were not theretofore
Participants shall thereafter be eligible to become Participants, and (ii)
the value of the interest of all Participants and Beneficiaries shall be
determined and, after deduction of estimated expenses in liquidating and,
if applicable, paying Plan benefits, paid to them as soon as is
practicable after such termination.
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<PAGE> 15
11.4 SUCCESSOR TO EMPLOYER. Any corporation or other business organization that
is a successor to the Employer by reason of a consolidation, merger,
reorganization, or purchase of all or substantially all of the assets of
the Employer shall have the right to become a party to the Plan by
adopting the same by resolution of the entity's board of directors or
other appropriate governing body. If, within ninety (90) days from the
effective date of such consolidation, merger, reorganization, or purchase
of assets, such new entity does not become a party hereto, as above
provided, the Plan automatically shall be terminated, and the provisions
of Section 11.3 hereof shall become operative.
Article XII - Miscellaneous
12.1 LIMITATIONS ON LIABILITY OF EMPLOYER. Neither the establishment of the
Plan nor any modification thereof, nor the creation of any account under
the Plan, nor the payment of any benefits under the Plan shall be
construed as giving to any Participant or other person any legal or
equitable right against the Employer or any officer or employee thereof,
except as provided by law or by any Plan provision. The Employer does not
in any way guarantee any Participant's Account from loss or depreciation,
whether caused by poor investment performance of a deemed investment or
the inability to realize upon an investment due to an insolvency affecting
an investment vehicle or any other reason. In no event shall the Employer,
or any successor, employee, officer, director or stockholder of the
Employer, be liable to any person on account of any claim arising by
reason of the provisions of the Plan or of any instrument or instruments
implementing its provisions, or for the failure of any Participant,
Beneficiary, or other person to be entitled to any particular tax
consequences with respect to the Plan, or any credit or distribution
hereunder.
12.2 CONSTRUCTION. If any provision of the Plan is held to be illegal or void,
such illegality or invalidity shall not affect the remaining provisions of
the Plan, but shall be fully severable, and the Plan shall be construed
and enforced as if said illegal or invalid provision had never been
inserted herein. For all purposes of the Plan, where the context admits,
the singular shall include the plural, and the plural shall include the
singular. Headings of Articles and Sections herein are inserted only for
convenience of reference and are not to be considered in the construction
of the Plan. The laws of the Commonwealth of Massachusetts shall govern,
control and determine all questions of law arising with respect to the
Plan and the interpretation and validity of its provisions, except where
those laws are preempted by the laws of the United States. Participation
under the Plan will not give any Participant the right to be retained in
the service of the Employer nor any right or claim to any benefit under
the Plan unless such right or claim has specifically accrued hereunder.
The Plan is intended to be and at all times shall be interpreted and
administered so as to qualify as an unfunded deferred compensation plan
for tax purposes and for purposes of Title I of ERISA. No provision of the
Plan shall be interpreted so as to give any individual any right in any
assets of the Employer which is greater than the rights of a general
unsecured creditor of the Employer. The Plan constitutes a mere promise by
the Employer to make benefits payments in the future.
12.3 SPENDTHRIFT PROVISION. No amount payable to a Participant or a Beneficiary
under the Plan will, except as otherwise specifically provided by law, be
subject in any manner to anticipation, alienation, attachment,
garnishment, sale, transfer,
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<PAGE> 16
assignment (either at law or in equity), levy, execution, pledge,
encumbrance, charge, or any other legal or equitable process, and any
attempt to do so will be void; nor will any benefit be in any manner
liable for or subject to the debts, contracts, liabilities, engagements,
or torts of the person entitled thereto. Further, the withholding of taxes
from Plan benefit payments; the recovery under the Plan of overpayment of
benefits previously made to a Participant or Beneficiary; if applicable,
the transfer of benefit rights from the Plan to another plan; or the
direct deposit of benefit payments to an account in a banking institution
(if not actually part of an arrangement constituting an assignment or
alienation) shall not be construed as an assignment or alienation.
In the event that any Participant's or Beneficiary's benefits hereunder
are garnished or attached by order of any court, the Employer may bring an
action for a declaratory judgment in a court of competent jurisdiction to
determine the proper recipient of the benefits to be paid under the Plan.
During the pendency of said action, any benefits that become payable shall
be held as credits to the Participant's or Beneficiary's Account or, if
the Employer prefers, paid into the court as they become payable, to be
distributed by the court to the recipient as the court deems proper at the
close of said action.
IN WITNESS WHEREOF, the Employer has caused the Plan to be executed and
its seal to be affixed hereto, effective as of the first day of July,
1999.
ATTEST/WITNESS UNICCO Service Company
/s/ Kristen Priolisi By: /s/ Anthony D'Agostino
---------------------------- ----------------------
Print Name: Kristen Priolisi Print Name: Anthony D'Agostino
---------------- ----------------------
Date: June 7, 1999
----------------------
[SEAL]
16
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EXHIBIT 5.1
POSTERNAK, BLANKSTEIN & LUND, L.L.P.
ATTORNEYS AT LAW
----------
100 CHARLES RIVER PLAZA
BOSTON, MASSACHUSETTS 02114-2723
TEL 617-973-6100
FAX 617-367-2315
E-MAIL [email protected]
July 8, 1999
UNICCO Service Company
Four Copley Place
Boston, Massachusetts 02116
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is rendered to you in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), for the registration
of a maximum aggregate amount of $5 million of deferred compensation obligations
(the "Obligations") of UNICCO Service Company, a Massachusetts business trust
(the "Company"), to be offered to employees of the Company under the Company's
Deferred Compensation Plan (the "Plan").
We have acted as counsel to the Company in connection with the preparation
of the Registration Statement. For purposes of this opinion, we have examined
the Declaration of Trust of the Company dated as of December 24, 1988, as
amended; the By-laws of the Company; the Plan; such records of the proceedings
of the Company as we have deemed material; the Registration Statement and all
exhibits thereto; and such other documents as we have deemed necessary to enable
us to render this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America and The Commonwealth of
Massachusetts.
In rendering the opinion expressed herein, we assume that all steps
necessary to comply with the registration requirements of the Securities Act and
with applicable requirements of state law regulating the sale of securities will
be duly taken.
<PAGE> 2
POSTERNAK, BLANKSTEIN & LUND, L.L.P.
UNICCO Service Company
July 8, 1999
Page 2
Based upon and subject to the foregoing, and having regard for such legal
considerations as we have deemed relevant, it is our opinion that the
Obligations, when established pursuant to the terms of the Plan, will be valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms and the terms of the Plan, except as enforceability
(1) may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance or similar laws affecting creditors' rights generally, and (2) is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
This opinion is rendered solely for your benefit, and may not be relied
upon by any other party without our prior written consent. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to
the reference to our name in the Registration Statement.
Very truly yours,
POSTERNAK, BLANKSTEIN & LUND, L.L.P.
By: /s/ Michael L. Andresino
--------------------------------
A Partner Thereof
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 18, 1998 relating to the
financial statements, which appears in the UNICCO Service Company's Annual
Report on Form 10-K for the year ended June 28, 1998.
/s/ PricewaterhouseCoopers LLP
Boston, MA
July 8, 1999
