As filed with the Securities and Exchange Commission on December 14, 1995.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________
THE BLACK & DECKER CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 52-0248090
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
701 East Joppa Road
Towson, Maryland 21286
(Address of principal executive offices)
The Black & Decker Supplemental Retirement Savings Plan
(Full title of the plan)
Charles E. Fenton, Esquire
Vice President and General Counsel
The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
(410) 716-3900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Glenn C. Campbell, Esquire
Miles & Stockbridge,
a Professional Corporation
10 Light Street
Baltimore, Maryland 21202
_______________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum
maximum aggregate Amount of
Title of securities Amount to be offering price offering registration
to be registered registered per obligation price (1) fee
<S> <C> <C> <C> <C>
Deferred Compensation
Payment Obligations(2) $50,000,000 100% $50,000,000 $17,242
<FN>
(1) Estimated solely for the purposes of calculating the registration fee.
(2) The deferred compensation payment obligations are unsecured obligations of The Black & Decker Corporation
to pay deferred compensation in accordance with the terms of The Black & Decker Supplemental Retirement
Savings Plan.
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Black & Decker
Corporation (the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference and
made a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1994, as amended by the Registrant's Form 10-K/A
filed with the Commission on April 24, 1995;
(b) The Registrant's Quarterly Report on Form 10-Q for the
three months ended April 2, 1995;
(c) The Registrant's Quarterly Report on Form 10-Q for the
three months ended July 2, 1995; and
(d) The Registrant's Quarterly Report on Form 10-Q for the
three months ended October 1, 1995.
All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated
by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Under The Black & Decker Supplemental Retirement Savings Plan
(the "Plan"), the Registrant will provide eligible employees the
opportunity to defer a specified portion of their compensation.
The obligations of the Registrant to pay the deferred compensation,
together with any earnings thereon in accordance with the terms of
the Plan (the "Deferred Compensation Payment Obligations"), are
unsecured general obligations of the Registrant and rank pari passu
with other unsecured general obligations of the Registrant. This
Registration Statement covers $50 million of Deferred Compensation
Payment Obligations.
The amount of compensation deferred by each participant under
the Plan will be determined in accordance with the participant's
written deferral election under the Plan. Obligations in an amount
equal to each participant's Plan Account (consisting of
compensation deferred, matching contributions thereon, and any
appreciation or depreciation of the value thereof) will be payable
in accordance with the distribution options selected by the
respective participants at the time of their deferral election.
Generally, participants will be allowed the following distribution
options: (i) the January 1 following the year in which the
participant terminates his or her employment; (ii) upon the
attainment of a specific age after retirement; and (iii) the
January 1 that is anywhere from two to ten years following the year
in which the income was deferred. Depending on the distribution
election made by each participant, distributions may be paid either
in installments ranging from one payment to ten annual payments or
in a lump sum distribution. Under certain circumstances, a
participant may elect to further defer payments otherwise
receivable on a specified distribution date but a participant may
make an election to further defer payments only once. In the event
of a change in control of the Registrant, a participant's Plan
Account will be promptly distributed in a lump sum distribution,
notwithstanding any prior distribution election made by the
participant.
All amounts held in participant's Plan Account that relate to
amounts deferred at the option of the participant and earnings
thereon are vested at all times. Amounts that relate to Registrant
matching contributions and any earnings thereon are subject to a
vesting schedule that provides for vesting at a rate of 20% per
year of service with full vesting after five years of service. A
participant will be fully vested in his Plan Account if the
participant terminates employment due to death, total and permanent
disability or retirement at or after age 55. A participant's Plan
Account will also be fully vested upon a change in control of the
Registrant.
Deferred Compensation Payment Obligations under the Plan may
be indexed to, and earnings or losses will accrue thereon, at rates
equal to the investment returns of specified investment funds less
a hypothetical tax cost to the Registrant for its then current tax
year on the investment earnings credited to each participant's Plan
Account. The investment funds or options initially available to
participants for their Deferral Accounts are as follows: the
State Street Global Advisors S&P 500 Common Trust Fund, the State
Street Global Advisors Balanced Growth Common Trust Fund and the
Seven Seas Money Market Fund. From time to time during the life of
the Plan the Registrant may modify the investment funds or options
available to participants. Prior to making any such changes,
however, the Registrant will advise participants of the change and
give participants the option to specify new investment funds or
options.
No amounts payable to participants or beneficiaries under the
Plan will, except as otherwise specifically provided by law, be
subject in any matter to anticipation, alienation, attachment,
garnishment, sale, transfer, 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.
Notwithstanding the foregoing, however, participants may designate
any person or persons to receive such benefits as may be payable
under the Plan upon or after the participant's death. If no such
beneficiary designation is made, or if no beneficiary is living at
the time of a participant's death, benefits will be paid to the
participant's spouse, if then living, or to the participant's
estate.
Deferred Compensation Payment Obligations are not subject to
redemption by the Registrant, in whole or in part, prior to the
distribution dates selected by the respective participants under
the Plan. Notwithstanding the foregoing, however, the Registrant
has reserved the right to amend or terminate the Plan at any time,
provided that no amendment of the Plan shall deprive a participant
or a beneficiary of a right accrued under the Plan prior to the
date of the amendment.
Item 5. Interests of Named Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law authorizes Maryland
corporations to limit the liability of directors and officers to
the corporation and its stockholders for money damages except (i)
to the extent that it is proved that the director or officer
actually received an improper benefit or profit in money, property
or services, for the amount of the benefit or profit actually
received, (ii) to the extent that a judgment or other final
adjudication adverse to the director or officer is entered in a
proceeding based on a finding in the proceeding that the director's
or officer's action, or failure to act, was the result of active
and deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding or (iii) in respect of certain other
actions not applicable to the Corporation. The Registrant's
Charter limits the liability of directors and officers to the
fullest extent permitted by the Maryland General Corporation Law.
The Maryland General Corporation Law also authorizes Maryland
corporations to indemnify present and past directors and officers
of the corporation or of another corporation for which they may
serve at the request of the corporation against judgments,
penalties, fines, settlements and reasonable expenses (including
attorneys' fees) actually incurred in connection with any
threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation in respect of
which the director or officer is adjudged to be liable to the
corporation) in which they are made parties by reason of being or
having been directors or officers, unless it is proved that (i) the
act or omission of the director or officer was material to the
matter giving rise to the proceeding and was committed in bad faith
or was the result of active and deliberate dishonesty, (ii) the
director or officer actually received an improper personal benefit
in money, property or services or (iii) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. The Maryland General
Corporation Law also provides that, unless limited by the
corporation's charter, a corporation shall indemnify present and
past directors and officers of the corporation who are successful,
on the merits or otherwise, in the defense of any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, against reasonable
expenses (including attorneys' fees) incurred in connection with
the proceeding. The Registrant's Charter does not limit the extent
of this indemnity.
The By-Laws of the Registrant permit indemnification of
directors and officers to the fullest extent permitted by the
Maryland General Corporation Law, and the Registrant's directors
and officers are covered by certain insurance policies maintained
by the Registrant.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4 The Black & Decker Supplemental Retirement Savings
Plan.
5 Opinion of Miles & Stockbridge, a Professional
Corporation.
23 Consent of Experts (the consent of counsel is
included in Exhibit 5).
24 Powers of Attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
and
(iii)To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that subparagraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2)That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3)To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
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 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Towson, State of Maryland, on December 14, 1995.
THE BLACK & DECKER CORPORATION
By:/s/ CHARLES E. FENTON
Charles E. Fenton
Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
Principal Executive
Officer
/s/ NOLAN D. ARCHIBALD Chairman, President December 14, 1995
Nolan D. Archibald and Chief Executive
Officer
Principal Financial
Officer
/s/ THOMAS M. SCHOEWE Executive Vice December 14, 1995
Thomas M. Schoewe President and Chief
Financial Officer
Principal Accounting
Officer
/s/ STEPHEN F. REEVES Corporate Controller December 14, 1995
Stephen F. Reeves
This Registration Statement also has been signed by the following
Directors, who constitute a majority of the Board of Directors:
Nolan D. Archibald* J. Dean Muncaster*
Barbara L. Bowles* Lawrence R. Pugh*
Malcolm Candlish* Mark H. Willes*
Alonzo G. Decker, Jr.* M. Cabell Woodward, Jr.*
Anthony Luiso*
*By:/s/ CHARLES E. FENTON December 14, 1995
Charles E. Fenton
Attorney-In-Fact
Exhibit 4
THE BLACK & DECKER
SUPPLEMENTAL RETIREMENT SAVINGS PLAN
Effective as of February 1, 1996
RECITALS
The Black & Decker Supplemental Retirement Savings Plan (the
"Plan") is adopted by The Black & Decker Corporation (the
"Company") for certain executive employees. The purpose of the
Plan is to offer those employees an opportunity to elect to defer
the receipt of compensation in order to provide deferred
compensation benefits taxable 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, as amended ("ERISA").
ARTICLE 1
DEFINITIONS
1.1 AIP means The Black & Decker Annual Incentive Plan, or
any other cash-based annual incentive plan adopted by the Company
from time to time.
1.2 ACCOUNT means the balance credited to a Participant's
or Beneficiary's Plan account, including contribution credits and
income, gains and losses (as determined by the Committee, in its
discretion) credited thereto. A Participant's or Beneficiary's
Account shall be determined as of the date of reference.
1.3 BENEFICIARY means any person or persons so designated
in accordance with the provisions of Article 7.
1.4 CHANGE IN CONTROL OF THE COMPANY means a change in
control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, whether or not the Company is
in fact required to comply therewith, provided that, without
limitation, such a change in control shall be deemed to have
occurred if (A) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or any of its subsidiaries or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as the ownership of common
stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company's then outstanding
securities; (B) during any period of two consecutive years (not
including any period prior to the adoption of the Plan),
individuals who at the beginning of such period constitute the
Board of Directors of the Company and any new director (other
than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
clauses (A) or (D) of this definition) whose election by the
Board of Directors of the Company or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board of Directors of the
Company; (C) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change
in Control of the Company; or (D) the stockholders of the Company
approve a merger, share exchange or consolidation of the Company
with any other corporation, other than a merger, share exchange
or consolidation that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 60% of
the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such
merger, share exchange or consolidation, or the stockholders of
the Company approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of all
or substantially all the Company's assets.
1.5. CODE means the Internal Revenue Code of 1986 and the
regulations thereunder, as amended from time to time.
1.6 COMMITTEE means the Pension Management Committee of the
Company.
1.7 COMPANY means The Black & Decker Corporation and its
successors and assigns.
1.8 COMPENSATION means the base salary of an employee of an
Employer and any bonus payment payable to an employee of an
Employer under the AIP.
1.9 COMPENSATION DEFERRAL ACCOUNT is defined in Section
3.2.
1.10 COMPENSATION DEFERRALS is defined in Section 3.2.
1.11 DESIGNATION DATE means the date or dates on 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 Section
4.5, shall become effective. The Designation Dates in any Plan
Year shall be specified by the Committee.
1.12 EFFECTIVE DATE means the effective date of the Plan,
which, notwithstanding the date of execution hereof, shall be
February 1, 1996.
1.13 ELIGIBLE EMPLOYEE means, for any Plan Year (or
applicable portion thereof), a person employed by an Employer,
who is paid through a U.S. payroll system, is a "highly
compensated employee" as defined at Code Section 414(q), and who is
determined by the Committee to be a member of a select group of
management or highly compensated employees. The term Eligible
Employee shall not include a non-U.S. citizen who is ineligible
for the Savings Plan. By each November 1 (or on or before the
Effective Date for the Plan's first Plan Year), the Plan Manager
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 Plan Manager shall notify such individual of the
Committee's determination and of the date during the Plan Year on
which the individual shall first become an Eligible Employee.
1.14 EMPLOYER means the Company unless otherwise herein
provided, or any subsidiary or affiliate of the Company that
agrees, with the consent of the Company, to become a party to the
Plan.
1.15 EMPLOYER CONTRIBUTION CREDIT ACCOUNT is defined in
Section 3.1.
1.16 EMPLOYER CONTRIBUTION CREDITS is defined in Section
3.1.
1.17 ENTRY DATE with respect to an individual means the
first day of the pay period following the date on which the
individual first becomes an Eligible Employee.
1.18 ERISA means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
1.19 EXCHANGE ACT means the Securities Exchange Act of 1934,
as amended from time to time.
1.20 PARTICIPANT means any person so designated in
accordance with the provisions of Article 2, including, where
appropriate according to the context of the Plan, any former
employee who is or may become (or whose Beneficiaries may become)
eligible to receive a benefit under the Plan.
1.21 PARTICIPANT ENROLLMENT AND ELECTION FORM means the form
or forms on which a Participant elects to defer Compensation
hereunder and on which the Participant makes certain other
designations as required thereon.
1.22 PLAN means The Black & Decker Supplemental Retirement
Savings Plan, as amended from time to time.
1.23 PLAN MANAGER means the Vice President of Benefits for
the Company, or such other person as may be designated by the
Committee.
1.24 PLAN YEAR means each accounting period commencing on
the Effective Date and ending on the December 31 of each year in
which the Plan is in effect.
1.25 SAVINGS PLAN means The Black & Decker Retirement
Savings Plan or a successor plan.
1.26 VALUATION DATE means the last day of each Plan Year and
any other date that the Committee, in its sole discretion,
designates as a Valuation Date.
ARTICLE 2
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 Participant Compensation Deferral
feature of the Plan is voluntary. In order to participate in the
Participant Compensation Deferral feature of the Plan, an
otherwise Eligible Employee must make written application in such
manner as may be required by Section 3.2 and by the Committee and
must agree to make Compensation Deferrals as provided in Article
3.
2.2 RE-EMPLOYMENT. If an Eligible Employee whose
employment with all Employers is terminated is subsequently re-
employed by an Employer, he or she shall become an Eligible
Employee 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 an Employer, but
ceases to be an Eligible Employee, he or she shall not be
eligible to make Compensation Deferrals hereunder.
ARTICLE 3
CONTRIBUTIONS AND CREDITS
3.1 EMPLOYER CONTRIBUTION CREDITS. There shall be
established and maintained a separate Employer Contribution
Credit Account in the name of each Participant. There shall be
established the following two sub-accounts under a Participant's
Employer Contribution Credit Account: (a) Matching Contribution
Sub-Account; and (b) Discretionary Contribution Sub-Account.
Each such Sub-Account shall be credited or debited, as
applicable, with (a) amounts equal to the Employer's Contribution
Credits credited to that Sub-Account; (b) any deemed earnings and
losses (to the extent realized, based upon the deemed fair market
value of the Sub-Account's deemed assets as determined by the
Committee, in its sole and absolute discretion) allocated to that
Sub-Account; and (c) expenses charged to that Sub-Account.
For purposes of this Section, the Employer's
Contribution Credits credited to a Participant's Matching
Contribution Sub-Account for a particular Plan Year shall be an
amount equal to the amount of the matching contributions that
would be made to the Participant's account under the Savings Plan
for the Plan Year if the Participant's Compensation Deferrals
hereunder for the Plan Year had been made to the Savings Plan
(disregarding for purposes of this assumption the Code Section 402(g)
limit) instead of under this Plan (and assuming that no non-
discrimination or annual addition test limits on matching
contributions and no limits on recognizable compensation applied
to the Savings Plan. The Company reserves the right, subject to
any restrictions imposed by applicable law, to credit Participant
Matching Contribution Sub-Accounts with common stock of the
Company, which shall be credited at its fair market value at the
time of contribution.
For purposes of this Section, the Employer's
Contribution Credits credited to a Participant's Discretionary
Contribution Sub-Account for a particular Plan Year shall be an
amount (if any) determined by the Committee, in its sole and
absolute discretion.
The Participant's Employer Contribution Credit Account
shall be credited or debited, as applicable, as of each Valuation
Date, with deemed earnings or losses, as applicable, and
expenses. The amount of deemed earnings or losses and expenses
shall be as determined by the Committee hereunder, in its sole
and absolute discretion. The Committee shall have the sole and
absolute discretion to allocate such deemed earnings or losses
and expenses among Participants' Employer Contribution Credit
Accounts and among a Participant's Sub-Accounts pursuant to such
allocation rules as the Committee deems to be reasonable and
administratively practicable.
A Participant shall be vested in amounts credited to
his or her Employer Contribution Account as provided in Section
5.2.
3.2 PARTICIPANT COMPENSATION DEFERRALS. In accordance with
rules established by the Committee, a Participant may elect to
defer Compensation which is due to be earned and which would
otherwise be paid to the Participant. For Participant
Compensation up to the limit on compensation imposed by Code
Section 401(a)(17), regular payroll Compensation Deferrals hereunder
shall be limited to 16% of a Participant's Compensation, reduced
by the percentage of the base salary that the Participant has
directed to be contributed to the Savings Plan as Before-Tax
and/or After-Tax contributions pursuant to the Participant's
Savings Plan election in effect at the time the Participant makes
his or her deferral election under this Plan. For Compensation
in excess of 16% of the Code Section 401(a)(17) limit, regular payroll
Compensation Deferrals hereunder shall be limited to 16% of a
Participant's Compensation. A Participant may elect to defer up
to 100% of a bonus payment not yet payable to him or her at the
time of the election under the AIP reduced by the percentage of
AIP bonus that the Participant has directed to be contributed to
the Savings Plan as Before-Tax and/or After-Tax contributions
pursuant to the Participant's Savings Plan election in effect at
the time the Participant makes an AIP bonus deferral election
under this Plan after taking into account the limit on
compensation imposed by Code Section 401(a)(17). Amounts so deferred
will be considered a Participant's "Compensation Deferrals."
Ordinarily, a Participant shall make a Compensation Deferral
election with respect to a coming Plan Year during the period
beginning on the November 1 and ending on the November 30 of the
prior Plan Year, or during such other period prior to the
beginning of the coming Plan Year established by the Committee.
For the Plan Year beginning on the Effective Date, an Eligible
Employee shall make all of his or her Compensation Deferral
elections during the period beginning December 14, 1995 and
ending at the close of business (5:00 p.m. eastern time) December
29, 1995. In the first year in which an individual becomes an
Eligible Employee, any newly Eligible Employee may make a
Compensation Deferral election with respect to services to be
performed subsequent to the election within thirty (30) days
after the date the individual becomes eligible.
Compensation Deferrals shall be made through regular
payroll deductions or through an election by the Participant to
defer the payment of a bonus payment not yet payable to him or
her at the time of the election under the AIP. The Participant
may terminate his or her regular payroll deduction Compensation
Deferral amount as of, and by written notice delivered to the
Committee at least thirty (30) days prior to the beginning of any
regular payroll period, with such termination being first
effective for Compensation to be earned in that payroll period.
Once terminated, a regular payroll deduction Compensation
Deferral amount may not be subsequently reinstated until the
first day of the next Plan Year. A Compensation Deferral
election shall continue in force only for the Plan Year for which
the election is first effective. An Eligible Employee shall make
a new Compensation Deferral election effective as of the first
day of each Plan Year in accordance with the procedures specified
in this Section 3.2 for making Compensation Deferral elections.
All Compensation Deferral elections shall be made on a subsequent
Participant Enrollment and Election Form provided by the
Committee. Compensation Deferrals shall be deducted by the
Employer from the Compensation of a deferring Participant and
shall be credited to the Account of the deferring Participant.
There shall be established and maintained by the
Employer a separate Compensation Deferral Account in the name of
each Participant to which shall be credited or debited: (a)
amounts equal to the Participant's Compensation Deferrals; (b)
amounts equal to any deemed earnings or losses (to the extent
realized, based upon deemed fair market value of the Account's
deemed assets, as determined by the Committee, in its sole and
absolute discretion) attributable or allocable thereto; and (c)
expenses charged to that Account. A Participant shall at all
times be 100% vested in amounts credited to his or her
Participant Compensation Deferral Account.
ARTICLE 4
ALLOCATION OF FUNDS
4.1 ALLOCATION OF EARNINGS OR LOSSES ON ACCOUNTS. Subject
to such limitations as may from time to time be required by law,
imposed by the Committee or contained elsewhere in the Plan, and
subject to such operating rules and procedures as may be imposed
from time to time by the Committee, prior to the date on which a
direction will become effective, the Participant shall have the
right to direct the Committee how amounts in his or her Account
shall be deemed to be invested. The 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, of each deemed investment within the Account since
the preceding Valuation Date shall be allocated among all
Participants' Accounts deemed to be invested in that investment
in accordance with the ratio which the portion of the Account of
each Participant which is deemed to be invested within that
investment, determined as provided herein, bears to the aggregate
of all amounts deemed to be invested within that investment.
4.2 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any
distribution hereunder, the distribution made hereunder to the
Participant or his or her Beneficiary or Beneficiaries shall be
charged to such Participant's Account. Such amounts shall be
charged on a pro rata basis against the investments in which the
Participant's Account is deemed to be invested.
4.3 SEPARATE ACCOUNTS. A separate account under the Plan
shall be established and maintained to reflect the Account for
each Participant with sub-accounts 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
Committee that the value of the Participant's account as of any
date on which distributions are to be made differs materially
from the value of the Participant's Account on the prior
Valuation Date upon which the distribution is to be based, the
Committee, in its sole and absolute discretion, shall have the
right to designate any date in the interim as a Valuation Date
for the purpose of revaluing the Participant's Account so that
the Account 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 Committee or contained elsewhere in the Plan, and
subject to such operating rules and procedures as may be imposed
from time to time by the Committee, prior to and effective for
each Designation Date, each Participant may communicate to the
Committee a direction as to how his or her Plan Accounts should
be deemed to be invested among such categories of deemed
investments as may be made available by the Committee hereunder.
Such direction shall designate the percentage (in ten percent
multiples) of each portion of the Participant's Plan Accounts
which 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 Committee, and shall be effective as soon as practicable
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 direction shall
be filed and become effective. An election concerning deemed
investment choices shall continue indefinitely as provided in the
election form specified by the Committee.
(c)Notwithstanding the foregoing, the Company acting
through the Committee, reserves the right, in its sole and
absolute discretion, and subject to any restrictions imposed by
applicable law, to invest Participant Matching Contribution Sub-
Accounts in common stock of the Company.
(d)If the Committee receives an initial or revised
deemed investment direction which its 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 Committee provides for, and
permits the application of, corrective action prior thereto.
(e)If the Committee possesses (or is deemed to
possess as provided in (d), above) 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 Committee in its sole and
absolute discretion.
(f)Each Participant hereunder, as a condition to his
or her participation hereunder, agrees to indemnify and hold
harmless the Committee and its agents and representatives from
any losses or damages of any kind relating to the deemed
investment of the Participant's Account hereunder.
(g)Each reference in this Section to a Participant
shall be deemed to include, where applicable, a reference to a
Beneficiary.
4.6 EXPENSES. Expenses attributable to the administration
of the Plan, including Trustee fees, shall be paid by the
Company, but the Committee, in its sole and absolute discretion,
may elect to charge such expenses against the appropriate
Participant's Account or Participants' Accounts. If an expense
is charged against a Participant's Account, in the sole and
absolute discretion of the Committee, such expense either (i)
will reduce the Employer Contribution Credits under Section 3.1
next due to be made by the Employer in respect of an Account
maintained for the Participant or (ii) will be charged against
and shall reduce the Participant's Account hereunder.
ARTICLE 5
ENTITLEMENT TO BENEFITS
5.1 FIXED PAYMENT DATES; TERMINATION OF EMPLOYMENT. On his
or her Participant Enrollment and Election Form, a Participant
may select a fixed payment date for the payment or commencement
of payment of his or her vested Account which is no earlier than
the first day of the second Plan Year following the Plan Year to
which the Compensation Deferral relates. The Participant's
vested Account will be valued and payable according to the
provisions of Article 6. A separate fixed payment date shall be
selected with respect to amounts attributable to Compensation
Deferrals and Employer Contribution Credits for each Plan Year.
With the prior consent of the Committee, and for good cause
shown, in the sole and absolute discretion of the Committee, any
fixed payment date may be extended to a later date so long as the
election to so extend the date is made by the Participant prior
to the fixed date; provided, however, that an election to extend
fixed payment dates may not be made more than once.
Alternatively, on his or her Participant Enrollment and
Election Form, a Participant may select payment or commencement
of payment of his or her vested Account (or sub-account thereof)
at the earlier of such a fixed payment date or the date of his or
her termination of employment with the Company and all of its
subsidiaries and affiliates. In this case, the extension and
non-acceleration rules discussed above shall apply to such fixed
payment date or termination of employment date, as applicable.
If a Participant does not select such a fixed date or
such fixed dates or the earlier of such fixed date(s) or
termination of employment for any particular amounts hereunder
before they are credited to his or her Account, and the
Participant terminates employment with the Company and all of its
subsidiaries and affiliates for any reason, the Participant's
vested Account at the date of such termination shall be valued
and payable at or commencing at such termination according to the
provisions of Article 6. If a participant's vested Account (or a
sub-account thereof) is payable at the date of the Participant's
termination of employment with the Company and all of its
subsidiaries and affiliates pursuant to the foregoing, the
Participant may elect, prior to his or her termination, to have
his vested Plan Account paid at a fixed date after the date of
his or her termination. With the prior consent of the Committee,
and for good cause shown, in the sole and absolute discretion of
the Committee, such a fixed payment date may be extended to a
later date so long as the election to so extend the date is made
by the Participant prior to the fixed date; provided, however,
that an election to extend fixed payment dates may not be made
more than once. Such a fixed date may not be accelerated.
5.2 VESTING. Amounts credited to a Participant's Matching
Contribution Sub-Account shall vest according to the following
schedule:
Years of Service Vested Percentage
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
Amounts credited to a Participant's Discretionary Contribution
Sub-Account shall vest according to a schedule determined by the
Committee, in its sole and absolute discretion, and which is
expected to be communicated to the Participant on or about the
date the credit is made. In the absence of such determination by
the Committee, the above vesting schedule shall apply.
For purposes of this Section, a Participant's years of
service shall equal his or her Years of Service, for vesting
purposes, under the Savings Plan, plus any additional years of
service granted by the Committee, in its sole and absolute
discretion, to the Participant.
If a Participant terminates employment because of
death, total and permanent disability (as determined by the
Committee in its sole and absolute discretion), or retirement
from the Company and all of its subsidiaries and affiliates on or
after age fifty-five (55), the Participant shall become 100%
vested in his or her Employer Contribution Credit Account. If a
Participant terminates employment for any other reason, he or she
shall become vested in his or her Employer Contribution Credit
Account, if at all, under the vesting schedule set forth above.
Notwithstanding the foregoing, upon the occurrence of a Change in
Control of the Company, all Participants shall become 100% vested
in their Employer Contribution Credit Account regardless of
whether the Participant continues his or her employment with the
Company or any of its subsidiaries or affiliates on or after the
Change in Control of the Company.
5.3 TREATMENT OF FORFEITURES. All forfeitures shall be
applied to reduce the corresponding Employer Contribution Credits
for the Plan Year in which the forfeiture occurred and thereupon
shall be allocated as an Employer Contribution Credit in the
manner provided for the Employer Contribution Credits which the
forfeitures replace. To the extent such forfeitures exceed the
amounts required or remaining to be credited as Employer
Contribution Credits under the Plan for any Plan Year, the excess
shall be applied to reduce Employer Contribution Credits for the
following Plan Years until exhausted. In the event the Plan is
terminated, any forfeitures not yet applied to reduce Employer
Contribution Credits shall revert to the Company.
5.4 RE-EMPLOYMENT OF RECIPIENT. If a Participant who is
not employed by the Company or any of its subsidiaries or
affiliates is receiving installment distributions pursuant to
Section 6.2 is re-employed by the Company or any of its
subsidiaries, 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 or 5.2, at which time such distribution shall
commence, subject to the limitations and conditions contained in
this Plan.
ARTICLE 6
DISTRIBUTION OF BENEFITS
6.1 AMOUNT. A Participant (or his or her Beneficiary)
shall become entitled to receive, on or about the fixed date or
dates selected by the Participant on his or her Participant
Enrollment and Election Form as provided in Section 5.1 or, if
none, on or about the date of the Participant's termination of
employment with the Company or any of its subsidiaries or
affiliates (or earlier as provided in Article 5), a distribution
in an aggregate amount equal to the Participant's vested Account.
6.2 METHOD OF PAYMENT.
(a)Cash Or In-Kind Payments. Payments under the Plan
shall generally be made in cash; provided, however, that payment
may be made in cash or in-kind, as permitted by the Committee in
its sole and absolute discretion and subject to any restrictions
on transfer as may be applicable legally and contractually.
(b)Timing and Manner of Payment. In the case of
distributions to a Participant or his or her Beneficiary by
virtue of an entitlement pursuant to Sections 5.1, an aggregate
amount equal to the Participant's vested Account will be paid by
the Company, as provided by Section 6.1, in a lump sum or in
substantially equal annual installments, but not to exceed ten
(10) years (adjusted for gains and losses, and reduced by any
required withholding or other deductions from such payments), as
selected by the Participant prior to his or her termination of
employment or, if applicable, prior to the fixed dates on which
amounts are first payable to the Participant. 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 fixed payment date or dates selected by
the Participant, or, if none, on or about the date of the
Participant's termination of employment with the Company and all
of its subsidiaries and affiliates.
If the whole or any part of a payment hereunder is to
be in installments, the total to be so paid shall continue to be
deemed to be invested pursuant to Sections 4.1 and 4.5 under such
procedures as the Committee may establish, in which case any
deemed income, gain, loss or expense attributable thereto (as
determined by the Committee in its sole and absolute discretion)
shall be reflected in the installment payments, in such equitable
manner as the Trustee shall determine.
6.3 DEATH BENEFITS. If a Participant dies before
terminating his or her employment with the Company and all of its
subsidiaries and affiliates and before the commencement of
payments to the Participant hereunder, the entire value of the
Participant's Account shall be paid, as provided in Section 6.2,
to the person or persons designated in accordance with Section
7.1.
Upon 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 the person or persons
designated in accordance with Section 7.1, in the manner in which
such benefits were payable to the Participant, unless the
Committee, in its sole and absolute discretion, elects a more
rapid form or schedule of distribution.
6.4 CHANGE IN CONTROL OF THE COMPANY. Notwithstanding any
provision of the Plan to the contrary, in the event of a Change
in Control of the Company, the entire unpaid balance of a
Participant's Plan Account shall be paid to the Participant or,
if applicable, his or her Beneficiary, in one lump sum promptly
following the Change in Control of the Company, regardless of
whether the Participant continues his or her employment with the
Company or any of its subsidiaries or affiliates on or after the
Change in Control of the Company or whether the Participant had
terminated his or her employment with the Company and all of its
subsidiaries and affiliates prior to such Change in Control of
the Company.
ARTICLE 7
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 Committee, and will be effective
only when filed in writing with the Committee 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 Committee shall cause the payment of any such benefit payment
to be made to the Participant's spouse, if then living, but
otherwise, to the Participant's estate. In determining the
existence or identity of anyone entitled to a benefit payment,
the Committee may rely conclusively upon information supplied by
the Participant's personal representative, executor or
administrator. If a question arises as to the existence or
identity of 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 Committee, in
its sole and absolute discretion, may distribute such payment to
the Participant's estate without liability for any tax or other
consequences which might flow therefrom, or may take such other
action as the Committee deems to be appropriate.
7.2 INFORMATION TO BE FURNISHED BY 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
Committee 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 Committee 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 Committee within
three (3) years thereafter, then, except as otherwise required by
law, if the location of one or more of the next of kin of the
Participant is known to the Committee, the Committee may direct
distribution of such amount to any one or more or all of such
next of kin, and in such proportions as the Committee determines.
If the location of none of the foregoing persons can be
determined, the Committee 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 Company if a claim
for the benefit subsequently is made by the Participant or
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 Company shall not be liable
to any person for any payment made in accordance with such law.
ARTICLE 8
ADMINISTRATION
8.1 ADMINISTRATIVE AUTHORITY. Except as otherwise
specifically provided herein, the Committee, in its sole and
absolute discretion, shall have the 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 which 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, and to remedy any ambiguities,
inconsistencies 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 concerning the crediting of
Plan Accounts.
(e)Appoint any persons or firms, or otherwise act to
secure specialized advice or assistance, as it deems necessary or
desirable in connection with the administration and operation of
the Plan, and the Committee shall be entitled to rely
conclusively upon, and shall be fully protected in any action or
omission taken by it in good faith reliance upon, the advice or
opinion of such firms or persons. The Committee shall have the
power and authority to delegate from time to time 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 sub-committee, and in the same manner to revoke any
such delegation of duties, powers or responsibilities. Any
action of such person or sub-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 Committee, in which event any person
notified by an Employer 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
Committee until such notified person shall have been notified of
the revocation of such authority.
8.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the
administration or operation of the Plan discretionary actions by
the Committee are required or permitted, such actions shall be
consistently and uniformly applied to all persons similarly
situated, and no such action shall be taken which shall
discriminate in favor of any particular person or group of
persons.
8.3 LITIGATION. Except as may be otherwise 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.
8.4 CLAIMS PROCEDURE. Any person claiming a benefit under
the Plan (a "Claimant") shall present the claim, in writing, to
the Plan Manager, and the Plan Manager 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 Plan Manager'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 Plan Manager to the Claimant
within the initial ninety (90) day period and in no event shall
such an 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 Plan Manager 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 Committee. Upon such a request for
review, the claim shall be reviewed by the Committee (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 Committee'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
Committee, 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 (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) period 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 9
AMENDMENT
9.1 RIGHT TO AMEND. The Company, by written instrument
executed by the Company, 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 date of the amendment.
9.2 AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN.
Notwithstanding the provisions of Section 9.1, the Plan may be
amended by the Company at any time, retroactively if required, if
found necessary, in the opinion of the Company, 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 a Participant or a Beneficiary
hereunder.
ARTICLE 10
TERMINATION
10.1 TERMINATION OR SUSPENSION OF PLAN. Each Employer
reserves the right to terminate the Plan as to some or all of its
Eligible Employees and/or its obligation to make further credits
to Plan Accounts. The Company reserves the right to suspend the
operation of the Plan for a fixed or indeterminate period of
time; provided, however, that during any period of suspension,
the Accounts of Participants shall continue to be credited or
debited, as applicable, with deemed investment return pursuant to
Article 4.
10.2 AUTOMATIC TERMINATION OF PLAN. The Plan automatically
shall terminate upon the dissolution of the Company, or upon its
merger into or consolidation with any other corporation or
business organization if there is a failure by the surviving
corporation or business organization to adopt specifically and
agree to continue the Plan.
10.3 SUSPENSION OF DEFERRALS. In the event of a suspension
of the Plan, the Company and the Employers shall continue all
aspects of the Plan, other than Compensation Deferrals and
Employer Contribution Credits, during the period of the
suspension, in which event the allocation of deemed earnings and
payments hereunder will continue to be made during the period of
the suspension in accordance with Articles 4, 5 and 6.
10.4 ALLOCATION AND DISTRIBUTION. This Section shall become
operative on a complete termination of the Plan and upon
termination of the Plan as to some or all Eligible Employees, as
determined by each Employer, in its sole and absolute discretion,
but only with respect to that portion of the Plan attributable to
the Participants to whom the termination is applicable. Upon the
effective date of any such event, notwithstanding any other
provisions of the Plan, the value of the interest of all affected
Participants and Beneficiaries shall be determined and, after
deduction of estimated expenses in liquidating and, if
applicable, paying Plan benefits, paid to them by the Company in
lump sum as soon as is practicable after such event.
10.5 SUCCESSOR TO EMPLOYER. Any corporation or other
business organization which is a successor to an Employer by
reason of a consolidation, merger or purchase of substantially
all of the assets of the Employer shall, with the consent of the
Company, 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 or sale of
assets, such new entity does not become a party hereto, as above
provided, the Plan automatically shall be terminated as to that
Employer, and the provisions of Section 10.4 shall become
operative.
ARTICLE 11
THE TRUST
11.1 ESTABLISHMENT OF TRUST. The Company reserves the right
to establish a trust with a trustee pursuant to such terms and
conditions as are set forth in a trust agreement to be entered
into between the Company and the trustee. Any trust established
pursuant hereto shall be treated as a "grantor" trust under the
Code, the establishment of any such trust is not intended to
cause the Participant to realize current income on amounts
contributed thereto, any such trust is not intended to cause the
Plan to be "funded" under ERISA and the Code, and any trust
established hereunder shall be so interpreted.
ARTICLE 12
MISCELLANEOUS
12.1 LIMITATIONS ON LIABILITY OF EMPLOYERS. 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
any Employer, or any officer or employee thereof except as
provided by law or by any Plan provision. Neither the Company
nor any Employer in any way guarantees any Participant's Account
from loss or depreciation, whether caused by poor investment
performance 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 Company, an Employer, or any
successor, employee, officer, director or stockholder of the
Company or an 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 persons 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
State of Maryland shall govern, control and determine all
questions of law arising with respect to the Plan and the
interpretation and validity of its respective 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 an 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, and no provision of the Plan shall be
interpreted so as to give any individual any right in any assets
of the Company which right is greater than the rights of a
general unsecured creditor of the Company.
This Plan is intended to be a "top-hat" plan under
ERISA. In the event the Committee determines that the
participation of certain individuals as Eligible Employees under
the Plan causes the Plan to fail to qualify as a "top-hat" plan,
the Committee, in its sole and absolute direction, is authorized
to take whatever action it deems necessary to preserve the status
of the Plan as a "top-hat" plan, including, but not limited to,
termination of an otherwise eligible employee's participation in
the Plan and (notwithstanding any provisions of the Plan to the
contrary) immediate distribution of such individual's Account.
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, 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, (i) the withholding of taxes from
Plan benefit payments, (ii) the recovery under the Plan of
overpayments of benefits previously made to a Participant or
Beneficiary, (iii) if applicable, the transfer of benefit rights
from the Plan to another plan, or (iv) 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 Company or Trustee may bring an action or 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 Company 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 Company has caused the Plan to be
executed and its seal to be affixed hereto, effective as of the
14th day of December, 1995.
ATTEST/WITNESS THE BLACK & DECKER CORPORATION
/s/BARBARA B. LUCAS By: /s/CHARLES E. FENTON (SEAL)
Print: Barbara B. Lucas Print Name: Charles E. Fenton
Secretary Vice President
Date: December 14, 1995
Exhibit 5
MILES & STOCKBRIDGE,
a Professional Corporation
10 Light Street
Baltimore, Maryland 21202
December 14, 1995
The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933 of $50,000,000 aggregate amount of Deferred Compensation
Payment Obligations of The Black & Decker Corporation, a Maryland
corporation (the "Corporation"), to be incurred in connection
with The Black & Decker Supplemental Retirement Savings Plan (the
"Plan"), we have examined such corporate records, certificates
and documents as we deemed necessary for the purpose of this
opinion.
Based on the foregoing, we are of the opinion that the Plan
has been duly and validly authorized and adopted by the Board of
Directors of the Corporation, and that the Deferred Compensation
Payment Obligations being registered under the Securities Act of
1933, when issued in accordance with the terms and conditions of
the Plan, will be legally issued and will constitute valid and
binding obligations of the Corporation enforceable in accordance
with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally
or by general principles of equity.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving our consent, we
do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933
or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
Miles & Stockbridge,
a Professional Corporation
By:/s/ Glenn C. Campbell
Principal
EXHIBIT 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to The Black & Decker Supplemental
Retirement Savings Plan of our report dated February 9, 1995, with
respect to the consolidated financial statements and schedule of
The Black & Decker Corporation included in its Annual Report (Form
10-K) for the year ended December 31, 1994, as amended by Form 10-
K/A (Amendment No. 1) filed with the Securities and Exchange
Commission.
/s/ERNST & YOUNG LLP
Baltimore, Maryland
December 13, 1995
Exhibit 24
POWER OF ATTORNEY
We, the undersigned Directors and Officers of The Black & Decker
Corporation (the "Corporation"), hereby constitute and appoint Nolan D.
Archibald, Thomas M. Schoewe and Charles E. Fenton, and each of them,
with power of substitution, our true and lawful attorneys-in-fact with
full power to sign for us, in our names and in the capacities indicated
below, a Registration Statement on Form S-8, and any and all amendments
thereto (including post-effective amendments), for the purpose of
registering under the Securities Act of 1933, as amended, up to $50
million of Deferred Compensation Payment Obligations of the Corporation
under The Black & Decker Supplemental Retirement Savings Plan.
/s/ NOLAN D. ARCHIBALD Director, Chairman, December 14, 1995
Nolan D. Archibald President and Chief
Executive Officer
(Principal Executive
Officer)
/s/ BARBARA L. BOWLES Director December 14, 1995
Barbara L. Bowles
/s/ MALCOLM CANDLISH Director December 14, 1995
Malcolm Candlish
/s/ ALONZO G. DECKER, JR. Director December 14, 1995
Alonzo G. Decker, Jr.
/s/ ANTHONY LUISO Director December 14, 1995
Anthony Luiso
/s/ J. DEAN MUNCASTER Director December 14, 1995
J. Dean Muncaster
/s/ LAWRENCE R. PUGH Director December 14, 1995
Lawrence R. Pugh
/s/ MARK H. WILLES Director December 14, 1995
Mark H. Willes
/s/ M. CABELL WOODWARD, JR. Director December 14, 1995
M. Cabell Woodward, Jr.
/s/ THOMAS M. SCHOEWE Vice President and December 14, 1995
Thomas M. Schoewe Chief Financial
Officer (Principal
Financial Officer)
/s/ STEPHEN F. REEVES Corporate Controller December 14, 1995
Stephen F. Reeves (Principal Accounting
Officer)
