SECURITIES and EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998
Commission File Number 1-134
CURTISS-WRIGHT CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-0612970
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 Wall Street West
Lyndhurst, New Jersey 07071
(Address of principal executive offices) (Zip Code)
(201) 896-8400
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, par value $1.00 per share: 10,183,077 shares (as of April 30,
1998)
Page 1 of 28
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
TABLE of CONTENTS
PAGE
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements:
Consolidated Balance Sheets 3
Consolidated Statements of Earnings 4
Consolidated Statements of Cash Flows 5
Consolidated Statements of Stockholders' Equity 6
Notes to Consolidated Financial Statements 7 - 9
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations 10 - 12
Forward-Looking Statements 13
PART II - OTHER INFORMATION
Item 4 - Submission of Matters to a Vote of Security Holders 14
Item 6 - Exhibits and Reports on Form 8-K 15
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(In thousands)
March 31, December 31,
1998 1997
Assets:
Cash and cash equivalents $ 5,328 $ 6,872
Short-term investments 68,554 61,883
Receivables, net 45,708 41,590
Deferred tax assets 8,554 8,806
Inventories 48,166 49,723
Other current assets 2,085 2,506
----------- -----------
Total current assets 178,395 171,380
--------- ---------
Property, plant and equipment, at cost 220,813 219,587
Less, accumulated depreciation 155,792 153,704
--------- ---------
Property, plant and equipment, net 65,021 65,883
Prepaid pension costs 39,549 38,674
Other assets 8,711 8,771
---------- -----------
Total assets $291,676 $284,708
======== ========
Liabilities:
Accounts payable and accrued expenses $ 22,641 $ 24,540
Dividends payable 1,323
Income taxes payable 6,776 4,845
Other current liabilities 8,878 9,244
----------- -----------
Total current liabilities 39,618 38,629
---------- ----------
Long-term debt 10,347 10,347
Deferred income taxes 9,055 8,799
Other liabilities 22,145 22,080
---------- ----------
Total liabilities 81,165 79,855
---------- ----------
Stockholders' equity:
Common stock, $1 par value 15,000 15,000
Capital surplus 51,868 52,010
Retained earnings 323,756 318,474
Unearned portion of restricted stock (266) (342)
Accumulated other comprehensive income (3,098) (3,289)
----------- -----------
387,260 381,853
Less, cost of treasury stock 176,749 177,000
--------- ---------
Total stockholders' equity 210,511 204,853
--------- ---------
Total liabilities and stockholders' equity $291,676 $284,708
======== ========
See notes to consolidated financial statements.
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of EARNINGS
(UNAUDITED)
(In thousands except per share data)
Three Months Ended
March 31,
1998 1997
---- ----
Net sales $60,846 $53,148
Cost of sales 42,724 36,504
-------- --------
Gross margin 18,122 16,644
Research and development costs 305 598
Selling expense 2,305 1,935
General and administrative 6,868 7,881
--------- ----------
Operating income 8,644 6,230
Investment income, net 1,079 638
Rental income, net 913 940
Other income (expense), net 99 (107)
Interest expense 89 73
----------- -----------
Earnings before tax 10,646 7,628
Provision for tax 4,041 2,673
--------- ---------
Net earnings $ 6,605 $ 4,955
======== ========
Weighted average shares outstanding 10,178 10,170
======== ========
Basic earnings per common share $0.65 $0.49
===== =====
Diluted earnings per common share $0.64 $0.48
===== =====
Dividends per common share $0.130 $0.125
====== ======
See notes to consolidated financial statements.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of CASH FLOWS
(UNAUDITED)
(In thousands)
Three Months Ended
March 31
1998 1997
---- ----
Cash flows from operating activities:
Net earnings $ 6,605 $ 4,955
-------- --------
Adjustments to reconcile net earnings to net cash provided by operating
activities:
Depreciation and amortization 2,432 2,455
Net gains on short-term investments (432) (211)
Increase (decrease) in deferred taxes 508 (39)
Changes in operating assets and liabilities:
Proceeds from sales of trading securities 82,258 67,641
Purchases of trading securities (88,384) (60,425)
(Increase) decrease in receivables 747 (4,718)
(Increase) decrease in inventory 3,160 (809)
Decrease in progress payments (6,468) (2,632)
Decease in accounts payable
and accrued expenses (1,899) (1,224)
Increase in income taxes payable 1,931 1,840
Increase in other assets (559) (797)
Increase (decrease) in other liabilities (414) 392
Other, net 1,398 (1,467)
--------- ---------
Total adjustments (5,722) 6
--------- ---------
Net cash provided by operating activities 883 4,961
--------- ---------
Cash flows from investing activities:
Proceeds from sales of real estate and equipment 20 6
Additions to property, plant and equipment (2,447) (5,142)
--------- ---------
Net cash used by investing activities (2,427) (5,136)
-------- ---------
Net decrease in cash and cash equivalents (1,544) (175)
Cash and cash equivalents at beginning of period 6,872 6,317
--------- ---------
Cash and cash equivalents at end of period $ 5,328 $ 6,142
======== ========
See notes to consolidated financial statements.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of STOCKHOLDERS' EQUITY
(UNAUDITED)
(In thousands)
<TABLE>
<CAPTION>
Unearned Accumulated
Portion of Other
Common Capital Retained Restricted Comprehensive Treasury
Stock Surplus Earnings Stock Awards Income Stock
<S> <C> <C> <C> <C> <C> <C>
December 31, 1996 $10,000 $57,127 $299,740 $ (608) $(1,506) $181,390
Net earnings 27,885
Common dividends (5,137)
Stock dividends (two for one split) 5,000 (5,000) (4,014) (4,014)
Stock options exercised, net (117) (376)
Amortization of earnings portion
of restricted stock 266
Translation adjustments, net (1,783)
------- -------- -------- ------ -------- ---------
December 31, 1997 15,000 52,010 318,474 (342) (3,289) 177,000
Net earnings 6,605
Common dividends (1,323)
Stock options exercised (142)
of restricted stock 76
Translation adjustment, net 191
-------- ------- -------- ------- -------- --------
March 31, 1998 $15,000 $51,868 $323,756 $ (266) (3,098) $176,749
======= ======= ======== ======= ======== ========
</TABLE>
See notes to consolidated financial statements.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS of PRESENTATION
Curtiss-Wright Corporation (the "Corporation") is a diversified
multi-national manufacturing and service concern that designs,
manufactures and overhauls precision components and systems and
provides highly engineered services to the aerospace, automotive,
shipbuilding, oil, petrochemical, agricultural equipment, power
generation, metal working and fire & rescue industries. The
Corporation's principal operations include three domestic manufacturing
facilities, thirty-five metal treatment service facilities located in
North America and Europe, and five component overhaul locations.
The information furnished in this report has been prepared in
conformity with generally accepted accounting principles and as such
reflects all adjustments, consisting primarily of normal recurring
accruals, which are, in the opinion of management, necessary for a fair
statement of the results for the interim periods presented. The
unaudited consolidated financial statements should be read in
conjunction with the consolidated financial statements and notes
thereto included in the Corporation's 1997 Annual Report on Form 10-K.
The results of operations for these interim periods are not necessarily
indicative of the operating results for a full year. Certain
reclassifications of prior year amounts have been made in order to
conform to the current presentation.
2. RECEIVABLES
Receivables, at March 31, 1998 and December 31, 1997, include amounts
billed to customers and unbilled charges on long-term contracts
consisting of amounts recognized as sales but not billed at the dates
presented. Substantially all amounts of unbilled receivables are
expected to be billed and collected within a year. The composition of
receivables for those periods is as follows:
(In thousands)
March 31, December 31,
1998 1997
------------ -----------
Accounts receivable, billed $52,580 $49,110
Less: progress payments applied 10,490 10,460
-------- --------
42,090 38,650
-------- --------
Unbilled charges on long-term
contracts 11,817 13,022
Less: progress payments applied 6,487 8,335
--------- ---------
5,330 4,687
--------- ---------
Allowance for doubtful accounts (1,712) (1,747)
--------- ---------
Receivables, net $45,708 $41,590
========= =========
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS, Continued
(UNAUDITED)
3. INVENTORIES
Inventories are valued at the lower of cost (principally average cost)
or market. The composition of inventories at March 31, 1998 and
December 31, 1997 is as follows:
(In thousands)
March 31, December 31,
1998 1997
------------ -----------
Raw materials $ 5,969 $ 5,514
Work-in-process 21,595 22,686
Finished goods 20,578 21,782
Inventoried costs related to U.S.
Government and other long-term
contracts 4,227 5,547
--------- ---------
Total inventories 52,369 55,529
Less: progress payments applied,
principally related to long-term
contracts 4,203 5,806
--------- ---------
Net inventories $48,166 $49,723
======= =======
4. ENVIRONMENTAL MATTERS
The Corporation establishes a reserve for a potential environmental
responsibility when it concludes that a determination of legal
liability is probable. Such amounts, if quantified, reflect the
Corporation's estimate of the amount of that liability. If only a range
of potential liability can be estimated, a reserve will be established
at the low end of that range. Such reserves represent today's values of
anticipated remediation not reduced by any potential recovery from
insurance carriers or through contested third-party legal actions, and
are not discounted for the time value of money.
The Corporation is joined with many other corporations and
municipalities as potentially responsible parties (PRPs) in a number of
environmental cleanup sites, which include the Sharkey Landfill
Superfund Site, Parsippany, N. J., Caldwell Trucking Company Superfund
Site, Fairfield, N. J., and Pfohl Brothers Landfill Site, Cheektowaga,
N. Y., identified to date as the most significant sites. Other
environmental sites in which the Corporation is involved include but
are not limited to Chemsol, Inc. Superfund Site, Piscataway, N. J., and
PJP Landfill, Jersey City, N. J.
The Corporation believes that the outcome of any of these matters would
not have a material adverse effect on the Corporation's results of
operations or financial condition.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS, Continued
(UNAUDITED)
5. COMPREHENSIVE INCOME
Effective January 1, 1998, the Corporation adopted Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive
Income" (SFAS No. 130). SFAS No. 130 establishes standards for
reporting and displaying changes in equity from non-owner sources.
Total comprehensive income for the three months ended March 31, 1998
and 1997 is as follows:
(In thousands)
March 31, March 31,
1998 1997
-------- --------
Net earnings $ 6,605 $ 4,955
------- -------
Equity adjustments from foreign
currency translations 191 (1,736)
Proforma tax effects 67 (608)
--------- --------
Net adjustments 124 (1,128)
--------- --------
Total comprehensive income $ 6,729 $ 3,827
======== ========
6. EARNINGS PER SHARE
The Corporation accounts for its earnings per share (EPS) in accordance
with Statement of Financial Accounting Standards No. 128, "Earnings per
Share" (SFAS No. 128). Diluted earnings per share were computed based
on the weighted average number of shares outstanding plus all
potentially dilutive common shares issuable for the periods. Dilutive
common shares for the three months ended March 31, 1998 and 1997 were
134 and 71, respectively, consisting primarily of outstanding stock
options. Prior year earnings per share information has been restated to
reflect a 2 for 1 stock split paid December 23, 1997.
7. SUBSEQUENT EVENT
On April 30, 1998, the Corporation purchased the Alpha Heat Treaters
("Alpha") division of Alpha-Beta Industries, Inc. Alpha services a
broad spectrum of customers from its York, Pennsylvania location and
provides a number of metal treating processes including carburizing,
surface hardening, stress relieving, induction hardening and black
oxide surface treatment services. The Corporation acquired the net
assets of Alpha for approximately $6.0 million in cash and will account
for the acquisition as a purchase in the second quarter of 1998.
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<PAGE>
PART I - ITEM 2
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALYSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS
RESULTS of OPERATIONS
Curtiss-Wright Corporation posted net earnings for the first quarter of
1998 more than 30% above the first quarter of 1997. Net earnings totaled $6.6
million, or $.64 per share on a fully diluted basis, which were the highest
first quarter earnings since 1992. Net earnings for the same period of 1997 were
$5.0 million or $.48 per share on a fully diluted basis. Sales for the first
quarter of 1998 increased 14% to $60.8 million compared with $53.1 million for
the prior year first quarter. The improvement in performance is attributable to
overall favorable results generated by our businesses, and was achieved despite
the inventory write-offs and increased provisions for development programs
referred to below. Operating income in the aggregate rose 39% to $8.6 million
for the first quarter of 1998 as compared with $6.2 million in first quarter of
1997. New orders received also increased, totaling $56.9 million, 25% above
orders of $45.6 million received in the prior year period.
Operating Performance
Substantial improvements in sales of services were achieved by both the
Corporation's metal treating business and its overhaul and repair business.
Worldwide, the sales improvements in the metal treatment area were largely due
to increased applications for those services. In addition, operating income
improved over the prior year first quarter in most markets served. The
Corporation also recently opened a fourth metal treatment facility in the United
Kingdom. With the addition of its acquired facility in Pennsylvania (Alpha Heat
Treaters), as discussed in Note 7, the Corporation now operates 35 metal
treatment facilities in North America and Europe. The U. S. overhaul and repair
business produced strong domestic sales and improved operating earnings before
recognition of inventory book-to-physical and valuation adjustments totaling
approximately $.8 million after taxes.
The Corporation's manufacturing operations also enjoyed substantially
higher volume in the first quarter. Sales of actuation components and systems
for commercial customers reflected significant increases. Sales of original
equipment manufactured (OEM) products for the Boeing Company continue to
increase in response to Boeing's high production rates while sales of commercial
spare parts for actuation systems also showed large improvements over the prior
year's first quarter. Operating income in this product area increased despite
inefficiencies and higher-than-expected manufacturing costs associated with the
ramp up of production, as well as net adjustments principally on account of
inventory write-offs. Sales of military actuation products benefited from the
completion of safety of flight testing for the F-22 side bay door components.
However, operating income was adversely affected by a provision of about $1.0
million after tax for higher anticipated costs related to F-22 development
programs. Higher sales on the F-22 program were also largely offset by a decline
in sales of F-16 hardware.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALYSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS, Continued
The valve product lines produced higher operating income despite lower
sales when comparing the first quarter of 1998 with the same period of 1997.
Sales of military valve products declined on a comparative basis due, in part,
to a test program during the first quarter of 1997 which did not recur in 1998.
Increased sales of commercial valve products largely offset the declines in
military products. During the first quarter of 1998, Curtiss-Wright received new
orders of more than $11 million for its valve products, an increase of more than
three times those of the first quarter of 1997. Orders received include a
substantial upgrade for safety relief valves from the Philadelphia Electric
Company and products for nuclear power plant construction being carried out in
Taiwan.
Non-Operating Revenues and Costs
Administrative expenses for the first quarters of 1998 and 1997 were
reduced by accrued income generated from the Corporation's over funded pension
plan. Net pension income decreased slightly, totaling $.8 million for the first
quarter of 1998, compared with $.9 million for the first quarter of 1997. For
the first quarter of 1998, the Corporation recorded other non-operating net
revenue totaling $2.1 million, compared with $1.5 million for the first quarter
of 1997, primarily due to higher levels of investment income.
CHANGES IN FINANCIAL CONDITION:
Liquidity and Capital Resources:
The Corporation's working capital was $138.8 million at March 31, 1998,
5% above working capital at December 31, 1997 of $132.8 million. The ratio of
current assets to current liabilities was 4.5 to 1 at March 31, 1998, compared
with a current ratio of 4.4 to 1 at December 31, 1997. Cash, cash equivalents
and short-term investments totaled $73.9 million in aggregate at March 31, 1997,
increasing from $68.8 million at the prior year end.
Changes in working capital reflect a substantial increase in accounts
receivable from trade customers largely due to the increase in sales for the
first quarter of 1998, as compared with sales for the fourth quarter of 1997.
Also improving working capital for the first quarter of 1998 was a reduction in
accounts payable and accrued expenses at March 31, 1998, compared with those
amounts at December 31, 1998. Gross inventory decreased due to book to physical
and valuation adjustments recorded in the first quarter of 1998. Working capital
was further reduced by an increase in income taxes payable at March 31, 1998,
from December 31, 1997 and accrued dividends payable for the first quarter of
1998.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALYSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS, Continued
The Corporation continues to maintain its $22.5 million revolving
credit lending facility and its $22.5 million short-term credit agreement, which
provide additional sources of capital to the Corporation. The revolving credit
agreement, of which $11.0 million remains unused at March 31, 1998, encompasses
various letters of credit issued primarily in connection with outstanding
industrial revenue bonds. There were no cash borrowings during the first quarter
of 1998 and no outstanding balances for borrowed funds under the agreement at
March 31, 1998.
During the first quarter of 1998, internally generated funds were
adequate to meet capital expenditures of $2.4 million. Expenditures incurred
during the first quarter were primarily for machinery and equipment needed for
the expansion of our metal treating operations. Internally generated funds of
approximately $6.0 million were used to purchase the Alpha Heat Treaters
division of Alpha-Beta Industries, Inc. on April 30, 1998, as detailed in Note
7. An additional $10 million of capital expenditures is anticipated for the
balance of the year along with $1.0 million of anticipated expenditures
connected with environmental remediation programs at the Corporation's
Wood-Ridge, New Jersey Business Complex.
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<PAGE>
FORWARD-LOOKING STATEMENTS
Because forward-looking statements involve risks and uncertainties,
actual results may differ materially from those which are expressed or implied.
Such statements in this report include those contained in (a) the Environmental
Matters note to the Consolidated Financial Statements, (b) projections regarding
sales in the Results of Operations portion of the Management Discussion and
Analysis ("MD&A") section hereof and (c) information relating to future capital
expenditures contained in the Changes in Financial Condition portion of the MD&A
section hereof. Important factors that could cause the actual results to differ
materially from those in these forward- looking statements include, among other
items, (i) a reduction in the current order backlog; (ii) an economic downturn
in the airline industry; (iii) unanticipated environmental remediation expenses
or claims; (iv) changes in the need for additional machinery and equipment
and/or in the cost for the expansion of the Corporation's operations; (v)
changes in the competitive marketplace that could affect the company's revenue
and/or cost basis; (vi) changes in customer requirements and (vii) other factors
that generally affect the business of aerospace and industrial companies.
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<PAGE>
PART II - OTHER INFORMATION
Item 4. SUBMISSION of MATTERS to a VOTE of SECURITY HOLDERS
On April 24, 1998, the Registrant held its annual meeting of
stockholders. The matters submitted to a vote by the stockholders were
the election of directors and the retention of independent accountants
for the Registrant.
The vote received by the director nominees was as follows:
For Withheld
Thomas R. Berner 8,872,535 9,872
James B. Busey IV 8,872,398 10,009
David Lasky 8,872,142 10,265
William B. Mitchell 8,871.365 11,042
John R. Myers 8,872,139 10,268
William W. Sihler 8,872,477 9,930
J. McLain Stewart 8,870,116 12,291
The foregoing represent all of the Registrant's directors.
There were no votes against or broker non-votes.
The stockholders approved the retention of Price Waterhouse LLP,
independent accountants for the Registrant. The holders of 8,872,927
shares voted in favor; 9,480 voted against. There were no broker
non-votes.
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<PAGE>
Item 6. EXHIBITS and REPORTS on FORM 8-K
(a) Exhibits
Exhibit 10(a) - Trust Agreement approved April 17, 1998, dated
as of January 30, 1998 by and between Curtiss-Wright
Corporation and PNC Bank, National Association (Page 16)
Exhibit 27 - Financial Data Schedules (Page 28)
(b) Reports on Form 8-K
The Registrant did not file any report on Form 8-K during the
quarter ended March 31, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undesigned thereunto duly authorized.
CURTISS-WRIGHT CORPORATION
(Registrant)
By: /s/ Robert A. Bosi
-------------------------
Robert A. Bosi
Vice President - Finance
By: /s/ Kenneth P. Slezak
-------------------------
Kenneth P. Slezak
Controller
Dated: May 13, 1998
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EXHIBIT 10(a)
TRUST AGREEMENT
TRUST AGREEMENT (this "Trust"), dated as of January 30, 1998,
by and between Curtiss-Wright Corporation, a New Jersey corporation (the
"Company"), and PNC Bank, National Association (the "Trustee").
WHEREAS, the Company is obligated under the plans and
individual agreements set forth on Exhibit I (together with any additional plans
and agreements included on Exhibit I pursuant to Section 2.1 (c) hereof, the
"Agreements") to make specified payments to certain of the Company's executives
(together with any additional executives and retired executives included on
Exhibit I pursuant to Section 2.1 (c) hereof, the "Executives"); and
WHEREAS, the aforesaid obligations of the Company are not
funded or otherwise secured, and the Company has agreed to assure, to the extent
practicable, that the future payment of certain of said obligations will not be
improperly withheld in the event that a "Change in Control" (as defined herein)
of the Company should occur;
WHEREAS, for purposes of assuring that such payments will not
be improperly withheld, the Company desires to deposit with the Trustee, subject
only to the claims of the Company's existing or future general creditors in the
event of bankruptcy or insolvency (as hereinafter provided), amounts of cash or
marketable securities sufficient to fund such payments; and
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Agreements, to the extent applicable, as unfunded plans maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974, as amended.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and for other, good and valuable consideration, the parties
hereto agree as follows:
ARTICLE I
THE AGREEMENTS
SECTION 1.1 AGREEMENTS.
The agreements subject to this Trust
consist of the Agreements listed from time to time on Exhibit I hereof The
Company shall continue to be liable to the Executives for all payments required
under the terms of such Agreements.
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<PAGE>
ARTICLE II
TRUST AND THE TRUST CORPUS
SECTION 2.1 TRUST.
(a) The Company will deliver to the Trustee to be held in
trust hereunder, concurrently with the execution of this Trust, the sum of $100
in cash, and upon the occurrence of a "Change in Control" (as defined in Section
3.1), (i) an additional amount in cash (or in marketable securities or some
combination thereof) representing the sum of the amounts, estimated by the
Company in good faith, to be sufficient to fund the Company's obligations to pay
to the Executives certain amounts and benefits due to them pursuant to the
Agreements and (ii) an amount, estimated by the Trustee in good faith, to be
sufficient to pay all of the Trustee's fees and expenses hereunder with respect
to the period of time that this Trust shall be in effect.
(b) The payment by the Company pursuant to Section 2.1
(a)(1) hereof shall be accompanied by a Payment Schedule for each Executive as
required by Section 4.2 (a) hereof
(c) The Company may from time to time prior to the
occurrence of a Change in Control revise Exhibit I in order to include thereon
(A) additional Executives (including retired Executives), and (B) additional
Agreements with respect to any Executive. If a revised Exhibit I is delivered to
the Trustee with respect to any Executive upon or after the occurrence of a
Change in Control, the Company will deliver to the Trustee, concurrently with
such revised Exhibit I: a Payment Schedule or a revised Payment Schedule, as
applicable, with respect to such Executive which complies with Section 4.2 (a)
hereof and which sets forth the additional amount delivered to the Trustee with
respect to such Executive, and an amount which is estimated by the Company, in
good faith, to be sufficient when added to the amount or amounts previously
delivered to the Trustee to fund the Company's obligations under the Payment
Schedule or the revised Payment Schedule, as applicable, to pay all of the
obligations under the Executive's Agreements.
Such Payment Schedule or revised Payment Schedule shall be
effective in accordance with the provisions of Section 4.2(b). A revised Exhibit
I shall be effective upon the later of (c) receipt by Trustee of such revised
Exhibit I and (D) receipt by the Trustee of all amounts required under this
Section 2.1 (c), if any, and such revised Exhibit I shall supersede any and all
such Exhibits previously delivered to the Trustee.
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<PAGE>
(d) In no event may Exhibit I be revised to eliminate any
Executive or any Agreements with respect to any Executive without such
Executive's written consent, except as provided in the following sentence. Prior
to the occurrence of a Change in Control but at no time during any Potential
Change in Control Period (as defined in Section 3.3 below), the Company may
deliver instructions to the Trustee to delete the name of, and the Agreements
with respect to, any Executive for any reason. The Trustee shall make such
deletions and shall be entitled to. rely upon such instructions from the
Company. The deletions described in the immediately preceding sentence may not
be made with respect to instructions delivered to the Trustee on or after the
occurrence of a Change in Control or during a Potential Change in Control
Period.
SECTION 2.2 TRUST CORPUS.
(a) As used herein, the term "Trust Corpus" shall mean the
amounts delivered to the Trustee as described in Sections 2.1 and 4.2 (b) hereof
in whatever form held or invested as provided herein. The Trust Corpus shall be
held, invested and reinvested by the Trustee in cash or marketable securities
only in accordance with this Section 2.2. The Trustee shall use its good faith
efforts to invest or reinvest from time to time all or such part of the Trust
Corpus as it believes prudent under the circumstances in investments in direct
obligations of the United States or agencies of the United States of America or
obligations unconditionally and fully guaranteed as to principal and interest by
the United States or mutual funds or other such commingled investment accounts
which invest in such securities; provided, however, that the Trustee shall not
be liable for any failure to maximize the income earned on that portion of the
Trust Corpus as is from time to time invested or reinvested as set forth above,
nor for any loss of income due to liquidation of any investment which the
Trustee, in its sole discretion. believes necessary to make payments or to
reimburse expenses under the terms of this Trust-, and further, provided. that
in no event may the Trustee invest in securities (including stock or rights to
acquire stock) or obligations issued by the Company. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with the
Executives.
(b) The Trust is intended to be a grantor trust, of which
the Company is the grantor, within the meaning of Section 671 of the Internal
Revenue Code of 1986, as amended (the "Code"), and shall be construed
accordingly. Except as hereinafter provided, all interest earned on the
investment of the Trust Corpus shall be the property of the Company and shall
not constitute a part of the Trust Corpus. The amount of such interest or other
income so payable to the Company shall be reduced by the amounts required to be
delivered by the Company to the Trust pursuant to Section 2.1 (c) hereof and
only the excess, if any, shall be paid to the Company.
(c) All losses of principal in respect of, and expenses
(including, as provided in Section 5. 1 (f) hereof, any expenses of the Trustee)
charged against, the Trust Corpus shall be for the account of the Company and
the Company shall be obligated to promptly reimburse the Trust Corpus for any
loss in principal amount of, or expense charged against, the Trust Corpus except
to the extent that such amounts have been applied to reduce amounts payable to
the Company pursuant to Section 2.2(b) hereof To the extent any such losses and
expenses are not reimbursed by the Company, the aggregate amount payable to an
Executive under the applicable Payment Schedule shall be reduced by a portion of
such losses and expenses, as determined on a pro rata basis.
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<PAGE>
ARTICLE III
CHANGE IN CONTROL
SECTION 3.1 DEFINITION OF CHANGE IN CONTROL.
For purposes of this Trust, a Change in Control of the Company shall be deemed
to have occurred on the date of occurrence of any of the events set forth in
clauses (a), (b) and (c) of this subparagraph:
(a) the date the Company acquires knowledge of the filing
under the Exchange Act of a statement on Schedule 13D, or any amendment thereto,
relating to a transaction or series of transactions in which any person or group
deemed a person under Section 13(d)(3) of the Exchange Act shall have become the
beneficial owner, directly or indirectly (with beneficial ownership determined
as provided in Rule 13d-3, or any successor rule, under the Exchange Act), of
securities of the Company entitling the person or group to 20% or more of all
votes to which all shareholders of the Company would be entitled in the election
of Directors were an election held on such date, provided, that any shares held
by a person or group who filed or who would have been obligated to file a
Schedule 13D or 13G with respect to beneficial ownership of securities of the
Company prior to January 1, 1998, any affiliate or associate as of January 1,
1998 of any such person, any beneficiary or any trust or estate included in any
such person or group, any member of the family of any such person, and trust or
estate (including the trustees or executors thereof) established by or for the
benefit of any such person, or any charitable foundation, whether a trust or a
corporation (including the trustees and directors thereof) established by or for
the benefit of any such person (in each case, an "Existing Shareholder"), shall
be excluded from the shares held by any person or group for purposes of
determining whether the foregoing 20% threshold for securities ownership has
been reached by such person or group; and provided further that, notwithstanding
the foregoing, the securities beneficially owned by any Existing Shareholder
shall not be so excluded from the securities beneficially owned by any person or
group if such person is not an existing shareholder of if such group includes
any person who is not an Existing shareholder and such person or group has
beneficial ownership of securities of the Company having 20% or more of all
votes in the election of directors;
(b) the date on which there is a failure of individuals who
were members of the Board of Directors as of January 1, 1998 to constitute at
least a majority of the Board of Directors, unless the election (or the
nomination for election by the shareholders) of each new director was approved
by a vote of at least two-thirds of the total of such individuals then still in
office and such other directors as may previously have been elected or nominated
pursuant to such a two-thirds vote; or
(c) the date of approval by the shareholders of the Company
of an agreement (a "reorganization agreement") providing for (i) the merger or
consolidation of the Company with another corporation in which the Company is
not the surviving corporation, or pursuant to which its common stock is
converted, other than a merger or consolidation where the shareholders of the
Company immediately prior to the merger or consolidation beneficially own,
immediately after the merger or consolidation, shares of the corporation issuing
cash or securities in the merger orconsolidation entitling such shareholders to
50% or more of all votes to which all shareholders of such corporation would be
entitled in the election of Directors or where the members of the Board of
Directors of the Company immediately prior to the merger or consolidation
constitute, immediately after the merger or consolidation, a majority of the
Board of Directors of the corporation issuing cash or securities in the merger
or consolidation, or (ii) the sale or other disposition or liquidation of all or
substantially all of the assets of the Company.
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<PAGE>
SECTION 3.2 DEFINITION OF A POTENTIAL CHANGE IN CONTROL.
For purposes of this Trust, a Potential Change in Control shall be deemed to
have occurred if
(a) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in Control;
(b) any Person (including for this purpose the Company)
publicly announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control of the Company,
(c) any Person is or becomes the beneficial owner (as
hereinabove defined), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates) representing 10% or more
of either the then outstanding shares of common stock of the Company or the
combined voting power of 9 the Company's then outstanding securities, or
(d) the Board of Directors adopts a resolution to the effect
that, for purposes of this Trust, a Potential Change in Control of the Company
has occurred.
SECTION 3.3 DEFINITION OF A POTENTIAL CHANGE IN CONTROL
PERIOD.
For purposes of this Trust, the period of time beginning on the date upon which
a Potential Change in Control occurs and ending six months following such date
shall be referred to herein as a "Potential Change in Control Period".
SECTION 3.4 NOTIFICATION OF THE TRUSTEE.
The Company shall notify the Trustee of the occurrence of a Potential Change in
Control and the Company shall, or an Executive may, notify the Trustee of the
occurrence of a Change in Control, and the Trustee may rely on such notice or on
any other actual notice, satisfactory to the Trustee, of such a change or
potential change which the Trustee may receive. The Trustee shall have no
obligation to make an independent determination as to the occurrence of a
Potential Change in Control or Change in Control.
ARTICLE IV
RELEASE OF THE TRUST CORPUS
The Trustee shall hold the Trust Corpus in its possession
under the provisions of this Trust Agreement until authorized to deliver the
Trust Corpus or any specified portion thereof as follows:
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<PAGE>
SECTION 4. 1 DELIVERY TO THE COMPANY.
(a) Subject to the provisions of Sections 4. 1 (b) and (c)
and 4.3 hereof, any amount constituting part of the Trust Corpus may not be
returned to the Company following the occurrence of a Change in Control.
(b) Any amount held by the Trustee for the benefit of an
Executive shall be paid to the Company immediately following the final payment
of all amounts payable to such Executive pursuant to the terms of the
Executive's Agreements, as certified to the Trustee by the Executive.
(c) Upon the termination of the Trust as provided in the
first sentence of Section 6. 1, the Trustee shall pay to the Company the amount
described in the last sentence of Section 6. 1.
SECTION 4.2 DELIVERIES TO EXECUTIVES.
(a) The Company shall deliver to the Trustee, upon the
occurrence of a Change in Control, a separate schedule for each Executive (the
"Payment Schedule") indicating (x) the amounts delivered to the Trustee for the
benefit of each such Executive pursuant to Section 2. 1 (a) (1) in accordance
with such Executive's Agreements, and estimated in good faith by the Company and
(y) the amounts payable in respect of such Executive, or providing a formula or
instructions acceptable to the Trustee for determining the amounts so payable.
The Payment Schedule shall include instructions as to the amount of interest, if
any, accruing in respect of an Executive and such instructions may be revised
from time to time prior the occurrence of a Change in Control and not during a
Potential Change in Control Period. Each Payment Schedule also shall be
delivered by the Company to such Executive. The aggregate payment to be made
hereunder to an Executive by the Trustee shall not exceed the aggregate amount
delivered to the Trustee for such Executive, as adjusted for any earnings of the
Trust which are allocated in respect of such Executive. The Trustee shall make
payments to each Executive under the Payment Schedule applicable to such
Executive upon receipt by the Trustee of a written notice signed by the
Executive or, following his death, his beneficiary or beneficiaries, stating
that the Executive or his beneficiary, as the case may be, is entitled to the
commencement of such payments in accordance with the Payment Schedule. The
Trustee shall rely upon such written request in making payments under the
Payment Schedule and shall have no duty to inquire into the amounts,
instructions or formulas set forth in the Payment Schedule or the Executive's
right to such payments.
(b) The Company may from time to time after the occurrence
of a Change in Control deliver concurrently to the Trustee (i) a revised Payment
Schedule with respect to any Executive which sets forth the aggregate amounts
payable with respect to such Executive and (ii) an amount which is estimated by
the Company, in good faith, to be sufficient, when added to the amount or
amounts previously delivered to the Trustee, to fund the Company's obligations
pursuant to such Executive's Agreements. A revised Payment Schedule shall be
effective upon the receipt by the Trustee of the amount required under the
preceding sentence and the revised Payment Schedule shall supersede any and all
Payment Schedules previously delivered by the Company to the Trustee with
respect to such Executive.
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<PAGE>
(c) A revised Payment Schedule may not reduce the amounts
payable with respect to an Executive pursuant to the prior Payment Schedule for
such Executive except with the written consent of such Executive.
(d) The Company shall withhold from any payment due to an
Executive hereunder the amount it determines required by law to be so withheld
under federal, state and local withholding requirements or otherwise, and shall
pay over to the appropriate government authority the amounts so withheld. The
Trustee will rely on instructions from the Company as to any required
withholding (including amounts required to be withheld by operation of Section
4999 of the Code) and shall be fully protected under Section 5.1 (f) hereof in
relying on such instructions.
(e) Except as otherwise provided herein, in the event of any
final determination by the Internal Revenue Service or a court of competent
jurisdiction, which determination is not appealable or the time for appeal or
protest of which has expired, or the receipt by the Trustee of a substantially
unqualified opinion of tax counsel selected by the Trustee with the written
consent of the Company, which determination determines, or which opinion
concludes, that an Executive is subject to federal income taxation on amounts
held in Trust hereunder prior to the distribution to such Executive of such
amounts based on the highest marginal Federal tax rate in effect, the Trustee
shall, on receipt by the Trustee of such opinion or notice of such
determination, pay to such Executive the portion of the Trust Corpus necessary
to pay the tax attributable to the portion of Trust Corpus includible in such
Executive's federal gross income and the amounts payable by the Company under
the Agreements shall be reduced by the amount of such distribution.
SECTION 4.3 DELIVERIES TO CREDITORS OF THE COMPANY.
It is the intent to the parties hereto that the Trust Corpus is and shall remain
at all times subject to the claims of the general creditors of the Company in
the event of bankruptcy or insolvency as hereinafter provided, but in no other
event. Accordingly, the Company shall not create a security interest in the
Trust Corpus in favor of the Executives and their beneficiaries or any creditors
and the rights of an Executive hereunder shall be the rights of an unsecured
creditor of the Company. If the Trustee receives the notice provided for in
Section 4.4 hereof, or otherwise receives actual notice that the Company is
insolvent or bankrupt as defined in Section 4.4 hereof, the Trustee will make no
further distributions of the Trust Corpus to any Executive but will deliver the
entire amount of the Trust Corpus only as a court of competent jurisdiction, or
duly appointed receiver or other person authorized to act by such a court, may
direct to make the Trust Corpus available to satisfy the claims of the Company's
general creditors. The Trustee shall resume holding the Trust Corpus under the
terms hereof and resume any distribution of Trust Corpus to the Executives under
the terms hereof, upon no less than thirty (30) days' advance notice to the
Company, if it determines that the Company was not, or is no longer, bankrupt or
insolvent. Unless the Trustee has actual knowledge of the Company's bankruptcy
or insolvency, the Trustee shall have no duty to inquire whether the Company is
bankrupt or insolvent.
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<PAGE>
SECTION 4.4 NOTIFICATION OF BANKRUPTCY OR INSOLVENCY.
The Company through its Board of Directors and Chief Executive Officer, shall
advise the Trustee promptly in writing of the Company's bankruptcy or
insolvency. The Company shall be deemed to be bankrupt or insolvent in the
following circumstances.
(a) The Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Reform Act of 1978, as amended; or
(b) The Company shall generally not pay or is unable to pay
its debts as such debts become due or shall cease to pay or is unable to pay its
debts in the ordinary course of business.
ARTICLE V
TRUSTEE
SECTION 5.1 TRUSTEE.
(a) The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Trust, and no implied covenants or
obligations shall be read into this Trust against the Trustee.
(b) If all or any part of the Trust Corpus is at any time
attached, garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part thereof,
then and in any of such events the Trustee is authorized, in its sole
discretion, to rely upon and comply with any such order, judgment or decree, and
it shall not be liable to the Company or any Executive by reason of such
compliance even though such order, judgment or decree subsequently may be
reversed, modified, annulled, set aside or vacated.
(c) The Trustee shall maintain such books, records and
accounts as may be necessary for the proper administration of the Trust Corpus,
including, without limitation, as provided in Article 11 hereof, and shall
render to the Company, on or prior to each February 28, following the date of
this Trust until the termination of this Trust (and on the date of such
termination), an accounting with respect to the Trust Corpus as of the end of
the then most recent calendar year (and as of the date of such termination). The
Trustee will at all times maintain a record provided by the Company for each
Executive to which credit each amount delivered by the Company to the Trustee
with respect to such Executive. Upon the written request of any Executive, the
Company shall render to the Trustee or the Executive, as the case may be, a
written report setting forth the amount held in the Trust for such Executive (or
each Executive) of the deposits made with respect thereto by the Company. Unless
the Company or any Executive shall have filed with the Trustee written
exceptions or objections to any such statement and account within 90 days, and
in such case the Trustee shall be forever released and discharged with respect
to all matters and things reported in such statement and account as though it
had been settled in an action or proceeding to which the Company and the
Executive were parties.
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<PAGE>
(d) The Trustee shall not be liable for any act taken or
omitted to be taken hereunder if taken or omitted to be taken by it in good
faith, absent the negligence or willful misconduct of the Trustee. The Trustee
shall also be fully protected in relying upon any notice given hereunder which
it in good faith believes to be genuine and executed and delivered in accordance
with this Trust.
(e) The Trustee shall be reimbursed by the Company for its
reasonable expenses incurred in connection with the performance of its duties
hereunder and shall be paid reasonable fees for the performance of such duties
in accordance with the fee schedule attached hereto as Exhibit 11 which shall
remain in effect for a minimum period of two years from the date hereof,
provided that a Change of Control shall not have occurred within such two year
period, and following such two year period (or Change of Control if its occurs
earlier) may only be changed upon ninety (90) days' written notice to the
Company.
(f) The Company agrees to indemnify and hold harmless the
Trustee from and against any and all damages, or losses, claims or expenses as
incurred (including expenses of investigation and fees and disbursements of
counsel to the Trustee and any taxes imposed on the Trust Corpus or income of
the Trust) arising out of or in connection with the performance by the Trustee
of its duties thereunder, other than such damages, losses, claims or expenses
arising out of the Trustee's gross negligence or willful misconduct. Any amount
payable to the Trustee under paragraph (e) of this Section 5.1 or this paragraph
(f) shall be paid by the Company promptly upon demand therefor by the Trustee
or, in the event that the Company fails to make such payment, from the Trust
Corpus. In the event that payment is made hereunder to the Trustee from the
Trust Corpus, the Trustee shall promptly notify the Company in writing of the
amount of such payment. The Company agrees that, upon receipt of such notice, it
will deliver to the Trustee to be held in the Trust an amount in cash (or in
marketable securities or in some combination thereof) equal to any payments made
from the Trust Corpus to the Trustee pursuant to paragraph (e) of this Section
5.1 or this paragraph (f). The failure of the Company to transfer any such
amount shall not in any way impair the Trustee's right to indemnification,
reimbursement and payment pursuant to paragraph (e) of this Section 5.1 or this
paragraph (f).
SECTION 5.2 SUCCESSOR TRUSTEE.
The Trustee may resign and be discharged from its duties hereunder at any time
by giving notice in writing of such resignation to the Company and each
Executive specifying a date (note less than thirty (30) days after the giving of
such notice) when such resignation shall take effect. Promptly after such
notice, the Company (or, during a Potential Change in Control Period or if a
Change in Control shall previously have occurred, Executives having at least 65%
percent of all amounts then held in the Trust credited to their accounts) shall
appoint a successor trustee, such trustee to become Trustee hereunder upon the
resignation date specified in such notice. If the Company fails to appoint a
successor trustee or if such Executives are unable to so agree upon a successor
trustee within thirty (30) days after such notice, the Trustee shall be
entitled, at the expense of the Company, to petition a United States District
Court or any of the courts of the State of New Jersey having jurisdiction to
appoint its successor. The Trustee shall continue to
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<PAGE>
serve until its successor accepts the trust and receives delivery of the Trust
Corpus. The Company (or, during a Potential Change in Control Period of if a
Change in Control shall previously have occurred, Executives having at least 65%
percent of all amounts then held in the Trust credited to their accounts) may at
any time substitute a new trustee by giving fifteen (15) days' notice thereof to
the Trustee then acting. In the event of such removal or resignation, the
Trustee shall duly file with the Company (and, on and after a Change in Control
or during a Potential Change in Control Period, the Executives) a written
statement of statements of accounts and proceedings as provided in Section 5.1
(c) hereof for the period since the last previous annual accounting of the
Trust, and if written objection to such account is not filed as provided in
Section 5.1 (c) hereof within 90 days, the Trustee shall to the maximum extent
permitted by applicable law be forever released and discharged from all
liability and accountability with respect to the propriety of its acts and
transactions shown in such account. The Trustee and any successor thereto
appointed hereunder shall be a commercial bank which is not an affiliate of the
Company, but which is a national banking association or established under the
laws of one of the states of the United States, and which has equity in excess
of $100 million.
SECTION 5.3 SETTLEMENT OF ACCOUNTS.
Notwithstanding any other provision of this Agreement, in the event of the
termination of the Trust, or the resignation or discharge of the Trustee, the
Trustee shall have the right to a settlement of its accounts, which accounting
may be made, at the option of the Trustee, either (a) by a Judicial settlement
in a court of competent jurisdiction-, or (b) by agreement of settlement,
release and indemnity from the Company to the Trustee.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
Section 6.1 Termination.
This Trust may be terminated by the Board of Directors at any time prior to a
Change in Control but not during a Potential Change in Control Period. This
Trust shall terminate upon the final payment of all amounts payable to all of
the Executives pursuant to the Agreements, as certified to the Trustee by each
Executive. Promptly upon termination of this Trust, any remaining portion of the
Trust Corpus, less all payments, expenses, taxes and other charges under this
Trust Agreement as of such date of termination, shall be paid to the Company.
Section 6.2 Amendment and Waiver.
This Trust may be amended by an instrument in writing signed by the parties
hereto at any time prior to a Change in Control but not during a Potential
Change in Control Period. After a Change in Control and during a Potential
Change in Control Period, this Trust may not be amended except by an instrument
in writing signed by the parties hereto together with the written consent of
Executives having at least 65% of all amounts then held in the Trust credited to
their accounts. The parties hereto, together with the consent of Executives
having at least 65% of all amounts then held in the Trust credited to their
accounts, may at any time waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto or an
Executive to any such waiver shall be valid if set forth in an instrument in
writing signed on behalf of such party or by such Executive.
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<PAGE>
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 FURTHER ASSURANCES.
The Company shall, at any time and from time to time, upon the reasonable
request of the Trustee, execute and deliver such further instruments and do such
further acts as may be necessary or proper to effectuate the purposes of this
Trust.
SECTION 7.2 CERTAIN PROVISIONS RELATING TO THIS TRUST.
(a) This Trust sets forth the entire understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior agreements, arrangements and understandings relating thereto. This Trust
shall be binding upon and inure to the benefit of the parties and their
respective successors and legal representatives.
(b) This Trust shall be governed by and construed in
accordance with the laws of the State of New Jersey, other than and without
reference to any provisions of such laws regarding choice of laws or conflict of
laws.
(c) In the event that any provision of this Trust or the
application thereof to any person or circumstances shall be determined by a
court of proper Jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Trust, or the application of such provision to persons or
circumstances other than those at to which it is held invalid or unenforceable,
shall not be affected thereby, and each provision of this trust shall be valid
and enforced to the fullest extent permitted by law.
(d) The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the Agreement
of the parties and shall not in any way affect the meaning of interpretation of
this Agreement.
SECTION 7.3 ALIENATION.
The right of any Trust Beneficiary (as hereinafter defined) to any benefit or to
any payment hereunder shall not be subject to transfer, alienation or
assignment.
SECTION 7.4 ARBITRATION.
Any dispute between the Executives and the Company or the Trustee as to the
interpretation or application of the provisions of this Trust and amounts
payable hereunder may, at the election of any party to such dispute (or, if more
than one (1) Executive is such a party, at the election of 65% of such
Executives), be determined by binding arbitration at Newark, New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court of
competent jurisdiction. All fees and expenses of such arbitration shall be paid
by the Trustee and considered an expense of the Trust under Section 5. 1 (g).
-26-
<PAGE>
SECTION 7.5 NOTICES.
Any notice, report, demand or waiver required or permitted hereunder shall be in
writing and shall be given personally or by prepaid registered or certified
mail, return receipt requested, addressed as follows:
If to the Company:
Curtiss-Wright Corporation
1200 Wall Street West, Suite 501
Lyndhurst, New Jersey 07071
Attention: Vice President, Finance
If to the Trustee:
PNC Bank, National Association
2 Tower Center
East Brunswick, NJ 08816
Attention: Manager, Retirement and Investment Services
If to an Executive, to the address of such Executive as listed next to his name
on Exhibit I hereto.
A notice shall be deemed received upon the date of delivery if given
Personally or, if given by mail, upon the receipt thereof A change of address
may be given by any party to another by similar notice.
Section 7.6 Trust Beneficiaries.
Each Executive is an Intended beneficiary ("Trust Beneficiary") under this
Trust, and as a Trust Beneficiary shall be entitled to enforce all terms and
provisions hereof with the same force and effect as if such person had been a
party hereto. The term Trust Beneficiary shall, to the extent provided in the
Agreements respecting a deceased Executive, also mean the legal representative
of the estate of such deceased Executive and the surviving spouse of the
deceased Executive or beneficiary designated by such Executive in accordance
with the terms of such Agreements.
IN WITNESS WHEREOF, the parties have executed this Trust as of the date
first written above.
ATTEST: CURTISS-WRIGHT CORPORATION
/s/ Dana Taylor By /s/ Gary Benschip
ATTEST: PNC BANK, NATIONAL ASSOCIATION
/s/ Marc G. Harold By /s/ Katherine Lowery
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<PAGE>
Exhibit #I
PLANS
Curtiss-Wright Corporation Executive Deferred Compensation Plan
Curtiss-Wright Corporation Retirement Benefits Restoration Plan
A list of participants in the above plans is available in the Curtiss-Wright
Corporation Employee Benefits Department.
-28-
<PAGE>
Exhibit #II
PNC Bank Retirement & Investment Services
Trustee and Investment Management Fee Schedule
For serving as Trustee of a non-qualified employee benefit fund and performing
the following services:
o Taking possession of, and safekeeping plan assets.
o Rendering accountings which disclose all investment transactions and
cash transactions affecting the plan assets.
o As Trustee, assuming responsibility for investment management.
o Discharging all fiduciary duties solely for the benefit of and in the
interest of plan participants and beneficiaries, the Bank's
compensation shall be:
Basic Schedule of Compensation:*
.75% on the first $ 2,000,000
.50% on the next $ 8,000,000
.40% on the next $10,000,000
.30% thereafter
o The above fees are assessed annually based upon the market
value of assets as of the billing date.
o Fees are taken annually on anniversary date of agreement.
o Minimum annual compensation: $1,750.
o No additional service or upkeep charge for investing cash
balances on a daily basis.
o No additional security transaction charge for investment
purchases or sales.
* These are the current fees which are subject to change and would apply upon
funding of the Rabbi Trust.
-29-
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<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 5,328
<SECURITIES> 68,554
<RECEIVABLES> 47,420
<ALLOWANCES> 1,712
<INVENTORY> 48,166
<CURRENT-ASSETS> 178,395
<PP&E> 220,813
<DEPRECIATION> 155,792
<TOTAL-ASSETS> 291,676
<CURRENT-LIABILITIES> 39,618
<BONDS> 10,347
0
0
<COMMON> 15,000
<OTHER-SE> 195,511
<TOTAL-LIABILITY-AND-EQUITY> 291,676
<SALES> 60,846
<TOTAL-REVENUES> 62,937
<CGS> 42,724
<TOTAL-COSTS> 52,202
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 89
<INCOME-PRETAX> 10,646
<INCOME-TAX> 4,041
<INCOME-CONTINUING> 6,605
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,605
<EPS-PRIMARY> .65
<EPS-DILUTED> .64
</TABLE>
