Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ENVIRONMENT|ONE CORPORATION
................................................................................
(Exact name of registrant as specified in its charter)
New York 14-1505298
.......................................... ....................
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2773 Balltown Road, Schenectady, New York 12309-1090
.......................................... .....................
(Address of Principal Executive Offices) (Zip Code)
Deferred Compensation Plan for Certain Executive Employees
of Environment|One Corporation
................................................................................
(Full title of the plan)
Stephen V. Ardia, President, CEO and Chairman of the Board
2773 Balltown Road, Schenectady, New York 12309-1090
................................................................................
(Name and address of agent for service)
(518) 346-6161
................................................................................
(Telephone number, including area code, of agent for service)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.10 100,000 shares $5.50 $550,000 $183.33
par value per share
====================================================================================================================================
</TABLE>
* Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and based upon the average high and low prices reported by
the Nasdaq Small Cap Market on October 25, 1996.
Exhibit Index on page 5.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Environment|One Corporation
(the "Company") (Exchange Act File No. 1-7037) with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-KSB for the year ended
December 31, 1995, filed with the Commission on March
28, 1996;
(b) Quarterly Reports on Forms 10-QSB, for the quarterly
periods ended March 31, 1996, June 30, 1996 and
September 30, 1996, filed with the Commission on May
9, 1996, July 31, 1996 and October 29, 1996,
respectively; and
(c) The descriptions of the Company's Common Stock
contained in the Company's registration statements
filed under section 12 of the Securities Exchange Act
of 1934, including any amendments or reports filed
for the purpose of updating such descriptions.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Page 3 of 8
<PAGE>
Item 6. Indemnification of Officers and Directors.
Under the New York Business Corporation Law ("NYBCL"), a
corporation may indemnify its directors and officers made, or threatened to be
made, a party to any action or proceeding, except for stockholder derivative
suits, if such director or officer acted in good faith, for a purpose which he
or she reasonably believed to be in or, in the case of service to another
corporation or enterprise, not opposed to, the best interests of the
corporation, and, in criminal proceedings, had no reasonable cause to believe
his or her conduct was unlawful. In the case of stockholder derivative suits,
the corporation may indemnify a director or officer if he or she acted in good
faith for a purpose which he or she reasonably believed to be in or, in the case
of service to another corporation or enterprise, not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of (i) a threatened action, or a pending action which is settled or
otherwise disposed of, or (ii) any claim, issue or matter as to which such
person has been adjudged to be liable to the corporation, unless and only to the
extent that the court in which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
Any person who has been successful on the merits or otherwise
in the defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraph may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct by (i) the disinterested directors if a quorum is available, (ii) the
board upon the written opinion of independent legal counsel or (iii) the
stockholders.
The indemnification described above under the NYBCL is not
exclusive of other indemnification rights to which a director or officer may be
entitled, whether contained in the certificate of incorporation or bylaws or
when authorized by (i) such certificate of incorporation or bylaws; (ii) a
resolution of stockholders, (iii) a resolution of directors or (iv) an agreement
providing for such indemnification, provided that no indemnification may be made
to or on behalf of any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his or her acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled.
The foregoing statement is qualified in its entirety by
reference to Sections 715, 717, 721 through 725 of the NYBCL.
Page 4 of 8
<PAGE>
Article "TWELFTH" of the Company's Certificate of
Incorporation provides that the Company's directors shall not be liable to the
Company or its shareholders for monetary damages as a result of breach of
fiduciary duty, except for liability if a judgment or final adjudication
establishes that a director's acts or omissions were undertaken in bad faith or
involved intentional misconduct or a knowing violation of law, or that the
director personally gained a financial profit or advantage to which he was not
entitled, or that the director violated NYBCL Section 719, as amended.
Article 12 of the Bylaws of the Company provides that the
Company shall indemnify any person made, or threatened to be made, a party to an
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation, or served any other corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise at the request of the
corporation while he was such a director or officer, to the fullest extent
permitted by the NYBCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, previously filed
with the Commission as Exhibit 3.1 to the Company's Quarterly
Report on Form 10-QSB for the period ending June 30, 1988 (No.
1-7037) and incorporated herein by reference.
4.2 Bylaws of the Company, previously filed with the Commission as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-QSB
for the period ending June 30, 1988 (No. 1-7037) and
incorporated herein by reference.
4.3 Deferred Compensation Plan for Certain Executive Employees of
Environment|One Corporation.
5.1 Opinion of Bond, Schoeneck & King, LLP as to the validity of
certain shares being registered.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Bond, Schoeneck & King, LLP (included in Exhibit
5.1).
24 Power of Attorney (included at page 7 of this Registration
Statement).
Page 5 of 8
<PAGE>
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this registration statement 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.
(b) 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.
(c) 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.
2. 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 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.
3. 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
Page 6 of 8
<PAGE>
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 the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Schenectady, New York on the 16th day of October, 1996.
ENVIRONMENT|ONE CORPORATION
By: /s/ Stephen V. Ardia
----------------------
Stephen V. Ardia
President, CEO and
Chairman of the Board
Each person whose signature appears below hereby authorizes
Stephen V. Ardia, as attorney-in-fact, to execute in the name of such person and
to file this registration statement (including any changes that he may deem
necessary or appropriate) and any amendments, including post-effective
amendments, hereto.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen V. Ardia
- ---------------------------------
Stephen V. Ardia President, CEO and Chairman
of the Board October 16, 1996
/s/ Philip W. Welsh
- ---------------------------------
Philip W. Welsh Treasurer and
Director of Finance October 16, 1996
</TABLE>
Page 7 of 8
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Walter W. Aker
- ---------------------------------
Walter W. Aker Director October 16, 1996
/s/ John L. Allen
- ---------------------------------
John L. Allen Director October 16, 1996
/s/ Angelo Dounoucos
- ---------------------------------
Angelo Dounoucos Director October 16, 1996
/s/ Lars G. Grenback
- ---------------------------------
Lars G. Grenback Director October 16, 1996
/s/ Robert G. James
- ---------------------------------
Robert G. James Director October 16, 1996
/s/ Rolf E. Soderstrom
- ---------------------------------
Rolf E. Soderstrom Director October 16, 1996
</TABLE>
Page 8 of 8
DEFERRED COMPENSATION PLAN
FOR
CERTAIN EXECUTIVE EMPLOYEES
OF
ENVIRONMENT | ONE CORPORATION
January 1, 1996
<PAGE>
DEFERRED COMPENSATION PLAN
FOR
CERTAIN EXECUTIVE EMPLOYEES
OF
ENVIRONMENT | ONE CORPORATION
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
ARTICLE II ELIGIBILITY AND PARTICIPATION
ARTICLE III DEFERRED COMPENSATION BENEFIT
ARTICLE IV AMENDMENT AND TERMINATION
ARTICLE V CLAIMS PROCEDURE
ARTICLE VI MISCELLANEOUS
EXHIBIT A - PARTICIPATION AGREEMENT
EXHIBIT B - BENEFICIARY DESIGNATION
<PAGE>
DEFERRED COMPENSATION PLAN
FOR
CERTAIN EXECUTIVE EMPLOYEES
OF
ENVIRONMENT | ONE CORPORATION
PREAMBLE
Effective as of January 1, 1996, the Board of Directors of
Environment / One Corporation adopted this non-qualified deferred compensation
plan for a select group of management and highly compensated employees of
Environment / One Corporation.
The purpose of this plan is to permit eligible employees to
defer the receipt of future bonuses, to have the deferred bonuses applied to
acquire shares of common stock of Environment / One Corporation, and to have the
shares distributed at a future date selected by the employee or, if earlier,
upon the employee's involuntary termination of employment.
<PAGE>
ARTICLE I
DEFINITIONS
When used herein, the following words shall have the meanings
set forth below, unless the context clearly indicates otherwise:
1.01 ACCOUNT shall mean the special unfunded memorandum
account maintained by the Company on its books for a Participant in accordance
with Article III. The term Account shall include any subaccount created to carry
out the purposes of the Plan.
1.02 BENEFICIARY shall mean the individual designated by a
Participant in accordance with Section 3.07 to receive the unpaid balance of the
Participant's benefit under this Plan following the Participant's death.
1.03 BONUS shall mean the amount payable by the Company to a
Participant with respect to a Plan Year pursuant to the Company's Senior Staff
Compensation Plan.
1.04 COMPANY shall mean Environment / One Corporation and any
successor.
1.05 PARTICIPANT shall mean an executive employee of the
Company who is selected by the Board of Directors of the Company to participate
in the Plan and who satisfies the eligibility provisions of Article II.
1.06 PARTICIPATION AGREEMENT shall mean the written agreement
between the Company and a Participant, in the form attached as Exhibit A of the
Plan, which sets forth the Participant's election to participate in the Plan,
the amount of Bonus the Participant elects to defer for a Plan Year, the year as
of which the deferred amount shall be paid, the form in which the deferred
amount shall be paid, and such other terms and conditions determined by the Plan
Administrator to be appropriate and consistent with the terms and purposes of
the Plan.
1.07 PLAN shall mean the Deferred Compensation Plan for
Certain Executive Employees of Environment / One Corporation.
1.08 PLAN ADMINISTRATOR shall mean the Chief Financial Officer
of the Company, or such other person or entity designated by the Chief Executive
Officer of the Company to carry out the administration of the Plan.
1.09 PLAN YEAR shall mean the calendar year.
1.10 SHARE shall mean a share of common stock of the Company,
par value $0.10. Prior to the distribution of (actual) Shares pursuant to
Section 3.05, Shares shall mean the bookkeeping entry of the number of Shares
credited to a Participant's Account in accordance with Section 3.04.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility. The Board of Directors of the Company shall
designate the executive employees of the Company who shall be eligible to
participate in the Plan for that Plan Year.
2.02 Participation Agreements.
(a) Each employee selected to participate in the Plan
shall become a Plan Participant following the employee's execution of a
Participation Agreement.
(b) Pursuant to an executed Participation Agreement,
a Participant may elect to defer any fixed percentage, up to a maximum of 75
percent, of the Participant's Bonus otherwise payable with respect to a
particular Plan Year. Each Participant also shall designate the year as of
which, and the form in which, the deferred amount (adjusted for earnings/losses)
shall be paid.
(c) A new Participation Agreement must be executed
with respect to each Plan Year and must be returned to the Plan Administrator
prior to the first day of the Plan Year to which the Participation Agreement
relates; provided, however, that, for the Plan Year an executive employee first
becomes eligible to participate in the Plan, the Participation Agreement must be
returned to the Plan Administrator no later than 30 days after the executive
employee becomes eligible to participate and the Participation Agreement shall
apply only to Bonus earned after the executed Participation Agreement is
received by the Plan Administrator.
(d) Participation Agreements shall remain effective
until modified or revoked in accordance with Section 2.03.
2.03 Modification of Participation Agreements. A Participant
may elect to delay the year as of which, and/or change the form in which,
amounts deferred for a particular Plan Year (adjusted for earnings/losses) shall
be paid. Any such election to delay the year, and/or to change the form, of
payment shall be made by delivering a written notice of modification (in a form
provided by the Plan Administrator) to the Plan Administrator at least 18 months
prior to the Plan Year of payment originally selected by the Participant. (For
example, an election to delay the year, and/or to change the form, of a payment
scheduled to be made in the 2001 Plan Year must be delivered to the Plan
Administrator by December 31, 1999.) Only one election to delay the year of
payment, and only one election to change the form of payment, may be made with
respect to amounts deferred for a particular Plan Year.
<PAGE>
ARTICLE III
DEFERRED COMPENSATION BENEFIT
3.01 Accounts. The Company shall maintain a separate Account
for each Participant to which Bonuses, Company contributions and Shares shall be
credited in accordance with this Article III. Separate subaccounts also shall be
maintained to the extent necessary to carry out the purposes of this Plan.
3.02 Bonus Deferral Credits. The Company shall credit to each
Participant's Account the amount of Bonus deferred by the Participant pursuant
to the Participation Agreement in effect for the Participant for the Plan Year.
Deferred amounts shall be credited to the Participant's Account as soon as
reasonably possibly following the date the Bonus would have been paid to the
Participant in the absence of an effective Participation Agreement.
3.03 Company Contribution Credits.
(a) In addition to Bonus deferrals credited to a
Participant's Account pursuant to Section 3.02, the Company shall credit to a
Participant's Account an additional amount equal to 25 percent of the Bonus
deferral credit. (For example, if a Participant's Bonus deferral credit equals
$10,000, the Company contribution credit pursuant to this Section 3.03 shall
equal $2,500.)
(b) Company contribution credits (and any Shares
attributable to those credits, as described in Section 3.04) shall be forfeited
by a Participant, if the Participant's employment with the Company terminates
for any reason, other than the Participant's retirement, death or total
disability, within 36 months following the Plan Year for which the Company
contribution is credited. (For example, Company contribution credits (and/or
related Shares) for the 1996 Plan Year shall be forfeited by a Participant, if
the Participant's employment with Company terminates on or before December 31,
1999, for any reason other than the Participant's retirement, death or total
disability.) Company contribution credits (and/or related Shares) forfeited
pursuant to this subsection (b) shall be applied to reduce the Company
contribution credit (and/or to satisfy the conversion to Shares described in
Section 3.04) required for the Plan Year in which the forfeiture occurs;
forfeited credits and/or Shares shall not be reallocated to other Participants.
3.04 Conversion of Credits to Shares.
(a) The total of Bonus deferral credits and Company
contribution credits credited to a Participant's Account for a Plan Year
pursuant to Sections 3.02 and 3.03 shall be converted to an equivalent number of
Shares.
(b) For purposes of the conversion required by
subsection (a), the price for each Share shall be the average selling price for
(actual) Shares during the month of January of the Plan Year of deferral. (For
example, the average selling price for Shares during January 1996 shall be used
to determine the number of Shares that will be credited to a Participant's
Account when the Bonus deferral and Company contribution credits for 1996 are
converted to Shares.)
(c) Upon the conversion of Bonus deferral and Company
contribution credits to Shares pursuant to this Section 3.04, a Participant's
Account will be credited with a number of whole and fractional Shares. The value
of the Participant's Account, therefore, shall increase (and decrease) in the
same manner, and to the same extent, the value of (actual) Shares increases (and
decreases).
(d) Notwithstanding the foregoing of this Section
3.04, nothing in this Plan or in any related document shall require the Company
or the Plan Administrator to make any specific investment of any asset of the
Company or shall give any Participant or Beneficiary a right to any investment
the Company may make, in its sole discretion, to help the Company satisfy its
obligation under this Plan. As provided in Section 6.03, this Plan shall be
entirely unfunded.
3.05 Distribution of Shares.
(a) Subject to modifications made in accordance with
Section 2.03, and subject to the forfeiture provisions of Section 3.03, a
Participant's Account shall be distributed as of the year, and in the form,
selected by the Participant in the applicable Participation Agreement; provided
that all distributions shall be made in (actual) Shares (with fractional Shares
paid in cash) and shall be made (or commence) on July 1 of the Plan Year of
distribution selected by the Participant.
(b) A Participant may elect to receive Shares
credited for a Plan Year in a single distribution or in substantially equal
annual installments, up to a maximum of 10 annual installments.
(c) Notwithstanding the foregoing of this Section
3.05, to the extent "vested," all Shares credited to a Participant pursuant to
this Plan shall be distributed in a single distribution as of the first day of
the month following the date of the Participant's death, total disability (as
determined by the Company), or involuntary termination of employment with the
Company for any reason.
3.06 Payment Upon Hardship.
(a) Notwithstanding the provisions of Section 3.05,
the Company may distribute to a Participant such portion of the Participant's
Plan benefit that is necessary to alleviate an "immediate and heavy financial
need" of the Participant.
(b) For purposes of subsection (a), an "immediate and
heavy financial need" shall mean a financial hardship resulting from an
emergency or other unforeseeable circumstances beyond the control of the
Participant, which hardship cannot be alleviated from other resources reasonably
available to the Participant. The determination of an "immediate and heavy
financial need," and the amount necessary to alleviate the need, shall be
determined by the Compensation Committee of the Board of Directors of the
Company in its sole discretion. Participants may request distributions pursuant
to this Section by filing a written application with the Compensation Committee
of the Board of Directors of the Company.
(c) Distributions made in accordance with this
Section shall be made in a single distribution to the Participant.
(d) Participants who receive a distribution pursuant
to this Section shall be precluded from making elective deferrals under the Plan
for the remainder of the Plan Year during which the hardship distribution is
made, and for the entire ensuing Plan Year.
3.07 Beneficiaries.
(a) Distributions of Plan benefits shall be made to
the Participant if living, and if not, to the Participant's Beneficiary. A
Participant may designate a Beneficiary upon becoming a Participant, and may
change such designation at any time, by filing a written designation, in the
form attached as Exhibit B, with the Plan Administrator.
(b) If upon the death of a Participant no valid
designation of a Beneficiary is on file with the Plan Administrator, or the
benefit is not claimed by any Beneficiary within a reasonable period of time
after the death of the Participant, the benefit shall be distributed to the
Participant's estate.
<PAGE>
ARTICLE IV
AMENDMENT AND TERMINATION
4.01 Amendment and Termination. The Company intends to
maintain the Plan until all benefits are distributed pursuant to the Plan.
However, the Company reserves the right to amend or terminate the Plan at any
time. Any such amendment or termination shall be made pursuant to resolutions of
the Board of Directors of the Company. No amendment or termination of the Plan
shall directly or indirectly deprive any Participant of any portion of any
benefit which has accrued prior to the effective date of the resolution amending
or terminating the Plan. Notwithstanding any other provision in the Plan to the
contrary, the Plan shall terminate automatically upon the final distribution of
all amounts payable hereunder.
4.02 Corporate Successors. This Plan shall be binding upon the
successors and assigns of the Company. The Company shall use its reasonable
efforts to ensure that any successor to the Company adopts, and agrees to be
bound by, the Plan.
<PAGE>
ARTICLE V
CLAIMS PROCEDURE
5.01 Written Request. A Participant or Beneficiary seeking
unpaid Plan benefits must submit a written request for benefits to the Plan
Administrator.
5.02 Notice of Denial. If a request for benefits is wholly or
partially denied, notice of the denial, prepared in accordance with Section
5.03, shall be furnished to the claimant within a reasonable period of time, not
to exceed 90 days, after receipt of the request by the Plan Administrator,
unless special circumstances require an extension of time for processing the
request. If such an extension of time is required, written notice of the
extension shall be furnished to the claimant prior to the termination of the
initial 90-day period. In no event shall such extension exceed a period of 90
days from the end of such initial period. The extension notice shall indicate
the special circumstances requiring an extension of time and the date on which
the Plan Administrator expects to render a decision.
5.03 Content of Notice. The Plan Administrator shall provide
every claimant whose request for benefits is denied a written notice setting
forth, in a manner calculated to be understood by the claimant, the following:
(a) a specific reason or reasons for the denial;
(b) specific references to the pertinent Plan
provisions upon which the denial is based;
(c) a description of any additional material or
information necessary for the claimant to perfect the request and an explanation
of why such material or information is necessary; and
(d) an explanation of the Plan's review procedure, as
set forth in Sections 5.04 and 5.05.
5.04 Review Procedure. The purpose of the review procedure set
forth in this Section and Section 5.05 is to provide a procedure by which a
claimant under the Plan may have a reasonable opportunity to appeal a denial of
a request for benefits to the Plan Administrator for a full and fair review. To
accomplish that purpose, the claimant (or the claimant's duly authorized
representative) may:
(a) review pertinent Plan documents; and
(b) submit issues and comments in writing.
A claimant (or the claimant's duly authorized representative) may request a
review by filing a written application for review with the Plan Administrator at
any time within 60 days after receipt by the claimant of written notice of the
denial of the claimant's request for benefits.
5.05 Decision on Review. A decision on review of a denied
request for benefits shall be made in the following manner:
(a) The decision on review shall be made by the Plan
Administrator. The Plan Administrator shall make a decision promptly, but not
later than 60 days after receipt of the request for review, unless special
circumstances require an extension of time for processing, in which case a
decision shall be rendered as soon as possible, but not later than 120 days
after receipt of the request for review. If such an extension of time for review
is required, written notice of the extension shall be furnished to the claimant
prior to the commencement of the extension.
(b) The decision on review shall be in writing, shall
be written in a manner calculated to be understood by the claimant, and shall
include specific reasons for the decision and specific references to the
pertinent Plan provisions upon which the decision is based.
<PAGE>
ARTICLE VI
MISCELLANEOUS
6.01 No Effect on Employment Rights. Nothing contained in this
Plan shall confer upon any Participant the right to be retained in the service
of the Company nor limit the right of the Company to discharge or otherwise deal
with the Participant without regard to the existence of the Plan.
6.02 Change of Control.
(a) Notwithstanding anything in the Plan to the
contrary, if the Company shall incur a change of control, (i) all Company
contribution credits (and all related Shares) shall be become nonforfeitable
(i.e., shall become "vested") as of the date of the change of control, (ii) all
Shares credited pursuant to the Plan (those previously vested and those that
become vested pursuant to (i)) shall be converted to their cash equivalent,
determined as of the date of the change of control, (iii) such cash equivalent
shall be reflected in the Account of each affected Participant and shall
thereafter be credited with interest at a rate equal to the "prime rate," as
published in The Wall Street Journal on the first publication date of each Plan
Year, plus 200 basis points, and (iv) Account balances (adjusted for interest)
shall be distributed at the time and in the form selected by the Participant in
each applicable Participation Agreement.
(b) For purposes of this Section 6.02, a "change of
control" shall mean the purchase or other acquisition by any person, entity or
group of persons, within the meaning of section 13(d) or 14(d) of the Securities
Exchange Act of 1934 ("Act"), or any comparable successor provisions, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of 30 percent or more of either the outstanding shares of common stock or
the combined voting power of the Company's then outstanding voting securities
entitled to vote generally, or the approval by the stockholders of the Company
of a reorganization, merger, or consolidation, in each case, with respect to
which persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than 50 percent of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated Company's then
outstanding securities, or a liquidation or dissolution of the Company or of the
sale of all or substantially all of the Company's assets.
6.03 Funding.
(a) The Plan, at all times, shall be entirely
unfunded for income tax purposes and for purposes of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
(b) No Participant or Beneficiary shall have any
interest in any particular assets of the Company by reason of the right to
receive a benefit under this Plan, and any such Participant or Beneficiary shall
have only the rights of a general unsecured creditor of the Company with respect
to any rights under the Plan.
(c) Nothing contained in the Plan shall constitute a
guarantee by the Company or any entity or person that the assets of the Company
will be sufficient to pay any benefit hereunder.
(d) Notwithstanding the foregoing of this Section
6.03, the Company shall establish a grantor trust (commonly referred to as a
"rabbi trust") to provide the Company with a source of assets to assist the
Company in satisfying its liabilities under this Plan. The Company shall
contribute to the trust such cash, Shares and/or other property that the Company
shall deem necessary and appropriate to satisfy its obligations under this Plan.
The establishment and maintenance of the trust shall not affect the status of
the Plan as an unfunded plan maintained for the purpose of providing deferred
compensation to a select group of the Company's management and highly
compensated employees.
6.04 Withholding. Compensation and earnings deferred, and
benefit payments made, pursuant to the Plan shall be subject to withholding for
income, FICA and other employee payroll taxes, withholding taxes, or other
similar taxes that the Company may be required by law to withhold.
6.05 Spendthrift Provision. No benefit payable under this Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge prior to actual receipt thereof by
the payee. Any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge prior to such receipt shall be void. The Company shall not be
liable in any manner for or subject to the debts, contracts, liabilities, or
torts of any person entitled to any benefit under this Plan.
6. 06 Administration.
(a) The Plan Administrator shall be responsible for
the general operation and administration of the Plan and for carrying out its
provisions. Notwithstanding the foregoing sentence, the Plan Administrator may
delegate to employees of the Company responsibility for such administrative
duties as the Plan Administrator may deem necessary or appropriate. The Plan
Administrator also may engage such actuaries, accountants, counsel or other
persons to perform such services with respect to the Plan as the Plan
Administrator may deem necessary or appropriate.
(b) The Plan Administrator shall have the authority
and discretion to construe, interpret and apply all the terms and provisions of
the Plan, including any uncertain or disputed terms or provisions of the Plan.
All actions and decisions of the Plan Administrator, including any exercise of
the Plan Administrator's authority and discretion to construe, interpret and
apply uncertain or disputed terms or provisions of the Plan, shall be binding
and conclusive upon each Participant, Beneficiary, claimant, and the Company.
All actions and decisions of the Plan Administrator shall be given deference in
all courts of law and no such action or decision shall be overturned or set
aside by any court of law unless found to be arbitrary and capricious, or made
in bad faith.
6.07 Disclosure. Each Participant shall receive a copy of the
Plan.
6.08 Governing Law. The Plan is established under, and shall
be governed and construed according to, the laws of the State of New York, to
the extent such laws are not preempted by ERISA.
6.09 Severability. If one or more provisions of the Plan, or
any part thereof, shall be determined by a court of competent jurisdiction to be
invalid or unenforceable, then the Plan shall be administered as if such invalid
or unenforceable provision had not been contained in the Plan. The invalidity or
unenforceability of any Plan provision, or any part thereof, shall not affect
the validity and enforceability of any other Plan provision or any part thereof.
<PAGE>
The Company caused this Plan to be executed by a duly
authorized officer to be effective as of January 1, 1996.
ENVIRONMENT / ONE CORPORATION
Dated: December 29, 1995 By: /s/ Philip W. Welsh
-------------------------
<PAGE>
EXHIBIT A
DEFERRED COMPENSATION PLAN
FOR
CERTAIN EXECUTIVE EMPLOYEES
OF
ENVIRONMENT / ONE CORPORATION
1996 PARTICIPATION AGREEMENT
This sets forth the Participation Agreement entered into
between Environment / One Corporation ("Company") and ____________________
("Participant") pursuant to the Deferred Compensation Plan for Certain Executive
Employees of Environment / One Corporation ("Plan").
Recitals
A. The Company established the Plan effective as of January 1,
1996.
B. The Company selected Participant to participate in the
Plan.
C. The Plan provides that, to become a participant in the
Plan, Participant must enter into this Participation Agreement.
Terms
1. Company's Duties. The Company hereby acknowledges that it
has selected Participant to participate in the Plan, and agrees to distribute to
(or on behalf of) Participant the benefits provided under the Plan, subject to
all terms and conditions of the Plan.
2. Deferral Election. Unless revoked or modified by
Participant pursuant to the Plan, Participant hereby elects to participate in
the Plan during 1996 and to defer any bonus otherwise payable to Participant for
1996 pursuant to the Company's Senior Staff Compensation Plan as follows:
Percentage of 1996 Bonus to be Deferred (maximum 75 percent): ________%
Date Distribution of Plan Benefit Should be Made or Commence: July 1, ________
Form in Which Distribution Should be Made (circle one): Single Distribution
or
___ Annual Installments (max. 10)
3. Participant's Duties. Participant hereby acknowledges that
Participant has read and understands the terms and conditions of the Plan, and
agrees to be bound by, and subject to, all the terms and conditions of the Plan.
PARTICIPANT
ENVIRONMENT / ONE CORPORATION
______________________________ By:_________________________________
Date:__________________________ Date: ______________________________
<PAGE>
EXHIBIT B
DEFERRED COMPENSATION PLAN
FOR
CERTAIN EXECUTIVE EMPLOYEES
OF
ENVIRONMENT / ONE CORPORATION
BENEFICIARY DESIGNATION
Pursuant to Section 3.07 of the Deferred Compensation Plan for
Certain Executive Employees of Environment / One Corporation ("Plan"),
I, ____________________,
Participant
hereby designate _________________, my __________________, as the beneficiary of
Beneficiary
amounts payable upon my death in accordance with the terms of the Plan.
My Beneficiary's current address is __________________________
______________________________________________________________________________ .
Dated: ________________ ______________________________
Participant's Signature
_______________________
Witness
Exhibit 5.1
October 31, 1996
Environment One Corporation
2773 Balltown Road
Schenectady, New York 12309
Gentlemen:
We have acted as counsel to Environment One Corporation, a New
York Corporation (the "Company") in connection with the Registration Statement
on Form S-8 (the "Registration Statement") filed on this date with the United
States Securities and Exchange Commission with respect to the Deferred
Compensation Plan for Certain Executive Employees of Environment One Corporation
(the "Plan").
In rendering this opinion, we have examined and relied upon
originals or copies, authenticated or certified to our satisfaction, of such
corporate records of the Company, communications or certifications of public
officials, communications with or certificates of officers, directors and
representatives of the Company, and such other documents as we have deemed
necessary to the issuance of the opinion set forth herein. In making this
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents tendered to us as originals, and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing, it is our opinion that the shares of
the Company's Common Stock, par value $0.10 per share registered pursuant to the
Registration Statement and offered by the Company pursuant to the Plan will be,
assuming that such shares are validly authorized at the time of issuance and
assuming that no change occurs in the applicable law or pertinent facts, when
paid for in full by the participant and issued in accordance with the Plan,
legally issued, fully paid and non-assessable.
We hereby consent to the use of this letter as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Bond, Schoeneck & King, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
Environment One Corporation
We consent to the use of our report, included in the December 31, 1995 Annual
Report on Form 10-KSB of Environment One Corporation, incorporated herein by
reference.
/s/ KPMG Peat Marwick, LLP
Albany, New York
October 31, 1996
