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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
GENESIS WORLDWIDE INC.
(Exact name of registrant as specified in its charter)
OHIO 34-4307810
(State of Incorporation) (I.R.S. Employer Identification No.)
GENESIS WORLDWIDE INC.
2600 KETTERING TOWER
DAYTON, OHIO 45423
(Address, including zip code, of
registrant's principal executive offices)
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
(Full title of the plan)
JOSEPH M. RIGOT, ESQ.
THOMPSON HINE & FLORY LLP
2000 COURTHOUSE PLAZA, N.E.
DAYTON, OHIO 45402
(937) 443-6586
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Amount of
Title of Securities Amount to be Aggregate Registration
to be Registered Registered Offering Price Fee
<S> <C> <C> <C>
Deferred Compensation $2,000,000 $2,000,000 $528
Obligations (1)
-------------------------------- --------------- ---------------- -------------
</TABLE>
(1) The Deferred Compensation Obligations being registered are unsecured
obligations of Genesis Worldwide Inc. to pay deferred compensation in
the future in accordance with the terms of the Genesis Worldwide Inc.
Non-Qualified Deferred Compensation Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Annual Report on Form 10-K of Genesis Worldwide Inc. (the "Company")
for the fiscal year ended December 31, 1999, filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "Exchange Act").
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Under the Company's Non-Qualified Deferred Compensation Plan, as Amended
and Restated (the "Plan"), the Company will provide eligible employees the
opportunity to defer receipt of a specified percentage of their base salary and
up to 85% of any bonuses payable for services rendered for the Company. In order
to defer any salary or bonus under the Plan, a participant must have elected to
make the maximum possible elective contributions under the Company's Savings
Plan. The Company may, in its sole discretion, make contributions for any
particular employee or group of employees participating in the Plan. The
obligations of the Company under the Plan to make payments to Plan participants
in the future in accordance with the Plan will be unsecured general obligations
and indebtedness of the Company outstanding from time to time. An aggregate
principal amount of $2,000,000 of such obligations of the Company are being
registered hereunder all are referred to herein as the "Deferred Compensation
Obligations." The description of the Deferred Compensation Obligations set forth
in this Item 4 is qualified in its entirety by reference to the Plan, which is
an exhibit to this Registration Statement.
The amount of compensation and other amounts to be deferred by each Plan
participant during any calendar year and the length of time of the deferral will
be determined in accordance with the terms of the Plan. The Plan is administered
by the Company, which has delegated to the Benefits Committee of the Company the
authority to administer the Plan, except for certain major matters.
Each participant's account established for a calendar year will be
credited with compensation and other amounts that the participant elects to
defer for that year, Company contributions, if any, and any gains (or losses)
incurred therein as a result of choices made by Plan participants among
investment mediums. All payments to participants in respect of their Deferred
Compensation Obligations will be subject to withholding for applicable taxes. An
irrevocable trust has been established in connection with the Plan and, at the
Company's discretion, contributions by a participant or the Company may be held
in the trust.
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A participant's right to the Deferred Compensation Obligations cannot be
transferred, pledged or assigned (except upon the death or incompetency of the
participant). The Deferred Compensation Obligations are not subject to the debts
or other third party claims of any person entitled to receive benefits under the
Plan.
The Company may terminate or amend the Plan at any time provided such
termination or amendment does not reduce the amount of any benefit of a
participant when the Plan is terminated.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Thompson Hine & Flory LLP has provided a legal opinion to the Company
with respect to the interests in the Plan and obligations of the Company
registered hereunder. Members of that Firm own beneficially approximately 7,000
common shares of the Company and Joseph M. Rigot, a partner of the Firm, is a
director of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Code of Regulations of the Company sets forth certain
rights of directors and officers of the Company to indemnification. Such rights
provide indemnification by the Company as permitted by Ohio law. The liabilities
against which a director and officer may be indemnified and factors employed to
determine whether a director and officer is entitled to indemnification in a
particular instance depend on whether the proceedings in which the claim for
indemnification arises were brought (a) other than by and in the right of the
Company ("Third Party Actions") or (b) by and in the right of the Company
("Company Actions").
In Third Party Actions, the Company will indemnify each director and
officer against expenses, including attorneys' fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with any threatened or actual proceeding in which he may be involved by reason
of his having acted in such capacity, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and with respect to any criminal action or proceeding, he had no
reasonable cause to believe that his conduct was unlawful.
In Company Actions, the Company will indemnify each director and officer
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense or settlement of any such proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification is
permitted with respect to (i) any matter as to which such person has been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Company unless a court determines such person is entitled to
indemnification and (ii) any liability asserted in connection with unlawful
loans, dividends, distribution, distribution of assets and repurchase of Company
shares under Section 1701.95 of the Ohio Revised Code.
Unless indemnification is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standards of conduct
(and therefore may be indemnified) is made by the Board of Directors of the
Company by a majority vote of a quorum consisting of
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directors of the Company who were not parties to the action; or if such a quorum
is not obtainable, or if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or by the shareholders of the
corporation. Article V of the Company's Code of Regulations does not limit in
any way other indemnification rights to which those seeking indemnification may
be entitled.
The Company maintains insurance policies which presently provide
protection, within the maximum liability limits of the policies and subject to a
deductible amount for each claim, to the Company under its indemnification
obligations and to the directors and officers with respect to certain matters
which are not covered by the Company's indemnification obligations.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
See Index to Exhibits following signature pages.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant with the Securities
and Exchange Commission or furnished to the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934, that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dayton, State of Ohio, on this 14th day of April,
2000.
GENESIS WORLDWIDE INC.
By /s/ Richard E. Clemens
--------------------------------------
Richard E. Clemens
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated:
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<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
/s/ Richard E. Clemens Director, President and April 14, 2000
- ------------------------- Chief Executive Officer
Richard E. Clemens (principal executive officer)
/s/ Karl A. Frydryk Vice President and Chief April 14, 2000
- ------------------------- Financial Officer (principal
Karl A. Fydryk financial officer)
/s/ Leo E. Dugdale Controller (principal April 14, 2000
- ------------------------- accounting officer)
Leo E. Dugdale
-------------------------------------
*John A. Bertrand Director April 14, 2000
*Gerald L. Connelly Director April 14, 2000
*William A. Enouen Director April 14, 2000
</TABLE>
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<TABLE>
<S> <C> <C>
*Augustine A. Fornataro Director April 14, 2000
*Waldemar M. Goulet Director April 14, 2000
*David E. Lundeen Director April 14, 2000
*Joseph M. Rigot Director April 14, 2000
*J. William Uhrig Director April 14, 2000
</TABLE>
* The undersigned, by signing his name hereto, executes this
Registration Statement pursuant to powers of attorney executed by the
above-named persons and filed with the Securities and Exchange Commission as an
Exhibit to this Registration Statement.
/s/ Richard E. Clemens
----------------------
Richard E. Clemens
Attorney-in-Fact
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INDEX TO EXHIBITS
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES:
4.1 Amended Articles of Incorporation of Genesis Worldwide
Inc., as Amended
4.2 Code of Regulations of Genesis Worldwide Inc.,
incorporated by reference from the Company's Registration
Statement on Form S-8 filed with the Securities and
Exchange Commission on August 31, 1999 (1999 Long-Term
Incentive Stock Plan)
4.3 Genesis Worldwide Inc. Nonqualified Deferred Compensation
Plan
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Thompson Hine & Flory LLP [contained
in their opinion filed as Exhibit 5.1]
(24) POWERS OF ATTORNEY
24.1 Powers of Attorney of each person whose signature in this
registration statement was signed by another pursuant to
a power of attorney.
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S-8
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Exhibit 4.1
THE MONARCH MACHINE TOOL COMPANY
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
---------------------------------
Leo E. Dugdale III, Secretary of THE MONARCH MACHINE TOOL COMPANY, an
Ohio corporation (the "Company"), does hereby certify that the following
resolution amending the Amended Articles of Incorporation of the Company was
adopted by the holders of shares entitling them to exercise two-thirds of the
voting power of the Company, pursuant to Section 1701.71 of the Ohio Revised
Code, at a Special Meeting of Shareholders duly held on August 31, 1999 in which
a quorum was present and acting throughout:
RESOLVED, that Article First of the Amended Articles
of Incorporation of The Monarch Machine Tool Company be
amended in its entirety to read as follows:
"FIRST: The name of the corporation is GENESIS
WORLDWIDE INC."
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the 31st day of August, 1999.
/s/ Leo E. Dugdale III
-----------------------
Leo E. Dugdale III
Secretary
<PAGE> 2
1980 AMENDED ARTICLES OF INCORPORATION
OF
THE MONARCH MACHINE TOOL COMPANY
FIRST. The name of the corporation is THE MONARCH MACHINE TOOL
COMPANY.
SECOND. The place in Ohio where its principal office is
located is the City of Sidney, in Shelby County.
THIRD. The purpose or purposes for which the Company is formed
are:
(a) To develop, manufacture, assemble, distribute, sell,
lease, or otherwise dispose of, and to deal in or with machine tools,
machinery, and other products.
(b) To manufacture, to purchase, lease, or otherwise acquire,
to hold and use, to sell, lease, or otherwise dispose of, and to deal
in or with personal property of any description and any interest
therein.
(c) To purchase, lease, or otherwise acquire, to invest in,
hold, use, and encumber, to sell, lease, exchange, transfer, or
otherwise dispose of, and to construct, develop, improve, equip,
maintain, and operate structures and real property of any description
and any interest therein.
(d) To borrow money, to issue, sell, and pledge its notes,
bonds, and other evidences of indebtedness, to secure any of its
obligations by mortgage, pledge, or deed of trust of all or any of its
property, and to guarantee and secure obligations of any person, all to
the extent necessary, useful, or conducive to carrying out any of the
purposes of the Company.
(e) To invest its funds in any shares or other securities of
another corporation, business, or undertaking or of a government,
governmental authority, or governmental subdivision.
(f) To do whatever is deemed necessary, useful, or conducive
to carrying out any of the purposes of the Company and to exercise all
other authority enjoyed by corporations generally by virtue of the
provisions of the Ohio General Corporation Law.
FOURTH. The authorized number of shares of the Company is
12,500,000, consisting of 500,000 Preferred Shares without par value ("Preferred
Shares") and 12,000,000
<PAGE> 3
Common Shares without par value ("Common Shares"). The shares of each class
shall have the following express terms:
DIVISION A EXPRESS TERMS OF PREFERRED SHARES
1. The Preferred Shares may be issued from time to time in one
or more series. Each Preferred Share of any one series shall be identical with
each other share of the same series in all respects, except as to the date from
which dividends thereon shall be cumulative by reason of different dates of
issuance; and all Preferred Shares of all series shall rank equally and shall be
identical, except in respect of the terms which may be fixed by the Board of
Directors as hereinafter provided or which are fixed in Division A-1. Subject to
the provisions of sections 2 through 8 of this Division A, which provisions
shall apply to all Preferred Shares of all series, the Board of Directors is
hereby authorized to cause Preferred Shares to be issued in one or more series
and with respect to each such series, prior to the issuance thereof, to fix:
(a) The designation of the series, which may be by
distinguishing number, letter, or title.
(b) The number of shares of the series, which number the Board
of Directors may increase or decrease, except where otherwise provided
in the creation of the series.
(c) The dividend rate of the series.
(d) The dates on which dividends, if declared, shall be
payable and the dates, if any, from which dividends shall be
cumulative.
(e) The redemption rights and price or prices, if any, for
shares of the series.
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(g) Whether the shares of the series shall be convertible into
Common Shares and, if so, the conversion rate or rates or price or
prices and the adjustments thereof, if any, and all other terms and
conditions upon which conversions may be made.
(h) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution, or winding up
of the affairs of the Company.
(i) Restrictions (in addition to those set forth in sections
6(b) and 6(c) of this Division A) on the issuance of shares of the same
series or of any other class or series.
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The Board of Directors is authorized (as are the shareholders) to adopt from
time to time amendments to the Articles of Incorporation or Amended Articles of
Incorporation of the Company fixing, with respect to each such series, the
matters specified in clauses (a) through (i) of this section 1.
2. The holders of Preferred Shares of each series, in
preference to the holders of Common Shares and any other class of shares ranking
junior to the Preferred Shares, shall be entitled to receive, out of any funds
legally available and when and as declared by the Board of Directors, cash
dividends at the rate (and no more) for such series fixed in accordance with the
provisions of section 1 of this Division A or in Division A-1, payable quarterly
on the dates fixed for such series. Such dividends shall be cumulative from a
date specified, or non-cumulative, as fixed with respect to such series in
accordance with the provisions of section 1 of this Division A or in Division
A-1. No dividends may be paid upon or declared and set apart for any of the
Preferred Shares for any quarterly dividend period unless at the same time a
like proportionate dividend for the same quarterly dividend period, ratably in
proportion to the respective annual dividend rates fixed therefor, shall be
declared and paid or a sum sufficient for payment thereof set apart for the
Preferred Shares of all series.
3. So long as any Preferred Shares are outstanding, no
dividend (except a dividend payable in Common Shares or in other shares of the
Company ranking junior to the Preferred Shares) shall be paid or declared or any
distribution be made (except as aforesaid) in respect of the Common Shares or in
other shares of the Company ranking junior to the Preferred Shares, nor shall
any Common Shares or any other shares of the Company ranking junior to the
Preferred Shares be purchased, retired, or otherwise acquired by the Company
(except out of the proceeds of the sale of Common Shares or other shares of the
Company ranking junior to the Preferred Shares received by the Company
subsequent to December 31, 1967),
(a) Unless all accrued and unpaid dividends on the Preferred
Shares of all series, including the full dividends for the current
quarterly dividend period, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(b) Unless redemption of Preferred Shares of any Series shall
have been effected from, and any required payment shall have been made
into, any sinking fund provided for shares of such series in accordance
with the provisions of section 1 of this Division A.
4. (a) Subject to the express terms of each series and to the
provisions of section 6(b)(iii) of this Division A, the Company (i) may from
time to time redeem all or any part of the Preferred Shares of any series at the
time outstanding at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
section 1 of this Division A or in Division A-1, or (ii) shall from time to time
make such redemption of the Preferred Shares as may be required to fulfill the
requirements of any sinking fund provided for shares of such series at the
applicable sinking fund redemption price
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fixed in accordance with the provisions of section 1 of this Division A,
together, in each case, with accrued and unpaid dividends to the redemption
date.
(b) Notice of every redemption shall be mailed, by first class
mail, postage prepaid, to the holders of record of the Preferred Shares to be
redeemed, at their respective addresses then appearing on the books of the
Company, not less than 30 nor more than 60 days prior to the date fixed for
redemption. At any time before or after notice has been given as above provided,
the Company may deposit the aggregate redemption price of the Preferred Shares
to be redeemed, together with accrued and unpaid dividends thereon to the
redemption date, with any bank or trust company in Dayton, Cincinnati, or
Cleveland, Ohio, or New York, New York, having capital and surplus of more than
$5,000,000, named in such notice, directed to be paid to the respective holders
of the Preferred Shares so to be redeemed, in amounts equal to the redemption
price of all Preferred Shares so to be redeemed, together with accrued and
unpaid dividends thereon to the redemption date, on surrender of the share
certificate or certificates held by such holders, and upon the giving of such
notice and the making of such deposit such holders shall cease to be
shareholders with respect to such shares, and after such notice shall have been
given and such deposit shall have been made such holders shall have no claim
against the Company or privileges with respect to such shares except only to
receive such money from such bank or trust company without interest or the right
to exercise, before the redemption date, any unexpired rights or conversion. In
case less than all of the outstanding Preferred Shares of any series are to be
redeemed, the Company shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by its Board of Directors. If the holders of
Preferred Shares which shall have been called for redemption shall not, within
six years after such deposit, claim the amount deposited for the redemption of
their shares, any such bank or trust company shall, upon demand, pay over to the
Company such unclaimed amounts and thereupon such bank or trust company and the
Company shall be relieved of all responsibility in respect thereof and to such
holders.
(c) Any Preferred Shares which are redeemed by the Company
pursuant to the provisions of this section 4 of this Division A and any
Preferred Shares which are purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series and any Preferred
Shares which are converted in accordance with their express terms shall be
cancelled and not reissued. Any Preferred Shares otherwise acquired by the
Company shall be restored to the status of authorized and unissued Preferred
Shares without serial designation.
5. (a) The holders of Preferred Shares of any series shall, in
case of liquidation, dissolution, or winding up of the affairs of the Company,
be entitled to receive in full, out of the assets of the Company, including its
capital, before any amount shall be paid or distributed among the holders of
Common Shares or any other shares ranking junior to the Preferred Shares, the
amounts fixed with respect to shares of any such series in accordance with
section 1 of this Division A or in Division A-1, plus in any such event an
amount equal in all dividends accrued and unpaid thereon to the date of payment
of the amount due pursuant to such liquidation, dissolution, or winding up of
the affairs of the Company. In case the net assets of the
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Company legally available therefor are insufficient to permit the payment upon
all outstanding Preferred Shares of all series of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding Preferred Shares of all series in
proportion to the full preferential amount to which each such share is entitled.
After payment to holders of Preferred Shares of full preferential amounts as
aforesaid, holders of Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Company.
(b) The merger or consolidation of the Company into or with
any other corporation, or the merger of any other corporation into it, or the
sale, lease, or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to be a dissolution, liquidation,
or winding up of the Company for the purposes of this section 5 of this Division
A.
6. (a) The holders of Preferred Shares of all series shall be
entitled to one vote for each such share upon all matters presented to
shareholders; and, except as otherwise provided herein or required by law, the
holders of Preferred Shares of all series and the holders of Common Shares shall
vote together as one class on all matters. If, and as often as, the Company
shall be in default in the payment of the equivalent of six quarterly dividends
(whether or not consecutive) on any series of Preferred Shares at any time
outstanding, whether or not earned or declared, the holders of Preferred Shares
of all series voting separately as a class and in addition to all other rights
to vote for Directors shall thereafter be entitled to elect, as herein provided,
two members of the Board of Directors of the Company; provided, however, that
the special class voting rights provided for herein, when the same shall have
become vested, shall remain so vested until all accrued and unpaid dividends on
the Preferred Shares of all series then outstanding shall have been paid,
whereupon the holders of Preferred Shares shall be divested of their special
class voting rights in respect to subsequent elections of Directors, subject to
the revesting of such special class voting rights in the event hereinabove
specified in this section 6(a). In the event of default entitling the holders of
Preferred Shares to elect two Directors as above specified, a special meeting of
the shareholders for the purpose of electing such Directors shall be called by
the Secretary of the Company upon written request of, or may be called by, the
holders of record of the greater of 10% of the Preferred Shares of all series at
the time outstanding or 50,000 Preferred Shares, and notice thereof shall be
given in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Company shall not be required to call
such special meeting if the annual meeting of shareholders shall be held within
90 days after the date of receipt of the foregoing written request from the
holders of Preferred Shares. At any meeting at which the holders of Preferred
Shares shall be entitled to elect Directors, the holders of not less than the
greater of one-third of the outstanding Preferred Shares of all series or 50,000
Preferred Shares, present in person or by proxy, shall be sufficient to
constitute a quorum and the vote of the holders of a majority of such shares so
present at any such meeting at which there shall be a quorum shall be sufficient
to elect the members of the Board of Directors which the holders of Preferred
Shares are entitled to elect as hereinbefore provided. The two Directors who may
be elected by the holders of Preferred Shares pursuant to
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the foregoing provisions shall be in addition to any other Directors then in
office or proposed to be elected otherwise than pursuant to such provisions, and
nothing in such provisions shall prevent any change otherwise permitted in the
total number of Directors of the Company or require the resignation of any
Director elected otherwise than pursuant to such provisions.
(b) The affirmative vote or consent of the holders of at least
two-thirds of the then outstanding Preferred Shares of all series, given in
person or by proxy, either in writing or at a meeting called for the purpose at
which the holders of Preferred Shares of all series shall vote separately as a
class, shall be necessary to effect any one or more of the following (but,
insofar as the holders of Preferred Shares are concerned, such action may be
effected with such vote or consent):
(i) Any amendment, alteration, or repeal of any of
the provisions of the Articles of Incorporation or of the Regulations
of the Company which affects adversely the voting powers, rights, or
preferences of the holders of Preferred Shares; provided, however, that
for the purpose of this clause (i) only, neither the amendment of the
Articles of Incorporation of the Company to authorize, or to increase
the authorized or outstanding number of, Preferred Shares or of any
shares of any class ranking on a parity with or junior to the Preferred
Shares, nor the increase by the shareholders pursuant to the
Regulations of the number of Directors of the Company shall be deemed
to affect adversely the voting powers, rights, or preferences of the
holders of Preferred Shares; and provided further that, if such
amendment, alteration, or repeal affects adversely the rights or
preferences of one or more but not all then outstanding series of
Preferred Shares, only the affirmative vote or consent of the holders
of at least two-thirds of the number of the then outstanding shares of
the series so affected shall be required;
(ii) The authorization, or the increase in the
authorized number of, shares of any class ranking prior to the
Preferred Shares; or
(iii) The purchase or redemption (whether for sinking
fund purposes or otherwise) of less than all the then outstanding
Preferred Shares except in accordance with a purchase offer made to all
holders of record of Preferred Shares, unless all dividends on all
Preferred Shares then outstanding for all previous quarterly dividend
periods shall have been declared and paid or funds therefor set apart
and all accrued sinking fund obligations applicable to all Preferred
Shares shall have been complied with.
(c) The affirmative vote or consent of the holders of at least
a majority of the then outstanding Preferred Shares of all series, given in
person or by proxy, either in writing or at a meeting called for the purpose at
which the holders of Preferred Shares of all series shall vote separately as
class, shall be necessary (but insofar as the holders of Preferred Shares are
concerned, such action may be effected with such affirmative vote or consent) to
authorize any shares ranking on a parity with the Preferred Shares or an
increase in the authorized number of Preferred Shares.
-6-
<PAGE> 8
7. No holder of Preferred Shares of any series, as such, shall
have any pre-emptive right to purchase or subscribe for shares of the Company,
of any class, or other securities of the Company, of any class, whether now or
hereafter authorized.
8. For the purposes of this Division A:
(a) Whenever reference is made to shares "ranking prior to the
Preferred Shares," such reference shall mean and include all shares of
the Company in respect of which the rights of the holders thereof as to
the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution, or winding up of the
affairs of the Company are given preference over the rights of the
holders of Preferred Shares.
(b) Whenever reference is made to shares "ranking on a parity
with the Preferred Shares," such reference shall mean and include all
shares of the Company in respect of which the rights of the holders
thereof as to the payment of dividends and as to distributions in the
event of a voluntary or involuntary liquidation, dissolution, or
winding up of the affairs of the Company rank on an equality with the
rights of the holders of Preferred Shares.
(c) Whenever reference is made to shares "ranking junior to
the Preferred Shares," such reference shall mean and include all shares
of the Company other than those defined under clauses (a) and (b) of
this section 8 as shares "ranking prior to" or "ranking on a parity
with" the Preferred Shares.
DIVISION A-1
EXPRESS TERMS OF $1.80 CUMULATIVE
CONVERTIBLE PREFERRED SHARES, SERIES A
There is hereby established a first series of Preferred Shares
to which the following shall be applicable:
Section 1. DESIGNATION OF SERIES. The series shall be
designated "$1.80 Cumulative Convertible Preferred Shares, Series A"
(hereinafter called "Series A Preferred Shares").
Section 2. NUMBER OF SHARES. The number of Series A Preferred
Shares initially fixed is 117,734, which number the Board of Directors may
increase or decrease (but not below the number of shares of the series then
outstanding).
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<PAGE> 9
Section 3. DIVIDEND RATE. The dividend rate for Series A
Preferred Shares is $1.80 per share per annum.
Section 4. DIVIDEND PAYMENT DATES; CUMULATIVE DATES. The dates
at which dividends on the Series A Preferred Shares shall be payable are March
1, June 1, September 1, and December 1 of each year. Dividends on Series A
Preferred Shares shall be cumulative as follows:
(a) In the case of shares issued during the period commencing
immediately after the record date for the payment of a dividend and
terminating at the close of the payment date for such dividend,
dividends shall be cumulative from such last-mentioned dividend payment
date.
(b) In all other cases dividends shall be cumulative from the
dividend payment date next preceding the date of issuance of such
shares.
Section 5. REDEMPTION PRICE. The redemption price for the
Series A Preferred Shares shall be $40.00 per share.
Section 6. CONVERSION RIGHTS.
(a) [These 1980 Amended Articles of Incorporation give effect
to adjustments of the conversion price of the Series A Preferred Shares
occurring prior to the filing of these 1980 Amended Articles of Incorporation
with the Ohio Secretary of State and delete provisions in the express terms of
the Series A Preferred Shares that are no longer applicable at the time of the
filing.] The holder of Series A Preferred Shares shall be entitled at any time
(but in the case of such shares which have been called for redemption, such
right shall expire at the close of business on the date fixed for such
redemption, unless default shall be made in the deposit of the redemption
price), to convert, in the manner hereinafter provided (giving to Series A
Preferred Shares for the purpose hereof a value of $39.60 per share) into fully
paid and nonassessable Common Shares at the conversion price of $9.90 for each
Common Share. The conversion price of the Common Shares shall be subject to
adjustment from time to time in certain instances, as hereinafter provided;
provided, however, that no adjustment under paragraph (b) of this Section 6 of
the conversion price shall be made unless such adjustment with any other
adjustments not yet made by reason of this proviso would result in a change of
at least fifty cents in the conversion price in effect.
(b) Except as otherwise hereinafter provided, whenever the
Company shall issue Common Shares (which term shall not include the sale of
treasury shares) in excess of the number of Common Shares theretofore issued and
outstanding without receiving therefor a consideration per share at least equal
to the conversion price per Common Share in effect immediately prior to such
issuance, then, upon such issuance, the conversion price per Common Share shall
be adjusted to the price obtained by:
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<PAGE> 10
(i) Multiplying the number of Common Shares
constituting issued and outstanding shares when the conversion price
then in effect became effective by the conversion price then in effect;
(ii) Adding to the product the total amount of
consideration, if any, received by the Company for the issuance of such
additional Common Shares and for all other issuances of Common Shares
subsequent to the time when the conversion price then in effect became
effective; and
(iii) Dividing the sum so obtained by the total
number of Common Shares constituting issued and outstanding shares
immediately after the issuance of such additional Common Shares,
disregarding in the quotient so obtained fractions of one cent.
(c) For the purpose of making the computations
described in paragraph (b) of this section 6, the following provisions shall be
applicable:
(i) Common Shares issued as a stock dividend or split
and Common Shares issued to change or replace issued Common Shares
shall, except for any money or other property also received by the
Company therefor, be deemed to have then issued for a consideration of
no value.
(ii) Common Shares issued for money or in
extinguishment of debts or obligations of the Company shall be deemed
to have been issued for a consideration equal to the money received by
the Company and the amount of any debt or obligation so extinguished,
plus such reasonable commissions and discounts for the underwriting or
marketing thereof as may have been deducted from the money which
otherwise would have been received by the Company or from the amount of
the debt or obligation which would have been extinguished.
(iii) Common Shares issued for property other than
cash shall be deemed to have been issued for a consideration equal to
the fair value of such property as determined by the Board of Directors
of the Company, plus such reasonable commissions for the underwriting
or marketing of such Common Shares as may have been charged to the
Company or deducted from the property which otherwise would have been
received by the Company.
(iv) In case the Company shall in any manner issue or
sell any shares or obligations (other than the presently authorized
Series A Preferred Shares) which, at the option of the holder thereof,
may be converted into or may be replaced by Common Shares at a price
less than the conversion price in effect immediately prior to the
issuance or sale of such convertible shares or obligations, such
issuance or sale shall be deemed to be an issuance or sale (as of the
date of the issuance or sale of such convertible shares or obligations)
of the maximum number of Common Shares necessary to effect the
-9-
<PAGE> 11
conversion or replacement of all such convertible shares or obligations
and the amount received by the Company as the consideration for the
issuance or sale of such convertible shares or obligations plus the
total amount or additional consideration, if any, payable to the
Company on conversion or replacement (plus such reasonable commissions
and discounts for the underwriting or marketing of such convertible
shares or obligations as may have been charged to the Company or
deducted from the consideration which otherwise would have been
received by the Company) shall be deemed to be consideration actually
received for the issuance or sale of such Common Shares, and such
Common Shares shall be deemed to constitute issued and outstanding
Common Shares as of said date; provided, however, that no further
adjustment of the conversion price shall be made upon the actual
issuance of any Common Shares to effect such conversion or replacement;
and provided further that, if any such convertible shares or
obligations shall be retired by the Company or otherwise cancelled
without the issuance of any Common Shares to effect the conversion or
replacement above provided, a computation as aforesaid shall again be
made in the same manner as though the convertible shares or
obligations, to the extent so retired or cancelled, had not been issued
or sold.
(v) In case the Company shall grant any right or
option (expiring more than 21 days from the date of the grant thereof)
to subscribe for or purchase any Common Shares at a price less than the
conversion price in effect immediately prior to the granting of such
options or rights; such grant shall, except as provided in clause (vi)
below, be deemed to be an issuance (as of the date of the granting of
such right or option) of the maximum number of Common Shares issuable
upon the exercise of such right or option, and the amount, if any,
received by the Company as the consideration for the granting of such
right or option plus the total amount of additional consideration, if
any, payable to the Company upon the exercise of such right or option
(plus such reasonable commissions and discounts for the underwriting or
marketing of such right or option as may have been charged to the
Company or deducted from the consideration which otherwise would have
been received by the Company) shall be deemed to be the consideration
actually received for the issuance of such Common Shares, and such
Common Shares shall be deemed to constitute issued and outstanding
Common Shares as of said date; provided, however, that no further
adjustment of the conversion price shall be made upon the actual
issuance of any Common Shares upon the exercise of any such right or
option; and provided further that, if any such rights or options shall
be terminated or shall expire without being fully exercised, a
computation as aforesaid shall again be made in the same manner as
though the rights or options, to the extent that they remain
unexercised, had not been granted.
(vi) Common Shares issued pursuant to any employee
stock option plan, employee stock purchase plan, or similar plan of the
Company in existence on the date of the first issuance of Series A
Preferred Shares or thereafter approved at a meeting of shareholders of
the Company by the vote of the holders of a majority of the shares
-10-
<PAGE> 12
entitled to vote shall be deemed to have been issued for a
consideration equal to the conversion price in effect at the time of
issuance thereof.
(vii) Common Shares issued upon conversion of a
Series A Preferred Shares shall be deemed to have been issued for a
consideration equal to the conversion price in effect at the time of
issuance thereof.
(d) In the event that shares of any class (other than
Common Shares) are issued by way of a stock divided on outstanding Common
Shares, then, in addition to any Common Shares receivable upon exercise of the
conversion rights to the Series A Preferred Shares, the holder of a Series A
Preferred Share (entitled to receive a specified number of shares of the first
mentioned class were such Series A Preferred Share converted immediately prior
to the declaration and issuance of the stock dividend) shall, upon such exercise
of the conversion rights of the Series A Preferred Shares, be entitled to
receive the same number of the first mentioned class and/or shares of any class
issued successively thereon as a stock dividend and/or any shares issued
successively upon any exchange, replacement, subdivision, or combination
thereof. No adjustment in the conversion price shall be made merely by virtue of
the happening of any event specified in this paragraph (d).
(e) Upon conversion of the Series A Preferred Shares,
no adjustment shall be made for any dividends on the Series A Preferred Shares,
or for any dividends on the shares into which the Series A Preferred Shares are
converted.
(f) In the event that the Company shall effect any
capital reorganization or reclassification of its shares or shall consolidate or
merge with or into any other corporation, involving in any such case the
issuance or delivery to the holders of Common Shares of other stock (or
securities or assets), then in any one or more of such events the Company shall
give notice thereof by mail as hereinafter provided, which notice shall state
the date as of or after which such transaction shall take place and the date as
of which holders of Common Shares shall be entitled to replace their Common
Shares with stock (and other securities and assets, if any) pursuant to such
reclassification, reorganization, merger, or consolidation, to the end that the
holders of the Series A Preferred Shares may at their option on or before the
date so specified surrender them for conversion and thereby be entitled in
respect of the Common Shares issuable upon such conversion to receive such stock
(and other securities and assets, if any), to the same extent and on the same
basis as other holders of Common Shares. The notice herein required to be given
shall be sufficiently given if the Company shall mail a copy thereof to the
holders of the Series A Preferred Shares at their addresses as shown by the
books of the Company, first class, postage prepaid. Such written notice shall be
mailed not less than 30 days before the proposed effective date of any such
transaction and not less than 30 days before the date as of which holders of
Common Shares shall be entitled to replace their Common Shares with stock or
securities pursuant to such reclassification, reorganization, merger, or
consolidation.
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<PAGE> 13
(g) In the event that the Company shall effect any
capital reorganization or reclassification of its shares or shall consolidate or
merge with or into any other corporation or shall sell all or substantially all
of its property as an entirety, lawful provision shall be made as part of the
terms of such transaction that the holders of Series A Preferred Shares may then
or thereafter receive in lieu of each Common Share otherwise issuable to them
upon conversion of the Series A Preferred Shares (but at the conversion price
which would otherwise be in effect at the time of conversion and with the same
protection against dilution, all as herein provided), the same kind and amount
of stock (and other securities and assets, if any) as may be issuable or
distributable upon such transaction with respect to each outstanding Common
Share, and after such transaction the conversion rights of the holders of the
Series A Preferred Shares shall be merely to receive such stock (and other
securities and assets, if any). The foregoing provisions shall similarly apply
to successive transactions of a similar nature by any such successor or
purchaser.
(h) Whenever there shall be any issuance of Common
Shares or there shall happen any other event as a consequence of which the
conversion price of the Common Shares or the conversion rights of the Series A
Preferred Shares shall be altered or varied, the Company shall forthwith file
with the Transfer Agent for the Series A Preferred Shares a statement describing
specifically such issuance of Common Shares or such other event (and, in the
case of a reorganization, reclassification, consolidation, merger, or sale, the
terms thereof) and the adjusted conversion price resulting from such event and
the change, if any, in the stock (and other securities and assets, if any)
issuable or distributable upon conversion. The Transfer Agent may receive and
file such statements without responsibility on its part for the matters therein
recited and as conclusive evidence of the facts therein stated.
(i) When the exercise of the conversion rights of the
Series A Preferred Shares shall result in a fraction of a Common Share issuable
upon such conversion, the Company shall not issue a fractional share but in lieu
thereof shall make a cash adjustment in respect thereof on the basis of the then
existing conversion price of the Common Shares.
(j) Any holder of a Series A Preferred Share desiring
to exercise the right of conversion shall surrender to the Company at the office
of the Transfer Agent (or at the principal office of the Company if, at the time
of such conversion, there be no transfer agent for the Series A Preferred
Shares) the certificate evidencing the Series A Preferred Shares so to be
converted, duly endorsed for transfer to the Company or accompanied by an
appropriate separate instrument of assignment; and promptly thereafter the
Company shall issue and deliver a stock certificate representing the full Common
Shares into which such Series A Preferred Shares shall have been so converted
together with cash adjustments in lieu of fractional shares and certificates
representing any shares to which such holder shall be entitled by reason of the
provisions of paragraph (g) of this section 6, under all suitable regulations to
be prescribed by the Company's Board of Directors. The issuance of the Common
Shares and the issuance of any such other shares shall be as of the date of the
surrender, as aforesaid, of the certificate evidencing the Series A Preferred
Share for conversion, notwithstanding any delay in the delivery of the
certificate for
-12-
<PAGE> 14
the Common Shares into which such Series A Preferred Shares shall have been so
converted or in the delivery of certificates for any such other shares. The
Company shall pay any and all taxes which may be imposed in respect to the
issuance and delivery of the Common Shares (and any such other shares) issuable
upon conversion of Series A Preferred Shares; provided, however, that the
Company shall not be required in any event to pay any transfer or other taxes by
reason of the issuance of such Common Shares (or any such other shares) in a
name or names other than the name of the owner of the Series A Preferred Share
surrendered for conversion.
(k) The Company shall reserve and keep available out
of its authorized but unissued shares, solely for the purpose of delivery upon
exercise of the conversion rights provided in this section 6, such number of
shares as shall from time to time be sufficient to effect the conversion of all
of the Series A Preferred Shares then outstanding. The Company shall from time
to time, in accordance with the laws of the State of Ohio, increase the
authorized number of shares at any time the number of shares remaining unissued
and available for effecting conversion of Series A Preferred Shares shall not be
sufficient to permit the conversion of all then outstanding Series A Preferred
Shares.
(l) All Series A Preferred Shares surrendered for
conversion into the Common Shares shall be cancelled and not again issued.
Section 7. LIQUIDATION RIGHTS. The amount payable on
Series A Preferred Shares in the event of any voluntary liquidation,
dissolution, or winding up of the affairs of the Company shall be $40.00 per
share.
FIFTH. The Company, by action of its directors, and without
action by its shareholders, may purchase its own shares, of any class or series,
in accordance with the provisions of the Ohio General Corporation Law, either in
the open market or at public or private sale, in such manner and amounts, from
such holder or holders of outstanding shares of the Company, and at such prices
as the Directors shall from time to time determine, subject, however, to such
limitation or restriction, if any, as may be contained in the express terms of
any class or series of shares of the Company outstanding at the time of such
purchase.
SIXTH. No holder of shares of the Company or any class, as
such, shall have any pre-emptive right to purchase or subscribe for shares of
the Company, of any class, or other securities of the Company, of any class,
whether now or hereafter authorized.
SEVENTH. These Amended Articles of Incorporation supersede and
take the place of the existing Articles of Incorporation of the Company.
-13-
<PAGE> 1
Exhibit 4.3
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
As Amended and Restated
Effective January 1, 2000
<PAGE> 2
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
------- ----
<S> <C> <C>
ARTICLE I - NAME, PURPOSE, LEGAL STATUS........................................... 1
Name..................................................................... 1.01 1
Purpose.................................................................. 1.02 1
ERISA Top Plan........................................................... 1.03 1
Code Unfunded Plan....................................................... 1.04 1
Grantor Trust............................................................ 1.05 1
ARTICLE II - DEFINITIONS.......................................................... 2
ARTICLE III - PLAN PARTICIPATION.................................................. 4
Participant.............................................................. 3.01 4
Continued Participation.................................................. 3.02 4
ARTICLE IV - DEFERRAL ELECTIONS................................................... 5
Salary................................................................... 4.01 5
Bonus.................................................................... 4.02 5
Election Terms and Conditions............................................ 4.03 6
Company Savings Plan..................................................... 4.04 6
New Eligible Employees................................................... 4.05 7
2000 Plan Year........................................................... 4.06 7
Trust.................................................................... 4.07 8
ARTICLE V - EMPLOYER CONTRIBUTIONS................................................ 9
Employer Contributions................................................... 5.01 9
Prior Employer Contributions............................................. 5.02 9
Trust.................................................................... 5.03 9
ARTICLE VI - DEFERRED COMPENSATION ACCOUNTS....................................... 10
Deferred Compensation Account............................................ 6.01 10
Vesting.................................................................. 6.02 10
Investment Selections, Experience........................................ 6.03 10
Administration Expenses.................................................. 6.04 11
ARTICLE VII - TRUST............................................................... 12
Trust.................................................................... 7.01 12
Plan Applicable Trust.................................................... 7.02 12
Trust Fund............................................................... 7.03 12
Investments.............................................................. 7.04 12
ARTICLE VIII - DISTRIBUTIONS...................................................... 13
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
Distributions............................................................ 8.01 13
Retirement Installments.................................................. 8.02 13
Plan Termination, Change in Control, Etc................................. 8.03 13
Change in Control........................................................ 8.04 13
Source of Benefits, Withholding.......................................... 8.05 14
ARTICLE IX - ADMINISTRATION....................................................... 15
General.................................................................. 9.01 15
Company.................................................................. 9.02 15
Plan Administrator....................................................... 9.03 15
Indemnity................................................................ 9.04 15
Claims Procedure......................................................... 9.05 15
ARTICLE X - AMENDMENT OR TERMINATION.............................................. 16
Amendment or Termination................................................. 10.01 16
ARTICLE XI - MISCELLANEOUS PROVISION.............................................. 17
No Guarantee of Employment............................................... 11.01 17
Non-Assignability of Benefits............................................ 11.02 17
Rules of Construction.................................................... 11.03 17
Governing Law............................................................ 11.04
17
</TABLE>
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<PAGE> 4
EXHIBIT A--HISTORY OF PLAN
EXHIBIT B--EMPLOYERS, EFFECTIVE JANUARY 1, 2000
EXHIBIT C--COMPENSATION COMMITTEE DELEGATION
-iii-
<PAGE> 5
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
ARTICLE I
NAME, PURPOSE, LEGAL STATUS
---------------------------
1.01 NAME. The Plan shall be known as the Genesis Worldwide Inc.
Non-Qualified Deferred Compensation Plan. The history of the Plan is contained
in EXHIBIT A.
1.02 PURPOSE. The Plan is intended to permit certain select management
and highly compensated employees to defer the receipt of compensation to
Termination of Employment or Retirement in accordance with the terms of the
Plan.
1.03 ERISA TOP PLAN. The Plan is a plan which is unfunded and
maintained primarily for the purpose of providing a deferred compensation plan
for a select group of management or highly compensated employees, within the
meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
1.04 CODE UNFUNDED PLAN. The Plan is an unfunded deferred compensation
plan, with taxability thereof governed by Section 451 of the Internal Revenue
Code of 1986, as amended (the "Code") and not Section 83 of the Code.
1.05 GRANTOR TRUST. The Plan has an associated trust known as the
Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan Trust, formerly
known as the Salem Corporation Nonqualified Deferred Compensation Plan Trust,
dated March 6, 1996 (the "Trust"). The Trust is a grantor trust under Sections
671 and 677 of the Code. The trust agreement for the Trust is based on the model
agreement under IRS Rev. Proc. 92-64 (commonly known as a "rabbi trust"). The
Trust is irrevocable. Pursuant to Section 7.01, the Plan Sponsor reserves the
right to discontinue funding the Trust with respect to future amounts under the
Plan.
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<PAGE> 6
ARTICLE II
DEFINITIONS
-----------
2.01 "Beneficiary" means the person, entity or entities designated by
the Participant to receive the balance of the Participant's Deferred
Compensation Account in the event of the Participant's death (or, in the absence
of an effective designation, his estate).
2.02 "Bonus" means any bonus payable to an Eligible Employee by any
Employer for services rendered to the Employer. A Bonus shall not be considered
to include a signing bonus, severance pay or extraordinary compensatory
payments.
2.03 "Code" means the Internal Revenue Code of 1986, as amended.
2.04 "Company" means Genesis Worldwide Inc.
2.05 "Company Savings Plan" means the Genesis Worldwide Inc. 401(k)
Savings Plan or any other qualified section 401(k) savings plan maintained by
the Company or an Employer in which an Eligible Employee is (or will be)
eligible to participate.
2.06 "Deferral Election" means an election by an Eligible Employee to
defer Salary and/or Bonus under Sections 4.01 and 4.02 and otherwise in
accordance with the provisions of the Plan.
2.07 "Deferred Amounts" means the amount of Salary and/or Bonus
deferred under the Plan pursuant to a Deferral Election.
2.08 "Deferred Compensation Account" means the account established and
maintained by the Plan Administrator and the Employers under Article VII for a
Participant's Deferred Amounts and Employer Contributions, if any.
2.09 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
2.10 "Eligible Employee" means an Employee who is (i) a select group of
management or highly compensated employee, within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA and (ii) is a President or Vice
President of an Employer or specifically designated by name by the Company as
eligible for participation in the Plan.
2.11 "Employee" means a common law employee of an Employer.
2.12 "Employer" means the Company and any affiliated entity of the
Company designated by the Company as a participating employer of the Plan. The
current Employers of the Plan are listed in EXHIBIT B.
2.13 "Employer Contribution" means any contributions to the Plan made
by an Employer pursuant to Article V.
2.14 "Participant" means an individual who becomes a participant of the
Plan pursuant to Section 3.01 and continues to be a participant under Section
3.02.
2.15 "Plan" means the Genesis Worldwide Inc. Non-Qualified Deferred
Compensation Plan, as set forth herein and as amended from time to time.
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<PAGE> 7
2.16 "Plan Administrator" means the Plan Sponsor. The Benefits
Committee of the Company shall have the rights, and fulfill the obligations and
responsibilities, of the Plan Administrator under the Plan.
2.17 "Plan Sponsor" means the Company. The Compensation Committee of
the Board of Directors of the Company shall have all authority of the Company
under the Plan.
2.18 "Plan Year" means the calendar year.
2.19 "Restatement Effective Date" of this amendment and restatement
means January 1, 2000. The original effective date of the Plan is January 1,
1996.
2.20 "Retirement" means the Participant's Termination of Employment on
or after his 55th birthday.
2.21 "Salary" means the gross compensation (including commissions)
payable to an Eligible Employee by any Employer for services rendered to the
Employer, exclusive of Bonuses, moving expense amounts and other supplemental
forms of compensation. Salary shall not be considered to include severance pay
or extraordinary compensatory payments.
2.22 "Termination of Employment" means the Participant's voluntary or
involuntary termination of employment with his Employer, the Company and all
their affiliates, for any reason (other than death).
2.23 "Trust" means the Genesis Worldwide Inc. Non-Qualified Deferred
Compensation Plan Trust, formerly known as the Salem Corporation Nonqualified
Deferred Compensation Plan Trust, dated March 6, 1996, as set forth in the trust
agreement therefor, and as amended from time to time.
2.24 "Trustee" means the trustee of the Trust. Currently, the Trustee
of the Trust is Bankers Trust Company.
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<PAGE> 8
ARTICLE III
PLAN PARTICIPATION
------------------
3.01 PARTICIPANT. An individual shall become a Participant of the Plan
pursuant to the following provisions:
(a) PRIOR PARTICIPANT. A participant of the Plan prior to the
Restatement Effective Date who has an undistributed benefit under the
Plan as of the Restatement Effective Date shall become a Participant on
the Restatement Effective Date.
(b) CURRENT ELIGIBLE EMPLOYEE. An Eligible Employee as of the
Restatement Effective Date shall become a Participant on the
Restatement Effective Date.
(c) NEW ELIGIBLE EMPLOYEE. Any other Eligible Employee shall
become a Participant on the effective date of his designation by the
Company as an Eligible Employee.
3.02 CONTINUED PARTICIPATION. A Participant under Section 3.01 shall
continue to be a Participant until such time as his Deferred Account has been
completely distributed to him or his Beneficiary.
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<PAGE> 9
ARTICLE IV
DEFERRAL ELECTIONS
------------------
4.01 SALARY. For each Plan Year, a Participant who is an Eligible
Employee may make a Deferral Election with respect to his Salary for the Plan
Year pursuant to Sections 4.03 and 4.04 and the following provisions:
(a) ELECTION AMOUNT. The Participant may make a Deferral
Election to defer under the Plan an amount not to exceed 25% of his
Salary for the Plan Year. As used in this Article, the Salary "for" or
"of" the Plan Year shall refer to the Salary of the Participant which
is (i) attributable to his services rendered for the Employer during
the Plan Year and (ii) otherwise payable to him within the Plan Year.
(b) DEFERRED AMOUNTS. The Deferred Amounts of his Salary under
subsection (a) shall be deferred under the Plan from and with respect
to the portion of his Salary for the remainder of the Plan Year payable
after the date of his contribution of the maximum elective
contributions to the Company Savings Plan. The Plan Administrator shall
calculate, consistent with his Deferral Election under subsection (a),
the specific monthly amounts and frequency of the Deferred Amounts of
his Salary for the remainder of the Plan Year.
(c) DEFERRED COMPENSATION ACCOUNT. The Deferred Amounts of
Salary shall be credited to the Participant's Deferred Compensation
Account as soon as practicable after the time of deferral of the
Deferred Amounts under subsection (b).
4.02 BONUS. For each Plan Year, a Participant who is an Eligible
Employee may make a Deferral Election with respect to his Bonus for the Plan
Year pursuant to Sections 4.03 and 4.04 and the following provisions:
(a) ELECTION AMOUNT. The Participant may make a Deferral
Election to defer under the Plan an amount not to exceed 85% of his
Bonus for the Plan Year. As used in this Article, the phrase Bonus
"for" or "of" the Plan Year shall refer to the Bonus (if any) of the
Participant which is (i) attributable to his services rendered for the
Employer during the Plan Year and (ii) otherwise payable to him within
or shortly after the Plan Year.
(b) DEFERRED AMOUNT. The Deferred Amount of his Bonus under
subsection (a) shall be deferred under the Plan from and with respect
to the Bonus for the Plan Year at the time otherwise payable to the
Participant (and without regard to whether, at such time, he has
contributed the maximum elective contributions to the Company Savings
Plan). The Plan Administrator shall calculate, consistent with his
Deferral Election under subsection (a), the exact amount of the
Deferred Amount of his Bonus for the Plan Year.
(c) DEFERRED COMPENSATION ACCOUNT. The Deferred Amount of
Bonus shall be credited to the Participant's Deferred Compensation
Account as soon as practicable after the time of deferral of the
Deferred Amount under subsection (b).
4.03 ELECTION TERMS AND CONDITIONS. A Participant's Deferral Election
of Salary or Bonus shall be subject to the following terms and conditions:
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<PAGE> 10
(a) TIME, MANNER OF ELECTION. The Deferral Election must be
(i) in writing, (ii) irrevocable and (iii) made, and received by the
Plan Administrator, during the 30 day period ending on the December 31
immediately preceding the Plan Year of the Salary and Bonus.
(b) DEFERRED PAYMENT. The Deferral Election must specify that
the Deferred Amounts of Salary and Bonus, as maintained under his
Deferred Compensation Account, shall be payable at the time and manner
as provided under Article VIII.
(c) UNFUNDED, UNSECURED PROMISE. The Deferral Election must
acknowledge that his Deferred Compensation Account is (i) unfunded,
(ii) represents an unsecured promise to pay benefits in the future and
(iii) is subject to the claims of general creditors of his Employer.
(d) INVESTMENT SELECTIONS. The Deferral Election must contain
(or incorporate by reference) the specific investment selections made
by the Participant for the Deferred Amounts of Salary and Bonus, as
maintained under his Deferred Compensation Account, under Section
6.03(b) (regarding a Participant's selection of alternative investments
for the measurement of earnings and losses on the Deferred Amounts).
(e) INVESTMENT EXPERIENCE. The Deferral Election must
acknowledge that (i) the Participant has no right to the assets of the
Plan or Trust attributable to the investment alternatives of his
investment selections and (ii) the earnings or loss credited or charged
on the Deferred Amounts of Salary and Bonus, as maintained under his
Deferred Compensation Account, shall be determined on the basis of the
investment experience of his investments selections made for the
Deferred Amounts under Section 6.03(e) (regarding determination of
investment experience).
4.04 COMPANY SAVINGS PLAN. A Participant's Deferral Election of Salary
or Bonus shall be subject to the following terms and conditions concerning the
Company Savings Plan:
(a) MAXIMUM ELECTION. If the Participant is (or will be)
eligible under the Company Savings Plan during the Plan Year that any
Deferred Amounts of Salary or Bonus would be otherwise payable to him,
then, on the date of his Deferral Election (of either Salary or Bonus),
the Participant must have in effect with his Employer an election to
make the maximum possible elective contributions under the Company
Savings Plan (i) for each such Plan Year and (ii) thereby from all
eligible compensation under the Company Savings Plan for such Plan
Years (including therefore any Bonus payable during the Plan Year).
(b) SALARY DEFERRAL ELECTION, HIGHEST RATE. If the Participant
makes a Deferral Election of Salary, the Participant's maximum election
of elective contributions under subsection (a) must further provide
that the elective contributions shall be made to the Company Savings
Plan at the highest and most immediate rate of contribution permitted
under the Company Savings Plan.
(c) MODIFICATION OF SAVINGS PLAN ELECTION. In the event that
the Participant, after the date of his Deferral Election, modifies his
election of elective contributions under the Company Savings Plan, the
amount of his Deferral Elections of his Salary or Bonus under Sections
4.01(a) and 4.02(a) shall not change (notwithstanding any implication
of subsections (a) and (b) hereof). However, the Plan Administrator
shall modify, to the extent
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<PAGE> 11
necessary and in its discretion, the amount and frequency of his
Deferred Amounts of Salary for the Plan Year in a manner to comply with
the amount of his Deferral Election under Section 4.01(a),
notwithstanding Section 4.01(b) (regarding time of Deferred Amounts
after making the maximum elective contributions under the Company
Savings Plan).
4.05 NEW ELIGIBLE EMPLOYEES. A Participant who first becomes an
Eligible Employee during a Plan Year may make a Deferral Election under Section
4.01 and/or 4.02 for the Plan Year, with the following modifications:
(a) TIME OF ELECTION. Notwithstanding Section 4.03(a)(iii)
(regarding the December 31 deadline for Deferral Elections), the
Participant's Deferral Election must be made during the 30 day period
beginning with date on which he first became a Participant of the Plan.
(b) SALARY ELECTION AMOUNT. Notwithstanding Section 4.01(a)
(regarding election amounts of Salary), the Participant may make a
Deferral Election to defer under the Plan an amount not to exceed 25%
of his remaining Salary for the Plan Year for services after the date
of his Deferral Election.
(c) BONUS ELECTION AMOUNT. Consistent with Section 4.02(a)
(regarding election amounts of Bonuses), the Participant may make a
Deferral Election to defer under the Plan an amount not to exceed 85%
of his Bonus for the Plan Year.
(d) COMPANY SAVINGS PLAN. Notwithstanding Section 4.04(a)(ii)
(regarding the maximum election from all eligible compensation under
the Company Savings Plan), the Participant's maximum election under the
Company Savings Plan shall apply only to eligible compensation under
the Company Savings Plan payable after the date of his Deferral
Election.
The remaining provisions of this Article shall apply to the Participant's
Deferral Election and Deferred Amounts thereunder.
4.06 2000 PLAN YEAR. For the Plan Year ending on December 31, 2000 (the
"2000 Plan Year"), a Participant who is an Eligible Employee may make a Deferral
Election under Section 4.01 and/or 4.02 for the 2000 Plan Year, with the
following modifications:
(a) TIME OF ELECTION. Notwithstanding Section 4.03(a)(iii)
(regarding the December 31 deadline for Deferral Elections), the
Participant's Deferral Election must be made during the period from
April 7, 2000 (or, if later, the date of distribution of offering
materials under the Plan) through April 30, 2000.
(b) SALARY ELECTION AMOUNT. Notwithstanding Section 4.01(a)
(regarding election amounts of Salary), the Participant may make a
Deferral Election to defer under the Plan an amount not to exceed 25%
of his remaining Salary for the 2000 Plan Year for services on and
after May 1, 2000.
(c) BONUS ELECTION AMOUNT. Consistent with Section 4.02(a)
(regarding election amounts of Bonuses), the Participant may make a
Deferral Election to defer under the Plan an amount not to exceed 85%
of his Bonus for the Plan Year.
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<PAGE> 12
(d) COMPANY SAVINGS PLAN. Notwithstanding Section 4.04(a)(ii)
(regarding the maximum election from all eligible compensation under
the Company Savings Plan), the Participant's maximum election under the
Company Savings Plan shall apply only to eligible compensation under
the Company Savings Plan payable on or after May 1, 2000.
The remaining provisions of this Article shall apply to the Participant's
Deferral Election and Deferred Amounts thereunder.
4.07 TRUST. With respect to the Deferred Amounts of Salary and/or Bonus
made to the Plan under Sections 4.01(b) and 4.02(b), the Plan Sponsor may direct
a Participant's Employer to (i) transfer cash equal to the Deferred Amounts to
the Trustee for the Trust, (ii) transfer cash equal to the Deferred Amounts to a
trustee of a separate grantor trust under Sections 671 and 677 of the Code
established with respect to the Plan or (iii) retain the Deferred Amounts with
the Employer.
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<PAGE> 13
ARTICLE V
EMPLOYER CONTRIBUTIONS
----------------------
5.01 EMPLOYER CONTRIBUTIONS. For any Plan Year, the Company, in its
sole discretion, may authorize an Employer Contribution to the Plan for any
particular Participant or group of Participants pursuant to the following
provisions:
(a) AMOUNT. The amount of the Employer Contribution may be any
amount determined by the Company with respect to the Participant or
group of Participants.
(b) DEFERRED COMPENSATION ACCOUNT. The Employer Contribution
under subsection (a) shall be credited to the Participant's Deferred
Compensation Account as of the date specified by the Company therefor.
(c) DEFERRED PAYMENT. The Employer Contribution, as credited
to the Participant's Deferred Compensation Account, shall be payable at
the time and manner as provided under Article VIII.
5.02 PRIOR EMPLOYER CONTRIBUTIONS. Any Employer Contributions made
prior to the Restatement Effective Date shall be held under the Plan and
credited in the Deferred Compensation Account of the Participant for whom the
Employer Contribution was made to the Plan. The foregoing Employer Contributions
are held in the Trust.
5.03 TRUST. With respect to the Employer Contributions under Section
5.01, the Plan Sponsor may direct a Participant's Employer to (i) transfer cash
equal to the Employer Contributions to the Trustee for the Trust, (ii) transfer
cash equal to the Employer Contributions to the trustee of a separate grantor
trust under Sections 671 and 677 of the Code established with respect to the
Plan or (iii) retain the Deferred Amounts with the Employer.
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<PAGE> 14
ARTICLE VI
DEFERRED COMPENSATION ACCOUNTS
------------------------------
6.01 DEFERRED COMPENSATION ACCOUNT. The Plan Administrator and each
Employer of a Participant shall establish and maintain a Deferred Compensation
Account for the Participant pursuant to the following provisions:
(a) UNFUNDED, UNSECURED PROMISE. The Deferred Compensation
Account shall be (i) established and maintained within the Employer's
general assets and (ii) reflected in the financial statements of the
Employer as an unfunded and unsecured promise to pay amounts thereof in
future to the Participant.
(b) ACCOUNTING, MAINTENANCE. The Deferred Compensation Account
shall be (i) credited with Deferred Amounts of his Salary or Bonus
under Article IV, (ii) credited with any Employer Contributions made on
his behalf under Article V, (iii) adjusted to reflect investment
experience under Section 6.03(e), (iv) reduced by any administration
expenses under Section 6.04 and (v) reduced by any distributions under
Article VIII during the Plan Year.
(c) SUB-ACCOUNTS. The Plan Administrator may require that an
Employer maintain sub-accounts for and under a Participant's Deferred
Compensation Account to separately reflect Deferred Amounts of Salary
or Bonus, Employer Contributions, investments or for any other purpose
determined by the Plan Administrator.
6.02 VESTING. A Participant shall have at all times a one hundred
percent (100%) vested and nonforfeitable right to all amounts in his Deferred
Compensation Account.
6.03 INVESTMENT SELECTIONS, EXPERIENCE. The Plan Sponsor and Plan
Administrator shall comply with the following procedures concerning the measure
of investment experience of a Participant's Deferred Amounts and Deferred
Compensation Account.
(a) INVESTMENT ALTERNATIVES. The Plan Sponsor shall, from time
to time, designate various investment alternatives as the measure of
earnings and losses on Deferred Amounts and Deferred Compensation
Accounts under the Plan.
(b) DEFERRAL ELECTION INVESTMENT SELECTIONS. In his Deferral
Election for a Plan Year, the Participant shall make investment
selections from among the various investment alternatives under
subsection (a) (subject to the consent of the Plan Administrator) for
his Deferred Amounts of Salary and Bonus for the Plan Year, as
maintained under his Deferred Compensation Account.
(c) INVESTMENT SELECTION CHANGES. After his initial investment
selections under subsection (b), the Participant may make changes to
his investment selections (subject to the consent of the Plan
Administrator) for his Deferred Amounts for the Plan Year and all
amounts in his Deferred Compensation Account.
(d) NO RIGHT TO INVESTMENTS. A Participant's investment
selection shall be used solely as the measure of earnings and losses on
his Deferred Amounts and Deferred Compensation Accounts. The
Participant shall have no rights to any actual investments of
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<PAGE> 15
the Plan or Trust, including the actual investment alternatives made by
the Plan Administrator or Trustee based on the Participant's investment
selections. All rights associated with the assets of the Plan and Trust
shall be exercised by the Plan Administrator and the Trustee consistent
with the terms of the Plan and trust agreement for the Trust.
(e) INVESTMENT EXPERIENCE. The Plan Administrator periodically
shall, based on a Participant's investment selections under subsections
(b) and (c), adjust his Deferred Compensation Account for the
investment experience of his selected investment alternatives, I.E.,
interest and dividends, gains and losses (whether realized or
unrealized), investment expenses and other related items of the
investment alternatives.
6.04 ADMINISTRATION EXPENSES. The Company, in its sole discretion,
shall charge the Deferred Compensation Accounts with any administration expenses
of the Plan or Trust, including but not limited to Trustee fees, legal,
accounting, consultant fees and expenses, etc. The Plan Administrator shall
apply, in its sole discretion, the administration expenses either
proportionately among all Deferred Compensation Accounts (either on a per capita
or dollar amount basis) or individually per Deferred Compensation Account. The
Plan Administrator also may impose charges and deductions individually per
Deferred Compensation Account upon a Participant's Termination of Employment or
Retirement in connection with the distribution of benefits under Article VIII.
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<PAGE> 16
ARTICLE VII
TRUST
-----
7.01 TRUST. The Trust holds assets associated with the Plan. The Plan
Sponsor, however, reserves the right to (i) discontinue funding the Trust with
respect to future Deferred Amounts and Employer Contributions under the Plan,
(ii) establish for the Plan a separate grantor trust under Sections 671 and 677
of the Code for such future amounts, with such trust being either revocable or
irrevocable (as directed by the Plan Sponsor) or (iii) retain such Deferred
Amounts with the Employer of the Participant.
7.02 PLAN APPLICABLE TRUST. The following provisions of this Article
shall apply to (i) the Trust and (ii) any separate trust under Section 7.01(ii).
As used in this Article, the terms (i) "Trust" shall refer to the Trust and any
such separate trust and (ii) "Trustee" shall refer to the Trustee and the
trustee under any such separate trust.
7.03 TRUST FUND. The Trust shall maintain a trust fund for the Plan
pursuant to any trust agreement for the Trust and the following provisions:
(a) TRANSFER TO TRUST. If directed by the Plan Sponsor, each
Employer of a Participant shall transfer to the Trust cash equal to his
Deferred Amounts of Salary and Bonus and Employer Contributions at the
times directed by the Plan Administrator. The Trustee shall hold the
amounts pursuant to the terms of the trust agreement for the Trust.
(b) TRUST ACCOUNTS. The Trustee shall maintain accounts under
the Trust in the name of each Participant equal to his Deferred
Compensation Account under the Plan.
(c) EMPLOYER GENERAL ASSETS. Consistent with Section 6.01(a)
and the terms of the Plan, the assets of the Trust and each Deferred
Compensation Account shall remain, until distributed to a Participant
or his Beneficiary, a part of the general assets of each Employer and
subject to the claims of general creditors of the Employer. Each
Participant and his Beneficiary shall have the status solely of an
unsecured general creditor of the Employer.
7.04 INVESTMENTS. If and as directed by the Plan Sponsor, the Trustee
shall invest the assets of the trust fund of the Trust (i) in the various
investment alternatives designated by the Plan Sponsor under Section 6.03(a) and
(ii) in the manner consistent with the investment selections made by the
Participants under Section 6.03(b) and (c).
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<PAGE> 17
ARTICLE VIII
DISTRIBUTIONS
-------------
8.01 DISTRIBUTIONS. A Participant shall receive his Deferred
Compensation Account at the time and manner prescribed in the following
provisions:
(a) TERMINATION, RETIREMENT. Upon his Termination of
Employment or Retirement, the Participant shall receive his Deferred
Compensation Account (i) within 30 days thereof, (ii) in a single, lump
sum cash payment and (iii) in an amount equal to the value of his
Deferred Compensation Account as most recently valued by the Plan
Administrator.
(b) RETIREMENT ELECTION. Notwithstanding subsection (a), in
the case of his Retirement, the Participant may make a written
election, if made at least one year prior to his Retirement, to (i)
delay distribution (or commencement of distribution, if he elects
installments hereunder) of his Deferred Compensation Account under
subsection (a) for up to one year after his Retirement and/or (ii)
receive his Deferred Compensation Account in substantially equal annual
installments over a period not exceeding 10 years, payable in amounts
as determined under Section 8.02.
(c) DEATH. Upon his death prior to payment or commencement
under subsection (a) or (b) above, the Participant's Beneficiary shall
receive his Deferred Compensation Account (i) within 30 days thereof,
(ii) in a single, lump sum cash payment and (iii) in an amount equal to
the value of his Deferred Compensation Account as most recently valued
by the Plan Administrator.
8.02 RETIREMENT INSTALLMENTS. A Participant who makes an installment
payment election under Section 8.01(b) with respect to his Retirement shall
receive his Deferred Compensation Account in substantially equal annual
installments over a period selected by the Participant of up to 10 years. The
annual installments shall (i) commence at the date selected by the Participant,
but within one year of his Retirement, (ii) in a single cash payment and (iii)
in an annual amount each year equal to the value of his Deferred Compensation
Account as most recently valued by the Plan Administrator, divided by the number
of remaining annual installments (including the installment being made). Upon
the death of the Participant after commencement of installment payments, the
Beneficiary of the Participant shall receive the remaining installments at the
same time and manner as the Participant (I.E., without acceleration).
8.03 PLAN TERMINATION, CHANGE IN CONTROL, ETC. Notwithstanding Section
8.01 and 8.02, in the event of termination of the Plan under Section 10.01, a
Change in Control of the Company or the sale either the stock or substantially
all of the assets of an Employer, the Plan Sponsor in its discretion, with
respect to affected Deferred Compensation Accounts, shall (i) accelerate
distribution of such Accounts, (ii) transfer such Accounts to a successor plan
or (iii) otherwise modify the time and manner of distribution of such Accounts.
8.04 CHANGE IN CONTROL. For purposes of Section 8.03, the term "Change
in Control" means 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
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<PAGE> 18
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 Plan Sponsor's then
outstanding voting securities entitled to vote generally, or the approval by the
stockholders of the Plan Sponsor of a reorganization, merger, or consolidation,
in each case, with respect to which persons who were stockholders of the Plan
Sponsor 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 Plan Sponsor's then outstanding securities,
or a liquidation or dissolution of the Plan Sponsor or of the sale of all or
substantially all assets of the Plan Sponsor.
8.05 SOURCE OF BENEFITS, WITHHOLDING. The Plan shall pay benefits to a
Participant or his Beneficiary from the Trust (or any other grantor trust under
Article VII) and/or the Employer, as applicable pursuant to the terms of the
Trust (or other grantor trust) and the terms of the Plan. In the event that the
Trust (or other grantor trust) or the Employer is unable to pay benefits, the
Company shall pay the benefits for such periods that the Trust (or other grantor
trust) or Employer is unable to pay benefits. The foregoing guarantee by the
Company shall constitute no more than an unfunded and unsecured promise of
payment and performance, consistent with obligation of the Employer under the
terms of the Plan. The Trust, Employer or Company shall withhold any required
Federal, state or local taxes from each benefit payment under the Plan, as
applicable pursuant to the terms of the Trust (or other grantor trust) and
consistent with the terms of the Plan.
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<PAGE> 19
ARTICLE IX
ADMINISTRATION
--------------
9.01 GENERAL. The Plan Sponsor, Company, Plan Administrator, Employers
and Trustee shall have the respective rights and obligations prescribed to them
under the terms of the Plan and the trust agreement for the Trust.
9.02 COMPANY. All actions required by the Company under the Plan shall
be taken by the Board of Directors of the Company, except where (i) the Board of
Directors has delegated authority to the Compensation Committee of the Board of
Directors regarding the Plan or (ii) the Compensation Committee has delegated
authority to the Benefits Committee regarding the Plan. Currently, the (i) Board
of Directors has delegated authority to Compensation Committee regarding the
Plan generally and (ii) Compensation Committee has delegated authority to the
Benefits Committee to administer the Plan on behalf of the Company as Plan
Administrator and amend the Plan in certain respects, as so provided in the
resolutions adopted by the Compensation Committee as applicable to the Plan in
EXHIBIT C.
9.03 PLAN ADMINISTRATOR. The Plan Administrator will administer the
Plan. The Benefits Committee of the Company shall fulfill the obligations of the
Plan Administrator. The Plan Administrator shall have the full power and
discretionary authority to interpret, construe and administer the Plan
provisions. In implementation of this responsibility, the Plan Administrator may
adopt rules, procedures or regulations relative to the administration of the
Plan. Any final decision by the Plan Administrator shall be binding upon a
Participant and his Beneficiary and all interested persons.
9.04 INDEMNITY. The Company shall indemnify to the fullest extent by
law each member of the Board of Directors, Compensation Committee and Benefits
Committee of the Company, and each officer and employee of the Company, in
connection with the Plan.
9.05 CLAIMS PROCEDURE. The Plan Administrator shall follow the claims
procedures of Section 503 of ERISA and the final regulations thereunder in
connection with any disputed claim for benefits under the Plan.
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<PAGE> 20
ARTICLE X
AMENDMENT OR TERMINATION
------------------------
10.01 AMENDMENT OR TERMINATION. The Company shall have the right to
amend or terminate the Plan at any time; provided, however, that no such
amendment or termination of the Plan shall reduce the amount of any Deferred
Compensation Account of a Participant under the Plan.
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<PAGE> 21
ARTICLE XI
MISCELLANEOUS PROVISIONS
------------------------
11.01 NO GUARANTEE OF EMPLOYMENT. Neither the adoption of the Plan,
the making of a Deferral Election, or any action of the Company, Employer or
Plan Administrator respecting the Plan or its administration, shall be deemed to
confer on any Participant the right to be continued as an Employee of an
Employer.
11.02 NON-ASSIGNABILITY OF BENEFITS. A Participant's rights to benefit
payments under the Plan are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors of the Participant or his Beneficiary. A Participant,
however, may designate a Beneficiary and his benefit otherwise may pass by will
or by the laws of descent and distribution.
11.03 RULES OF CONSTRUCTION. Masculine terms contained in the Plan
shall be construed to contain the feminine, and singular terms shall be
construed to include the plural, wherever necessary for a reasonable
interpretation of the plan.
11.04 GOVERNING LAW. The Plan shall be construed under the laws of the
State of Ohio, except where preempted by ERISA and other federal law.
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<PAGE> 22
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
Exhibit A--History of Plan
--------------------------
Effective January 1, 1996, the Salem Corporation established the Salem
Corporation Nonqualified Deferred Compensation Plan.
Effective January 1, 1996, the Salem Corporation entered into a trust
agreement with Bankers Trust Company for the Plan, with the trust known as the
Salem Corporation Nonqualified Deferred Compensation Plan Trust, dated March 6,
1996.
Effective September 18, 1997, Salem Corporation changed its name to
Herr-Voss Industries, Inc. ("HVI").
Effective June 30, 1999, The Monarch Machine Tool Company (the
"Company") acquired the stock of Precision Industrial Corporation, which such
Corporation owned the stock of HVI.
Effective September 1, 1999, the Company restructured its domestic
subsidiaries and was renamed Genesis Worldwide Inc. (the "Company").
Effective September 1, 1999, HVI relinquished its sponsorship,
administrator, employer and named fiduciary status of the Plan, pursuant to
resolutions adopted by HVI on December [1], 1999.
Effective September 1, 1999, the Company became the sponsor,
administrator, an employer and named fiduciary of the Plan, pursuant to
resolutions adopted by the Company on December 1, 1999.
Effective September 1, 1999, the Plan was renamed as the Genesis
Worldwide Inc. Non-Qualified Deferred Compensation Plan (the "Plan"), pursuant
to resolutions adopted by the Company on December 1, 1999.
Effective January 1, 2000, the Company (i) authorized eligible
employees and participating employers for the Plan and (ii) discontinued excess
employer contributions under the Plan, all pursuant to resolutions adopted by
the Company on December 1, 1999.
Effective January 1, 2000, the Company hereby amends and restates the
Plan as provided herein.
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<PAGE> 23
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
Exhibit B--Employers, Effective January 1, 2000
-----------------------------------------------
Genesis Worldwide Inc.
GenSystems Inc.
GenSystems Services Inc.
GenCoat Inc.
GenInternational Inc.
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<PAGE> 24
GENESIS WORLDWIDE INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
Exhibit C--Compensation Committee Delegation
--------------------------------------------
Currently, the Board of Directors of the Company have delegated to the
Compensation Committee of the Company (the "Compensation Committee") all
authority with respect to the Plan, including therefore the authority to adopt
amendments and changes to the Plan, authorize any Employer Contributions and
administer the Plan.
Pursuant to a resolution of the Compensation Committee approved on
December 1, 1999, the Compensation Committee delegated to the Benefits Committee
of the Company, effective December 2, 1999, the authority to approve and adopt
all amendments and changes to the Plan, except for the following:
(i) The appointment of the Trustee for the Plan.
(ii) The selection of Eligible Employees for the Plan.
(iii) Amendments or changes to the Plan which:
(A) represent a major change in policy; or
(B) involve significant financial cost.
(iv) The establishment or termination of the Plan.
The Compensation Committee also directed the Benefits Committee to
approve and adopt amendments or changes to the Plan by resolution (either by
meeting or written consent) and adopt such by-laws or procedures as it deems
necessary therefor.
The Compensation Committee also directed the Benefits Committee to
fulfill, on behalf of the Company, the obligations of the Company as
"administrator" of the Plan, as that term is used in ERISA, including the
authority and responsibility to (i) make benefit decisions, (ii) adopt
procedures for the administration of the Plan and (iii) exercise the sole and
absolute discretionary authority to interpret and construe the provisions of the
Plan.
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<PAGE> 1
Exhibit 5.1
Thompson Hine & Flory LLP
2000 Courthouse Plaza NE
Dayton, Ohio 45402
April 14, 2000
Genesis Worldwide Inc.
2600 Kettering Tower
Dayton, Ohio 45323
Re: Genesis Worldwide Inc.
Nonqualified Deferred Compensation Plan
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the registration of
deferred compensation obligations (the "Obligations") of Genesis Worldwide Inc.,
an Ohio corporation (the "Company"), to be offered and sold under the Company's
Non-Qualified Deferred Compensation Plan (the "Plan").
As counsel for the Company, we have examined and are familiar with the Plan and
such other documents, records, certifications and other instruments as we have
deemed necessary for purposes of this opinion.
Based upon the foregoing, and upon investigation of such other matters as we
considered appropriate to permit us to render an informed opinion, it is our
opinion that the Obligations, when sold pursuant to the terms of the Plan, will
be valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms and the terms of the Plan, except as
enforceability (i) may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally, and (ii) is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
We are members of the bar of the State of Ohio and do not express any opinion
herein concerning any laws other than the laws of the State of Ohio. This
opinion is solely for your information in connection with the Registration
Statement and is not to be quoted or otherwise
<PAGE> 2
THOMPSON HINE & FLORY LLP
Genesis Worldwide Inc.
April 14, 2000
Page 2
referred to in any of your financial statements or public releases, filed with
any governmental agency (except as set forth below), or given to any other
person without our prior written consent. This opinion may not be relied upon by
any other person, or used by you for any other purpose, without our prior
written consent.
We hereby consent to your filing this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Thompson Hine & Flory LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 9, 2000 relating to the
consolidated financial statements, which appears in the 1999 Annual Report to
Shareholders of Genesis Worldwide Inc., which is incorporated by reference in
the Genesis Worldwide Inc's Annual Report on Form 10-K for the year ended
December 31, 1999. We also consent to the incorporation by reference of our
report dated March 9, 2000 relating to the financial statement schedule, which
appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
-----------------------------------
Dayton, Ohio PricewaterhouseCoopers LLP
April 14, 2000
<PAGE> 1
Exhibit 24.1
GENESIS WORLDWIDE INC.
LIMITED POWER OF ATTORNEY
WHEREAS, Genesis Worldwide Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), a Registration Statement on
Form S-8 covering interests that may be issued under the Company's Non-Qualified
Deferred Compensation Plan (the "Registration Statement").
NOW THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Richard E. Clemens and Karl A. Frydryk and each
of them to be his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to execute in his name, place and stead, as
aforesaid, the Registration Statement and any post-effective amendments thereto,
and any and all other instruments necessary or incidental in connection
therewith, and to file the same with the Securities and Exchange Commission.
Said attorney shall have full power and authority to do and perform, in the name
and on behalf of the undersigned, every act whatsoever necessary or desirable to
be done, as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of said
attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 11th day of February, 2000.
<TABLE>
<S> <C>
/s/ John A. Bertrand /s/ William R. Graber
- -------------------------------------- -----------------------------------------
John A. Bertrand William R. Graber
/s/ Gerald L. Connelly /s/ William A. Enouen
- -------------------------------------- -----------------------------------------
Gerald L. Connelly William A. Enouen
/s/ Augustine A. Fornataro /s/ Waldemar M. Goulet
- -------------------------------------- -----------------------------------------
Augustine A. Fornataro Waldemar M. Goulet
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
/s/ David E. Lundeen /s/ Joseph M. Rigot
- -------------------------------------- -----------------------------------------
David E. Lundeen Joseph M. Rigot
/s/ J. William Uhrig
- --------------------------------------
J. William Uhrig
</TABLE>
