<PAGE> 1
As filed with the Securities and Exchange Commission on September 17, 1996
Registration No. 333-
- -------------------------------------------------------------------------------
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FIGGIE INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1297376
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4420 Sherwin Road
Willoughby, Ohio 44094
(Address of principal executive offices, including zip code)
-------------------
FIGGIE INTERNATIONAL INC. SAVINGS PLAN FOR HOURLY PAID EMPLOYEES
(Full title of the plan)
Copy to:
<TABLE>
<CAPTION>
<S> <C>
Robert D. Vilsack, Esq. William A. Papenbrock, Esq.
General Counsel and Corporate Secretary Calfee, Halter & Griswold
Figgie International, Inc. 1400 McDonald Investment Center
4420 Sherwin Road 800 Superior Avenue
Willoughby, Ohio 44094 Cleveland, Ohio 44114
(216) 953-2700 (216) 622-8200
</TABLE>
(Name, address and telephone number, including area code, of agent for service)
---------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered(2) registered per share(1) price(1) fee
- -------------------------------------------------------------------------------
Class A Common Stock, 250,000 shares $13.9375 $3,484,375 $1,202
$.10 par value
Class B Common Stock, 250,000 shares $ 12.75 $3,187,500 $1,100
$.10 par value
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the
high and low prices as quoted on The NASDAQ National Market System
for September 3, 1996.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Figgie International, Inc. (the "Company"),
previously filed with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. Amendment No. 1 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996;
5. The Company's current report on Form 8-K dated March 1, 1996 and
filed on March 15, 1996;
6. The Company's Registration Statement on Form 8-A filed
November 27, 1985;
7. The Company's Amendment No. 1 to its Registration Statement on Form
8-A filed December 17, 1985;
8. The Company's Amendment No. 2 to its Registration Statement on Form
8-A filed February 4, 1986;
9. The Company's Amendment No. 3 to its Registration Statement on Form
8-A filed June 17, 1988.
other than the portions of such documents, which by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be a part hereof from the date
of filing of such documents other than the portions of such documents, which by
statute, by designation in such document or otherwise, are not deemed to be
filed with the Commission or are not required to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained in this Registration Statement or in any
other subsequently filed document that also is, or is deemed to be, incorporated
by reference in this Registration Statement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VI of the Company's ByLaws provides in part that the Company
shall indemnify any person who was or is an "authorized representative" of the
Company (which means, for purposes of Article VI, a Director or officer of the
Company, or a person serving at the request of the Company as director,
officer, or trustee, of another corporation, partnership, joint venture, trust
or other enterprise) and who was or is a "party" (which includes, for purposes
of Article VI, the giving of testimony or similar involvement) or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative, other
than an action by or in the right of the Company by reason of the fact that
such person was or is an authorized
II-2
<PAGE> 3
representative of the Company, against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to any criminal third party proceedings (which could
or does lead to a criminal third party proceeding), had no reasonable cause to
believe was unlawful.
Article VI of the Company's ByLaws also provides that the
Company shall indemnify any person who was or is an authorized representative of
the Company and who was or is a party or is threatened to be made a party to any
"corporate proceeding" (which means, for purposes of Article VI, any threatened,
pending or completed action or suit by or in the right of the Company to procure
a judgment in its favor or investigative proceeding by the Company) by reason of
the fact that such person was or is an authorized representative of the Company,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate action if such person acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company, except that no indemnification shall be made with
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery or the court in which such corporate proceeding was pending
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
In addition, Article VI of the Company's ByLaws provides that,
to the extent that an authorized representative of the Company has been
successful on the merits or otherwise in defense of any third party or corporate
proceedings or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses actually and reasonably incurred by such
person in connection therewith.
Determinations with respect to indemnification shall be made by
the Board of Directors by a majority of a quorum consisting of Directors who
were not parties to such third party or corporate proceedings; or if such a
quorum is not obtainable or, even if obtainable, if a majority vote of such a
quorum so directs, by independent legal counsel in a written opinion; or by the
stockholders.
The General Corporation Law of the State of Delaware provides
that the Company may maintain insurance to cover losses incurred pursuant to
liability of Directors and officers of the Company, which insurance, if any, may
cover liabilities of Directors and officers of the Company arising under the
Securities Act of 1933.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The registrant will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service (the "I.R.S.") in a timely
manner and has made or will make all changes required by the I.R.S. to
qualify the Plan.
See also the Exhibit Index at Page E-1 of this Registration
Statement.
Item 9. Undertakings
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after effective date of this
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. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than a 20 percent change in
the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
in the effective 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;
II-3
<PAGE> 4
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii)
do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3 and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Sections 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned registrant undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in 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 described under
Item 6 above, 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 Securities Act of 1933 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-4
<PAGE> 5
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 Willoughby, State of Ohio, this 15th day of
August, 1996.
FIGGIE INTERNATIONAL INC.
By: /s/ Steven L. Siemborski
--------------------------------------
Steven L. Siemborski, Chief Financial
Officer and Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below the by the following persons in the
capacities indicated on August 15, 1996.
Signature Title
--------- -----
/s/ John P. Reilly
- ------------------------- Chairman of the Board, Chief Executive
John P. Reilly Officer and President (Principal
Executive Officer)
/s/ Steven L. Siemborski
- ------------------------- Chief Financial Officer and Senior Vice
Steven L. Siemborski President (Principal Financial Officer
and Principal Accounting Officer)
/s/ Fred J. Brinkman
- ------------------------- Director
Fred J. Brinkman
/s/ Alfred V. Gagnes
- ------------------------- Director
Alfred V. Gagnes
/s/ John S. Lanahan
- ------------------------- Director
John S. Lanahan
/s/ F. Rush McKnight
- ------------------------- Director
F. Rush McKnight
/s/ Harrison Nesbit, II
- ------------------------- Director
Harrison Nesbit, II
/s/ A. A. Sommer, Jr.
- ------------------------- Director
A. A. Sommer, Jr.
/s/ Walter M. Vannoy
- ------------------------- Director
Walter M. Vannoy
II-5
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, the
trustees have duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Wilmington, State of Delaware, on September 9, 1996.
FIGGIE INTERNATIONAL INC. SAVINGS PLAN
FOR HOURLY PAID EMPLOYEES
By: Wilmington Trust Company,
Trustee
By: /s/ Bruce Spartz
---------------------------------
Bruce Spartz,
Senior Financial Services Officer
II-6
<PAGE> 7
FIGGIE INTERNATIONAL INC.
EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION SEQUENTIAL PAGE
- -------------- ----------- ---------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the (1)
Corporation, as amended
4.2 By-Laws of the Corporation (2)
4.3 Specimen Certificate Class A Common Stock, (3)
$.10 par value
4.4 Specimen Certificate Class B Common Stock, (3)
$.10 par value
4.5 Figgie International Inc. Savings Plan for
Hourly Paid Employees
4.6 Indenture, dated as of October 1, 1989, (4)
between Figgies International Inc. and
Continental Bank, National Association (n/k/a
State Street Trust), as Trustee, with respect
to the 9.875% Senior Notes due October 1, 1999.
4.7 Second Supplemental Indenture, dated as of (5)
December 31, 1986, among Figgie International,
Inc. and Marine Midland Bank, N.A., as Trustee,
with respect to the 10.375% Subordinated
Debentures due April 1, 1998.
4.8 First Supplemental Indenture, dated as of (6)
July 18, 1983, among Figgie International Inc.,
Figgie International Holdings Inc., and Marine
Midland Bank, N.A., as Trustee with respect to
the 10-3/8% Subordinated Debentures due 1998,
along with the Original Indenture dated as of
April 1, 1978.
5.1 Opinion of Calfee, Halter & Griswold regarding
the validity of the equity shares being
registered (see Page II-7 of this Registration
Statement)
23.1 Consent of Arthur Andersen LLP (see Page II-8 of
this Registration Statement)
23.2 Consent of Calfee, Halter & Griswold (see Page
II-9 of this Registration Statement)
24.1 Power of Attorney and related Certified
Resolution (see Pages II-10 and II-11 of this
Registration Statement)
</TABLE>
- ---------------
(1) Incorporated herein by reference to Exhibit 19 of the Company's
Quarterly Report on Form 10-Q for the quarter ending June 30, 1987
(File No. 1-8591).
(2) Incorporated herein by reference to Exhibit 3(ii) of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995
(File No. 1-8591).
(3) Contained in the Restated Certificate of Incorporation of the
Corporation, as amended, incorporated herein by reference as Exhibit 4
above.
II-12
<PAGE> 8
(4) Incorporated herein by reference to Exhibit 4(c) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1989 (File No. 1-8591).
(5) Incorporated herein by reference to Exhibit 4(c) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1986 (File No. 1-8591).
(6) Incorporated herein by reference to Exhibit 3(4)(f) to the Company's Form
8-B filed October 19, 1983 (File No. 1-8591).
<PAGE> 1
EXHIBIT 4.5
FIGGIE INTERNATIONAL INC.
-------------------------
SAVINGS PLAN FOR HOURLY PAID EMPLOYEES
---------------------------------------
Effective: January 1, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE NO.
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<S> <C>
NAME AND PURPOSE I
DEFINITIONS II
PARTICIPATING DIVISIONS III
ELIGIBILITY AND PARTICIPATION IV
SALARY DEFERRAL CONTRIBUTIONS V
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT VI
ACCOUNTS VII
WITHDRAWALS FROM ACCOUNTS VIII
HARDSHIP DISTRIBUTIONS IX
RETIREMENT AND TERMINATION OF EMPLOYMENT X
DEATH BENEFITS XI
DISTRIBUTIONS XII
THE TRUSTEE, ITS POWERS AND DUTIES XIII
INVESTMENT MANAGEMENT XIV
ADMINISTRATION XV
PROHIBITION AGAINST ALIENATION XVI
AMENDMENT AND TERMINATION XVII
LIMITATIONS ON CONTRIBUTIONS XVIII
LIMITATION ON ANNUAL ADDITIONS XIX
TOP-HEAVY PROVISIONS XX
MISCELLANEOUS XXI
</TABLE>
(ii)
<PAGE> 3
INDEX
<TABLE>
<CAPTION>
ARTICLE NO.
-----------
<S> <C>
ACCOUNTS VII
ADMINISTRATION XV
AMENDMENT AND TERMINATION XVII
SALARY DEFERRAL CONTRIBUTIONS V
DEATH BENEFITS XI
DEFINITIONS II
DISTRIBUTIONS XII
ELIGIBILITY AND PARTICIPATION IV
HARDSHIP DISTRIBUTIONS IX
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT VI
INVESTMENT MANAGEMENT XIV
LIMITATION ON ANNUAL ADDITIONS XIX
LIMITATIONS ON CONTRIBUTIONS XVIII
MISCELLANEOUS XXI
NAME AND PURPOSE I
PARTICIPATING DIVISIONS III
PROHIBITION AGAINST ALIENATION XVI
RETIREMENT AND TERMINATION OF EMPLOYMENT X
THE TRUSTEE, ITS POWERS AND DUTIES XIII
TOP-HEAVY PROVISIONS XX
WITHDRAWALS FROM ACCOUNTS VIII
</TABLE>
(iii)
<PAGE> 4
FIGGIE INTERNATIONAL INC.
SAVINGS PLAN FOR HOURLY PAID EMPLOYEES
THIS AGREEMENT a Declaration of Trust and Plan, is entered into by and
between FIGGIE INTERNATIONAL INC., a corporation organized and existing under
and by virtue of the laws of the State of Delaware (hereinafter called the
"Company"), and WILMINGTON TRUST COMPANY (hereinafter called the "Trustee");
W I T N E S S E T H:
WHEREAS, it is the desire of the Company to provide a plan for certain
of its hourly paid employees to save for their retirement and for certain other
contingencies; and
WHEREAS, it is the further desire of the Company to foster loyalty to
the Company and the continuation in its service of its hourly paid employees;
and
WHEREAS, the Company has duly authorized the establishment of a Savings
Plan for Hourly Paid Employees for the sole and exclusive benefit of its
eligible hourly paid employees who qualify as participants hereunder and their
beneficiaries as herein provided; and
WHEREAS, the Company has duly authorized the execution of this
Agreement; and
WHEREAS, it is the intention of the Company that such Savings Plan for
Hourly Paid Employees qualify under Sections 401(a), 401(k) and 501(a) of the
Internal Revenue Code of 1986, as amended;
(iv)
<PAGE> 5
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements herein contained, it is mutually agreed as follows:
(v)
<PAGE> 6
ARTICLE I
NAME AND PURPOSE
1.1 The name of this Trust and Plan is FIGGIE INTERNATIONAL INC.
SAVINGS PLAN FOR HOURLY PAID EMPLOYEES. This Trust and Plan is created for the
purpose of providing benefits to the participants in this Trust and Plan upon
their retirement and for the purpose of providing such other benefits to such
participants and their beneficiaries as are hereinafter described.
1-1
<PAGE> 7
ARTICLE II
DEFINITIONS
Unless the context otherwise indicates, the following terms used herein
shall have the following meanings whenever used in this instrument:
2.1 The word "accounts" shall mean "salary deferral accounts."
2.2 The word "Administrator" shall mean the Company.
2.3 The words "Adoption Date" shall mean the date as of which a
Division shall have become a Participating Division in accordance with Article
III hereof.
2.4 The word "affiliate" shall mean any corporation or business
organization during any period during which it is a member of a controlled group
of corporations or trades or businesses which includes the Company within the
meaning of Sections 414(b) and 414(c) of the Code or is a member of an
affiliated service group which includes the Company within the meaning of
Section 414(m) of the Code.
2.5 The word "beneficiary" shall mean any person, other than an
alternate payee as defined in Section 16.1(a) hereof, who receives or is
designated to receive payment of any benefit under the terms of this Trust and
Plan because of the participation of another person in this Trust and Plan.
2.6 The word "Code" shall mean the Internal Revenue Code of 1986, as
such may be amended from time, and any lawful regulations or rulings thereunder.
2-1
<PAGE> 8
2.7 The word "Committee" shall mean the Appeals Committee constituted
under the provisions of Article XV hereof.
2.8 The word "Company" shall mean FIGGIE INTERNATIONAL INC. or any
successor corporation or business organization which shall assume the
obligations of the Company under this Trust and Plan as provided herein with
respect to the participants.
2.9 The word "compensation" shall generally mean taxable remuneration
paid to an employee for services rendered to the Company or an affiliate which
must be reported as wages on the employee's Form W-2 for income tax purposes.
Compensation shall be increased for salary reduction amounts which are excluded
from the taxable income of the employee under Sections 125, 402(e)(3) and 402(h)
of the Code. Compensation shall be reduced by all of the following amounts even
if they are taxable to the employee:
(a) all amounts related to any funded deferred compensation plan,
whether or not qualified;
(b) expense reimbursements, expense allowances or moving expenses;
(c) all amounts related to restricted property or stock options,
whether qualified or nonqualified; and
(d) any cash or non-cash fringe benefits or welfare benefits.
"Compensation" shall not include any remuneration paid to an employee during a
period in which he is not an active participant in this Trust and Plan. In
addition, an employee's "compensation" shall not exceed One Hundred Fifty
Thousand Dollars ($150,000.00) (plus any adjustment for cost-of-living or
otherwise as shall be prescribed by the Secretary of the Treasury pursuant to
Sections 401(a)(17) and 415(d) of the Code).
2-2
<PAGE> 9
In determining the limit on "compensation" set forth in the preceding
sentences, the family aggregation rules contained in Section 414(q) of the Code
shall apply, except that in applying such rules, the term "family" shall include
only the spouse of the employee and any lineal descendants of the employee who
have not attained age nineteen (19) before the close of the plan year. If, as a
result of the application of such family aggregation rules, the limit on
"compensation" set forth above is exceeded, the amount of each family member's
"compensation" which shall count toward the limit shall equal that portion of
the limit which bears the same relationship to the limit as such family member's
"compensation" as determined under this Section prior to the application of such
"compensation" limit ("unlimited compensation") bears to the total unlimited
compensation of all the family members.
2.10 The word "Division" shall mean any Division, Department, Plant or
Subsidiary of the Company or any Division, Department, or Plant of a Subsidiary
of the Company.
2.11 The words "effective date" of this Trust and Plan shall mean
January 1, 1996.
2.12 The word "employee" shall mean any employee, whether salaried or
hourly paid or whether full-time or part-time, of the Company or any affiliate
and shall also include a leased employee.
2.13 The words "enrollment date" shall mean the first day of any
calendar quarter occurring on or after the effective date.
2-3
<PAGE> 10
2.14 The acronym "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as such may be amended from time to time, and any lawful
regulations or rulings thereunder.
2.15 The word "hours" shall mean for any employee the actual number of
hours for which he is directly or indirectly paid or entitled to payment by the
Company or any affiliate, including payments pursuant to an award or agreement
requiring the Company or an affiliate to pay back wages, irrespective of
mitigation of damages. Hours due to a back pay award or agreement shall be
credited in the calendar year or calendar years to which the award or agreement
pertains, rather than in the calendar year in which the award, agreement or
payment is made and shall be credited only to the extent such hours are not
otherwise credited. For the purposes of this Trust and Plan, any hours which are
compensated at overtime or premium rates shall be computed as straight-time
hours. During any period an employee is directly or indirectly paid while
performing no services for the Company or an affiliate (irrespective of whether
he has terminated employment) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty, or leave of absence,
he shall be credited with hours in accordance with Department of Labor
Regulations Sections 2530.200b-2(b) and (c) at the rate of eight (8) hours per
day and forty (40) hours per week. Notwithstanding the foregoing,
(a) no employee shall be credited with more than 501 hours with
respect to payments he receives or is entitled to receive
during any single continuous period during which he performs
no services for the Company or an affiliate;
2-4
<PAGE> 11
(b) no employee shall be credited with hours with re- spect to
payments he receives or is entitled to receive during a period
when he performs no services for the Company or an affiliate
under a plan maintained solely for the purpose of complying
with applicable workers' compensation, unemployment
compensation, disability insurance or Federal Social Security
laws; and
(c) no employee or former employee shall be credited with hours
with respect to payments he receives or is entitled to receive
under a pension benefit plan or program to which the Company
or an affiliate has contributed during a period when he
performs no services for the Company or an affiliate.
2.16 The words "investment fund" shall mean a fund established,
maintained and administered by the Trustee pursuant to Articles VI and XIV
hereof.
2.17 The words "leased employee" shall mean any individual (other than
a common-law employee of a Participating Division or an affiliate) who, pursuant
to an agreement between a Participating Division or an affiliate and any leasing
organization, has performed services for the Participating Division or an
affiliate or for related persons, as determined in accordance with Section
414(n)(6) of the Code, on a substantially full-time basis for a period of at
least one (1) year; provided, however, that such services are of a type
historically performed by employees in the business field of the Participating
Division or affiliate.
2.18 The words "military service" shall mean duty in the Armed Forces
of the United States, whether voluntary or involuntary, provided that the
employee serves not more than one voluntary enlistment or tour of duty, and
further provided that
2-5
<PAGE> 12
such voluntary enlistment or tour of duty does not follow involuntary duty.
2.19 The words "normal retirement date" shall mean for each participant
the later of the following:
(a) the date on which he attains age sixty-five (65); and
(b) the earlier of the fifth (5th) anniversary of the date on
which he became a participant in this Trust and Plan or the
date of his completion of five (5) years of eligibility
service as defined in Section 4.1(i) hereof.
2.20 The word "participant" shall mean any eligible employee who has
become a participant in this Trust and Plan in accordance with Article IV hereof
or a Supplemental Agreement. A person shall cease to be a participant upon his
termination of employment. A participant shall be considered to be an "active
participant" during any period of employment except for:
(a) any period during which he is compensated on a salaried basis;
(b) any period during which his terms and conditions of employment
are covered by a collective bargaining agreement which does
not require him to be included in this Trust and Plan;
(c) any period during which he is not a resident or citizen of the
United States and his principal place of employment is not in
the United States or Puerto Rico;
(d) any period during which he is not employed by a Participating
Division;
(e) any period during which he is designated as an inactive
participant by a Supplemental Agreement by which he is
covered;
(f) any period during which he is receiving disability benefits
under any sick leave, short term disability program or long
term disability program of the Company or any affiliate; and
2-6
<PAGE> 13
(g) any period he is a leased employee.
2.21 The words "Participating Division" shall mean any Division which
is or shall become a Participating Division in this Trust and Plan pursuant to
Article III hereof.
2.22 The words "permanent and total disability" shall mean any
disability for which the participant is entitled to receive and is receiving
disability insurance benefits under Title II of the Federal Social Security Act.
2.23 The words "plan year" shall mean the calendar year. The first plan
year shall be deemed to have commenced on January 1, 1996 and to end on December
31, 1996.
2.24 The words "salary deferral contributions" shall mean contributions
made to this Trust and Plan by the Company on behalf of an active participant
pursuant to such active participant's election under Section 5.1 hereof and paid
to the Trustee pursuant to Section 5.3 hereof.
2.25 The words "Supplemental Agreement" shall mean an agreement adopted
by the Company pursuant to Section 3.2 hereof setting forth special provisions
applicable to a specific Participating Division.
2.26 The words "taxable year" shall mean the calendar year.
2.27 The words "termination of employment" shall mean for any employee
the occurrence of any one of the following events:
(a) his discharge unless he is subsequently reemployed by the
Company or an affiliate and given pay back to his date of
discharge;
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<PAGE> 14
(b) his voluntary termination of employment with the Company or
any affiliate;
(c) his retirement from employment with the Company or any
affiliate;
(d) his failure to return to work:
(i) at the end of any leave of absence authorized by the
Company; or
(ii) within ninety (90) days following such employee's
release from military service or within any other
period following military service in which his right
to reemployment with the Company or any affiliate is
guaranteed by law; or
(iii) after the cessation of disability benefits under any
sick leave, short term disability program or long
term disability program of the Company; or
(iv) within three (3) days after he has been recalled to
work following a period of layoff;
(e) he has been continuously laid-off for twelve (12) months; or
(f) if substantially all of the assets of his employer are sold to
a person or entity which is not an affiliate of the Company
and this Trust and Plan is assumed by such person or entity,
his termination of employment (as defined in subparagraphs (a)
through (e) above) with such person or entity.
In the case of the occurrence of any event described in subparagraph (d)(i),
(d)(ii) or (e) of this Section, the date of such employee's termination of
employment shall be deemed to be the earlier of (A) the first anniversary of the
first day of any such period of leave of absence, military service or layoff, or
(B) the last day of any such period of leave of absence, military service or
layoff.
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<PAGE> 15
2.28 The words "Trust and Plan" shall mean this instrument as
originally executed and as it may be amended from time to time hereafter.
2.29 The word "Trustee" shall mean the person or persons serving as the
Trustee of this Trust and Plan and any successor Trustee or Trustees.
2.30 The words "Trust Fund" shall mean the Trust established by this
Trust and Plan including the separate investment funds established pursuant to
Article VI hereof.
2.31 The words "valuation date" shall mean the last day of any calendar
quarter.
2.32 The words "vested interest" shall mean with respect to any
participant the balance then credited to his salary deferral accounts. Except as
otherwise provided in a Supplemental Agreement, all account balances shall be
fully vested and nonforfeitable at all times.
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<PAGE> 16
ARTICLE III
PARTICIPATING DIVISIONS
3.1 A Division shall become a Participating Division under this Trust
and Plan on or after the effective date by order of the Board of Directors of
the Company with, in the case of a Subsidiary of the Company, the ratification
of the Board of Directors of the Subsidiary. By becoming a Participating
Division under this Trust and Plan, a Subsidiary of the Company is deemed to
approve this Trust and Plan in the form as of its Adoption Date, together with
any future amendments or restatements made by the Company after such Adoption
Date, even though such amendments or restatements are not specifically ratified
by the Subsidiary. The Participating Divisions and their Adoption Dates as of
the date of execution of this Agreement are as follows:
<TABLE>
<CAPTION>
Participating Division Adoption Date
---------------------- -------------
<S> <C>
Scott Aviation Division
Monroe, N.C. January 1, 1996
South Haven, Michigan January 1, 1996
Snorkel Division
Elwood, Kansas January 1, 1996
St. Joseph, Missouri January 1, 1996
</TABLE>
A Participating Division and its Adoption Date shall be added to this Section
hereof upon becoming a Participating Division.
3.2 The Company may, in the sole discretion of its Board of Directors,
determine that special provisions shall be applicable to some or all of the
employees of a Participating Division, either in addition to, or in lieu of the
provisions of this Trust and Plan, or may determine that certain employees of a
Participating
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<PAGE> 17
Division shall not be eligible to participate in this Trust and Plan. In such
event, the Company shall adopt a Supplemental Agreement with respect to such
Participating Division which shall specify the employees of the Participating
Division covered by the Supplemental Agreement and the special provisions
applicable to such employees. Supplemental Agreements shall be deemed to be a
part of this Trust and Plan solely with respect to the employees specified
therein.
3.3 The Company may, from time to time amend, modify or
terminate a Supplemental Agreement provided, however, that no such action shall
operate so as to deprive any participant who was covered by such Supplemental
Agreement of any vested rights to which he is entitled under this Trust and Plan
or the Supplemental Agreement.
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<PAGE> 18
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
4.1 Every employee, other than a leased employee, shall be eligible to
become a participant in this Trust and Plan when he has met all of the following
requirements:
(a) he is an hourly paid employee of a Participating Division,
other than an employee whose terms and conditions of
employment are covered by a collective bargaining agreement
which does not require him to be included in this Trust and
Plan;
(b) he has he has completed one (1) year of eligibility service.
For purposes of this Section, the following terms shall have the following
meanings:
(i) "year of eligibility service" shall mean that an employee has
completed a twelve (12) month period commencing on his
eligibility hire date or any anniversary of his eligibility
hire date during which he has completed at least one thousand
(1,000) hours for the Company or any affiliate.
(ii) "eligibility hire date" shall mean the earliest date of hire
of an employee (which date shall be considered to be the first
day during which the employee performs any service for the
Company or any affiliate for which he is directly or
indirectly compensated or the first day for which the employee
is paid any back pay pursuant to an award or agreement) which
is included in his eligibility service. In the event that a
business organization shall be or shall have been acquired by
or merged into the Company or any affiliate, the date of hire
of each employee who is or was an employee on the date of
acquisition shall be deemed to have been the most recent date
he was hired by such business organization and performed an
hour of service.
(iii) "eligibility service" shall mean the number of years of
eligibility service of an employee excluding any years of
eligibility service prior to
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<PAGE> 19
a termination of employment if both of the following apply:
(A) he did not have a vested interest under this Trust
and Plan on his termination of employment; and
(B) either:
(I) his termination of employment occurred prior
to January 1, 1976; or
(II) his number of consecutive eligibility breaks
in service ending after his termination of
employment and beginning prior to his
reemployment shall equal or exceed the
greater of:
(1) the number of years of eligibility
service which he had on his
termination of employment; or
(2) either:
a. one (1), if his
termination of employment
occurred prior to the
January 1, 1985; or
b. five (5), if his
termination of employment
occurred on or after
January 1, 1985.
(iv) "eligibility break in service" shall mean a twelve (12) month
period commencing on an employee's eligibility hire date or
any anniversary of his eligibility hire date during which he
did not complete more than five hundred (500) hours for the
Company or an affiliate. Notwithstanding the foregoing
provisions of this subparagraph, in the event any employee
does not perform services for the Company or any affiliate for
any period on or after January 1, 1985:
(A) by reason of the pregnancy of such employee; or
(B) by reason of the birth of a child of such employee;
or
(C) by reason of the placement of a child with such
employee in connection with the adoption of such
child by such employee; or
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<PAGE> 20
(D) by reason of caring for such child for a period
beginning immediately following such birth or
placement;
such employee shall, solely for purposes of
determining whether the employee has incurred an
eligibility break in service pursuant to this
subparagraph, be credited either with the hours which
otherwise would normally have been credited to such
employee but for such absence or, in any case in
which the Administrator is unable to determine the
hours described in the preceding clause, eight (8)
hours per day of such absence. The total number of
hours which an employee may be credited with by
reason of any such pregnancy, birth or placement
shall not exceed five hundred one (501) hours. An
employee shall be credited with the hours described
in the preceding two sentences in the twelve (12)
month period in which the absence from work begins
only if the employee would be prevented from
incurring an eligibility break in service in such
twelve (12) month period solely because the employee
is credited with hours pursuant to the preceding two
sentences or, in any other case, in the immediately
following twelve (12) month period. The Administrator
may require any employee who is absent from work
because of any such pregnancy, birth or placement to
furnish to the Administrator such timely information
as the Administrator may reasonably require to
establish both that the employee's absence from work
is because of such pregnancy, birth or placement and
the number of days during which the employee was
absent because of such pregnancy, birth or placement.
In the event an employee is transferred to a Participating Division
after the Participating Division's Adoption Date and, immediately prior to such
transfer, he was a participant in any other pension or retirement plan, other
than Federal Social Security, toward which the Company makes contributions and
which satisfies the requirements for qualification set forth in Section 401(a)
of the Code, the requirement of subparagraph (b) above shall be waived with
respect to said employee.
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<PAGE> 21
4.2 Every employee who meets the requirements of Section 4.1 hereof
shall be eligible to become a participant as of the enrollment date coinciding
with or next following the date he first meets such requirements. Each eligible
employee shall be notified of this fact by the Administrator and the
Administrator shall provide him with a salary deferral election form. Such an
employee shall become a participant as of such enrollment date, if he shall at
least thirty (30) days prior to such enrollment date, agree to defer certain of
his unpaid compensation pursuant to Section 5.1 hereof and shall execute a
salary deferral election form providing for such deferral.
If such an employee does not execute such a salary deferral election
form at least thirty (30) days prior to such enrollment date, he may become a
participant upon any enrollment date after the enrollment date upon which he
could first have become a participant so long as he is then eligible and
executes such a salary deferral election form at least thirty (30) days prior to
the enrollment date upon which he wishes to become a participant.
4.3 In the event that a former participant is rehired, he shall become
a participant on his date of reemployment.
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<PAGE> 22
ARTICLE V
SALARY DEFERRAL CONTRIBUTIONS
5.1 Pursuant to uniform rules and procedures prescribed by the
Administrator, an active participant may elect that a portion of his unpaid
compensation for a plan year be paid by the Company to the Trustee hereunder and
be treated as a contribution by the Company. Any election by a participant
pursuant to this Section shall be expressed in one percent (1%) increments of
his compensation for a payroll period. The maximum percentage of an active
participant's compensation (minus any salary reduction amounts which are
excluded from the taxable income of the participant under Section 125 of the
Code) for a payroll period shall be sixteen percent (16%).
5.2 A participant's election pursuant to Section 5.1 hereof shall be
made by completing and executing a salary deferral election form. Any such
election shall become effective as of the enrollment date next following the
participant's completion and execution of the salary deferral election form and
shall be conditioned upon:
(a) his right to defer the imposition of federal income tax on
such contributions until a subsequent distribution of such
amount under this Trust and Plan; and
(b) the Company's right to deduct such amounts for federal income
tax purposes after taking into account any contributions made
by the Company under any profit sharing, pension and stock
bonus plans maintained by the Company which meet the
requirements of Section 401(a) of the Code.
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<PAGE> 23
Any such election shall be deemed a continuing election and shall remain in
effect unless revoked or amended by the participant in writing. A participant
may revoke his election by filing appropriate written notice with the
Administrator at least thirty (30) days prior to the next succeeding enrollment
date. A participant may amend his election by executing a new salary deferral
election form and revoking his prior salary deferral election form in writing at
least thirty (30) days prior to the next succeeding enrollment date. Such change
or discontinuance shall be effective as of such enrollment date. In the event
contributions under this Article are completely discontinued pursuant to a
participant's direction, no contributions may be made on behalf of such
participant under this Article until one (1) year has elapsed since the
enrollment date as of which the contributions were discontinued.
5.3 All amounts paid by the Company to the Trustee pursuant to Section
5.1 hereof shall be paid in cash not later than forty-five (45) days after the
participant would have otherwise been paid the compensation and shall be
credited to the participant's salary deferral account.
5.4 In the event a participant receives a distribution from his salary
deferral account as a result of hardship as described in Article IX hereof, such
participant's salary deferral contributions shall be suspended for a twelve (12)
month period after his receipt of such hardship distribution. In addition, for
the taxable year of the participant immediately following the participant's
taxable year during which said hardship distribution
5-2
<PAGE> 24
occurs, such participant shall be barred from making salary deferral
contributions in excess of (a) minus (b) below, where:
(a) equals Nine Thousand Two Hundred Forty Dollars ($9,240.00)
(plus any cost of living increase after 1995 allowable under
Section 402(g) of the Code for such immediately following
taxable year of the participant); and
(b) equals the amount of such participant's salary deferral
contributions for the participant's taxable year during which
said hardship distribution is made.
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<PAGE> 25
ARTICLE VI
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT
6.1 The Company has directed the Trustee to initially establish a
"Diversified Equity Fund," a "Fixed Income Fund," an "International
Multi-Manager Equity Collective Fund," a "Class A Common Stock Fund" and a
"Class B Common Stock Fund" and within the Trust Fund. Such investment funds
shall be invested as set forth in Section 6.2 hereof and shall be held and
administered in accordance with the powers and duties set forth in Article XIV
hereof.
6.2 The Trustee shall invest amounts in the Diversified Equity Fund in
a diversified portfolio of common or preferred stocks or convertible debentures
of domestic corporations or in a fund which invests substantially all its assets
in such stocks or debentures. The Trustee shall invest amounts in the Fixed
Income Fund primarily in fixed-income securities such as bonds, debentures, or
certificates of deposit or in a fund which invests substantially all its assets
in such securities. The Trustee shall invest amounts in the International
Multi-Manager Equity Collective Fund primarily in a diversified portfolio of
foreign stocks. The Trustee shall invest amounts in the Class A Common Stock
Fund in shares of the Company's Class A Common Stock. The Trustee shall invest
amounts in the Class B Common Stock Fund in shares of the Company's Class B
Common Stock. In any event, the Trustee may hold assets of any investment fund
in cash or in short-term money market instruments as it deems appropriate.
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<PAGE> 26
6.3 In addition to or in lieu of the investment funds described in
Section 6.2 hereof, the Company may from time to time direct the Trustee to
establish and maintain other investment funds, including but not limited to the
following:
(a) money market funds;
(b) mutual funds;
(c) equity funds;
(d) fixed income funds;
(e) balanced funds;
(f) any pooled investment fund established by a bank;
(g) any insurance company's general account;
(h) any special account established and maintained by any
insurance company;
(i) guaranteed investment contracts, including pooled funds of
guaranteed investment contracts; and
(j) Company Stock Funds.
The Company shall have the sole discretion to determine the number of investment
funds to be maintained hereunder and the nature of the funds and may change or
eliminate the funds from time to time.
6.4 Each participant, former participant or beneficiary shall direct
the investment of contributions to his accounts by designating, in writing, the
percentage of such contributions to be invested in each investment fund
established hereunder. Investments in all such funds shall be made in five
percent (5%) increments. Any such direction shall be deemed a continuing
direction and shall remain in effect unless revoked or amended by the
participant, former participant or beneficiary in writing. A participant, former
participant or beneficiary may change his
6-2
<PAGE> 27
investment direction by filing appropriate written notice with the Administrator
at least thirty (30) days prior to the next succeeding enrollment date. Such
change in investment direction shall be effective as of such enrollment date.
Contributions which are made to the Trustee prior to the effective date of a
change of investment direction shall be invested in accordance with the
participant's, former participant's or beneficiary's prior investment direction.
Contributions which are made to the Trustee after the effective date of a change
of investment direction shall be invested in accordance with the new investment
direction. To the extent that any participant fails to give investment
directions to the Administrator, amounts credited to his accounts shall be
invested in accordance with the Company's direction.
6.5 A participant, former participant, or beneficiary of a former
participant may direct, in writing, that the amounts credited to his accounts be
reallocated among the investment funds. Such amounts shall be reallocated in
five percent (5%) increments. A participant, former participant, or beneficiary
may make any such direction by filing appropriate written notice with the
Administrator at least thirty (30) days prior to the next succeeding enrollment
date. Such direction shall be effective as of such enrollment date.
6.6 Notwithstanding anything contained in this Trust and Plan to the
contrary and except as provided below, a participant's, former participant's or
beneficiary's investment in both the Class A Common Stock Fund and the Class B
Common Stock Fund may not exceed in the aggregate twenty-five percent (25%) of
the amounts
6-3
<PAGE> 28
credited to his accounts. However, in the event subsequent appreciation in the
Class A Common Stock or the Class B Common Stock held in a participant's, former
participant's or beneficiary's accounts causes such person's investment in the
Class A Common Stock Fund and the Class B Common Stock Fund to exceed in the
aggregate the twenty-five percent (25%) limit set forth above, the Trustee shall
not be required to reduce such person's investment in such Stock Funds unless so
directed by such person. In addition, in the event a participant, former
participant or beneficiary directs that any portion of the amounts credited to
his accounts which is invested in the Class A Common Stock Fund or the Class B
Common Stock Fund be reallocated to another investment fund which is not the
Class A Common Stock Fund or the Class B Common Stock Fund, such person's right
to direct further investment in the Class A Common Stock Fund or the Class B
Common Stock Fund shall be suspended for a period of twelve (12) months from the
enrollment date on which such reallocation was effective.
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<PAGE> 29
ARTICLE VII
ACCOUNTS
7.1 Upon an employee becoming a participant, the Administrator shall
notify the Trustee and provide the Trustee with such information concerning said
participant as the Trustee may need. Upon being notified by the Administrator
that an employee has become a participant, the Trustee shall establish a salary
deferral account in the name of such participant. A salary deferral account
established on behalf of a new participant shall be deemed to have been
established on the date upon which or as of which such participant became a
participant.
7.2 The accounts of participants shall be credited with contributions
in the amounts specified in Article V hereof, shall be credited or debited with
the income, gains or losses of the Trust Fund pursuant to this Article, and
shall be debited with the amount of any withdrawals or distributions made from
such accounts pursuant to Article VIII, IX or XII hereof. All such credits and
debits to the accounts of a participant shall be made as of the dates specified
in the appropriate Sections of this Trust and Plan.
7.3 In the event a participant directs, pursuant to Article VI hereof,
that his account or accounts are to be invested in more than one (1) investment
fund, the Trustee shall maintain subaccounts as a part of such participant's
account or accounts. Such subaccounts shall show the portion of an account
invested in a particular investment fund.
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<PAGE> 30
7.4 As soon as practicable following each valuation date, the Trustee
shall evaluate all assets in each investment fund as of such valuation date. The
Trustee shall use the fair market values of securities or other assets in making
said determination. The Trustee shall then subtract from the total value of the
assets in each investment fund the total of all amounts credited, as of said
valuation date, to all accounts and subaccounts which amounts represent the
interest of each such account or subaccount in such investment fund. Each of the
aforesaid amounts shall be increased by the portion of the excess of the value
of the assets in the investment fund over the total of said amounts which bears
the same relationship to the total of such excess as each of said amounts bears
to the total of said amounts. The amount credited to each account or subaccount
which represents the interest of such account or subaccount in an investment
fund shall be reduced in similar proportion in the event the total of all such
amounts exceeds the total value of the investment fund as of said date. Such
adjustments in the amounts credited to accounts or subaccounts shall be deemed
to have been made on said valuation date. It is intended that this Section
operate to distribute among all accounts and subaccounts having an interest in
an investment fund, all income of the investment fund and changes in the value
of the investment fund's assets, as the case may be. Adjustments in accounts or
subaccounts resulting from the valuation of the assets of an investment fund as
of any valuation date shall be made subject to the following:
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<PAGE> 31
(a) one-sixth (1/6th) of the salary deferral contributions
made or to be made for the period of time between two
(2) consecutive valuation dates shall be taken into
account as if such one-sixth (1/6th) had been paid to
the Trustee on the day immediately following the first
valuation date of the period and as if the remaining
five-sixths (5/6ths) of such contributions had not been
paid until immediately after the second valuation date;
and
(b) any other contributions shall be taken into account on
and after the date as of which such contributions are to
be credited to the accounts of participants hereunder.
7.5 Pursuant to uniform rules and procedures, the Administrator may, in
its sole discretion, direct the Trustee to value the assets of the investment
funds and adjust the accounts of the Trust Fund on such dates other than the
quarterly valuation dates as the Administrator shall prescribe. Any such
valuation and adjustment of accounts shall be made in accordance with the
methods and procedures set forth in Section 7.4 hereof as of the date specified
by the Administrator.
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ARTICLE VIII
WITHDRAWALS FROM ACCOUNTS
8.1 Withdrawals made pursuant to this Article shall be subject to the
following restrictions:
(a) the minimum amount of any such withdrawal shall be the
lesser of an amount set by the Administrator or the
total of the account balances which are subject to
withdrawal pursuant to this Article;
(b) the withdrawing participant shall make a written
application on a form provided by the Administrator and
shall designate the investments that are to be
liquidated to permit the making of such withdrawal;
(c) any withdrawal shall be made in a single lump sum
payment of cash in accordance with Article XII hereof;
(d) any withdrawal shall be made in accordance with the
provisions of Section 21.11 hereof; and
(e) any withdrawal shall be subject to such other reasonable
and uniform rules and regulations, consistently applied,
as may be established from time to time by the
Administrator.
8.2 Subject to Section 8.1 hereof, on or after the date a participant
attains age fifty-nine and one-half (59-1/2) or becomes permanently and totally
disabled, such participant may withdraw all or a portion of his salary deferral
account balance. Prior to the date on which a participant attains age fifty-nine
and one-half (59-1/2) or becomes permanently and totally disabled, such
participant may withdraw from his salary deferral account only in the case of
hardship as provided in Article IX hereof. A participant may not recontribute
any amount withdrawn from his salary deferral account to this Trust and Plan.
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<PAGE> 33
8.3 Upon an attempt by a participant to use his interest in this Trust
and Plan as security for any type of obligation, or to alienate, dispose of or
in any manner encumber, or upon an attempt by any third person to attach, levy
upon or in any manner convert the use or enjoyment of any such interest of a
participant, the right to withdraw any portion thereof pursuant to this Article
shall automatically terminate.
8.4 A participant may not withdraw his account balances prior to his
retirement or termination of employment except as provided in this Article and
in Article IX hereof.
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<PAGE> 34
ARTICLE IX
HARDSHIP DISTRIBUTIONS
9.1 In the case of hardship, a participant may apply to the
Administrator for a hardship distribution from his salary deferral account, if
any. Any application should be made at least thirty (30) days prior to the
valuation date as of which a participant desires to receive a hardship
distribution. For the purposes of this Section , a distribution shall be on
account of hardship only if the distribution is made on account of an immediate
and heavy financial need of the participant, as described in Section 9.2 hereof,
and is necessary, as described in Section 9.3 hereof, to satisfy such need.
9.2 A distribution will be made on account of an immediate and heavy
financial need of a participant only if the distribution is on account of:
(a) the need to prevent the eviction of the participant from
his principal residence or foreclosure on the mortgage
of the participant's principal residence;
(b) purchase (excluding mortgage payments) of a principal
residence for the participant;
(c) medical expenses described in Section 213(d) of the Code
incurred by the participant, the participant's spouse,
or any dependents of the participant (as defined in
Section 152 of the Code); or
(d) payment of tuition for the next twelve (12) months of
post-secondary education for the participant, his or her
spouse, children or dependents.
9.3 A distribution will be deemed to be necessary to satisfy an
immediate and heavy financial need of a participant only if all of the following
requirements are satisfied:
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<PAGE> 35
(a) the distribution is not in excess of the amount of the
immediate and heavy financial need of the participant,
including any amounts necessary to pay any federal,
state or local income taxes or penalties reasonably
anticipated to result from such distribution;
(b) the participant has obtained all distributions, other
than hardship distributions, and all nontaxable (at the
time of the loan) loans currently available under all
plans maintained by the Company or any affiliates;
(c) this Trust and Plan and all other plans maintained by
the Company or any affiliates provide that the
participant may not make salary deferral contribu- tions
for the participant's taxable year immedi- ately
following the taxable year of the participant during
which said hardship distribution occurs in excess of the
applicable limit under Section 402(g) of the Code for
such next taxable year of the participant less the
amount of such participant's salary deferral
contributions for the taxable year of the participant
during which said hardship distribution occurs; and
(d) the participant is prohibited under the terms of this
Trust and Plan and all other plans maintained by the
Company or any affiliates (or other legally enforceable
agreement), from making salary deferral contributions
and nondeductible employee contributions, if applicable,
to this Trust and Plan and such other plans for at least
twelve (12) months after receipt of the hardship
distribution.
By virtue of this Section and Section 5.4 hereof, this Trust and Plan provides
for the restrictions contained above in subparagraphs (c) and (d).
9.4 If the Administrator determines that the criteria set forth in
Sections 9.2 and 9.3 hereof have been satisfied with respect to a participant,
it may order a distribution of all or a portion of the participant's salary
deferral account balance. Such distribution shall be made in a lump sum and
shall be made in accordance with the provisions of Section 21.11 hereof. Any
such
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<PAGE> 36
distribution shall be made as of the valuation date next following
such determination.
If the Administrator directs that a distribution be made hereunder, it
may thereafter, if it determines that such hardship no longer exists or is no
longer imminent or upon agreement with the participant, direct that any such
distribution not yet made not be made. Amounts distributed to a participant
under this Section shall be debited to his salary deferral account as they are
paid.
9.5 Neither the application for nor payment of any distribution in
accordance with this Article shall have the effect of terminating a
participant's participation in this Trust and Plan. The Administrator may
prescribe the use of such forms, conduct such investigation, and require the
making of such representations and warranties, as it deems desirable to carry
out the purpose of this Article.
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ARTICLE X
RETIREMENT AND TERMINATION OF EMPLOYMENT
10.1 A participant who retires from the employ of the Company or an
affiliate on his normal retirement date shall be entitled to receive a
distribution of his account balances. Such distribution shall be made in
accordance with the provisions of Article XII hereof.
10.2 In the event a participant works for the Company or an affiliate
beyond his normal retirement date, his retirement date shall be deemed to have
occurred on the earlier of:
(a) the date of his termination of employment with the
Company or an affiliate for any reason other than
death; or
(b) the date specified in Section 12.4(a) hereof.
Such participant shall be entitled to receive a distribution of his
account balances. Such distribution shall be made in accordance with the
provisions of Article XII hereof.
10.3 In the event of the termination of employment of a participant for
any reason other than death or retirement, he shall be entitled to receive a
distribution of his account balances. Such distribution shall be made in
accordance with the provisions of Article XII hereof.
10.4 Subject to the provisions of Sections 12.3 and 12.4(a) hereof,
distribution of the accounts of a participant who retires or terminates
employment in accordance with the provisions of this Article shall be made on
such date on or after his date of retirement or termination of employment as he
shall select in his
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sole discretion; provided, however, that such distribution need not be made
earlier than administratively possible.
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ARTICLE XI
DEATH BENEFITS
11.1 In the event of the death of a participant or former participant
prior to the date distribution has been made to him, his death beneficiary
shall, except as otherwise provided in Sections 12.3 and 12.4 hereof, be
entitled to receive a distribution commencing on such date after such death
occurs as he shall select in his sole discretion. Such distribution shall be
equal to the deceased participant's account balances. All accounts of the
deceased participant shall be held, administered and distributed in accordance
with Article XII hereof.
11.2 In the event of the death of a participant or former participant
after distribution has been made to him, no benefits shall be payable to his
death beneficiary.
11.3 Unless a participant or former participant has designated a death
beneficiary in accordance with the provisions of Section 11.4 hereof, his death
beneficiary shall be deemed to be the person or persons in the first of the
following classes in which there are any survivors of such participant:
(a) his spouse at the time of his death;
(b) his issue, per stirpes;
(c) his parents; and
(d) the executor or administrator of his estate.
11.4 In lieu of having the account balances distributable pursuant to
this Article distributed to a death beneficiary determined in accordance with
the provisions of Section 11.3
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hereof, a participant or former participant may sign a document designating a
death beneficiary or death beneficiaries to receive such account balances. If
the participant or former participant is married, any such designation shall be
effective only if his spouse is the sole primary beneficiary or consents to such
other designation in accordance with Section 21.5 hereof.
11.5 Upon the death of a participant or a former participant, the
Administrator shall immediately advise the Trustee of the identity of such
participant's or former participant's death beneficiary or beneficiaries. The
Trustee shall be completely protected in making distributions of such
participant's or former participant's account balances to any person or persons
in any sums in accordance with the instructions it receives from the
Administrator.
11.6 In the event that a participant or former participant dies at a
time when he has a designation on file with the Administrator which does not
dispose of the total account balances distributable under this Trust and Plan
upon his death, then the portion of the account balances distributable on behalf
of said participant or former participant, the disposition of which was not
determined by the deceased participant's or former participant's designation,
shall be distributed to a death beneficiary determined under the provisions of
Section 11.3 hereof.
11.7 Any ambiguity in a participant's or former participant's death
beneficiary designation shall be resolved by the Administrator. Subject to
Section 11.4 hereof, the Administrator may direct a participant or former
participant to
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clarify his designation and if necessary execute a new designation containing
such clarification.
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ARTICLE XII
DISTRIBUTIONS
12.1 Distributions will be made as of the dates specified in Articles X
and XI hereof. Each participant, former participant and beneficiary who is
eligible for benefits under Article X or XI hereof shall apply therefor on a
form which shall be given to him for that purpose by the Administrator and
further provided that the foregoing requirement shall not apply in any case in
which a participant, former participant or beneficiary shall be unable, for
physical, mental or any other reason satisfactory to the Administrator to make
such application. Upon finding that such participant, former participant or
beneficiary satisfies the eligibility requirements for benefits under Article X
or XI hereof, the Administrator shall promptly notify the Trustee in writing of
his eligibility and of the method of distribution selected in accordance with
this Article.
12.2 The normal method of distribution of the account balances
distributable to a participant, former participant or his beneficiary pursuant
to Article X or XI hereof shall be for the Trustee to sell any shares of the
Company's Class A Common Stock and Class B Common Stock and any other assets
credited to his accounts as of the date distribution is to be made and to
distribute the proceeds thereof in a single lump sum payment of cash; provided,
however, that a participant may elect to receive a single distribution of the
whole shares of the Company's Class A Common Stock and Class B Common Stock then
credited to his accounts
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together with cash in an amount equal to the sum of the value of any fractional
shares of such Stock and the fair market value of any other assets then credited
to his accounts. Any distribution shall be made in accordance with the
provisions of Section 21.11 hereof.
12.3 In the event that the accounts of a retired, terminated or
deceased participant have a value of Three Thousand Five Hundred Dollars
($3,500.00) or less, the Administrator shall direct the Trustee to distribute
his account balances in a single lump sum payment without the consent of the
participant, his spouse or his beneficiary. Any such single lump sum payment
shall be made in accordance with the provisions of Section 21.11 hereof. Unless
such participant elects to receive the shares of the Company's Class A Common
Stock and Class B Common Stock, if any, credited to his accounts, the Trustee
shall sell any shares or other assets credited to his accounts as of the date
distribution is to be made and distribute the proceeds thereof in a single lump
sum payment of cash. Any such single lump sum payment shall be in full
settlement of such participant's, spouse's or beneficiary's rights under this
Trust and Plan.
12.4 Notwithstanding any other provisions of this Trust and Plan,
distributions made hereunder shall be subject to the following restrictions:
(a) in the case of a living participant or former
participant distribution must be made on or before the
April 1 following the end of the calendar year in which
he attains age seventy and one-half (70 1/2);
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(b) in the case of a deceased participant or former
participant, distribution after his death shall be made
within five (5) years of the date of his death; and
(c) in the case of a participant or former participant, a
distribution shall conform to the incidental death
benefit requirements of Section 1.401(a)(9)-2 of the
Treasury Regulations.
12.5 As long as there remain any amounts credited to an account of a
participant, former participant or beneficiary, the Trustee shall continue to
maintain and administer said account in accordance with the terms and provisions
of this Trust and Plan.
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ARTICLE XIII
THE TRUSTEE, ITS POWERS AND DUTIES
13.1 The Trustee shall not be obligated to institute any action or
proceeding to compel the Company to make any contributions to this Trust and
Plan, nor shall the Trustee be obligated to make any inquiry as to whether any
amount deposited with it is the amount provided to be deposited under the terms
of Article V hereof. The Trustee shall keep books of account which shall show
all receipts and disbursements and a complete record of the operation of the
Trust, and the Trustee shall at least once a year and at such other times as the
Company or the Administrator shall so request render a report of the operation
of the Trust to the Company and the Administrator. The Trustee shall file with
the Internal Revenue Service such returns and other information concerning the
Trust Fund as may be required of the Trustee by the Code. The Trustee shall not
be obligated to pay any interest on any funds which may come into its hands. The
Trustee is a party to this Trust and Plan solely for the purposes set forth in
this instrument and to perform the acts herein set forth, and no obligation or
duty shall be expected or required of it except as expressly stated herein or in
ERISA. The Trustee may consult with counsel (who may or may not be counsel for
the Company) selected by the Trustee concerning any question which may arise
with reference to its powers or duties under this Trust and Plan, and the
opinion of such counsel shall be full and complete authority and protection in
respect of any action taken, suffered or omitted by the Trustee
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in good faith and in accordance with such opinion, provided due care is
exercised in the selection of such counsel.
13.2 The Trustee may resign from this Trust and Plan by mailing to the
Company a written notice of resignation addressed to the Company at the last
address of the Company on file with the Trustee, or by delivering such written
notice to the Company at such address. The Company may remove the Trustee by
written notice of such removal mailed to the Trustee at the last address of the
Trustee on file with the Company, or by delivering such written notice to the
Trustee at such address. Such resignation or removal shall take effect on the
date specified in the notice of resignation or removal, but not less than thirty
(30) days, nor more than sixty (60) days, following the date of mailing of such
notice or delivery of such notice if it be not mailed. Upon such resignation or
removal, the Trustee shall be entitled to its fees to the effective date of
resignation or removal and any and all costs or expenses paid or incurred by the
Trustee in connection with this Trust and Plan. In no event shall such
resignation or removal terminate this Trust and Plan, but the Company shall
forthwith appoint a successor Trustee to carry out the terms of this Trust and
Plan, which successor Trustee shall be any individual, trust company or bank
selected by the Company. In case of the resignation or removal of the Trustee,
the Trustee shall forthwith turn over to the successor Trustee all assets in its
possession, and copies of such records as may be necessary to permit the
successor Trustee to carry out its duties.
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13.3 The expenses of administration of the Trust incurred by the
Trustee, including counsel fees and including Trustee's fees as such may from
time to time be agreed upon between the Company and the Trustee, shall be paid
in any one of the following manners as determined by the Company in its sole
discretion:
(a) paid directly by the Company to the Trustee; or
(b) paid pro rata out of the investment funds of the Trust
Fund.
Notwithstanding the foregoing, in no event will any Trustee who is a full-time
employee of the Company or any affiliate receive compensation from this Trust
and Plan, except for expenses properly and actually incurred. Fees and expenses
of the Trustee which have not been paid will be deemed to be a lien upon the
Trust Fund.
13.4 Any segregation of assets required under this Trust may be made in
cash or in kind, or partly in cash and partly in kind, according to the
discretion of the Trustee, but any such segregation shall be made on the basis
of the most recent valuation made pursuant to Section 7.4 or 7.5 hereof.
13.5 In the event that the Company shall have appointed more than one
individual, trust company or bank to act jointly as Trustee hereunder, any
action which this Trust and Plan authorizes or requires the Trustee to do shall
be done by action of the majority of the then acting trustees, or, in the case
of two (2) such persons acting jointly as Trustee, by action of both such
trustees. Such action may be taken at any meeting of the trustees then acting,
or by written authorization and affirmative consent without a meeting. The
trustees by written agreement among
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themselves, a copy of which shall be filed with the Company and the
Administrator, may allocate among themselves any of the powers and duties of the
Trustee under this Trust and Plan. In such event the trustee to whom a power or
duty is allocated may take action with respect thereto without the consent of
any other trustee. Any person, firm, partnership or corporation may rely upon
the written signatures of such number of the trustees as are hereunder empowered
to take action as the signature of the Trustee hereunder. Notwithstanding any
other provision of this Trust and Plan to the contrary, so long as at least one
individual, trust company or bank shall continue to act as Trustee hereunder,
the Company shall not be under any duty to appoint a successor to any trustee
who shall resign or be removed.
13.6 Except as otherwise provided in ERISA, no individual person who is
serving as the Trustee or one of its members shall incur personal liability of
any nature whatsoever in connection with any act done or omitted to be done in
carrying out his responsibilities under the terms of this Trust and Plan or
other responsibilities imposed upon such individual by ERISA. The Company shall
indemnify, defend, and hold harmless such individuals for all acts taken or
omitted in carrying out their responsibilities under the terms of this Trust and
Plan or other responsibilities imposed upon such individuals by ERISA. This
indemnification for all acts or omissions is intentionally broad, but shall not
provide indemnification for embezzlement or diversion of Trust funds for the
benefit of any such individuals, nor shall it provide indemnification for excise
taxes imposed under Section
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4975 of the Code. The Company shall indemnify such individuals for expenses of
defending an action by a participant, beneficiary, government entity or other
person, including all legal fees and other costs of such defense. The Company
will also reimburse such an individual for any monetary recovery in a successful
action against such individual in any federal or state court or arbitration. In
addition, if the claim is settled out of court with the concurrence of the
Company, the Company shall indemnify such individual for any monetary liability
under said settlement. Such indemnification will not be provided with respect to
a Trustee which is a corporate trustee.
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ARTICLE XIV
INVESTMENT MANAGEMENT
14.1 In addition to the powers and duties conferred and imposed upon
the Trustee by the other provisions of this Trust and Plan, the Trustee shall,
subject to the provisions of Article VI hereof and the limitations hereinafter
set forth in this Article, have the following powers and duties:
(a) To invest and reinvest the principal and income of the Trust Fund
and keep the same invested with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims, without distinction between principal and income
and without regard to any limitations, other than such prudent man rule,
prescribed by law or custom upon the investments of fiduciaries, in each and
every kind of property, whether real, personal or mixed, tangible or intangible,
and wherever situated, any deposit administration contract, investment contract
or other contract issued by an insurance company, shares of any Regulated
Investment Company, units of any common trust fund of any bank or trust company
now in existence or hereafter established, shares of common, preference and
preferred stock, put and call options, rights, options, subscriptions, warrants,
trust receipts, investment trust certificates, mortgages, leases, bonds, notes,
debentures, equipment or collateral trust certificates and other corporate,
individual or government obligations, whether secured or unsecured; to invest
and reinvest in and retain any stocks, bonds or other securities of any
corporate trustee serving hereunder, or any parent or affiliate thereof; to
invest in commodities and commodity contracts; to invest and reinvest in any
time or savings deposits of the Trustee or any parent or affiliate thereof if
such deposits bear a reasonable rate of interest or of any bank, trust company,
or savings and loan institution, which deposits may but need not be guaranteed
by the Federal Deposit Insurance Corporation or the Federal Savings and Loan
Insurance Corporation; and in addition to become a general partner or limited
partner in any partnership or limited partnership the purposes of which are to
invest or reinvest the partnership assets in any such properties or deposits;
(b) To invest a portion or all of the Trust Fund in units of any
common or group trust created solely for the purpose of providing a satisfactory
diversification of investments for participating trusts; provided that such
common or group trust, (i)
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limits participation thereunder to pension and profit sharing trusts which
qualify under Section 501(a) of the Code, (ii) prohibits income and/or principal
attributable to a participating trust from being used for any purpose other than
the exclusive benefit of the employees or their beneficiaries of such
participating trust, (iii) prohibits assignment by a participating trust of any
part of such participating trust's equity or interest in the common or group
trust, (iv) is created or organized in the United States and is maintained at
all times as a domestic trust in the United States; as long as the Trustee holds
such units hereunder, the instrument establishing such common or group trust
(including all amendments thereto) shall be deemed to have been adopted and made
a part of this Trust and Plan;
(c) Upon direction by the Company, to invest or reinvest a portion of
the Trust Fund in qualifying employer securities and/or qualifying employer real
estate as such terms are defined in Section 4975 of the Code and Section 407(d)
of ERISA, which investment may constitute more than ten percent (10%) of the
fair market value of the assets of the Trust Fund, and to retain, or to sell,
exchange or otherwise dispose of any such securities or real estate held in the
Trust Fund. In the event of any such investment, the Trustee shall file with the
appropriate District Director of Internal Revenue such returns and other
information as shall be required from time to time by the Code;
(d) To sell, convert, redeem, exchange, grant options for the purchase
or exchange of, or otherwise dispose of, any real or personal property, at
public or private sale, for cash or upon credit, with or without security,
without obligation on the part of any person dealing with the Trustee to see to
the application of the proceeds of or to inquire into the validity, expediency
or propriety of any such disposal;
(e) To manage, operate, repair, partition and improve and mortgage or
lease (with or without option to purchase) for any length of time any real
property held in the Trust Fund; to renew or extend any mortgage or lease, upon
any terms the Trustee may deem expedient; to agree to reduction of the rate of
interest on any mortgage note; to agree to any modification in the terms of any
lease or mortgage or of any guarantee pertaining to either of them; to enforce
any covenant or condition of any lease or mortgage or of any guarantee
pertaining to either of them or to waive any default in the performance thereof;
to exercise and enforce any right of foreclosure; to bid on property on
foreclosure; to take a deed in lieu of foreclosure with or without paying
consideration therefor and in connection therewith to release the obligation on
the bond secured by the mortgage; and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
lease or mortgage or of any guarantee pertaining to either of them;
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(f) To exercise, personally or by general or limited proxy, the right
to vote any shares of stock or other securities held in the Trust Fund; to
delegate discretionary voting power to trustees of a voting trust for any period
of time; and to exercise or sell, personally or by power of attorney, any
conversion or subscription or other rights appurtenant to any securities or
other property held in the Trust Fund, provided that in each instance described
in Section 14.4 or 14.5 hereof, such power and duty shall be subject to the
direction of participants, former participants, beneficiaries and "alternate
payees" (as defined in Section 16.1(a) hereof) pursuant to such Section 14.4 or
14.5;
(g) To join in or oppose any reorganization, recapitalization,
consolidation, merger or liquidation, or any plan therefor, or any lease (with
or without an option to purchase), mortgage or sale of the property of any
organization the securities of which are held in the Trust Fund; to pay from the
Trust Fund any assessments, charges or compensation specified in any plan of
reorganization, recapitalization, consolidation, merger or liquidation, to
deposit any property with any committee or depositary; and to retain any
property allotted to the Trust Fund in any reorganization, recapitalization,
consolidation, merger or liquidation;
(h) To borrow money from any lender (including the Trustee hereunder,
where applicable in its capacity as a banking corporation when permitted to do
so by the applicable laws and regulations then in effect) in any amount and upon
such terms and conditions and for such purposes as the Trustee shall deem
necessary; for any money so borrowed the Trustee may issue its promissory note
as Trustee and to secure the repayment of any such loan, with interest, may
pledge or mortgage all or any part of the Trust Fund, and no person loaning
money to the Trustee shall be obligated to see to the application of the money
loaned or to inquire into the validity, expediency or propriety of any such
borrowing;
(i) To compromise, settle or arbitrate any claim, debt or obligation of
or against the Trust Fund; to enforce or abstain from enforcing any right,
claim, debt or obligation; and to abandon any property determined by it to be
worthless;
(j) To continue to hold any property of the Trust Fund whether or not
productive of income; to reserve from investment and keep unproductive of
income, without liability for interest, such cash as it deems advisable or, in
its discretion, to hold the same, without limitation on duration, on deposit in
the commercial department or in an interest-bearing account in the savings
department of any bank, trust company, or savings and loan institution
(including the Trustee where applicable in its capacity as a banking
corporation) in which deposits are guaranteed by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation;
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(k) To hold property of the Trust Fund in its own name or in the name
of a nominee, without disclosure of the Trust, or in bearer form so that it will
pass by delivery, but no such holding shall relieve the Trustee of its
responsibility for the safe custody and disposition of the Trust Fund in
accordance with the provisions of this Trust and Plan, and the Trustee's records
shall at all times show that such property is part of the Trust Fund;
(l) To make, execute and deliver, as Trustee, any deeds, conveyances,
leases (with or without option to purchase), mortgages, options, contracts,
waiver or other instruments that the Trustee shall deem necessary or desirable
in the exercise of its powers under this Trust and Plan;
(m) To employ, at the expense of the Trust Fund, agents who are not
regular employees of the Trustee, and to delegate in writing to them and
authorize them to exercise such powers and perform such duties required of the
Trustee hereunder without limitation as the Trustee may determine in its
uncontrolled discretion; the Trustee shall not be responsible for any loss
occasioned by any such agents selected by it with reasonable care;
(n) To pay out of the Trust Fund all taxes imposed or levied with
respect to the Trust Fund and in its discretion to contest the validity or
amount of any tax, assessment, penalty, claim or demand respecting the Trust
Fund; however, unless the Trustee shall have first been indemnified to its
satisfaction or arrangements satisfactory to it shall have been made for the
payment of all costs and expenses, it shall not be required to contest the
validity of any tax, or to institute, maintain or defend against any other
action or proceeding either at law or in equity;
(o) Except as otherwise provided in this Trust and Plan, to do all
acts, execute all instruments, take all proceedings and exercise all rights and
privileges with relation to any assets constituting a part of the Trust Fund,
which it may deem necessary or advisable to carry out the purposes of this Trust
and Plan;
(p) During the minority or incapacity, in either case as determined
under applicable local law, of any participant, former participant or
beneficiary under this Trust and Plan, to make any distribution to which such
person would otherwise be entitled pursuant to this Trust and Plan either to
such person or to the legal guardian of such person, and the receipt of either
such minor or incapacitated person or such legal guardian shall be a full
discharge and acquittance to the Trustee for such distribution;
(q) To commingle the assets of the Trust Fund, other than shares of the
Company's Class A Common Stock or Class B Common Stock, with assets of other
trusts through the medium of the Figgie International Inc. Investment Trust for
Retirement Trusts established by the Company by an agreement dated and executed
on
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December 31, 1968, investing and reinvesting the assets of the Trust Fund in
Units, of such Investment Trust, created or hereafter created pursuant to said
agreement, and in such proportions as the Company may deem advisable from time
to time, acting in its sole discretion. To the extent of the equitable share of
the Trust Fund in such Investment Trust for Retirement Trusts, the agreement
creating such Trust as now constituted and as the same may be amended hereafter
from time to time and the Trust created thereby shall be deemed a part of this
Trust and Plan; and
(r) To commingle the assets of the Trust Fund, other than shares of the
Company's Class A Common Stock or Class B Common Stock, with assets of other
trusts through the medium of the Figgie International Inc. Pooled Investment
Trust For Participant Directed Accounts established by the Company by an
agreement dated and executed on June 6, 1994, investing and reinvesting the
assets of the Trust Fund in Units, of such Investment Trust, created or
hereafter created pursuant to said agreement, and in such proportions as the
Company may deem advisable from time to time, acting in its sole discretion. To
the extent of the equitable share of the Trust Fund in such Pooled Investment
Trust For Participant Directed Accounts, the agreement creating such Trust as
now constituted and as the same may be amended hereafter from time to time and
the Trust created thereby shall be deemed a part of this Trust and Plan.
14.2 Notwithstanding any provisions of this Trust and Plan, the Company
hereby retains the right to appoint, from time to time, one or more:
(a) banks, as defined in the Investment Advisers Act of
1940;
(b) persons registered as investment advisers under said
Act; or
(c) insurance companies qualified to perform investment
advisory services under the laws of more than one state;
to act as the Investment Manager or Managers of all or such portions of the
Trust Fund as the Company in its sole discretion shall direct. In order to serve
as Investment Manager, any such bank, person or insurance company must state in
writing to the Company and the Trustee that it meets the requirements set forth
in this Section to be an Investment Manager and that it acknowledges
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that it shall be a fiduciary with respect to this Trust and Plan during
all periods that it shall serve as such. During any period that an Investment
Manager has been appointed with respect to the Trust Fund or a portion thereof,
it shall have all powers normally given to the Trustee under Section 14.1 hereof
with respect to the management, acquisition or disposition of any asset of the
Trust Fund, or such portion thereof and the Trustee shall have no powers, duties
or obligations with respect to the investment, management, acquisition or
disposition of such assets. The Company may, at any time, remove any Investment
Manager or change the portion of the Trust Fund subject to its management by
written notice to the Trustee and the Investment Manager. Any Investment Manager
may resign by written notice to the Company and the Trustee. Unless the Company
appoints a successor to an Investment Manager which has resigned or been
removed, or which is no longer managing a portion of the Trust Fund, the powers,
duties and obligations of the Trustee with respect to the portion of the Trust
Fund formerly managed by the Investment Manager shall be automatically restored.
14.3 All income from investment and reinvestment made as provided in
this Article shall be treated as principal, and investments and reinvestments
shall be made without distinction between income and principal.
14.4 It is the purpose of this Section to permit participants, former
participants, beneficiaries and "alternate payees" (as defined in Section
16.1(a) hereof) to exercise substantial ownership rights under this Trust and
Plan with respect to shares of the Company's Class A Common Stock and Class B
Common
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Stock held in their accounts under this Trust and Plan pursuant to Article VI
hereof. Therefore, the power to direct the Trustee regarding the appropriate
response to any tender or exchange offer made by any person, including the
Company, for shares of the Company's Class A Common Stock or Class B Common
Stock, is hereby granted to such participants, former participants,
beneficiaries and alternate payees pursuant to this Section . Each such person
shall, for purposes of Section 402(a)(2) of ERISA, be a "named fiduciary" with
respect to such power to direct the Trustee as to whether to tender or exchange
such shares of Class A Common Stock or Class B Common Stock as are subject to
his direction as hereinafter provided. Each such named fiduciary is described
herein by qualification and shall be identified by the Company at the
appropriate time by application of said description. Each participant, former
participant, beneficiary or alternate payee shall be eligible to direct the
Trustee regarding the response to a tender or exchange offer with respect to the
number of shares of the Company's Class A Common Stock and the number of shares
of the Company's Class B Common Stock held in his accounts.
The power of direction hereinbefore described in this Section shall be
exercised as follows:
(a) The Company shall furnish each person who is eligible to
direct the Trustee with one or more documents for use in
exercising such direction;
(b) Such document or documents shall permit the person to
exercise such right with respect to:
(i) the Company's Class A Common Stock held in his
accounts; and
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(ii) the Company's Class B Common Stock held in his
accounts;
(c) If such person shall timely direct the Trustee with respect to the
tender or exchange of shares of the Company's Class A Common Stock
and the Company's Class B Common Stock held in his accounts, the
Trustee shall respond to the tender or exchange offer for such
shares in accordance with such direction; but if he shall not so
direct the Trustee, the decision of whether the shares subject to
his direction shall be tendered or exchanged shall be made by the
Trustee in its sole discretion;
(d) If an account contains a fractional share of the Company's Class A
Common Stock or the Company's Class B Common Stock, such share
shall be aggregated with shares of the same type (i.e. Class A or
Class B) for which the tender or exchange decision is the same,
for tender or exchange purposes; but if there still remains a
fractional share for which the decision was to tender or exchange,
such fractional share shall be tendered or exchanged only if
permitted by the rules governing such tender or exchange and shall
not be tendered or exchanged if fractional shares are not
permitted to be tendered or exchanged; and
(e) In order to protect the anonymity of participants and others
eligible to direct the Trustee with respect to the tender or
exchange of shares of the Company's Class A Common Stock or the
Company's Class B Common Stock, the Administrator shall establish
a procedure for tallying and recording such directions which will
not reveal to the Trustee, Company, any Participating Division or
any affiliate of the Company, to the extent reasonably practicable
under the circumstances, the identity of the participant or other
person giving a particular direction.
14.5 It is the purpose of this Section to permit participants, former
participants, beneficiaries and "alternate payees" (as defined in Section
16.1(a) hereof) to exercise voting rights under this Trust and Plan with respect
to shares of the Company's Class A Common Stock and Class B Common Stock held in
their accounts under this Trust and Plan pursuant to Article VI
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hereof. Therefore, the power to direct the Trustee regarding the exercise of the
right to vote the shares of the Company's Class A Common Stock or Class B Common
Stock held in their accounts with respect to any matter on which such shares may
be voted is hereby granted to such participants, former participants,
beneficiaries and alternate payees pursuant to this Section . Each such person
shall, for purposes of Section 402(a)(2) of ERISA, be a "named fiduciary" with
respect to such power to direct the Trustee as to the voting of such shares of
Class A Common Stock or Class B Common Stock as are subject to his direction as
hereinafter provided. Each such named fiduciary is described herein by
qualification and shall be identified by the Company at the appropriate time by
application of said description. Each participant (whether or not he is an
active participant), former participant, beneficiary or alternate payee shall be
eligible to direct the Trustee regarding the exercise of the right to vote the
number of shares of the Company's Class A Common Stock and the number of shares
of the Company's Class B Common Stock held in his accounts.
The power of direction hereinbefore described in this Section shall be
exercised as follows:
(a) The Company shall furnish each person who is eligible to direct
the Trustee with one or more documents for use in exercising such
direction;
(b) Such document or documents shall permit the person to exercise
such right with respect to:
(i) the Company's Class A Common Stock held in his accounts; and
(ii) the Company's Class B Common Stock held in his accounts;
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(c) If such person shall timely direct the Trustee with respect to the
voting of shares of the Company's Class A Common Stock and the
Company's Class B Common Stock held in his accounts, the Trustee
shall exercise the right to vote such shares in accordance with
such direction; but if he shall not so direct the Trustee, the
decision of whether the shares subject to his direction shall be
voted shall be made by the Trustee in its sole discretion;
(d) If an account contains a fractional share of the Company's Class A
Common Stock or the Company's Class B Common Stock, such share
shall be aggregated with shares of the same type (i.e. Class A or
Class B) for which the voting decision is the same, for voting
purposes; but if there still remains a fractional share, such
fractional share shall be voted only if permitted by the rules
governing such voting and shall not be voted if fractional shares
are not permitted to vote; and
(e) In order to protect the anonymity of participants and others
eligible to direct the Trustee with respect to the voting of
shares of the Company's Class A Common Stock or the Company's
Class B Common Stock, the Administrator shall establish a
procedure for tallying and recording such directions which will
not reveal to the Trustee, Company, any Participating Division or
any affiliate of the Company, to the extent reasonably practicable
under the circumstances, the identity of the participant or other
person giving a particular direction.
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ARTICLE XV
ADMINISTRATION
15.1 The Administrator shall be responsible for the general
administration of this Trust and Plan and shall have all powers and duties
granted to or imposed upon an "administrator" by ERISA. The Administrator shall
have all such powers as may be necessary to carry out the provisions of this
Trust and Plan and may, from time to time, establish rules for the
administration of this Trust and Plan and the transaction of this Trust and
Plan's business. In making any rule or determination, the Administrator or its
representatives shall pursue uniform policies and shall not intentionally
discriminate in favor of or against any employee or group of employees. Without
limiting the foregoing, the Administrator shall have the following powers and
duties:
(a) To enact such rules, regulations, and procedures and to
prescribe the use of such forms as it shall deem
advisable.
(b) To appoint or employ such agents, attorneys, actuaries,
and assistants at the expense of the Trust Fund, as it
may deem necessary to keep its records or to assist it
in taking any other action.
(c) To interpret this Trust and Plan, and to resolve
ambiguities, inconsistencies, and omissions, to
determine any question of fact, to determine the right
to benefits of, and amount of benefits, if any, payable
to, any person in accordance with the provisions of this
Trust and Plan, and to decide questions of eligibility.
(d) To direct the Trustee to make payments of benefits as
they become due. Any such direction to the Trustee shall
be in writing and signed by an authorized representative
of the Administrator.
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15.2 An Appeals Committee consisting of three (3) or more members shall
be appointed by the Board of Directors of the Company to serve at the pleasure
of such Board of Directors. Members of the Committee may be officers, directors,
stockholders, or employees of the Company or an affiliate and may, but need not
be, participants under this Trust and Plan. The members of the Committee shall
be reimbursed for expenses incurred by them in the performance of their duties
hereunder but shall serve without compensation as such.
The Committee shall appoint a Chairman from among its members and may
appoint a Secretary who may, but need not be, a member of the Committee. The
Secretary shall keep written minutes of the meetings and actions of the
Committee.
Any action expressed from time to time by a vote at a meeting, or
expressed in writing after notice to all members of the Committee, may be done
by a majority of the members of the Committee at the time acting hereunder; and
such action shall constitute the action of the Committee and shall have the same
effect for all purposes as if assented to by all the members of the Committee at
the time in office.
15.3 If any participant, any beneficiary, or the authorized
representative of a participant or beneficiary shall file an application for
benefits hereunder and such application is denied by the Administrator, in whole
or in part, he shall be notified in writing of the specific reason or reasons
for such denial. The notice shall also set forth the specific Trust and Plan
provisions upon which the denial is based, an explanation of
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the provisions of Section 15.4 hereof, and any other information deemed
necessary or advisable by the Administrator.
15.4 Any participant, any beneficiary, or any authorized representative
of a participant or beneficiary whose application for benefits hereunder has
been denied, in whole or in part, by the Administrator may upon written notice
to the Committee request a review by the Committee of such denial of his
application. Such review may be made by written briefs submitted by the
applicant and the Administrator or at a hearing, or by both, as shall be deemed
necessary by the Committee. The Committee may, in its sole discretion, appoint
from its members an Appeal Examiner to conduct such review. Any hearing
conducted by an Appeal Examiner shall be held in such location as shall be
reasonably convenient to the applicant. Any hearing conducted by the Committee
shall be held in the Corporate Headquarters of the Company, unless the Committee
shall specify otherwise. The date and time of any such hearing shall be
designated by the Committee or the Appeal Examiner upon not less than seven (7)
days' notice to the applicant and the Administrator unless both of them accept
shorter notice. The Committee or the Appeal Examiner shall make every effort to
schedule the hearing on a day and at a time which is convenient to both the
applicant and the Administrator. The Committee may, in its sole discretion,
establish such rules of procedure as it may deem necessary or advisable for the
conduct of any such review or of any such hearing. After the review has been
completed, the Committee or the Appeal Examiner shall render a decision in
writing, a copy of which shall be sent to both the applicant and
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the Administrator. In rendering its decision, the Committee or the Appeal
Examiner shall have full power and discretion to interpret this Trust and Plan,
to resolve ambiguities, inconsistencies and omissions, to determine any question
of fact, to determine the right to benefits of, and the amount of benefits, if
any, payable to, the applicant in accordance with the provisions of this Trust
and Plan. Such decision shall set forth the specific reason or reasons for the
decision and the specific Trust and Plan provisions upon which the decision is
based and, if the decision is made by an Appeal Examiner, the rights of the
applicant or the Administrator to request a review by the entire Committee of
the decision of the Appeal Examiner. Either the applicant or the Administrator
may request a review of an adverse decision of the Appeal Examiner by filing a
written request with the Committee within thirty (30) days after they receive a
copy of the Appeal Examiner's decision. The review of a decision of the Appeal
Examiner shall be conducted by the Committee in accordance with the procedures
of this Section . There shall be no further appeal from a decision rendered by a
quorum of the Committee.
15.5 The interpretations, determinations and decisions of the
Administrator, Appeal Examiner and Committee shall, except to the extent
provided in Section 15.4 hereof, be final and binding upon all persons with
respect to any right, benefit and privilege hereunder. Except as otherwise
provided in ERISA, the review procedures of said Section 15.4 shall be the sole
and exclusive remedy and shall be in lieu of all actions at law, in equity,
pursuant to arbitration or otherwise. In any event, a participant
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or beneficiary must exhaust the review procedures of Section 15.4 hereof prior
to the commencement of any such action.
15.6 The Company, Administrator, Appeal Examiner, Committee, Board of
Directors, Trustee and their respective officers, members, employees and agents
shall have no duty or responsibility under this Trust and Plan other than the
duties and responsibilities expressly assigned to them herein or delegated to
them pursuant hereto. None of them shall have any duty or responsibility with
respect to the duties or responsibilities assigned or delegated to another of
them. In no event shall the Company, Administrator, Appeal Examiner, Committee,
Board of Directors or their respective officers, members, employees and agents
be deemed to have any duty or responsibility with respect to the holding,
safekeeping, investment, reinvestment and administration of the Trust Fund.
15.7 Except as otherwise provided in ERISA, the Administrator,
Committee, Board of Directors, Appeal Examiner, and their respective officers
and members shall incur no personal liability of any nature whatsoever in
connection with any act done or omitted to be done in the administration of this
Trust and Plan. The Company shall indemnify, defend, and hold harmless the
Administrator, Committee, Board of Directors, Appeal Examiner, and their
respective officers, employees, members and agents, for all acts taken or
omitted in carrying out their responsibilities under the terms of this Trust and
Plan or other responsibilities imposed upon such persons by ERISA. This
indemnification for all acts or omissions is intentionally broad, but shall not
provide
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indemnification for embezzlement or diversion of Trust funds for the benefit of
any such persons, nor shall it provide indemnification for excise taxes imposed
under Section 4975 of the Code. The Company shall indemnify such persons for
expenses of defending an action by a participant, beneficiary, government
entity, or other persons, including all legal fees and other costs of such
defense. The Company will also reimburse such a person for any monetary recovery
in a successful action against such person in any federal or state court or
arbitration. In addition, if the claim is settled out of court with the
concurrence of the Company, the Company shall indemnify such person for any
monetary liability under said settlement.
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ARTICLE XVI
PROHIBITION AGAINST ALIENATION
16.1 Unless the context otherwise indicates, the following terms used
herein shall have the following meanings whenever used in this Article:
(a) The words "alternate payee" shall mean any spouse, former spouse,
child or other dependent of a participant or former participant
who is recognized by a domestic relations order as having a right
to receive all, or a portion of, such participant's or former
participant's account balances.
(b) The words "domestic relations order" shall mean, with respect to
any participant or former participant, any judgement, decree or
order (including approval of a property settlement agreement)
which both:
(i) relates to the provisions of child support, alimony payments
or marital property rights to a spouse, former spouse, child
or other dependent of the participant or former participant;
and
(ii) is made pursuant to a State domestic relations law (including
a community property law).
(c) The words "qualified domestic relations order" shall mean a
domestic relations order which satisfies the requirements of
Section 414(p)(1)(A) of the Code.
16.2 Neither any property nor any interest in any property held for the
benefit of any participant, former participant or beneficiary shall be
alienated, disposed of or in any manner encumbered, voluntarily, involuntarily
or by operation of law, while in the possession or control of the Trustee except
by an act of the Trustee or the participant, former participant or beneficiary
specifically authorized hereunder.
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16.3 Section 16.2 hereof shall not apply to the creation, assignment or
recognition of a right to any benefit under this Trust and Plan pursuant to a
qualified domestic relations order and shall not apply to the payment of any
benefits to an alternate payee pursuant to such an order.
16.4 In the event this Trust and Plan is served with a domestic
relations order, the Administrator shall promptly notify the participant or
former participant and any alternate payee to whom such order relates of the
receipt of such order and this Trust and Plan's procedures for determining
whether such order is a qualified domestic relations order. Within a reasonable
time after receipt of such domestic relations order, the Administrator shall
determine whether such order is a qualified domestic relations order and shall
notify the participant or former participant and each alternate payee of its
determination.
16.5 During any period in which the issue of whether a domestic
relations order is a qualified domestic relations order is being determined, the
Administrator shall direct the Trustee to credit the amounts which would have
been payable to an alternate payee during such period if the order had been
determined to be a qualified domestic relations order during such period to a
segregated account under this Trust and Plan and to debit such amounts from the
appropriate accounts of the participant or former participant. If the domestic
relations order is determined to be a qualified domestic relations order within
eighteen (18) months after this Trust and Plan is served with such domestic
relations order, the Administrator shall hold and dispose of the amounts
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credited to the segregated account in accordance with the terms of the qualified
domestic relations order. If:
(a) it is determined that such domestic relations order is not a
qualified domestic relations order; or
(b) the issue with respect to whether such domestic relations order is
a qualified domestic relations order is not resolved within
eighteen (18) months after this Trust and Plan is served with such
domestic relations order;
the Administrator shall transfer the amounts credited to the segregated account
to the appropriate accounts maintained for the benefit of the person who would
have been entitled to such amounts if this Trust and Plan had never been served
with such domestic relations order. If eighteen (18) months have elapsed since
this Trust and Plan was served with such domestic relations order and such order
is subsequently determined to be a qualified domestic relations order, such
order shall only be applied prospectively.
16.6 The amounts credited to any segregated account which has been
created under Section 16.4 hereof after this Trust and Plan has been served with
a domestic relations order shall be invested in such of the investment funds
established pursuant to Article VI hereof as the Administrator shall direct
until it is determined whether such domestic relations order is a qualified
domestic relations order.
16.7 Any participant, former participant or alternate payee who is
affected by a domestic relations order served upon this Trust and Plan may, upon
written notice to the Committee appointed pursuant to Article XV hereof, request
a review by such Committee of the Administrator's determination with respect to
the
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qualification or lack of qualification of such domestic relations order. Any
such review by the Committee shall be subject to the rules and procedures set
forth in Article XV hereof.
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ARTICLE XVII
AMENDMENT AND TERMINATION
17.1 This Trust and Plan may be modified, altered, amended, changed or
terminated by the Company at any time by action of its Board of Directors as
evidenced by an instrument in writing executed in the name of the Company by one
(1) or more duly authorized officers of the Company, but no rights of
participants, former participants or beneficiaries receiving benefits under this
Trust and Plan and no other vested rights under this Trust and Plan shall in any
way be modified except that such rights may be modified if such a modification
is necessary to establish or to continue the qualified status of this Trust and
Plan under the terms of Section 401 of the Code or its successor section or
sections. This Trust and Plan may be modified and amended retroactively, if
necessary, to secure exemption effective on the effective date under Section 401
of the Code. No amendment shall be binding on the Trustee until the receipt of
such amendment by the Trustee.
17.2 Upon termination of this Trust and Plan all assets of the Trust
Fund after deduction therefrom of any accrued expenses and fees of the Trustee
and any expenses and fees relating to such termination incurred or to be
incurred by the Trustee shall be allocated among the then existing accounts.
Each such account shall be allocated that portion of such assets of each
investment fund which bears the same relationship to the total of such assets as
the amount then standing credited to such account which
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represents the interest of such account in such investment fund bears to the
total amounts then standing credited to all accounts which represent the
interest of such accounts in such investment fund. All such amounts allocated to
the accounts of a participant or former participant at the time of termination
of this Trust and Plan shall be fully vested and nonforfeitable. The amounts
thus allocated shall be forthwith distributed to the participant or former
participant for whose benefit the accounts were established if he is living on
the date of termination, or if he shall have died before distribution, in
accordance with the provisions of Article XI hereof.
17.3 Upon the partial termination of this Trust and Plan or upon
complete discontinuance of contributions to this Trust and Plan by the Company,
all amounts allocated at the time of such partial termination or complete
discontinuance to the accounts of participants affected by such partial
termination or complete discontinuance shall be fully vested and nonforfeitable.
However, after any such partial termination or complete discontinuance of
contributions, the Trustee shall continue to administer this Trust and Plan in
the manner in which this Trust and Plan was administered before any such partial
termination and a participant shall only be entitled to receive benefits upon
the occurrence of an event which under the terms of this Trust and Plan would
entitle him to receive such benefits. For purposes of this Section , no event
shall be a "partial termination" unless: (a) the Company has so designated such
event in a writing delivered to the Trustee; or (b) such event has been finally
and expressly determined to be a
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partial termination within the meaning of Section 411(d) of the Code in an
administrative or judicial proceeding to which both the Company and the
Commissioner of Internal Revenue or his delegate were parties.
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ARTICLE XVIII
LIMITATIONS ON CONTRIBUTIONS
18.1 The amount of salary deferral contributions under this Trust and
Plan shall be subject to several limitations. These limitations are as follows:
(a) Salary deferral contributions shall be subject to the individual
dollar limit described in Section 18.2 hereof;
(b) Salary deferral contributions shall be subject to the deferral
percentage limit set forth in Section 18.3 hereof;
(c) Salary deferral contributions shall be subject to the
deductibility limit set forth in Section 18.4 hereof; and
(d) Salary deferral contributions shall be subject to the limitation
on annual additions set forth in Article XIX hereof.
18.2 The salary deferral contributions with respect to the taxable year
of a participant plus similar amounts contributed on a similar basis by any
other employer (whether or not related to the Company) required by law to be
aggregated with his salary deferral contributions under this Trust and Plan
shall not exceed Nine Thousand Two Hundred Forty Dollars ($9,240.00), plus any
adjustment for cost-of-living after 1995 as determined pursuant to regulations
issued by the Secretary of the Treasury or his delegate pursuant to Section
415(d) of the Code.
In the event that the salary deferral contributions for a participant's
taxable year exceed such limit, or in the event that the Administrator shall
receive notice from a participant by the March 1 next following the close of a
participant's taxable year
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that his salary deferral contributions, together with similar contributions
under plans of other employers shall have exceeded such limit, the Administrator
shall cause the amount of excess contributions, together with any earnings
allocable to such excess contributions, to be refunded to the participant by the
following April 15th. The amount of any such refund shall be debited from the
participant's salary deferral account.
18.3 Salary deferral contributions made on behalf of a participant for
a plan year shall be limited so that the average deferral percentage for the
highly compensated employees who are eligible to become participants shall not
exceed an amount determined based upon the average deferral percentage for the
employees who are eligible to become participants but are not highly compensated
employees, as follows:
(A) (B)
Average Deferral Limit on Average Deferral
Percentage for Employees Percentage for Employees
Eligible to Participate Eligible to Participate
who are not Highly who are Highly
Compensated Compensated
Less than 2% 2 times Column (A)
2% or more but less than 8% Column (A) plus 2%
8% or more 1.25 times Column (A)
18.4 In no event shall the amount of all salary deferral contributions
exceed the maximum amount allowable as a deduction under Section 404(a)(3) of
the Code or any statute of similar import. This limitation shall not apply to
employer contributions which may be required in order to provide the minimum
contributions described in Article XX hereof for any plan year in which this
Trust and Plan is top-heavy.
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18.5 In the event that the limitations set forth in Section 18.2 or
18.3 hereof shall be exceeded, the Administrator shall take action to reduce
future salary deferral contributions made pursuant to Article V hereof. Such
action may include a reduction in the future rate of salary deferral
contributions of any highly compensated participant pursuant to any legally
permissible procedure. In the event that such action shall fail to prevent the
excess, prior salary deferral contributions made pursuant to Article V hereof
shall be distributed to the participant on whose behalf such contributions were
made. In the event of such a distribution, the salary deferral account of such
participant shall be debited with the amount of such distribution. Any such
adjustments made in participants' accounts shall be made in a uniform manner for
similarly situated participants.
18.6 For purposes of this Article, the following definitions and
special rules shall apply:
(a) "deferral percentage" shall mean for a participant for any plan
year a fraction:
(i) the numerator of which shall equal the total of the
salary deferral contributions made on his behalf for
such plan year; and
(ii) the denominator of which shall equal the sum of (A) plus
(B) plus (C) where:
(A) equals his Total Remuneration for such plan year;
and
(B) equals the salary deferral contributions made on his
behalf for such plan year; and
(C) equals other amounts excludable from gross income
under Section 125, 402(e)(3), 402(h) or 403(b) of
the Code.
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(b) "family" shall mean, with respect to any employee, such employee's
spouse and lineal ascendants or descendants and the spouses of
such lineal ascen- dants or descendants.
(c) "family aggregation" as described in this subparagraph (e) shall
apply for purposes of the deferral percentage limit set forth in
Section 18.3 hereof. If any individual is a member of the family
of a five percent (5%) owner or of a highly compensated employee
in the group consisting of the ten (10) highly compensated
employees paid the greatest Total Remuneration by the Company and
all affiliates during the plan year, then:
(i) such individual shall not be considered a separate employee;
and
(ii) any such Total Remuneration paid to such individual by a the
Company and all affiliates (and any applicable contribution or
benefit on behalf of such individual) shall be treated as if
it were paid to (or on behalf of) the five percent (5%) owner
or highly compensated employee.
(d) "highly compensated employee" shall mean an employee who is a
"highly compensated employee" for a plan year as described in
Section 414(q) of the Code which is hereby incorporated by
reference and who is described for informational purposes herein
as an employee during a plan year if either:
(i) during the preceding plan year, he:
(A) was at any time a five percent (5%) actual or constructive
owner of a the Company and its affiliates;
(B) received Total Remuneration from the Company and its
affiliates greater than One Hundred Thousand Dollars
($100,000.00) (plus any increase for cost of living after
1995 as determined by the Secretary of the Treasury or his
delegate);
(C) received Total Remuneration from the Company and its
affiliates greater than Sixty-Six Thousand Dollars
($66,000.00) (plus any increase for cost of living after
1995 as determined by the Secretary of the Treasury or his
delegate) and was
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in the "top paid group" of employees of the Company and
its affiliates for such plan year; or
(D) was at any time an officer of the Company or one of its
affiliates and received Total Remuneration greater than
fifty percent (50%) of the amount in effect under Section
415(b)(1)(A) of the Code for such plan year (plus any
increase for cost of living after 1995 as determined by
the Secretary of the Treasury or his delegate); or
(ii) during the current plan year, he either:
(A) was at any time a five percent (5%) or more actual or
constructive owner of the Company and its affiliate;
or
(B) was one of the one hundred (100) highest paid
employees of the Company and its affiliates for the
current plan year and meets the requirements of
(i)(B), (i)(C) or (i)(D) above for the current plan
year.
(e) "officers" shall be all officers of the Company or an affiliate
subject to the following:
(i) The total number of employees treated as officers shall be
limited to the lesser of:
(A) fifty (50); or
(B) the greater of three (3) employees or ten percent (10%) of
all employees of the Company and all affiliates; but
(ii) If no employee would be described as an officer pursuant to
subparagraph (f)(i)(D) above, the highest paid officer shall
be treated as described in such subparagraph.
(f) "top paid group" shall mean a group consisting of the top paid
twenty percent (20%) of the employees of the Company and all
affiliates ranked on the basis of Total Remuneration from the
Company and all affiliates paid during the plan year. In
determining the members of the top paid group, the following
employees shall be excluded:
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(i) employees who have not completed six (6) months service;
(ii) employees who normally work less than seventeen and one-half
(17-1/2) hours per week;
(iii) employees who normally work during not more than six (6)
months during any year;
(iv) employees who have not attained age twenty-one (21);
(v) except to the extent provided in regulations, employees who
are included in a unit of employees covered by an agreement
which the Secretary of Labor finds to be a collective
bargaining agreement between employee representatives and
the Company or any affiliate; and
(vi) employees who are nonresident aliens and who receive no
earned income (within the meaning of Section 911(d)(2) of
the Code) from a the Company or any affiliate which
constitutes income from sources within the United States
(within the meaning of section 861(a)(3) of the Code).
The Company may elect (in such manner as may be provided by the
Secretary of the Treasury or his delegate) to apply subparagraph
(i), (ii), (iii), or (iv) by substituting a shorter period of
service, smaller number of hours or months, or lower age for the
period of service, number of hours or months, or age (as the case
may be) than that specified in such subparagraph.
(g) "Total Remuneration" shall mean compensation as defined in
Section 2.9 hereof but including a participant's compensation
during periods in which he is not an active participant.
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ARTICLE XIX
LIMITATION ON ANNUAL ADDITIONS
19.1 Notwithstanding anything contained in this Trust and Plan to the
contrary, in no event shall a participant's annual additions and annual amount
of retirement benefits be greater than the maximum allowable amounts determined
in accordance with Section 415 of the Code, taking into account paragraph (e) of
said Section 415, Section 1106 of the Tax Reform Act of 1986, Section 235(g) of
the Tax Equity and Fiscal Responsibility Act of 1982 and Section 2004(d) of
ERISA which are, respectively, incorporated herein by reference.
19.2 In the event a participant, who would otherwise be credited with
excess annual additions, benefits or projected benefits is also a participant
under the Company's Stock Ownership Trust and Plan and/or the Company's
Retirement Income Plan II, adjustment under Section 415 of the Code shall be
made in the following order:
(a) first, projected benefits under the Company's Retirement Income
Plan II shall be reduced;
(b) second, accrued benefits under the Company's Retirement Income
Plan II shall be reduced;
(c) third, annual additions which consist of salary deferral
contributions hereunder shall be reduced pro rata; and
(d) fourth, annual additions under the Company's Stock Ownership Trust
and Plan shall be reduced.
Notwithstanding the foregoing, in the event a participant's excess annual
benefits or projected benefits would only result in a
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violation under Section 415(b) of the Code, his benefits under the Company's
Retirement Income Plan II shall be reduced in the order set forth in
subparagraphs (a) and (b) above. Furthermore, in the event a participant's
excess annual additions would only result in a violation under Section 415(c) of
the Code, his annual additions shall be reduced under the Company's defined
contribution plans, including this Trust and Plan, in the order set forth in
subparagraphs (c) and (d) above.
19.3 For purposes of calculating the maximum allowable amounts under
Section 19.1 hereof, a participant's "limitation year" shall mean the calendar
year and his "compensation" shall mean all amounts paid to him in payment for
services rendered by him to the Company or any affiliate which may be taken into
account for purposes of determining limitations on annual additions and benefits
under Section 415 of the Code and any lawful regulations thereunder and
includible in gross income during the limitation year.
19.4 In the event that, after the application of any other provisions
of this Trust and Plan and any provisions of the retirement plans described in
Section 19.2 hereof, there still remain, as a result of a reasonable error in
estimating a participant's compensation or other limited facts and circumstances
which the Commissioner of Internal Revenue finds justify the availability of the
rules set forth in this Section , salary deferral contributions which, if
contributed on behalf of a participant, would be in excess of the limits on
annual additions set forth in Section 19.1 hereof, such salary deferral
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contributions, together with any earnings, shall be distributed to said
participant.
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ARTICLE XX
TOP-HEAVY PROVISIONS
20.1 During any plan year that this Trust and Plan is top-heavy, as
determined in accordance with Section 20.2 hereof, the special restrictions
contained in Sections 20.3 and 20.4 hereof shall apply.
20.2 This Trust and Plan shall be considered to be top-heavy in any
plan year if, as of the determination date for such plan year, all the
aggregation groups of which this Trust and Plan is a member are top-heavy
groups. In the event that in any plan year this Trust and Plan is a member of an
aggregation group which is not a top-heavy group, this Trust and Plan shall not
be considered to be top-heavy for such plan year.
For purposes of determining the foregoing, the following terms shall be
defined as follows:
(a) "determination date" shall mean for the first plan year, its last
day, and shall mean, for any other plan year, the last day of the
preceding plan year;
(b) "key employee" shall mean a "key employee" as described in
Section 416(i) of the Code which is hereby incorporated by
reference and who is described for informational purposes herein
as any employee, former employee or beneficiary who at any time
during the plan year or the four (4) preceding plan years is:
(i) an officer of the Company or an affiliate having total
remuneration (as defined in Section 20.2(g) hereof) for the
plan year of determination greater than fifty percent (50%) of
the amount specified in Section 415(b)(1)(A) of the Code (plus
any increase for cost-of-living after 1995 as determined from
time to time pursuant to regulations issued by the Secretary
of the Treasury or his
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delegate pursuant to Section 415(d) of the Code);
(ii) a one-half of one percent (.5%) actual or constructive owner
of the Company or any affiliate who owns one of the ten (10)
largest interests in the Company or any affiliate and who is
an employee of the Company or an affiliate having total
remuneration (as defined in Section 20.2(g) hereof) greater
than Thirty Thousand Dollars ($30,000.00) or, if greater,
the amount specified in Section 415(c)(1)(A) of the Code
(plus any increase for cost-of-living after 1995 as
determined from time to time pursuant to regulations issued
by the Secretary of the Treasury or his delegate pursuant to
Section 415(d) of the Code);
(iii) a five percent (5%) actual or constructive owner of the
Company or any affiliate; or
(iv) a one percent (1%) actual or constructive owner of the
Company or any affiliate having total remuneration (as
defined in Section 20.2(g) hereof) from the Company and all
affiliates for the plan year of determination greater than
One Hundred Fifty Thousand Dollars ($150,000.00);
provided that any such employee also performed service for the
Company or an affiliate during the five (5) plan year period
ending on the determination date; and provided that an amount held
for the beneficiary of a key employee who is deceased shall be
deemed to be an amount held for a key employee;
(c) "non-key employee" shall mean any employee, former employee or
beneficiary who is not a key employee including any employee or
beneficiary who was formerly a key employee;
(d) "permissive aggregation group" shall mean the required aggregation
group plus one (1) or more other plans to which the Company or any
affiliate makes contributions which, when considered as a group
with the required aggregation group, would continue to comply with
Sections 401(a)(4) and 410 of the Code;
(e) "required aggregation group" shall mean each defined benefit plan
and each defined contribution
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plan of the Company or any affiliate in which a key
employee is a participant in the plan year containing
the determination date or in any of the four (4)
preceding plan years and each other defined benefit
plan and each other defined contribution plan which,
during said plan years, enables such plans to meet
the requirements of Section 401(a)(4) or 410 of the
Code, including for this purpose each defined benefit
plan and each defined contribution plan of the
Company or any affiliate which was terminated during
any of said plan years;
(f) "top-heavy group" shall mean any aggregation group if the sum, as
of the determination date, of:
(i) the aggregate value of the account balances of key employees
under all defined contribution plans included in such group;
and
(ii) the present value of the cumulative accrued benefits for key
employees under all defined benefit plans included in such
group;
exceeds sixty percent (60%) of a similar sum determined for
all participants, former participants and beneficiaries
permitted to be taken into account pursuant to Section 416(g)
of the Code, with such values being determined for each plan
as of the most recent valuation date occurring within the
twelve (12) month period ending on the determination date and
subject to appropriate adjustments under said Section 416(g)
and lawful regulations issued thereunder, including the
requirement that benefits and accounts of a participant be
increased by the aggregate distributions with respect to such
participant during the five (5) year period ending on the
determination date;
(g) "total remuneration" shall mean, for any participant, all amounts
paid to him in payment for services rendered by him to the Company
or any affiliate which may be taken into account for purposes of
determining limitations on annual additions and benefits under
Section 415 of the Code and any lawful regulations thereunder;
provided that total remuneration shall not exceed One Hundred
Fifty Thousand Dollars ($150,000.00) (plus any adjustment for
cost-of-living or otherwise as shall be prescribed by the
Secretary of the Treasury pursuant to Sections 401(a)(17) and
415(d) of the Code) and provided further that in
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determining the foregoing limit, the family aggregation rules
contained in Section 2.9 hereof shall apply; and
(h) "valuation date" shall mean:
(i) in the case of a defined contribution plan, a date as of
which account balances are valued; and
(ii) in the case of a defined benefit plan, a date as of which
liabilities and assets are valued for computing plan costs
for purposes of determining the plan's minimum funding
requirements under Section 412 of the Code.
In making any of the aforementioned calculations, contributions due but
unpaid as of the determination date shall be included in determining the value
of account balances. In addition, the present value of cumulative accrued
benefits shall be determined as if they accrued no more rapidly than the slowest
rate of accrual permitted under the fractional rule of Section 411(b)(1)(C) of
the Code utilizing the actuarial factors and assumptions set forth in the
defined benefit plans included in the aggregation groups. Furthermore, for
purposes of making the aforementioned calculations with respect to defined
benefit plans, proportional subsidies, and benefits not relating to retirement
benefits such as pre-retirement death and disability benefits and post
retirement medical benefits, are to be disregarded but nonproportional subsidies
are to be taken into account.
20.3 During any plan year that this Trust and Plan is top-heavy, the
Company or a Participating Division shall make a minimum contribution to this
Trust and Plan on behalf of each non-key employee who meets all of the following
requirements:
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(a) he is not covered by a collective bargaining agreement;
(b) he is a participant on the last day of such plan year or was a
participant whose employment terminated on or as of said date,
irrespective of whether he has completed one thousand (1,000)
hours for the Company or an affiliate during such plan year; and
(c) he is not a participant in a defined benefit pension plan that
provides him with a minimum accrued benefit (regardless of whether
such accrued benefit is offset by benefits under this Trust and
Plan) which satisfies the requirements of Section 416(c)(1) of the
Code.
The minimum contribution to be made hereunder for such a non-key employee shall
be an amount which when added to the contributions allocable to such non-key
employee under all other defined contribution plans of the Company or any
affiliate shall cause such total contributions to be at least equal to the
lesser of:
(i) three percent (3%) of the non-key employee's total
remuneration (as defined in Section 20.2(g) hereof) during
the plan year; or
(ii) the largest percentage of total remuneration provided to any
key employee by the contributions of the Company or any
affiliate for such plan year.
In determining the percentage set forth in subparagraph (ii) above, salary
reduction amounts which are excluded from the taxable income of a key employee
under Code Section 402(e)(3) shall be taken into account, but such amounts,
together with any related matching contributions, shall not be taken into
account with respect to non-key employees in determining compliance with this
Section. However, Company contributions made pursuant to Section 8.5 of the
Company's Stock Ownership Trust and Plan shall not be taken into
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account when determining the Company contributions required under this Section.
20.4 During any plan year that this Trust and Plan is top-heavy the
limitations on annual additions and annual benefits under Section 415 of the
Code, described in Section 19.1 hereof, shall be reduced as described in
Section 416(h) of the Code. The Company and the Participating Divisions will
not make the additional contributions permitted by Section 416(h)(2) of the
Code to increase the limits under Section 415(e) of the Code.
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ARTICLE XXI
MISCELLANEOUS
21.1 In the event the Company shall at any time be judicially declared
bankrupt or insolvent, or in the event of its dissolution, merger or
consolidation without any provisions being made for the continuation of this
Trust and Plan, the Trust and Plan created hereunder shall terminate and the
Trustee shall make distributions as provided in Section 17.2 hereof.
21.2 In the event this Trust and Plan shall merge or consolidate with,
or transfer any of its assets or liabilities to any other plan, each participant
shall be entitled to receive, if this Trust and Plan were terminated immediately
thereafter, a benefit which is equal to or greater than the benefit he would
have been entitled to receive immediately before the merger, consolidation or
transfer if this Trust and Plan had then terminated, in accordance with Section
414(l) of the Code and Section 208 of ERISA.
21.3 Neither anything contained herein, nor any contribution made
hereunder, nor any other acts done in pursuance of this Trust and Plan, shall be
construed as entitling any participant to be continued in the employ of the
Company or any affiliate for any period of time nor as obliging the Company or
any affiliate to keep any participant in its employ for any period of time, nor
shall any employee of the Company or any affiliate nor anyone else have any
rights whatsoever, legal or equitable, against
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the Company or any affiliate or the Trustee as a result of this Trust and Plan
except those expressly granted to him hereunder.
21.4 No contribution or payment by the Company to the Trustee of this
Trust and Plan, nor any income of the Trust Fund, shall in any event revert or
be credited to or be used for the benefit of the Company or any affiliate, and
all such contributions, payments and income shall be used solely and exclusively
for the benefit of the participants and their beneficiaries under this Trust and
Plan, except that the Trustee shall return to the Company upon written request
of the Company:
(a) any contributions made by the Company by a mistake of fact,
provided such contributions are returned to the Company
within one (1) year after the date such contributions were
made;
(b) any contributions made for plan years during which this Trust
and Plan does not initially qualify under Section 401(a) of
the Code, provided such contributions are returned to the
Company within one (1) year after the date of denial of
qualification, but only if an application for determination
was made with the Internal Revenue Service by the time
prescribed by law for filing the Company's tax return for the
taxable year in which this Trust and Plan was adopted, or on
such later date as the Secretary of the Treasury may
prescribe; and
(c) any contributions, to the extent that their deduction is
disallowed under Section 404 of the Code, provided that such
disallowed contributions are returned to the Company within
one (1) year after the disallowance of the deduction.
21.5 If any provision of this Trust and Plan shall require the consent
of the spouse of a participant, such consent shall be in writing with the
signature of the spouse notarized or witnessed by the Administrator.
Notwithstanding any provision hereof to the contrary, the consent of the spouse
shall not be
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necessary if it is established to the satisfaction of the Administrator that the
signature of the spouse cannot be obtained either because the spouse cannot be
located or because of such other circumstances as the Secretary of the Treasury
may prescribe by lawful regulations. Any consent given by a spouse pursuant to
this Section shall be effective only with respect to such spouse and shall not
be effective with respect to any other spouse of such participant.
21.6 Notwithstanding any provision of this Trust and Plan to the
contrary, the Administrator, where required by law or where it deems appropriate
in its sole discretion, may require spousal consent for any actions taken,
elections made, or the exercise of any rights by a married participant under
this Trust and Plan. Any consent by a spouse pursuant to this Section shall be
made in accordance with Section 21.5 hereof.
21.7 Whenever any pronoun is used herein, it shall be construed to
include the masculine pronoun, the feminine pronoun or the neuter pronoun as
shall be appropriate.
21.8 This Trust and Plan shall be construed under and in accordance
with the laws of the State of Ohio and of the United States of America.
21.9 If the Internal Revenue Service determines that this Trust and
Plan does not initially qualify under Section 401(a) of the Code or any statute
of similar import, or fails or refuses to issue a favorable determination letter
with respect thereto or with respect to the taxable year of the Company ending
on December 31, 1996, all initial contributions made by the Company to this
Trust
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and Plan shall be returned to the Company by the Trustee, provided that the
application for determination was made with the Internal Revenue Service by the
time prescribed by law for filing the Company's tax return for the taxable year
in which this Trust and Plan was adopted, or such later date as the Secretary of
the Treasury may prescribe. This Trust and Plan may be modified and amended
retroactively, if necessary, to secure exemption under Section 401(a) of the
Code.
21.10 In the event that amounts representing salary deferral
contributions are returned to the Company pursuant to the provisions of
Sections 21.4 and 21.9 hereof, the Company shall make payments to the
participants on whose behalf such salary deferral contributions were made
equal to the total of such refunded amounts.
21.11 Any distribution made hereunder to a distributee shall be made
directly to such distributee unless he elects a direct rollover pursuant to the
second paragraph of this Section ; provided, however, that the distributee must
acknowledge in writing that he understands that any payment which includes more
than two hundred dollars ($200.00) in cash and which, under Code Section 402(c),
is eligible to be rolled over to an eligible retirement plan will be subject to
withholding taxes.
Each distributee shall have the right to direct that any distribution
which, under Code Section 402(c), qualifies as an eligible rollover distribution
be transferred directly to an eligible retirement plan. A distributee may direct
that part of the distribution be transferred directly to an eligible retirement
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plan and the balance be paid to him, provided that the amount directly
transferred to the eligible retirement plan shall be at least five hundred
dollars ($500.00). A distributee is not permitted to direct that his
distribution be transferred directly to more than one eligible retirement plan.
In the event that a distributee fails to make any direction, the distribution
shall be paid directly to him after deduction of appropriate withholding taxes.
Unless the context otherwise indicates, the following terms shall
have the following meanings whenever used in this Section:
(a) "eligible rollover distribution" shall mean any distribution of
all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does
not include:
(i) any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or
for a specified period of ten (10) years or more;
(ii) any distribution to the extent such distribution is required
under Section 12.4 hereof which reflects the requirements
under Section 401(a)(9) of the Code; and
(iii) the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
(b) "eligible retirement plan" shall mean:
(i) an individual retirement account described in Section 408(a)
of the Code;
(ii) an individual retirement annuity described in Section 408(b)
of the Code;
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(iii) an annuity plan described in Section 403(a) of the Code; or
(iv) a qualified trust described in Section 401(a) of the Code;
that accepts the distributee's eligible rollover distribution.
Notwithstanding the foregoing, in the case of an eligible rollover
distribution to the surviving spouse of a deceased employee, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) "distributee" shall mean:
(i) an employee or former employee; and
(ii) an employee's or a former employee's surviving spouse and an
employee's or former employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations
order, as defined in Section 16.1(c) hereof, without regard
to the interest of the spouse or former spouse.
(d) "direct rollover" shall mean a payment by this Trust and Plan to
the eligible retirement plan specified by the distributee.
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IN WITNESS WHEREOF, FIGGIE INTERNATIONAL INC. by its appropriate
officers duly authorized, and WILMINGTON TRUST COMPANY have caused this Trust
and Plan to be executed as of the _______ day of _______________, 1995.
FIGGIE INTERNATIONAL INC.
("Company")
By_____________________________
And____________________________
WILMINGTON TRUST COMPANY
("Trustee")
By_____________________________
And____________________________
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<PAGE> 1
EXHIBIT 5.1
CALFEE, HALTER & GRISWOLD
1400 McDonald Investment Center
800 Superior Avenue, Cleveland, Ohio 44114
216/622-8200
September 9, 1996
Figgie International Inc.
4420 Sherwin Road
Willoughby, Ohio 44094
We are familiar with the proceedings taken by Figgie International
Inc., a Delaware corporation (the "Company"), with respect to 250,000 shares of
Class A Common Stock, $.10 par value per share (the "Class A Shares"), and the
250,000 shares of Class B Common Stock, $.10 par value per share (the "Class B
Shares") (collectively, the Class A Shares and the Class B Shares are referred
to as the "Shares"), of the Company to be offered and sold from time to time
pursuant to the Company's Savings Plan for Hourly Paid Employees (the "Plan"),
as well as an indeterminate amount of participation interests ("Interests") in
the Plan. As counsel for the Company and the Plan, we have assisted in the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission to effect the registration of the Shares and the Interests under the
Securities Act of 1933, as amended.
In this connection, we have examined the Restated Certificate of
Incorporation of the Company, as amended, and the By-Laws of the Company, as
amended and restated, the records of proceedings of the Board of Directors and
stockholders of the Company and such other records and documents as we have
deemed necessary or advisable to render the opinion contained herein. Based
upon our examination and inquiries, we are of the opinion that the Shares, when
issued pursuant to the terms and conditions of the Plan, will be duly
authorized, legally issued, fully paid and nonassessable.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
This opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no view as to the effect of any other law on the
opinion set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
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<PAGE> 1
EXHIBIT 23.1
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 9, 1996 included in Figgie International Inc.'s Form 10-K for the year
December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Cleveland, Ohio
September 16, 1996
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<PAGE> 1
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion
filed as Exhibit 5.1 to this Registration Statement.
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<PAGE> 1
EXHIBIT 24.1
FIGGIE INTERNATIONAL INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Figgie International Inc. hereby
constitutes and appoints John P. Reilly, Steven L. Siemborski, Robert D.
Vilsack, William A. Papenbrock and Douglas A. Neary, or any one or more of
them, its attorneys-in-fact and agents, each with full power of substitution
and resubstitution for it in any and all capacities, to sign any or all
amendments or post-effective amendments to this Registration Statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
such attorneys-in-fact and agents full power and authority to do and to perform
each and every act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his substitute or substitutes may do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at Chicago,
Illinois on August 15, 1996.
FIGGIE INTERNATIONAL INC.
By: /s/ Steven L. Siemborski
-------------------------------
Steven L. Siemborski,
Chief Financial Officer and
Senior Vice President
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<PAGE> 2
EXHIBIT 24.1
(Continued)
FIGGIE INTERNATIONAL INC.
Certified Resolution
I. ROBERT D. VILSACK, Secretary of Figgie International Inc., a
Delaware corporation (the "Corporation"), do hereby certify that the following
is a true copy of a resolution adopted by the Board of Directors on August 15,
1996, and that the same has not been changed and remains in full force and
effect.
RESOLVED, that John P. Reilly, Steven L. Siemborski, Robert D. Vilsack,
William A. Papenbrock and Douglas A. Neary be, and each of them hereby is,
appointed as the attorney of Figgie International Inc., with full power of
substitution and resubstitution for and in the name, place and stead of the
Company to sign, attest and file a Registration Statement on Form S-8, or any
other appropriate form that may be used from time to time, with respect to the
issue and sale of its Class A Common Stock, its Class B Common Stock and
interests in the Figgie International Inc. Savings Plan for Hourly Employees
(the "SPHE"), and any and all amendments, post-effective amendments and
exhibits to such SPHE Registration Statement and any and all applications or
other documents to be filed with the Securities and Exchange Commission or any
national securities exchange pertaining to the listing thereon of the Class A
Common Stock, the Class B Common Stock and interests in the SPHE covered by
such Registration Statement or pertaining to such registration and any and all
applications or other documents to be filed with any governmental or private
agency or official relative to the issuance of said Class A Common Stock, Class
B Common Stock and interests in SPHE with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary to be
done in the premises, hereby ratifying and approving the acts of such attorneys
or any such substitute or substitutes and, without implied limitation,
including in the above authority to do the foregoing on behalf and in the name
of any duly authorized officer of the Company, and the President of the Company
and the Chief Financial Officer of the Company be, and each hereby is
separately authorized and directed for and on behalf of the Company to execute
a Power of Attorney evidencing the foregoing appointment.
/s/ Robert D. Vilsack
----------------------------------
Robert D. Vilsack, Secretary
Dated: August 15, 1996.
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