<PAGE> 1
As filed with the Securities and Exchange Commission on September 17, 1996
Registration No.33-33177
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
POST- EFFECTIVE AMENDMENT NO.1
to
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. SUPPLEMENTARY RETIREMENT SAVING PLAN
(Full title of the plan)
Copy to:
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
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered(1) registered per share price fee
------------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Interests in Plan
Class A Common
Stock, par value $.10 (2) (2) (2) (2)
per share
Class B Common
Stock, par value $.10 (2) (2) (2) (2)
per share
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement is amended to cover an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) No additional shares of Class A Common Stock or Class B Common Stock are
being offered under the Plan, therefore, pursuant to Rule 457(a) under the
Securities Act of 1933, no fee is required.
<PAGE> 2
The Registration Statement on Form S-8 (Registration No.33-33177)
(the "Registration Statement") is being amended for the purpose of registering
an indeterminate number of interests in the Figgie International Inc.
Supplementary Retirement Savings Plan (the "Plan"). The Registration Statement
is hereby amended as follows:
1. The information provided in Part I of the Registration Statement is
hereby removed from the Registration Statement as such information
is no longer required to be filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Note to Part I of Form
S-8 and Securities Act Release No. 6867 (June 6, 1990).
2. The information provided in Part II of the Registration Statement is
hereby amended to read as follows:
"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 1O-Q for the quarter
ended March 31, 1996;
4. The Company's Quarterly Report on Form 1O-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.
II-2
<PAGE> 3
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 a 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 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 the 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
II-3
<PAGE> 4
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,
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 purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Sections 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 Amendment
No.1 to the Form S-8 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Willoughby, State of
Ohio, this 10 of September, 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
Amendment No.1 to the Form S-8 Registration Statement has been signed below by
the following persons in the capacities indicated on August 15, 1996.
Signature Title
_______________________________* 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
_______________________________ President (Principal Financial Officer and
Steven L. Siemborski Principal Accounting Officer)
_______________________________* Director
Fred J. Brinkman
_______________________________* Director
Alfred V. Gagnes
_______________________________* Director
John S. Lanahan
_______________________________* Director
F. Rush McKnight
_______________________________* Director
Harrison Nesbit, II
_______________________________* Director
A.A. Sommer, Jr.
_______________________________* Director
Walter M. Vannoy
______________
* By Attorney-in-fact.
II-5
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, the
trustees have duly caused this Amendment No.1 to the Form S-8 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 A. Spartz
_________________________________
Bruce A. Spartz,
Senior Financial Services Officer
II-6
<PAGE> 7
FIGGIE INTERNATIONAL INC.
EXHIBIT INDEX
The Exhibits to the Form S-8 Registration Statement are hereby
amended to add additional exhibits as follows:
Exhibit Number Description
- -------------- -----------
4.1 Figgie International Inc. Supplementary
Retirement Plan, as amended
24.1 Power of Attorney and related Certified
Resolution (see Pages II-7 and II-8 of
this Registration Statement)
II-9
<PAGE> 1
EXHIBIT 4.1
APPENDIX A
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS APPENDIX A constitutes and sets forth the provisions of
Article XII of the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS
PLAN which were in effect for the period which commenced on the restatement date
and ended on December 31, 1991.
ARTICLE XII
DISTRIBUTIONS
12.1 Distributions will commence 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
Article XII
Pre-1/1/92 Provisions - 1
<PAGE> 2
accordance with this Article XII.
12.2 Unless another method of distribution is selected under
Section 12.3 hereof and subject to Section 12.7 hereof, 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 assets credited to his accounts as of the date
distribution is to commence and to use the proceeds thereof to purchase the
following type of annuity contract of an insurance company:
(a) if distribution is being made to a married
participant or a married former participant, an
immediate joint and survivor annuity contract
issued on the joint lives of such participant and
his spouse with the provision that after the
participant's death fifty percent (50%) of his
monthly annuity payments shall continue during the
life of and be paid to his spouse; or
(b) if distribution is being made to an unmarried
participant, an unmarried former participant or a
beneficiary of a participant, an immediate full cash
refund life annuity contract issued on the life of
such participant or beneficiary.
12.3 Subject to Section 12.7 hereof and in lieu of receiving the
account balances distributable to him pursuant to the normal method of
distribution set forth in Section 12.2 hereof, a participant, former participant
or beneficiary may, subject to the spousal consent requirement set forth in
Section 12.5 hereof, elect to receive such account balances pursuant to any one
or a combination of the following optional methods of distribution:
Article XII
Pre-1/1/92 Provisions - 2
<PAGE> 3
(a) In a single lump sum payment of cash;
(b) with respect to distributions commencing on or
after April 1, 1990, in 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 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;
(c) on a life, a period certain and life, or a full cash
refund life annuity basis under an immediate annuity
contract issued on the life of such participant,
former participant or beneficiary; or
(d) on a joint and survivor annuity basis under an
immediate annuity contract issued on the joint lives
of such participant, former participant or
beneficiary and such other person as he shall
designate.
In making distributions of whole shares of the Company's Class A Common Stock
and Class B Common Stock to a participant, former participant or beneficiary
under this Section 12.3, the Trustee shall sell any fractional shares of such
Stock as of the date distribution is to commence and shall use the proceeds
thereof to make a cash distribution as provided in subparagraph (b) above. In
making distributions of cash or an annuity contract of an insurance company as
provided in subparagraphs (a), (c) and (d) above, all assets credited to a
participant's, former participant's or beneficiary's account shall be sold and
the proceeds shall be paid to the participant, former participant or beneficiary
or used to purchase such annuity contract.
12.4 Unless benefits are distributable pursuant to
Article XII
Pre-1/1/92 Provisions - 3
<PAGE> 4
Section 12.7 hereof, the Administrator shall, no less than thirty (30) days and
no more than ninety (90) days prior to the date a participant's, former
participant's or beneficiary's benefits become distributable pursuant to Article
X or XI hereof, provide each such individual with a written explanation of the
terms and conditions of the normal method of distribution, the individual's
right to elect an optional method of distribution, the effect of such election,
the right of a participant's or former participant's spouse under the normal
method of distribution and under the optional methods of distribution and the
relative values of the methods of distribution available.
12.5 To elect one or a combination of the optional methods of
distribution set forth in Section 12.3 hereof, a participant, former participant
or beneficiary shall notify the Administrator of such election in writing prior
to the date his retirement benefits become distributable pursuant to Article X
or XI hereof. If a participant or former participant is married, such election
shall not be of any effect and the participant or former participant shall be
treated the same as though his election had not been made unless the
participant's or former participant's spouse consents in writing to such
election in accordance with Section 21.6 hereof. Any such election by a married
participant or married former participant shall designate a specific optional
method of distribution which shall not be changed without his
Article XII
Pre-1/1/92 Provisions - 4
<PAGE> 5
spouse's consent, unless the spouse's original consent expressly permits further
changes by the participant or former participant.
Any such married participant or former participant shall, after
having received a written explanation of the joint and survivor annuity benefit
pursuant to Section 12.4 hereof, be permitted to make such election within the
ninety (90) period prior to the date benefits will be paid or will commence to
be paid to him. The date a participant's benefits become distributable shall be
delayed, if necessary, to insure that a participant shall have received the
written explanation described in Section 12.4 hereof at least thirty (30) days
prior to the date his benefits become distributable unless he waives such thirty
(30) day requirement in writing. In addition to the foregoing, a participant or
former participant may, subject to the spousal consent requirement described
above, revoke a prior election and elect another method of distribution, if
desired, prior to the date benefits will be paid or will commence to be paid to
him. The number of revocations hereunder shall not be limited.
12.6 The Trustee shall either make or take action to effectuate
distribution to a participant, former participant or beneficiary in accordance
with the method of distribution applicable to such person.
12.7 In the event that the accounts of a retired, terminated or
deceased participant have a value of Three Thousand
Article XII
Pre-1/1/92 Provisions - 5
<PAGE> 6
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; provided,
however, that the Trustee shall not make any such single lump sum payment after
the date a participant's distribution has commenced unless the participant and
his spouse, if any, or in the case of a payment to the surviving spouse of a
deceased participant, the spouse, consent to the single lump sum payment in
writing and provided further that any such lump sum payment made after December
31, 1992 shall be made in accordance with the provisions of Section 21.12
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.
12.8 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:
Article XII
Pre-1/1/92 Provisions - 6
<PAGE> 7
(i) distribution must commence on or before the
April 1 following the end of the calendar
year in which:
(A) he attains age seventy and one-half
(70 1/2) or retires, whichever is
later, if the employee shall have
attained age seventy and one-half
(70 1/2) prior to January 1, 1988
and was not a five percent (5%)
owner at any time after the first
day of the plan year during which
he attained age sixty-six and
one-half (66 1/2); or
(B) he attains age seventy and one-half
(70 1/2) in all other cases;
(ii) annuity payments shall not be made beyond
the life of the participant or the joint
lives of the participant and his spouse or
beneficiary;
(iii) period certain payments shall not be made
beyond the life expectancy of the
participant or beyond the joint life
expectancies of the participant and his
spouse or beneficiary; and
(b) in the case of a deceased participant or former
participant, distributions after his death shall be
payable either:
(i) within five (5) years of the date of his
death; or
(ii) if distribution commences to his
beneficiary, either:
(A) within one (1) year of the date of
his death or on a later date
permitted under any lawful
regulations issued by the Secretary
of the Treasury; or
(B) if his spouse is his beneficiary,
by the date such participant would
have attained age seventy and
one-half (70-1/2);
as a life annuity payable over the life of
such beneficiary or over a period not
extending beyond the life expectancy of such
Article XII
Pre-1/1/92 Provisions - 7
<PAGE> 8
beneficiary; or
(iii) if the participant's distribution had
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii) or (a)(iii) above, such
distribution must be completed by the
remainder of the period specified in said
subparagraph (a)(ii) or (a)(iii); or
(iv) if the participant's distribution had not
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii) or (a)(iii) above and
the participant's spouse is entitled to a
distribution hereunder but dies prior to the
commencement of such distribution, then the
limitations of this Section 12.8(b) shall be
applied as if the spouse were the
participant; and
(c) in the event payments are made to a participant's
child, for purposes of this Section 12.8 such
payments shall be deemed to be paid to the
participant's spouse if such payments will become
payable to such spouse upon such child reaching
majority or any other event permitted under any
lawful regulations issued by the Secretary of the
Treasury.
A participant, former participant or beneficiary may elect to have his life
expectancy redetermined from time to time but no more frequently than annually.
In the event a participant, former participant or beneficiary fails to make such
an election, then no recalculation shall be performed.
12.9 Except in the case of a joint and survivor annuity contract
issued on the joint lives of a participant or former participant and his spouse,
any other method of distribution payable to a participant or former participant
shall conform to the
Article XII
Pre-1/1/92 Provisions - 8
<PAGE> 9
incidental death benefit requirements of Section 1.401(a)(9)-2 of the Treasury
Regulations.
12.10 In the event that the Trustee, pursuant to Section 12.6
hereof, obtains an annuity contract or contracts for the benefit of a
participant, a former participant or a beneficiary, the Trustee shall, after
having selected such settlement options and placed such restrictive endorsements
thereon as are directed by the Administrator, transfer ownership of the contract
or contracts to such participant, former participant, or beneficiary and deliver
said contract or contracts to him.
12.11 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.
12.12 Notwithstanding any provisions of this Article XII to the
contrary, the method of distribution being utilized, as of the date immediately
prior to the restatement date, to distribute benefits to participants who had
retired, died or terminated employment prior to the restatement date shall not
be changed even though the method of distribution is permitted by this Trust and
Plan as amended and restated.
Article XII
Pre-1/1/92 Provisions - 9
<PAGE> 10
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
As Amended and Restated Effective: January 1, 1989
<PAGE> 11
TABLE OF CONTENTS
ARTICLE NO.
-----------
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
(ii)
<PAGE> 12
INDEX
ARTICLE NO.
-----------
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
(iii)
<PAGE> 13
AMENDMENT AND RESTATEMENT
OF
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS AMENDMENT AND RESTATEMENT is adopted by FIGGIE
INTERNATIONAL INC., a corporation organized and existing under and by virtue of
the laws of the State of Delaware (hereinafter called the "Company");
W I T N E S S E T H:
WHEREAS, on December 23, 1985 the Company established the
Figgie International Inc. Supplementary Retirement Savings Plan (hereinafter
called the "Trust and Plan"), effective January 1, 1985; and
WHEREAS, the Trust and Plan has been amended from time to
time in the years since its establishment; and
WHEREAS, it is the desire of the Company to amend and restate
the Trust and Plan in order to consolidate all amendments made to the Trust and
Plan into a single document, bring the Trust and Plan into compliance with the
Tax Reform Act of 1986 and regulations issued thereunder and various other laws
and regulations currently in effect and to make certain other necessary and
desirable changes;
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and agreements herein contained, it is mutually agreed that the Trust
and Plan be amended and restated effective, except
(iv)
<PAGE> 14
as otherwise provided herein, as of the first day of January, 1989,
as follows:
(v)
<PAGE> 15
ARTICLE I
NAME AND PURPOSE
1.1 The name of this Trust and Plan shall continue to be
FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN. This Trust and
Plan was originally created and is hereby continued 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.
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<PAGE> 16
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 "employer contribution
accounts", "salary deferral accounts", "rollover accounts" and "voluntary
contribution 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.
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<PAGE> 17
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.
2.7 The word "Committee" shall mean the Retirement Savings
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"
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<PAGE> 18
for a plan year commencing on or after the restatement date and prior to January
1, 1994 shall not exceed Two Hundred Thousand Dollars ($200,000.00) (plus any
increase for cost-of-living as shall be prescribed by the Secretary of the
Treasury pursuant to Sections 401(a)(17) and 415(d) of the Code). An employee's
"compensation" for a plan year commencing on or after January 1, 1994 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).
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 2.9 prior to the
application of such "compensation" limit ("unlimited compensation") bears to the
total unlimited compensation of all the family members.
2.10 The words "continuous service" shall mean for any
employee the aggregate of all periods during which he is or was
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<PAGE> 19
employed by the Company or any affiliate. Each such period shall be measured
from his date of hire to the date of termination of employment which follows
such date of hire. In addition, if any employee has a termination of employment
and is rehired within twelve (12) months of:
(a) the date of his termination of employment; or
(b) if earlier, the first day of any period of leave of
absence or military service after the end of which
the employee did not return to work for the Company
or any affiliate prior to his termination of
employment;
such employee's "continuous service" shall include the period of severance
measured from his termination of employment until his subsequent date of rehire.
Two (2) or more periods of employment or periods of severance that are included
in an employee's continuous service and that contain fractions of a year
(computed in months and days) shall be aggregated on the basis of twelve (12)
months constituting a year and thirty (30) days constituting a month.
2.11 The words "date of hire" shall mean the first day during
which an employee performs an hour of 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. In the case
of a rehired employee, "date of hire" shall mean the first day following his
previous termination of employment during which the employee performs an hour of
service for the Company or any affiliate for which he is directly or indirectly
compensated or the first day following his previous termination of employment
for which the
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<PAGE> 20
employee is paid any back pay pursuant to an award or agreement. 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.
2.12 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.
2.13 The words "effective date" of this Trust and Plan shall
mean January 1, 1985.
2.14 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.
2.15 The words "enrollment date" shall mean the first day of any
calendar quarter.
2.16 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.
2.17 The word "hour" shall mean for any employee an hour for
which he is directly or indirectly paid or entitled to payment by the Company or
any affiliate for the performance of services, including payments pursuant to an
award or agreement requiring the Company or an affiliate to pay back wages,
irrespective of mitigation of damages.
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<PAGE> 21
2.18 The words "investment fund" shall mean a fund established,
maintained and administered by the Trustee pursuant to Articles VI and XIV
hereof.
2.19 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.
2.20 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 such voluntary enlistment or tour of duty does not follow
involuntary duty.
2.21 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 service.
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<PAGE> 22
Notwithstanding the foregoing to the contrary, the "normal retirement date" of
each participant who was hired prior to January 1, 1990 shall be the date on
which he attains age sixty-five (65).
2.22 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 an
hourly-paid 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 other than the
Figgie International Inc. Disability Benefits Plan
for Salaried Employees or the Figgie International
Inc. Senior Executive Benefits Program; and
(g) with respect to a participant who is a salaried
employee, any period he does not actively
participate in the Basic Part of the Figgie
International Inc. Retirement Income Plan II but
only if, were he to actively participate in the
2-7
<PAGE> 23
Basic Part of said Plan, his accruals under said Plan
and his contributions to said Plan would not result
in violations of Section 415 of the Code; and
(h) any period he is a leased employee.
2.23 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.
2.24 The words "period of severance" shall mean for any employee
or former employee a period commencing on his termination of employment and
ending on the date such employee or former employee is rehired by the Company or
any affiliate. A "one year period of severance" shall mean a twelve (12) month
period of severance during which an employee does not complete at least one (1)
hour for the Company or any affiliate. Notwithstanding the foregoing provisions
of this Section 2.24, in the event any employee ceases to be actively employed
after December 31, 1984 either:
(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
(d) by reason of caring for such child for a period
beginning immediately following such birth or
placement;
such employee's period of severance shall be deemed to have commenced on the
later of the first anniversary of the date he ceased to be actively employed or
his termination of employment.
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<PAGE> 24
2.25 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.
2.26 The words "plan year" shall mean the calendar year.
2.27 The words "restatement date" shall mean the date on which
this Amendment and Restatement became effective, which date is January 1, 1989.
2.28 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.
2.29 The word "service" shall mean for any employee the
aggregate of all his periods of continuous service with the Company or any
affiliate, except as otherwise provided below.
The "service" of an employee who terminates employment and who
is later reemployed by the Company or any affiliate shall not include the length
of any of his periods of continuous service rendered prior to the date of said
termination of employment if all of the following apply:
(a) his period of severance between said date of
termination of employment and the date he is
reemployed equals or exceeds the period of service he
had on said date of termination of employment; and
(b) he did not have a vested interest under this Trust
and Plan on his termination of employment; and
(c) his period of severance equals or exceeds either:
2-9
<PAGE> 25
(i) one (1) year if his termination of
employment occurred prior to January 1,
1985; or
(ii) five (5) years if his termination of
employment occurred on or after January 1,
1985.
2.30 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.
2.31 The words "taxable year" shall mean the calendar
year.
2.32 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;
(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;
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<PAGE> 26
(e) he has been continuously laid-off for twelve (12)
months; or
(f) if substantially all of the assets of the Company 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 2.32, 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.
2.33 The words "Trust and Plan" shall mean this instrument as
originally executed, as it is amended and restated herein and as it may be
amended from time to time hereafter.
2.34 The word "Trustee" shall mean the person or persons serving
as the Trustee of this Trust and Plan and any successor Trustee or Trustees.
2.35 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.
2.36 The words "valuation date" shall mean the last day of any
calendar quarter.
2.37 The words "vested interest" shall mean with respect to any
participant the balances then credited to all salary deferral accounts, employer
contribution accounts, rollover accounts and voluntary contribution accounts
maintained on his
2-11
<PAGE> 27
behalf. 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> 28
ARTICLE III
PARTICIPATING DIVISIONS
3.1 A Division shall become a Participating Division under
this Trust and Plan 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. A
Participating Division shall be added to Exhibit A upon becoming a Participating
Division. The Divisions which are Participating Divisions are shown on Exhibit A
hereto. Divisions which were formerly Participating Divisions but which have
ceased to be Participating Divisions shall be deleted from Exhibit A.
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 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
3-1
<PAGE> 29
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.
3-2
<PAGE> 30
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
4.1 Every employee who was a participant in this Trust and
Plan immediately prior to the restatement date shall continue to be a
participant until his termination of employment.
4.2 On and after the restatement date, every other 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 a salaried employee, whether or not he is
exempt from the Wage and Hour provisions of the Fair
Labor Standards Act, 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) either:
(i) he is a citizen or resident of the United
States; or
(ii) his principal place of employment is in the
United States or Puerto Rico;
(c) either:
(i) he has attained age forty (40); or
(ii) twelve (12) months have elapsed since his
earliest date of hire by the Company or an
affiliate which is included in his service;
and
(d) if he is a salaried employee, he actively
participates in the Basic Part of the Figgie
International Inc. Retirement Income Plan II.
Notwithstanding the foregoing, if an employee is
ineligible to participate in the Figgie
International Inc. Retirement Income Plan II
because his accruals under said Plan and his
contributions to said Plan would result in
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<PAGE> 31
violations of Section 415 of the Code, such employee
shall be considered to have met the requirement of
this subparagraph (d).
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 requirements of subparagraph (c) above shall be waived
with respect to said employee.
4.3 Every employee who meets the requirements of Section 4.2
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
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<PAGE> 32
prior to the enrollment date upon which he wishes to become a participant.
4.4 In the event that a former participant is rehired,
he shall become a participant on his date of reemployment.
4.5 Notwithstanding any other provision of this Trust and Plan
to the contrary, no person who is a salaried employee of Advance Security, Inc.
or its subsidiaries and who is a highly compensated employee shall become a
participant in this Trust and Plan on or after the restatement date. In
addition, no other person who is a salaried employee of Advance Security, Inc.
or its subsidiaries shall become a participant in this Trust and Plan after
February 28, 1989.
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<PAGE> 33
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 5.1 shall be expressed in one percent (1%) increments
of his compensation for a payroll period. The maximum percentage of an active
participant's compensation for a payroll period that is subject to the election
shall be seven percent (7%).
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.
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
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<PAGE> 34
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 V are completely discontinued pursuant to a participant's direction, no
contributions may be made on behalf of such participant under this Article V
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 thirty (30) 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 occurs, such
participant shall be barred from making salary deferral contributions in excess
of (a) minus (b) below, where:
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<PAGE> 35
(a) equals Seven Thousand Six Hundred Twenty-Seven
Dollars ($7,627.00) (plus any cost of living increase
after 1989 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> 36
ARTICLE VI
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT
6.1 Effective January 1, 1985 the Company directed the Trustee
to establish a "Diversified Equity Fund" and a "Fixed Income Fund" within the
Trust Fund. Effective April 1, 1990, the Company directed the Trustee to
establish a "Class A Common Stock Fund" and a "Class B Common Stock Fund" within
the Trust Fund. Effective January 1, 1994, the Company directed the Trustee to
establish an "International Multi-Manager Equity Collective Fund" within the
Trust Fund. Such investment funds are and 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, certificates of deposit, or insurance contracts 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
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<PAGE> 37
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.
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. Prior to January 1, 1994, investments in such funds
shall be made in
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<PAGE> 38
twenty-five percent (25%) increments (five percent (5%) increments in the case
of either the Class A Common Stock Fund or the Class B Common Stock Fund). On
and after January 1, 1994, investments in all such funds shall be made in five
percent (5%) increments. Any such direction, including any direction made prior
to January 1, 1994, 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 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. Prior to January 1, 1994,
such amounts shall be reallocated in twenty-five percent (25%) increments (five
percent (5%) increments
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<PAGE> 39
in the case of either the Class A Common Stock Fund or the Class B Common Stock
Fund). On and after January 1, 1994, 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 credited to his accounts, excluding any amounts
which were credited to his rollover account, if any, prior to July 31, 1991 and
invested in the Segregated Investment Funds described in Section 21.13 hereof.
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
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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.
6.7 Rollover accounts invested in the Segregated Investment
Funds described in Section 21.13 hereof remained invested in such Segregated
Investment Funds until such Segregated Investment Funds were transferred to the
Company's Segregated Investment Fund Trust and Plan on July 31, 1991.
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ARTICLE VII
ACCOUNTS
7.1 Accounts being maintained by the Trustee immediately prior
to the restatement date shall continue to be maintained under this Trust and
Plan as amended and restated herein, and shall be credited, debited and adjusted
as provided in this Article VII; provided, however, that all distribution
accounts being maintained immediately prior to the restatement date shall be
deemed to be employer contribution accounts on and after the restatement date.
In the event that a participant or former participant shall have more than one
employer contribution account, the Trustee may in its sole discretion
consolidate said employer contribution accounts into a single employer
contribution account.
7.2 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.
7.3 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 VII, and shall be debited with
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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.
7.4 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.
7.5 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
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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 7.5 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:
(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, including contributions made
by the Company pursuant to Section 7.7 hereof, shall
be taken into account on and after the date as of
which such contributions are to be credited to the
accounts of participants pursuant to this Article
VII.
7.6 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 7.5 hereof as of
the date specified by the Administrator.
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7.7 If a terminated participant who terminated employment
prior to January 1, 1988 shall be rehired by the Company or any affiliate prior
to December 31, 1992 at a time when his period of severance is less than five
(5) years, he shall immediately be reinstated as a participant in this Trust and
Plan and the amount which shall have been forfeited and debited from his
employer contribution account shall be recredited to such account on his date of
rehire. In the event there are amounts which are required to be recredited to
rehired participants' employer contribution accounts in any plan year pursuant
to this Section 7.7, the Company shall make a contribution to this Trust and
Plan for such plan year equal to the total of all amounts recredited to such
accounts during such plan year. Such contribution shall be made in cash by the
Company. For purposes of the limitations contained in Article XIX hereof, such
contribution shall not be deemed to have been contributed at the time it is
recontributed pursuant to this Section 7.7, but shall be deemed to have been
contributed at the time of the original contribution.
7.8 Notwithstanding any other provision of this Trust and Plan
to the contrary, no participant who is a salaried employee of Advance Security,
Inc. or its subsidiaries and who is a highly compensated employee shall be
credited with any contributions under this Trust and Plan for any plan year
commencing after December 31, 1988. In addition, no participant who is a
salaried employee of Advance Security, Inc. or its subsidiaries shall be
credited with any contributions under this Trust and Plan after February 28,
1989.
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<PAGE> 45
ARTICLE VIII
WITHDRAWALS FROM ACCOUNTS
8.1 Withdrawals made pursuant to this Article VIII 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 VIII;
(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 made after December 31, 1992 shall
be made in accordance with the provisions of
Section 21.12 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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8.3 Subject to Section 8.1 hereof, on or after the date a
participant becomes permanently and totally disabled, such participant may
withdraw all or a portion of his employer contribution account balance. Prior to
the date on which a participant becomes permanently and totally disabled, such
participant may not withdraw from his employer contribution account.
8.4 Subject to Section 8.1 hereof, a participant may withdraw
all or a portion of his voluntary contribution account balance. A participant
may not recontribute any amount withdrawn from his voluntary contribution
account to this Trust and Plan.
8.5 A participant may withdraw from his rollover account only
in the case of hardship as provided in Article IX hereof.
8.6 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 VIII shall automatically terminate.
8.7 A participant may not withdraw his account balances prior
to his retirement or termination of employment except as provided in this
Article VIII and in Article IX hereof.
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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 and rollover
accounts, 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 9.1, 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. Such
distribution may be made only from the accounts specified in Section 9.4 hereof.
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.
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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:
(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 voluntary nondeductible
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 9.3 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
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<PAGE> 49
portion of the participant's salary deferral and rollover account balances. Such
distribution shall be made in a lump sum and shall be made in accordance with
the provisions of Section 21.12 hereof. Notwithstanding the foregoing, in the
event that the participant has a rollover account balance, no portion of his
salary deferral account balance may be distributed pursuant to this Article IX
until his entire rollover account balance has been distributed. Any such
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 9.4 shall be debited to his salary deferral
account or rollover account as they are paid.
9.5 Neither the application for nor payment of any
distribution in accordance with this Article IX 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 IX.
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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 12.8(a)(i) 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 12.7 and 12.8(a)(i)
hereof, distribution of the accounts of a participant who retires or terminates
employment in accordance with the provisions of this Article X shall be made or
commence to be made on such date on or after his date of retirement or
termination of
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employment as he shall select in his sole discretion; provided, however, that
such distribution need not be made earlier than administratively possible.
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<PAGE> 52
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 or commenced to be made
to him, his death beneficiary shall, except as otherwise provided in Sections
12.7 and 12.8 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 the date of distribution or the commencement of distribution
to him, no benefits shall be payable to his death beneficiary except to the
extent provided for by the method under which the participant was receiving
distributions under Article XII hereof.
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.
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11.4 In lieu of having the account balances distributable
pursuant to this Article XI distributed to a death beneficiary determined in
accordance with the provisions of Section 11.3 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 21.6 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.
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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 clarify his designation and if necessary execute a new
designation containing such clarification.
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ARTICLE XII
DISTRIBUTIONS
12.1 Distributions will commence 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 XII.
12.2 Unless an annuity method of distribution is selected under
Section 12.3 hereof, 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
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Common Stock and Class B Common Stock then credited to his accounts 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 made after December 31, 1992 shall be made in
accordance with the provisions of Section 21.12 hereof.
12.3 Subject to Section 12.7 hereof and in lieu of receiving a
single lump sum payment pursuant to Section 12.2 hereof, a participant, former
participant or beneficiary may elect that the normal method of distribution of
the account balances distributable to him 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 commence and to use the proceeds thereof to
purchase the following type of annuity contract of an insurance company:
(a) if distribution is being made to a married
participant or a married former participant, an
immediate joint and survivor annuity contract
issued on the joint lives of such participant and
his spouse with the provision that after the
participant's death fifty percent (50%) of his
monthly annuity payments shall continue during the
life of and be paid to his spouse; or
(b) if distribution is being made to an unmarried
participant, an unmarried former participant or a
beneficiary of a participant, an immediate full cash
refund life annuity contract issued on the life of
such participant or beneficiary.
12.4 Subject to Section 12.7 hereof and in lieu of receiving the
account balances distributable to him pursuant to the normal methods of
distribution set forth in Sections 12.2 and 12.3
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hereof, a participant, former participant or beneficiary may, subject to the
spousal consent requirement set forth in Section 12.6 hereof, elect to receive
such account balances pursuant to any one or a combination of the following
optional methods of distribution:
(a) on a life, a period certain and life, or a full cash
refund life annuity basis under an immediate annuity
contract issued on the life of such participant,
former participant or beneficiary; or
(b) on a joint and survivor annuity basis under an
immediate annuity contract issued on the joint lives
of such participant, former participant or
beneficiary and such other person as he shall
designate.
In making distributions of other than whole shares of the Company's Class A
Common Stock and Class B Common Stock to a participant, former participant or
beneficiary under this Section 12.4, the Trustee shall sell any fractional
shares of such Stock and any other assets credited to his accounts as of the
date distribution is to commence and shall use the proceeds thereof purchase an
annuity contract of an insurance company as provided in subparagraphs (a) and
(b) above, as appropriate.
12.5 If the annuity method of distribution has been selected as
the normal method of distribution pursuant to Section 12.3 hereof, the
Administrator shall, no less than thirty (30) days and no more than ninety (90)
days prior to the date a participant's, former participant's or beneficiary's
benefits become distributable pursuant to Article X or XI hereof, provide each
such individual with a written explanation of the terms and conditions of such
annuity method of distribution, the individual's
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right to revoke such election or to elect an optional method of distribution,
the effect of such revocation or election, the right of a participant's or
former participant's spouse under the normal method of distribution and under
the optional methods of distribution and the relative values of the methods of
distribution available.
12.6 To elect an annuity method of distribution as set forth in
Section 12.3 hereof or one or a combination of the optional methods of
distribution set forth in Section 12.4 hereof, a participant, former participant
or beneficiary shall notify the Administrator of such election in writing prior
to the date his retirement benefits become distributable pursuant to Article X
or XI hereof. If a married participant or former participant has elected the
annuity method of distribution as set forth in Section 12.3 hereof and desires
to revoke such election or to receive his retirement benefits under an optional
method of distribution, such revocation or election shall not be of any effect
and the participant or former participant shall be treated the same as though
his revocation or election had not been made unless the participant's or former
participant's spouse consents in writing to such revocation or election in
accordance with Section 21.6 hereof. Any such election by a married participant
or married former participant shall designate a specific optional method of
distribution which shall not be changed without his spouse's consent, unless the
spouse's original consent expressly permits further changes by the participant
or former participant.
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Any such married participant or former participant shall, after
having received a written explanation of the joint and survivor annuity benefit
pursuant to Section 12.5 hereof, be permitted to make such revocation or
election within the ninety (90) period prior to the date benefits will be paid
or will commence to be paid to him. The date a participant's benefits become
distributable shall be delayed, if necessary, to insure that a participant shall
have received the written explanation described in Section 12.5 hereof at least
thirty (30) days prior to the date his benefits become distributable unless he
waives such thirty (30) day requirement in writing. In addition to the
foregoing, a participant or former participant may, subject to the spousal
consent requirement described above, revoke a prior election and elect another
method of distribution, if desired, prior to the date benefits will be paid or
will commence to be paid to him. The number of revocations hereunder shall not
be limited.
12.7 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; provided, however, that the Trustee
shall not make any such single lump sum payment after the date a participant's
distribution has commenced unless the participant and his spouse, if any, or in
the case of a payment to the surviving spouse of a deceased participant, the
spouse, consent to the single lump sum payment in writing and provided further
that any such lump
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sum payment made after December 31, 1992 shall be made in accordance with the
provisions of Section 21.12 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.
12.8 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:
(i) distribution must commence on or before the
April 1 following the end of the calendar
year in which:
(A) he attains age seventy and one-half
(70 1/2) or retires, whichever is
later, if the employee shall have
attained age seventy and one-half
(70 1/2) prior to January 1, 1988
and was not a five percent (5%)
owner at any time after the first
day of the plan year during which
he attained age sixty-six and
one-half (66 1/2); or
(B) he attains age seventy and one-half
(70 1/2) in all other cases;
(ii) annuity payments shall not be made beyond
the life of the participant or the joint
lives of the participant and his spouse or
beneficiary;
(iii) period certain payments shall not be made
beyond the life expectancy of the
participant or beyond the joint life
expectancies of the participant and his
spouse or beneficiary; and
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(b) in the case of a deceased participant or former
participant, distributions after his death shall be
payable either:
(i) within five (5) years of the date of his
death; or
(ii) if distribution commences to his
beneficiary, either:
(A) within one (1) year of the date of
his death or on a later date
permitted under any lawful
regulations issued by the Secretary
of the Treasury; or
(B) if his spouse is his beneficiary,
by the date such participant would
have attained age seventy and
one-half (70-1/2);
as a life annuity payable over the life of
such beneficiary or over a period not
extending beyond the life expectancy of such
beneficiary; or
(iii) if the participant's distribution had
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii) or (a)(iii) above, such
distribution must be completed by the
remainder of the period specified in said
subparagraph (a)(ii) or (a)(iii); or
(iv) if the participant's distribution had not
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii) or (a)(iii) above and
the participant's spouse is entitled to a
distribution hereunder but dies prior to the
commencement of such distribution, then the
limitations of this Section 12.8(b) shall be
applied as if the spouse were the
participant; and
(c) in the event payments are made to a participant's
child, for purposes of this Section 12.8 such
payments shall be deemed to be paid to the
participant's spouse if such payments will become
payable to such spouse upon such child reaching
majority or any other event permitted under any
lawful regulations issued by the Secretary of the
Treasury.
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A participant, former participant or beneficiary may elect to have his life
expectancy redetermined from time to time but no more frequently than annually.
In the event a participant, former participant or beneficiary fails to make such
an election, then no recalculation shall be performed.
12.9 Except in the case of a joint and survivor annuity contract
issued on the joint lives of a participant or former participant and his spouse,
any other method of distribution payable to a participant or former participant
shall conform to the incidental death benefit requirements of Section
1.401(a)(9)-2 of the Treasury Regulations.
12.10 In the event that the Trustee obtains an annuity contract
or contracts for the benefit of a participant, a former participant or a
beneficiary, the Trustee shall, after having selected such settlement options
and placed such restrictive endorsements thereon as are directed by the
Administrator, transfer ownership of the contract or contracts to such
participant, former participant, or beneficiary and deliver said contract or
contracts to him.
12.11 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.
12.12 Notwithstanding any provisions of this Article XII to the
contrary, the method of distribution being utilized, as of the date immediately
prior to the restatement date, to distribute benefits to participants who had
retired, died or terminated
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employment prior to the restatement date shall not be changed even though the
method of distribution is not permitted by this Trust and Plan as amended and
restated.
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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 7.5 or 7.6 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 XIV, 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 individual or group
life insurance contract, annuity contract, 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
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participating trusts; provided that such common or group trust, (i) 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 not exceed the value of the assets
credited to participants' employer contribution accounts which are attributable
to Company contributions under this Trust and Plan prior to April 1, 1990 but,
subject to the foregoing, 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,
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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;
(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 after March 31, 1990, 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
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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;
(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;
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(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 after March 31,
1990, 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 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
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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 14.2 to be an
Investment Manager and that it acknowledges 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 XIV shall be treated as principal, and investments and
reinvestments shall be made without distinction between income and principal.
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14.4 It is the purpose of this Section 14.4 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 after March 31, 1990 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 hereof. Therefore, the power to
direct the Trustee after March 31, 1990 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 14.4. 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 after March 31, 1990 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
14.4 shall be exercised as follows:
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(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 separately 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;
(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 shares subject to his direction shall
not be tendered or exchanged;
(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
direction is the same, for tender or exchange
purposes; but if there still remains a fractional
share, such fractional share shall be tendered or
exchanged or not tendered or exchanged as directed
if permitted by the rules governing such tender or
exchange; 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 14.5 to permit
participants, former participants, beneficiaries and "alternate payees" (as
defined in Section 16.1(a) hereof) to exercise voting
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rights under this Trust and Plan after March 31, 1990 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 hereof. Therefore, the
power to direct the Trustee after March 31, 1990 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 14.5. 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 after March 31, 1990 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
14.5 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;
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(b) Such document or documents shall permit the person
to exercise such right separately 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;
(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 shares subject to his
direction shall not be voted;
(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 direction is the
same, for voting purposes; but if there still
remains a fractional share, such fractional share
shall be voted if permitted by the rules governing
such voting; 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 A Retirement Savings 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 15.4. 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 XVI:
(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 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 as amended and restated herein may be modified and
amended retroactively, if necessary, to secure exemption effective on the
restatement 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.
Upon termination of this Trust and Plan all annuity policies
held by the Trustee shall be delivered, and all rights therein shall be
transferred to those persons then receiving benefits or entitled to receive
benefits from them. The Administrator may direct that any spendthrift provisions
contained in such annuity contracts be continued in effect or terminated.
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
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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 17.3, 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 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 and allocation of contributions under this Trust
and Plan, including any contributions made pursuant to a Supplemental Agreement,
shall be subject to several limitations.
These limitations are as follows:
(a) Salary deferral contributions made to this Trust and
Plan pursuant to a participant's election under
Article V hereof shall be subject to the individual
dollar limit described in Section 18.2 hereof;
(b) Salary deferral contributions made to this Trust and
Plan pursuant to a participant's election under
Article V hereof plus, to the extent elected by the
Company, any qualified nonelective contributions
pursuant to a Supplemental Agreement shall be subject
to the deferral percentage limit set forth in Section
18.3 hereof;
(c) Matching contributions, other than qualified
nonelective contributions used in the deferral
percentage test set forth in Section 18.3 hereof,
and voluntary nondeductible contributions, if any,
made to this Trust and Plan pursuant to a
Supplemental Agreement shall be subject to the
contribution percentage limit set forth in Section
18.4 hereof;
(d) The contributions described in subparagraphs (b)
and (c) above shall be subject to the limit set
forth in Section 18.5 hereof;
(e) All salary deferral contributions, matching
contributions and any other employer contributions
made pursuant to Article V and the Supplemental
Agreements, in the aggregate, shall be subject to the
deductibility limit set forth in Section 18.6 hereof;
and
(f) The allocation of all of the foregoing contributions
and the allocation of all forfeitures, in the
aggregate, shall be subject to the limitation on
annual additions set forth in Article XIX hereof.
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For purposes of this Trust and Plan, "qualified nonelective contributions" shall
mean any fully vested discretionary contributions made by an employer and any
fully vested matching contributions made by an employer under this Trust and
Plan.
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 Seven Thousand Six Hundred Twenty-Seven Dollars
($7,627.00), plus any adjustment for cost-of-living after 1989 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 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
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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)
If, for any plan year, this Trust and Plan satisfies the
requirements of Section 18.4 hereof, then the Company may elect, in such manner
as the Secretary of the Treasury or his delegate may provide, to take into
account, as additional amounts for purposes of this Section 18.3, all or a part
of the fully vested matching contributions, if any, made for the plan year.
18.4 The contributions made for a plan year as matching
contributions and/or as voluntary nondeductible contributions shall be limited
so that the average contribution percentage for the highly compensated employees
who are eligible to become participants shall not exceed an amount determined
based upon the average contribution percentage for the employees who are
eligible to become participants but are not highly compensated employees in
accordance with the table set forth in Section 18.3 hereof.
If, for any plan year, this Trust and Plan satisfies the
requirements of Section 18.3 hereof, then the Company may elect, in such manner
as the Secretary of the Treasury or his delegate may
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provide, to take into account, as additional amounts for purposes of this
Section 18.4, all or a part of the salary deferral contributions made to this
Trust and Plan.
18.5 If the sum of the deferral percentage and the contribution
percentage for one or more highly compensated employees exceeds the aggregate
limit defined in Section 18.8(a) hereof, the contribution percentage for such
employee or employees shall be reduced (beginning with such highly compensated
employee whose contribution percentage is highest) so that the aggregate limit
is not exceeded. The amount by which each highly compensated employee's
contribution percentage is reduced shall be treated as an excess contribution.
The deferral percentage and contribution percentage of the highly compensated
employees shall be determined after any corrections are made to meet the
deferral percentage and contribution percentage limits. Multiple use does not
occur if neither the average deferral percentage nor the average contribution
percentage of the highly compensated employees exceeds one and twenty-five
hundredths (1.25) multiplied by the corresponding average deferral percentage or
average contribution percentage of the non-highly compensated employees.
18.6 In no event shall the amount of all salary deferral
contributions, all matching contributions and any other employer 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
contributions which may be required in order to provide the minimum
contributions described
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in Article XX hereof for any plan year in which this Trust and Plan is
top-heavy.
18.7 In the event that the limitations set forth in Section
18.2, 18.3, 18.4 or 18.5 hereof shall be exceeded, the Administrator shall take
action to reduce future salary deferral contributions made pursuant to Article V
hereof and future matching contributions and voluntary nondeductible
contributions made pursuant to any Supplemental Agreement as appropriate. Such
action may include a reduction in the future rate of salary deferral
contributions or voluntary nondeductible 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 or prior voluntary nondeductible
contributions or prior matching contributions made pursuant to a Supplemental
Agreement shall be distributed to the participant on whose behalf such
contributions were made or shall be recharacterized as contributions of a
different type pursuant to any legally permissible procedure; provided, however,
that if the participant has no vested rights to any portion of excess matching
contributions, such non-vested portion shall be forfeited as of the end of the
next following plan year and disposed of pursuant to the applicable Supplemental
Agreement. In the event of such a distribution or recharacterization, the salary
deferral account, and if applicable the employer contribution account or the
voluntary contribution account, of such participant shall be debited with the
amount of such distribution or recharacterization.
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Any such adjustments made in participants' accounts shall be made in a uniform
manner for similarly situated participants.
18.8 For purposes of this Article XVIII, the following
definitions and special rules shall apply:
(a) "aggregate limit" shall mean the greater of (i) or
(ii), where:
(i) equals the sum of:
(A) one and twenty-five hundredths
(1.25) times the greater of the
deferral percentage or the
contribution percentage for the
non-highly compensated employees;
and
(B) two (2) percentage points plus the
lesser of the deferral percentage
or the contribution percentage for
the non- highly compensated
employees; and
(ii) equals the sum of:
(A) one and twenty-five hundredths
(1.25) times the lesser of the
deferral percentage or the
contribution percentage for the
non-highly compensated employees;
and
(B) two (2) percentage points plus the
greater of the deferral percentage
or the contribution percentage for
the non- highly compensated
employees.
In no event, however, shall the amounts set
forth in subparagraphs (i)(B) and (ii)(B)
above exceed twice the greater of the
deferral percentage or the contribution
percentage for the non-highly compensated
employees.
(b) "contribution percentage" shall mean for a
participant for any plan year a fraction:
(i) the numerator of which shall equal the total
of (A) plus (B), where:
(A) equals matching contributions made
on his behalf; and
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(B) his voluntary nondeductible
contributions; and
(ii) the denominator of which shall equal the
total 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 Sections
125, 402(e)(3), 402(h) and 403(b)
of the Code.
(c) "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.
(d) "family" shall mean, with respect to any employee,
such employee's spouse and lineal ascendants or
descendants and the spouses of such lineal ascendants
or descendants.
(e) "family aggregation" as described in this
subparagraph (e) shall apply for purposes of the
deferral percentage limit set forth in Section 18.3
hereof and the contribution percentage limit set
forth in Section 18.4 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
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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.
(f) "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 Eighty-One Thousand
Seven Hundred Twenty Dollars
($81,720.00) (plus any increase for
cost of living after 1989 as
determined by the Secretary of the
Treasury or his delegate);
(C) received Total Remuneration from
the Company and its affiliates
greater than Fifty-Four Thousand
Four Hundred Eighty Dollars
($54,480.00) (plus any increase for
cost of living after 1989 as
determined by the Secretary of the
Treasury or his delegate) and was
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 1989 as
determined
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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.
(g) "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.
(h) "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:
(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);
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(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.
(i) "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 Bonus Trust and Plan and/or the Company's
Stock Ownership Trust and Plan and/or the Company's Stock Ownership Trust and
Plan for Salaried Employees 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 including employee
contributions, if any, shall be reduced;
(c) third, annual additions under the Company's Stock
Bonus Trust and Plan shall be reduced;
(d) fourth, annual additions which consist of salary
deferral contributions hereunder and related
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matching contributions pursuant a Supplemental
Agreement, if any, shall be reduced pro rata;
(e) fifth, annual additions under the Company's Stock
Ownership Trust and Plan shall be reduced; and
(f) sixth, annual additions under the Company's Stock
Ownership Trust and Plan for Salaried Employees shall
be reduced.
Notwithstanding the foregoing, in the event a participant's excess annual
benefits or projected benefits would only result in a 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), (d), (e) and (f)
above and thereafter under the Company's Retirement Income Plan II as set forth
in subparagraph (b) above if further reduction is needed after the reductions in
subparagraphs (c), (d), (e) and (f) 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.
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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 19.4, Company
contributions which, if allocated to a participant, would be in excess of the
limits on annual additions set forth in Section 19.1 hereof, such excess shall
be used as of the next December 31 and any succeeding December 31, as necessary,
to reduce the Company contributions which would otherwise be made for such
participant for the taxable years ending on such dates. In the event such
participant is not an active participant on the next December 31, or on any
succeeding December 31 on which such excess still remains, such excess shall be
used as of such December 31 and on any succeeding December 31 to reduce the
Company contributions for all participants who are active participants. In the
event that salary deferral contributions made by a terminated participant are
used for the benefit of other participants after the participant terminates
employment, the Company shall make a direct payment to the terminated
participant on whose behalf such salary deferral contributions were made equal
to the total of such amounts.
Until any excess described above is used to reduce Company
contributions, it shall be held in a suspense account. Such suspense account
shall not be subject to the periodic valuation procedure described in Section
7.5 hereof. Notwithstanding any
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other provisions of this Trust and Plan to the contrary (and specifically
Section 21.5 hereof), in the event this Trust and Plan is terminated at a time
when there are amounts credited to a suspense account pursuant to this Section
19.4, such excess shall be returned to the Company. In the event that amounts
representing salary deferral contributions are returned to the Company
hereunder, 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
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<PAGE> 106
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 1989 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 1989 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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<PAGE> 108
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 on or after the restatement date and
prior to January 1, 1994 total remuneration shall
not exceed Two Hundred Thousand Dollars
($200,000.00) (plus any increase for cost-of-living
after 1989 prescribed by the Secretary of the
Treasury pursuant to Sections 401(a)(17) and 415(d)
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<PAGE> 109
of the Code) and on or after January 1, 1994 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 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
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<PAGE> 110
minimum contribution to this Trust and Plan on behalf of each non-key employee
who meets all of the following requirements:
(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 20.3. However, Company contributions made pursuant to Section 8.5 of the
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<PAGE> 111
Company's Stock Bonus Trust and Plan, Section 8.5 of the Company's Stock
Ownership Trust and Plan and Section 8.5 of the Company's Stock Ownership Trust
and Plan for Salaried Employees shall not be taken into account when determining
the Company contributions required under this Section 20.3.
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.
20-6
<PAGE> 112
ARTICLE XXI
MISCELLANEOUS
21.1 No insurance company shall be deemed to be a party to this
Trust and Plan for any purpose, nor shall it be responsible for the validity of
this Trust and Plan. No such company shall be required to look into the terms of
this Trust and Plan or question any action of the Trustee hereunder, nor be
responsible to see that any action of the Trustee is authorized by the terms of
this Trust and Plan. Any such insurance company shall be fully discharged from
any and all liability for any amount paid to the Trustee or paid in accordance
with the direction of the Trustee, or for any change made or action taken by
such insurance company upon such direction, and no insurance company shall be
obligated to see to the distribution or further application of any moneys so
paid by it. The certificate of the Trustee may be received by any insurance
company as conclusive evidence of any of the matters mentioned in this Trust and
Plan, and each insurance company shall be fully protected in taking or
permitting any action on the faith thereof and shall incur no liability or
responsibility for doing so.
21.2 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.
21-1
<PAGE> 113
21.3 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(1) of the Code and Section 208 of ERISA.
21.4 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 the Company or any affiliate or
the Trustee as a result of this Trust and Plan except those expressly granted to
him hereunder.
21.5 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:
21-2
<PAGE> 114
(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 did 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;
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.
21.6 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 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 21.6 shall be effective only with respect
to such spouse and shall not be effective with respect to any other spouse of
such participant.
21.7 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
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<PAGE> 115
consent by a spouse pursuant to this Section 21.7 shall be made in accordance
with Section 21.6 hereof.
21.8 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.
21.9 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.
21.10 This Trust and Plan may be modified and amended
retroactively, if necessary, to secure exemption under Section 401(a) of the
Code.
21.11 In the event that amounts representing salary deferral
contributions are returned to the Company pursuant to the provisions of Section
21.5 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.
21.12 Any distribution made hereunder to a distributee after
December 31, 1992 shall be made directly to such distributee unless he elects a
direct rollover pursuant to the second paragraph of this Section 21.12;
provided, however, that the distributee must acknowledge in writing that he
understands that any payment after December 31, 1992 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.
21-4
<PAGE> 116
After December 31, 1992, 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 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 21.12:
(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 12.8
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
21-5
<PAGE> 117
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;
(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.
21.13 During the period from the restatement date until July 30,
1991 certain Segregated Investment Funds were maintained under this Trust and
Plan and governed by Article XXII of the Trust and Plan document as originally
executed on December 31, 1985 ("Original Plan"). The provisions of Article XXII
of the Original
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<PAGE> 118
Plan are hereby incorporated by reference for the period from the restatement
date until July 30, 1991; provided, however, that the reference to Article VIII
in Section 22.4 of Article XXII of the Original Plan shall instead be deemed to
be a reference to Article VI hereof.
21.14 Notwithstanding any provision of this Amendment and
Restatement to the contrary, this Amendment and Restatement shall not affect the
balances credited to the accounts of any participant as of the restatement date,
and shall not affect the amount or method of distribution of the vested
interests of participants who died, retired or terminated employment prior to
the restatement date.
21.15 Appendix A to this Trust and Plan shall be deemed to
constitute and set forth the provisions of Article XII of this Trust and Plan
for the period which commenced on the restatement date and ended on December 31,
1991. Said Appendix A shall not be effective for any period commencing after
December 31, 1991.
21.16 Notwithstanding anything contained in this Trust and Plan
to the contrary, each participant who was an employee of a Rawlings Facility
immediately prior to July 7, 1994 and who became an employee of Rawlings
Sporting Goods Company, Inc. on July 7, 1994 shall be subject to the following
provisions:
(a) if such participant had less than five (5) years of
service on July 7, 1994, he shall be deemed to have
completed five (5) years of service as of July 7,
1994 for purposes of Section 2.21 hereof; and
(b) such participant shall be deemed to have had a
termination of employment as of July 7, 1994 for
purposes of this Trust and Plan and shall therefore
be entitled to receive distribution of his account
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<PAGE> 119
balances in accordance with the applicable Sections
of this Trust and Plan, including an immediate
distribution pursuant to Section 12.7 hereof.
For purposes of this Section 21.16, "Rawlings Facility" shall
mean the Rawlings Sporting Goods Company Division of the Company or any other
Division, Department, Plant, Facility or affiliate of the Company which became a
part of Rawlings Sporting Goods Company, Inc. as of July 7, 1994.
21-8
<PAGE> 120
IN WITNESS WHEREOF, FIGGIE INTERNATIONAL INC. by its
appropriate officers duly authorized has caused this Amendment and Restatement
of the Trust and Plan, together with Appendix A, the Supplemental Agreements and
Exhibit A hereto, to be executed as of the _______ day of _______________, 1994.
FIGGIE INTERNATIONAL INC.
("Company")
By_____________________________
And____________________________
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<PAGE> 121
CONTINENTAL CONTAINER SYSTEMS DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees (as hereinafter defined) of the Continental Container Systems
Division.
DEFINITION
The following term shall have the following meaning whenever used in
this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any hourly-paid employee
of the Continental Container Systems Division.
ACTIVE PARTICIPANT
(2) Section 2.22 of the Trust and Plan is hereby modified with
respect to Covered Employees so that a participant shall be considered to be an
"active participant" during any period during which he is a Covered Employee,
except for periods of employment described in subparagraphs (b), (c), (d), (e)
and (h) of said Section 2.22.
Continental Container Systems Division
Hourly-Paid Employees - 1
<PAGE> 122
ELIGIBILITY
(3) Notwithstanding the terms and provisions of the Trust and Plan,
each Covered Employee, other than a leased employee, who meets the following
requirements:
(a) either:
(i) he is a citizen or resident of the United States;
or
(ii) his principal place of employment is in the United
States or Puerto Rico; and
(b) either:
(i) he has attained age forty (40); or
(ii) twelve (12) months have elapsed since his earliest
date of hire by the Company or an affiliate which
is included in his service;
shall be eligible to become a participant in the Trust and Plan as of the
enrollment date coinciding with or next following the date he first meets such
requirements. Such a Covered Employee shall be notified of this fact by the
Administrator and the Administrator shall provide him with a salary deferral
election form. Such a Covered 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
of the Trust and Plan and shall execute a salary deferral election form
providing for such deferral.
If such a Covered 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
Continental Container Systems Division
Hourly-Paid Employees - 2
<PAGE> 123
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.
Continental Container Systems Division
Hourly-Paid Employees - 3
<PAGE> 124
GREER HYDRAULICS DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of the
FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees (as hereinafter defined) of the Greer Hydraulics Division.
DEFINITION
The following term shall have the following meaning whenever used in
this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any hourly-paid employee
of the Greer Hydraulics Division who is in a unit of employees represented by a
collective bargaining agent.
ACTIVE PARTICIPANT
(2) Section 2.22 of the Trust and Plan is hereby modified with
respect to Covered Employees so that a participant shall be considered to be an
"active participant" during any period during which he is a Covered Employee,
except for periods of employment described in subparagraphs (c), (d), (e) and
(h) of said Section 2.22.
Greer Hydraulics Division
Bargaining Unit Employees - 1
<PAGE> 125
VESTING
(3) Solely with respect to participants who are Covered Employees,
Section 2.37 of the Trust and Plan is hereby modified to read as follows:
"2.37 The words 'vested interest' shall mean with respect to
any participant an amount equal to the sum of
(a) plus (b) below, where:
(a) equals the balances then credited to all salary deferral
accounts, rollover accounts and voluntary contribution accounts
maintained on his behalf; and
(b) equals the balance then credited to all employer contribution
accounts maintained on his behalf multiplied by his Vested
Percentage."
(4) Solely with respect to participants who are Covered Employees,
Article II of the Trust and Plan is hereby modified by the addition of a new
Section 2.38 to read as follows:
"2.38 The words 'Vested Percentage' shall mean for any
participant a percentage determined on the basis of his number of
years of service in accordance with the following table:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Less than 5 years 0%
5 or more years 100%
</TABLE>
Notwithstanding the foregoing, the 'Vested Percentage' of a
participant who retires or terminates employment after his normal
retirement date or who is permanently and totally disabled shall be
one hundred percent (100%)."
Greer Hydraulics Division
Bargaining Unit Employees - 2
<PAGE> 126
ELIGIBILITY
(5) Notwithstanding the terms and provisions of the Trust and Plan,
each Covered Employee, other than a leased employee, who meets the following
requirements:
(a) either:
(i) he is a citizen or resident of the United States; or
(ii) his principal place of employment is in the United
States or Puerto Rico;
(b) he has attained age twenty-one (21); and
(c) he has completed the probationary period set forth in the
collective bargaining agreement which is applicable to
him;
shall be eligible to become a participant in the Trust and Plan as of the
enrollment date coinciding with or next following the date he first meets such
requirements. Such a Covered Employee shall be notified of this fact by the
Administrator and the Administrator shall provide him with a salary deferral
election form. Such a Covered 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
of the Trust and Plan and shall execute a salary deferral election form
providing for such deferral.
If such a Covered 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
Greer Hydraulics Division
Bargaining Unit Employees - 3
<PAGE> 127
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.
SALARY DEFERRAL CONTRIBUTIONS
(6) Solely with respect to participants who are Covered Employees,
Section 5.1 of the Trust and Plan is hereby modified to provide that the maximum
percentage of an active participant's compensation for a payroll period that is
subject to an election under said Section 5.1 is ten percent (10%).
MATCHING CONTRIBUTIONS
(7) Solely with respect to participants who are Covered Employees,
Article V of the Trust and Plan is hereby modified by the addition of new
Sections 5.5 and 5.6 to read as follows:
"5.5 For each taxable year ending after the restatement date,
the Company shall make a matching contribution to this Trust and
Plan on behalf of each participant who meets the following
requirements:
(a) either:
(i) he is a participant on the last day of said
taxable year; or
(ii) he terminated his employment on or as of the last
day of said taxable year; and
(b) amounts have been or will be contributed on his behalf by
the Company for such taxable
Greer Hydraulics Division
Bargaining Unit Employees - 4
<PAGE> 128
year pursuant to his election under Section 5.1 hereof.
Such matching contribution shall be equal to the aggregate for each
payroll period ending during such taxable year of the lesser of (A)
and (B) below, where:
(A) equals fifty percent (50%) of the amounts contributed
by the Company pursuant to such participant's election
under Section 5.1 hereof for such payroll period; and
(B) equals two and one-half percent (2-1/2%) of such
participant's compensation during such payroll period.
5.6 The Company shall make the matching contributions
specified in Section 5.5 hereof in cash to the Trustee not later
than the last day upon which the Company may make contributions
under this Trust and Plan and secure under the Code a deduction of
such contributions in the computation of its Federal Income Taxes
for the taxable year for which such contributions are made. A
matching contribution on behalf of a participant shall be credited
to his employer contribution account as of the last day of the
taxable year for which the contribution is made."
ESTABLISHMENT OF ACCOUNTS
(8) Solely with respect to participants who are Covered Employees,
Section 7.2 of the Trust and Plan is hereby modified to read as follows:
Greer Hydraulics Division
Bargaining Unit Employees - 5
<PAGE> 129
"7.2 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
and an employer contribution account in the name of such
participant. A salary deferral account and an employer contribution
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."
RECREDITING OF FORFEITURES
(9) Solely with respect to participants who are Covered Employees,
Section 7.7 of the Trust and Plan is hereby modified to read as follows:
"7.7 If a terminated participant shall be rehired by the
Company or any affiliate at a time when his period of severance is
less than five (5) years, he shall immediately be reinstated as a
participant in this Trust and Plan and the amount which shall have
been forfeited and debited from his employer contribution account
pursuant to the provisions of Section 10.5 hereof shall be
recredited to such account on his date of rehire. In
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<PAGE> 130
the event there are amounts which are required to be recredited to
rehired participants' employer contribution accounts in any plan
year pursuant to this Section 7.7, such amounts shall be taken from
the amounts that were forfeited in the year of recrediting. If the
total of the amounts to be recredited in any plan year is greater
than the amounts which were forfeited during such plan year, the
Company shall contribute the balance of the amounts which were
recredited during the plan year. Such contribution shall be made in
cash by the Company at the time it makes the contributions required
pursuant to Section 5.5 hereof for such plan year. For purposes of
the limitations contained in Article XIX hereof, such contribution
shall not be deemed to have been contributed at the time it is
recontributed pursuant to this Section 7.7, but shall be deemed to
have been contributed at the time of the original contribution."
TERMINATION OF EMPLOYMENT
(10) Solely with respect to participants who are Covered Employees,
Sections 10.3 and 10.4 of the Trust and Plan are hereby modified to read as
follows:
"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
Greer Hydraulics Division
Bargaining Unit Employees - 7
<PAGE> 131
distribution of his vested interest. Such distribution shall be made
in accordance with the provisions of Article XII hereof.
10.4 Subject to the provisions of Sections 12.7 and 12.8(a)(i)
hereof, distribution of the accounts of a participant who retires in
accordance with the provisions of Section 10.1 or 10.2 hereof or
distribution of the vested interest of a participant who terminates
employment in accordance with the provisions of Section 10.3 hereof
shall be made or commence to be made on such date on or after his
date of retirement or termination of employment as he shall select
in his sole discretion; provided, however, that such distribution
need not be made earlier than administratively possible."
(11) Solely with respect to participants who are Covered Employees,
Article X of the Trust and Plan is hereby modified by the addition of a new
Sections 10.5 and 10.6 to read as follows:
"10.5 If a terminated participant's Vested Percentage is zero
percent (0%), an amount equal to the excess of:
(a) the amounts then credited to all accounts held for his
benefit; over
(b) his vested interest;
shall be forfeited as of the earliest of (i) the date on or after
the participant's termination of employment on which he receives a
distribution of his vested interest,
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<PAGE> 132
(ii) the date as of which the participant shall incur a five (5)
year period of severance, or (iii) the date as of which the
participant dies. Any such forfeited amount shall be debited to such
terminated participant's employer contribution account.
10.6 The amounts actually forfeited pursuant to Section 10.5
hereof shall be used on the last of the taxable year coinciding with
or next following the date of forfeiture to reduce the contributions
of the Company required by Section 5.5 or 7.7 hereof on said date."
Greer Hydraulics Division
Bargaining Unit Employees - 9
<PAGE> 133
MOJONNIER BEVERAGE EQUIPMENT DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees (as hereinafter defined) of the Mojonnier Beverage Equipment Division.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Adoption Date" shall mean January 1, 1987.
(2) The words "Covered Employee" shall mean any salaried employee
of the Mojonnier Beverage Equipment Division:
(a) who was a participant in the Prior Plan on December 22,
1986; or
(b) who was eligible to participate in the Prior Plan on
December 22, 1986; or
(c) who was hired by the Company or any affiliate prior to
the Adoption Date.
(3) The words "Prior Plan" shall mean the FMC Employees' Thrift and
Stock Purchase Plan.
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Pre-1987 Employees - 1
<PAGE> 134
SERVICE
(4) Notwithstanding the terms and provisions of the Trust and Plan,
a Covered Employee's "service" shall equal the vesting service credited to him
under the Prior Plan on December 22, 1986 plus the aggregate of all his periods
of continuous service with the Company or any affiliate after December 22, 1986,
except as provided below.
The "service" of a Covered Employee who terminates employment after
the Adoption Date and who is later reemployed by the Company or any affiliate
shall not include the length of any periods of service rendered prior to the
date of said termination of employment if all of the following apply:
(a) his period of severance between said date of termination
of employment and the date he is reemployed equals or
exceeds the period of service he had on said date of
termination of employment;
(b) he did not have a vested interest under the Trust and
Plan on his termination of employment; and
(c) his period of severance equals or exceeds five (5) years.
Mojonnier Beverage Equipment Division
Pre-1987 Employees - 2
<PAGE> 135
MOJONNIER BEVERAGE EQUIPMENT DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of the Mojonnier
Beverage Equipment Division.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean December 31, 1988.
(4) The words "Prior Plan" shall mean the Mojonnier Bros. Co.
Salaried Employees' Profit Sharing Plan.
(5) The words "Prior Trust" shall mean the Mojonnier Bros. Co.
Salaried Employees' Profit Sharing Trust.
Mojonnier Beverage Equipment Division
Prior Profit Sharing Plan Participants - 1
<PAGE> 136
FIXED INVESTMENT FUND
(6) As of the Merger Date, the Trustee of the Trust Fund held
pursuant to the Trust and Plan established a separate subfund known as the
"Fixed Investment Fund." Such subfund was initially composed of the assets of
the Prior Plan which, immediately prior to the Merger Date, were held in the
"fixed investment fund" under the Prior Trust.
(7) The Trustee shall, from time to time, but in any event at least
annually, evaluate the assets of the Fixed Investment Fund at their fair market
value and shall adjust the amounts credited to all rollover accounts and
voluntary contribution accounts invested in such Fixed Investment Fund to
reflect the increase or decrease in the fair market value of the assets of the
Fixed Investment Fund. In the event that the Fixed Investment Fund shall be
invested in a contract of an insurance company providing for payment of annual
interest, the Trustee may adjust the amounts credited to such rollover accounts
and voluntary contribution accounts more frequently than annually on the basis
of its best estimate of the annual net rate of interest to be paid by the
insurance company.
(8) The Trustee shall invest and reinvest the assets of the Fixed
Investment Fund in short-term United States government obligations, commercial
paper, certificates of deposit, savings accounts, time deposits of short-term
maturity, group annuity or guaranteed investment contracts or a collective
investment fund composed of the foregoing or substantially similar investments.
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Prior Profit Sharing Plan Participants - 2
<PAGE> 137
The Company shall pay the expenses of administration of the Fixed Investment
Fund.
(9) The Administrator may, in its sole discretion, terminate the
Fixed Investment Fund. In such event, the Trustee shall adjust the amounts
credited to the rollover accounts and voluntary contribution accounts invested
in the Fixed Investment Fund in accordance with Section (7) hereof. Upon
completion of such adjustment the portion of such rollover accounts and
voluntary contribution accounts previously invested in the Fixed Investment Fund
shall thereafter be invested in the regular investment funds of the Trust and
Plan in accordance with the directions of the participants under the terms and
provisions of Article VI of the Trust and Plan. The assets of the terminated
Fixed Investment Fund shall be transferred to such regular investment funds in
accordance with such participant directions.
FORM OF DISTRIBUTION
(10) A Covered Employee may, in lieu of receiving distribution of
his rollover account under a method of distribution set forth in Section 12.2,
12.3 or 12.4 of the Trust and Plan, elect to receive distribution of the amount
credited to his rollover account in nearly equal installments over a specified
period of years, not to exceed the life expectancy of the Covered Employee or
the joint life expectancies of the Covered Employee and his beneficiary. If the
Covered Employee shall die prior to the completion of said installments, his
beneficiary, determined pursuant to Article XI of the Trust and Plan, shall
receive the
Mojonnier Beverage Equipment Division
Prior Profit Sharing Plan Participants - 3
<PAGE> 138
balance of the installments. If the Covered Employee is married, any such
election shall be effective only if his spouse consents thereto in accordance
with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(11) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
Mojonnier Beverage Equipment Division
Prior Profit Sharing Plan Participants - 4
<PAGE> 139
PROTECTIVE EQUIPMENT SUPPLY CO., INC.
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Protective
Equipment Supply Co., Inc.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean December 31, 1989.
(4) The words "Prior Plan" shall mean the Protective Equipment
Supply Co., Inc. Profit Sharing Retirement Plan.
Protective Equipment Supply Co., Inc.
Prior Profit Sharing Plan Participants - 1
<PAGE> 140
TRANSFERRED AMOUNTS
(5) As of the Merger Date, the Trustee established a rollover
account and a voluntary contribution account, if applicable, on behalf of each
person on whose behalf amounts were transferred to the Trustee on the Merger
Date from the Trust Account established under the Prior Plan. The Trustee
credited said accounts with the amounts transferred to the Trustee from the
Prior Plan on behalf of such person, as follows:
(a) all voluntary nondeductible Employee contributions and
attributable earnings were credited to such person's
voluntary contribution account; and
(b) all Employer contributions and attributable earnings were
credited to such person's rollover account.
All such transferred amounts are fully vested and nonforfeitable at all times.
FORM OF DISTRIBUTION
(6) A Covered Employee may, in lieu of receiving distribution of
his rollover account and voluntary contribution account under a method of
distribution set forth in Section 12.2, 12.3 or 12.4 of the Trust and Plan,
elect to receive distribution of the amounts credited to his accounts in nearly
equal installments over a specified period of years, not to exceed the life
expectancy of the Covered Employee or the joint life expectancies of the Covered
Employee and his beneficiary. If the Covered Employee shall die prior to the
completion of said installments, his beneficiary, determined pursuant to Article
XI of
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Prior Profit Sharing Plan Participants - 2
<PAGE> 141
the Trust and Plan, shall receive the balance of the installments. If the
Covered Employee is married, any such election shall be effective only if his
spouse consents thereto in accordance with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(7) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
Protective Equipment Supply Co., Inc.
Prior Profit Sharing Plan Participants - 3
<PAGE> 142
SAFETY ENGINEERING AND SUPPLY CO., INC.
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Safety
Engineering and Supply Co., Inc.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean December 31, 1989.
(4) The words "Prior Plan" shall mean the Safety Engineering and
Supply Co., Inc. Profit Sharing Plan.
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Prior Profit Sharing Plan Participants - 1
<PAGE> 143
(5) The words "Prior Trust" shall mean the agreement of trust
established for the purpose of holding and distributing the assets of the Prior
Plan.
TRANSFERRED AMOUNTS
(6) As of the Merger Date, the Trustee established a rollover
account and a voluntary contribution account, if applicable, on behalf of each
person on whose behalf amounts were transferred to the Trustee on the Merger
Date from the Prior Trust. The Trustee credited said accounts with the amounts
transferred to the Trustee from the Prior Trust on behalf of such person, as
follows:
(a) all Voluntary Contributions and attributable earnings
were credited to such person's voluntary contribution
account; and
(b) all Employer Discretionary Contributions, Employer
Matching Contributions, Salary Deferral Contributions and
Rollover Contributions and attributable earnings were
credited to such person's rollover account.
All such transferred amounts are fully vested and nonforfeitable at all times.
FORM OF DISTRIBUTION
(7) A Covered Employee may, in lieu of receiving distribution of
his rollover account and voluntary contribution account under a method of
distribution set forth in Section 12.2, 12.3 or 12.4 of the Trust and Plan,
elect to receive distribution of the amounts credited to his accounts in nearly
equal
Safety Engineering and Supply Co., Inc.
Prior Profit Sharing Plan Participants - 2
<PAGE> 144
installments over a specified period of years, not to exceed the life expectancy
of the Covered Employee or the joint life expectancies of the Covered Employee
and his beneficiary. If the Covered Employee shall die prior to the completion
of said installments, his beneficiary, determined pursuant to Article XI of the
Trust and Plan, shall receive the balance of the installments. If the Covered
Employee is married, any such election shall be effective only if his spouse
consents thereto in accordance with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(8) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
Safety Engineering and Supply Co., Inc.
Prior Profit Sharing Plan Participants - 3
<PAGE> 145
SAFETY SUPPLY AMERICA CORPORATION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Safety Supply
America Corporation.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Annuity Contract" shall mean the annuity contract
held pursuant to the Prior Plan which contract was held pursuant to the Trust
and Plan until the Transfer Date.
(2) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(3) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(4) The words "Merger Date" shall mean June 30, 1990.
(5) The words "Prior Plan" shall mean the Standard Glove and Safety
Equipment Corporation Profit Sharing Retirement Plan.
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Prior Profit Sharing Plan Participants - 1
<PAGE> 146
(6) The words "Prior Plan Trustee" shall mean the trustees under the
Prior Plan as of the Merger Date and any successor trustees between the Merger
Date and the Transfer Date.
(7) The words "rollover accounts" shall mean the rollover voluntary
contribution accounts, the rollover employer contribution accounts and the
rollover salary deferral accounts established on behalf of the Covered Employees
and the Covered Former Employees pursuant to Section (13) hereof.
(8) The words "Transfer Date" shall mean the date amounts were
actually transferred to the Trustee from the Prior Plan Trustee.
(9) The words "Transferred Assets" shall mean the assets previously
held under the Prior Plan, together with any income, gains or losses thereon and
minus and distributions therefrom, which assets were held in the Standard Glove
Fund between the Merger Date and the Transfer Date and which assets have been
and shall be held as a part of the trust fund established by the Trustees under
the Trust and Plan after the Transfer Date,.
PRIOR PLAN SUBFUND
(10) As of the Merger Date, the assets of the Prior Plan became
assets of the Trust and Plan. Notwithstanding the foregoing, however, such
assets were held by the Prior Plan Trustee as a separate subfund known as the
"Standard Glove Fund" under the Trust and Plan prior to the Transfer Date. Such
subfund was composed of the Annuity Contract held pursuant to the Prior Plan
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 2
<PAGE> 147
immediately prior to the Merger Date and other assets of the Prior Plan held by
the Prior Plan Trustees pursuant to the Prior Plan.
(11) During the period between the Merger Date and the Transfer
Date, the Prior Plan Trustee continued to hold and invest the assets of the
Standard Glove Fund pursuant to the terms of the Trust and Plan except that:
(a) the assets of the Standard Glove Fund were invested in
the Annuity Contract held pursuant to the Prior Plan;
(b) the investment funds available with respect to the
Transferred Assets were those available under the Annuity
Contract rather than the investment funds under Article
VI of the Trust and Plan;
(c) investment elections by Covered Employees and Covered
Former Employees were governed by the terms of the
Annuity Contract to the extent that they were
inconsistent with the terms and provisions of Article VI
of the Trust and Plan; and
(d) valuations of the accounts held within the Standard Glove
Fund were done in accordance with the terms of the
Annuity Contract rather than Article VII of the Trust and
Plan.
(12) As of the Transfer Date, the Trustee evaluated the assets held
pursuant to the Standard Glove Fund at their fair market value and adjusted the
amounts credited to all Prior Plan accounts which were deemed to be invested in
such Standard Glove Fund to reflect the increase or decrease in the fair market
value of the assets of the Standard Glove Fund. Upon completion of such
adjustment the assets previously invested in the Standard Glove Fund were
transferred to the Trustees under the Trust and Plan and the Standard Glove Fund
was dissolved. Upon the transfer of the
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 3
<PAGE> 148
assets to the Trustees under the Trust and Plan and the rendering of a final
accounting, the Prior Plan Trustee was discharged from any further
responsibility under the Trust and Plan. Thereafter, the Transferred Assets have
been and shall be invested in the regular investment funds of the Trust and Plan
in accordance with the directions of the Covered Employees and Covered Former
Employees under the terms and provisions of Article VII of the Trust and Plan
and the rollover accounts of the Covered Employees and Covered Former Employees
have been and shall be periodically valued in accordance with the terms of
Article VII of the Trust and Plan, and the Transferred Assets and the rollover
accounts have been and shall be held and administered in accordance with the
terms and provisions of the Trust and Plan without regard to the terms and
provisions of the Annuity Contract.
ROLLOVER ACCOUNTS
(13) As of the Merger Date, a rollover voluntary contribution
account, if applicable, a rollover employer contribution account, if applicable,
and a rollover salary deferral account, if applicable, were established under
the Trust and Plan on behalf of each person on whose behalf amounts were held
under the Prior Plan. The following amounts were credited to said accounts:
(a) all Employee Contributions made by a Covered Employee or
Covered Former Employee under the Prior Plan, together
with any attributable earnings, were credited to such
person's rollover voluntary contribution account;
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Prior Profit Sharing Plan Participants - 4
<PAGE> 149
(b) all Rollover Contributions and all Employer
Contributions, other than Salary Deferral Contributions
set forth in subparagraph (c) below, made on behalf of a
Covered Employee or Covered Former Employee under the
Prior Plan, together with attributable earnings, were
credited to such person's rollover employer contribution
account; and
(c) all Salary Deferral Contributions made on behalf of a
Covered Employee or Covered Former Employee under the
Prior Plan pursuant to such person's election under
Section 401(k) of the Code, together with attributable
earnings, were credited to his rollover salary deferral
account.
All amounts credited to such rollover accounts are fully vested and
nonforfeitable at all times.
DISABILITY
(14) Notwithstanding the provisions of the Trust and Plan to the
contrary, a Covered Employee will be considered to be permanently and totally
disabled and eligible for a distribution of the amounts then credited to his
rollover accounts if he is permanently and totally disabled as defined in
Section 2.25 of the Trust and Plan or is unable to engage in any substantial
gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death, or to be of long, continued
and indefinite duration.
LOANS
(15) A Covered Employee, Covered Former Employee or beneficiary of a
Covered Employee or Covered Former Employee may apply to the Administrator for a
loan from the Trust and Plan. If
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 5
<PAGE> 150
the Administrator determines that such borrower (and proposed loan) satisfies
the requirements set forth below for loan approval, the Administrator shall
direct the Trustee to make a loan to such borrower from one or more of his
rollover accounts. The amount of any such loan shall be determined by the
Administrator; provided, however, that any such loan shall not, when combined
with outstanding loans previously made from the Trust and Plan or the Prior
Plan, and loans made under other qualified retirement plans maintained by the
Company or any affiliate, cause the aggregate amount of all such loans to such
borrower to exceed the lesser of (a) or (b) below, where:
(a) equals one-half (1/2) of all vested amounts held for such
borrower under the Trust and Plan; and
(b) equals Fifty Thousand Dollars ($50,000.00) reduced by the
remainder, if any, of:
(i) the highest outstanding balance of loans to such
borrower from the Trust and Plan or the Prior
Plan and all other qualified retirement plans
maintained by the Company or any affiliate during
the twelve (12) month period preceding the date
on which the loan is to be made; minus
(ii) the outstanding balance of loans to such borrower
from the plans on the day the loan is to be made.
The following additional provisions shall be applicable to the loan
program under this Supplemental Agreement:
(A) Loan Program Administration. The loan program under this
Supplemental Agreement shall be administered by the
Administrator.
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Prior Profit Sharing Plan Participants - 6
<PAGE> 151
(B) Loan Application Procedure. Each borrower shall apply
for a loan by written application on a form acceptable to
the Administrator.
(C) Basis for Approval or Denial of Loans. Loans will be
approved only if:
(I) the Administrator believes the borrower intends
to repay the loan in accordance with its terms;
and
(II) the borrower's spouse, if any, consents to the
loan in accordance with Sections 21.6 or 21.7 of
the Trust and Plan within the ninety (90) day
period ending on the date the loan is made; and
(III) the amount of such loan shall not be in excess of
the vested amount which is credited to the
borrower's rollover accounts at the time of such
loan and shall be made exclusively from such
rollover accounts; and
(IV) the amount of such loan shall not be less than
One Thousand Dollars ($1,000.00); and
(V) the borrower designates the rollover accounts and
investments which are to be liquidated to permit
making of such a loan, as requested by the
Administrator; and
(VI) the loan satisfies the requirements of Section
(16) hereof.
(16) Any loan made pursuant to Section (15) hereof shall be
considered to be made solely from the rollover account or accounts of the
borrower and shall be subject to the following terms and conditions:
(a) Interest. Interest shall be charged at a reasonable
rate, comparable to the rate charged by a commercial
lender for a similar loan.
(b) Loan Term and Repayment Schedule. The term of any loan
shall be arrived at by mutual
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Prior Profit Sharing Plan Participants - 7
<PAGE> 152
agreement between the borrower and the Administrator but
shall not exceed five (5) years, unless the proceeds of
such loan are to be used to acquire any dwelling unit
which within a reasonable time is to be used as the
borrower's principal residence, in which case, such loan
may be for such term as is customary in similar
transactions involving lending institutions. All loans
shall provide for the substantially level amortization of
the loan, with payments not less frequently than
quarterly, over the term of the loan; provided, however,
that the terms of the loan may permit a borrower a grace
period of up to one (1) year from such repayments while
such borrower is on an unpaid leave of absence from the
Company or an affiliate.
(c) Segregation of Accounts. If an individual borrows money
from the Trust and Plan or has an outstanding loan from
the Prior Plan, his rollover accounts, to the extent of
such borrowing, shall be deemed segregated for investment
purposes. The note representing such loan and the
borrower's rollover accounts, to the extent of such
borrowing, shall not be taken into account in the
valuation of the Trust and Plan's investment funds
pursuant to Section 7.5 of the Trust and Plan or in the
valuation of the Standard Glove Fund pursuant to Section
(11) hereof.
(d) Repayment Procedures. Repayment of any loan made to a
Covered Employee shall be by payroll deduction unless
another procedure is agreed to by the Administrator and
the Covered Employee. Repayment of any loan made to a
borrower who is not a Covered Employee shall be made as
mutually agreed by the Administrator and such borrower.
(e) Documentation and Collateral. Each loan shall be
evidenced by a borrower's note for the amount of the loan
and interest payable to the order of the Trustee and
shall be supported by adequate collateral. Such
collateral shall consist of (i) an amount not to exceed
fifty percent (50%) of the borrower's entire right, title
and interest in and to the Trust Fund, and any earnings
attributable to such amount, and (ii) other property, if
necessary, of sufficient value to adequately secure the
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<PAGE> 153
repayment of the loan. The Administrator may require such
other and further documentation as it deems appropriate.
(f) Default. A borrower shall be in default if he fails to
make any payment of principal or interest when due, if he
fails to make a required payment after a permitted one
(1) year grace period, as provided in subparagraph (b)
above, or if his collateral becomes inadequate to secure
the loan and he does not provide substitute collateral
satisfactory to the Administrator within ten (10) days
after a request therefor by the Administrator. In the
event of default by a borrower, his loan shall be
accelerated, and:
(i) If his collateral security in the Trust and Plan
is adequate to cover all or part of the
outstanding principal and interest, and if
distribution of such amount would not, in the
opinion of the Administrator, put at risk the tax
qualified status of the Trust and Plan or the
pre-tax contribution portion thereof, the Trustee
shall execute upon such Trust and Plan collateral;
and
(ii) If his collateral security in the Trust and Plan
is not adequate to cover all of the outstanding
principal and interest, or if execution upon such
collateral would, in the opinion of the
Administrator, put at risk the tax qualified
status of the Trust and Plan or the pre-tax
contribution portion thereof, the Trustee shall
commence appropriate collection actions against
the borrower to recover the amounts owed.
Expenses of collection, including legal fees, if any, of
any loan in default shall be borne by the borrower or his
accounts under the Trust and Plan.
(17) Notwithstanding the foregoing provisions of Sections (15) and
(16) hereof, in the event the proceeds of any loan made hereunder shall be used
directly or indirectly to pay off any obligations under a prior loan made
hereunder, the term of the more
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<PAGE> 154
recent loan shall not extend beyond the period of repayment under the prior
loan. For purposes of this Section (17), the Administrator shall be able to rely
on a certification by the borrower as to the use of the new loan's proceeds.
(18) Any loans made to a Covered Employee or a Covered Former
Employee under the Prior Plan shall be repaid in accordance with the terms and
provisions of the Trust and Plan and the collateral promissory note signed by
such borrower.
COVERED FORMER EMPLOYEES
(19) Prior to the Transfer Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Transfer Date, the benefits
of such Covered Former Employees or their beneficiaries have been and shall be
paid under the Trust and Plan as modified by this Supplemental Agreement.
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Prior Profit Sharing Plan Participants - 10
<PAGE> 155
SAFETY SUPPLY AMERICA CORPORATION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Safety Supply
America Corporation.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Annuity Contract" shall mean the annuity contract
held pursuant to the Prior Plan which contract was held pursuant to the Trust
and Plan until the Transfer Date.
(2) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(3) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(4) The words "Merger Date" shall mean June 30, 1990.
(5) The words "Prior Plan" shall mean the Standard Glove and Safety
Equipment Corporation Profit Sharing Retirement Plan.
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<PAGE> 156
(6) The words "Prior Plan Trustee" shall mean the trustees under the
Prior Plan as of the Merger Date and any successor trustees between the Merger
Date and the Transfer Date.
(7) The words "rollover accounts" shall mean the rollover voluntary
contribution accounts, the rollover employer contribution accounts and the
rollover salary deferral accounts established on behalf of the Covered Employees
and the Covered Former Employees pursuant to Section (13) hereof.
(8) The words "Transfer Date" shall mean the date amounts were
actually transferred to the Trustee from the Prior Plan Trustee.
(9) The words "Transferred Assets" shall mean the assets previously
held under the Prior Plan, together with any income, gains or losses thereon and
minus and distributions therefrom, which assets were held in the Standard Glove
Fund between the Merger Date and the Transfer Date and which assets have been
and shall be held as a part of the trust fund established by the Trustees under
the Trust and Plan after the Transfer Date,.
PRIOR PLAN SUBFUND
(10) As of the Merger Date, the assets of the Prior Plan became
assets of the Trust and Plan. Notwithstanding the foregoing, however, such
assets were held by the Prior Plan Trustee as a separate subfund known as the
"Standard Glove Fund" under the Trust and Plan prior to the Transfer Date. Such
subfund was composed of the Annuity Contract held pursuant to the Prior Plan
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 2
<PAGE> 157
immediately prior to the Merger Date and other assets of the Prior Plan held by
the Prior Plan Trustees pursuant to the Prior Plan.
(11) During the period between the Merger Date and the Transfer
Date, the Prior Plan Trustee continued to hold and invest the assets of the
Standard Glove Fund pursuant to the terms of the Trust and Plan except that:
(a) the assets of the Standard Glove Fund were invested in
the Annuity Contract held pursuant to the Prior Plan;
(b) the investment funds available with respect to the
Transferred Assets were those available under the Annuity
Contract rather than the investment funds under Article
VI of the Trust and Plan;
(c) investment elections by Covered Employees and Covered
Former Employees were governed by the terms of the
Annuity Contract to the extent that they were
inconsistent with the terms and provisions of Article VI
of the Trust and Plan; and
(d) valuations of the accounts held within the Standard Glove
Fund were done in accordance with the terms of the
Annuity Contract rather than Article VII of the Trust and
Plan.
(12) As of the Transfer Date, the Trustee evaluated the assets held
pursuant to the Standard Glove Fund at their fair market value and adjusted the
amounts credited to all Prior Plan accounts which were deemed to be invested in
such Standard Glove Fund to reflect the increase or decrease in the fair market
value of the assets of the Standard Glove Fund. Upon completion of such
adjustment the assets previously invested in the Standard Glove Fund were
transferred to the Trustees under the Trust and Plan and the Standard Glove Fund
was dissolved. Upon the transfer of the
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 3
<PAGE> 158
assets to the Trustees under the Trust and Plan and the rendering of a final
accounting, the Prior Plan Trustee was discharged from any further
responsibility under the Trust and Plan. Thereafter, the Transferred Assets have
been and shall be invested in the regular investment funds of the Trust and Plan
in accordance with the directions of the Covered Employees and Covered Former
Employees under the terms and provisions of Article VII of the Trust and Plan
and the rollover accounts of the Covered Employees and Covered Former Employees
have been and shall be periodically valued in accordance with the terms of
Article VII of the Trust and Plan, and the Transferred Assets and the rollover
accounts have been and shall be held and administered in accordance with the
terms and provisions of the Trust and Plan without regard to the terms and
provisions of the Annuity Contract.
ROLLOVER ACCOUNTS
(13) As of the Merger Date, a rollover voluntary contribution
account, if applicable, a rollover employer contribution account, if applicable,
and a rollover salary deferral account, if applicable, were established under
the Trust and Plan on behalf of each person on whose behalf amounts were held
under the Prior Plan. The following amounts were credited to said accounts:
(a) all Employee Contributions made by a Covered Employee or
Covered Former Employee under the Prior Plan, together
with any attributable earnings, were credited to such
person's rollover voluntary contribution account;
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Prior Profit Sharing Plan Participants - 4
<PAGE> 159
(b) all Rollover Contributions and all Employer
Contributions, other than Salary Deferral Contributions
set forth in subparagraph (c) below, made on behalf of a
Covered Employee or Covered Former Employee under the
Prior Plan, together with attributable earnings, were
credited to such person's rollover employer contribution
account; and
(c) all Salary Deferral Contributions made on behalf of a
Covered Employee or Covered Former Employee under the
Prior Plan pursuant to such person's election under
Section 401(k) of the Code, together with attributable
earnings, were credited to his rollover salary deferral
account.
All amounts credited to such rollover accounts are fully vested and
nonforfeitable at all times.
DISABILITY
(14) Notwithstanding the provisions of the Trust and Plan to the
contrary, a Covered Employee will be considered to be permanently and totally
disabled and eligible for a distribution of the amounts then credited to his
rollover accounts if he is permanently and totally disabled as defined in
Section 2.25 of the Trust and Plan or is unable to engage in any substantial
gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death, or to be of long, continued
and indefinite duration.
LOANS
(15) A Covered Employee, Covered Former Employee or beneficiary of a
Covered Employee or Covered Former Employee may apply to the Administrator for a
loan from the Trust and Plan. If
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 5
<PAGE> 160
the Administrator determines that such borrower (and proposed loan) satisfies
the requirements set forth below for loan approval, the Administrator shall
direct the Trustee to make a loan to such borrower from one or more of his
rollover accounts. The amount of any such loan shall be determined by the
Administrator; provided, however, that any such loan shall not, when combined
with outstanding loans previously made from the Trust and Plan or the Prior
Plan, and loans made under other qualified retirement plans maintained by the
Company or any affiliate, cause the aggregate amount of all such loans to such
borrower to exceed the lesser of (a) or (b) below, where:
(a) equals one-half (1/2) of all vested amounts held for such
borrower under the Trust and Plan; and
(b) equals Fifty Thousand Dollars ($50,000.00) reduced by the
remainder, if any, of:
(i) the highest outstanding balance of loans to such
borrower from the Trust and Plan or the Prior Plan
and all other qualified retirement plans
maintained by the Company or any affiliate during
the twelve (12) month period preceding the date on
which the loan is to be made; minus
(ii) the outstanding balance of loans to such borrower
from the plans on the day the loan is to be made.
The following additional provisions shall be applicable to the loan
program under this Supplemental Agreement:
(A) Loan Program Administration. The loan program under this
Supplemental Agreement shall be administered by the
Administrator.
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Prior Profit Sharing Plan Participants - 6
<PAGE> 161
(B) Loan Application Procedure. Each borrower shall apply
for a loan by written application on a form acceptable to
the Administrator.
(C) Basis for Approval or Denial of Loans. Loans will be
approved only if:
(I) the Administrator believes the borrower intends to
repay the loan in accordance with its terms; and
(II) the borrower's spouse, if any, consents in writing
to the loan and the use of the borrower's account
balances as security for the loan in accordance
with Sections 21.6 or 21.7 of the Trust and Plan
within the ninety (90) day period ending on the
date the loan is made and secured; and
(III) the amount of such loan shall not be in excess of
the vested amount which is credited to the
borrower's rollover accounts at the time of such
loan and shall be made exclusively from such
rollover accounts; and
(IV) the amount of such loan shall not be less than One
Thousand Dollars ($1,000.00); and
(V) the borrower designates the rollover accounts and
investments which are to be liquidated to permit
making of such a loan, as requested by the
Administrator; and
(VI) the loan satisfies the requirements of Section
(16) hereof.
(16) Any loan made pursuant to Section (15) hereof shall be
considered to be made solely from the rollover account or accounts of the
borrower and shall be subject to the following terms and conditions:
(a) Interest. Interest shall be charged at a reasonable
rate, comparable to the rate charged by a commercial
lender for a similar loan.
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Prior Profit Sharing Plan Participants - 7
<PAGE> 162
(b) Loan Term and Repayment Schedule. The term of any loan
shall be arrived at by mutual agreement between the
borrower and the Administrator but shall not exceed five
(5) years, unless the proceeds of such loan are to be
used to acquire any dwelling unit which within a
reasonable time is to be used as the borrower's principal
residence, in which case, such loan may be for such term
as is customary in similar transactions involving lending
institutions. All loans shall provide for the
substantially level amortization of the loan, with
payments not less frequently than quarterly, over the
term of the loan; provided, however, that the terms of
the loan may permit a borrower a grace period of up to
one (1) year from such repayments while such borrower is
on an unpaid leave of absence from the Company or an
affiliate.
(c) Segregation of Accounts. If an individual borrows money
from the Trust and Plan or has an outstanding loan from
the Prior Plan, his rollover accounts, to the extent of
such borrowing, shall be deemed segregated for investment
purposes. The note representing such loan and the
borrower's rollover accounts, to the extent of such
borrowing, shall not be taken into account in the
valuation of the Trust and Plan's investment funds
pursuant to Section 7.5 of the Trust and Plan or in the
valuation of the Standard Glove Fund pursuant to Section
(11) hereof.
(d) Repayment Procedures. Repayment of any loan made to a
Covered Employee shall be by payroll deduction unless
another procedure is agreed to by the Administrator and
the Covered Employee. Repayment of any loan made to a
borrower who is not a Covered Employee shall be made as
mutually agreed by the Administrator and such borrower.
(e) Documentation and Collateral. Each loan shall be
evidenced by a borrower's note for the amount of the loan
and interest payable to the order of the Trustee and
shall be supported by adequate collateral. Such
collateral shall consist of (i) an amount not to exceed
fifty percent (50%) of the borrower's entire right, title
and interest in and to the Trust Fund, and any earnings
attributable to such amount,
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Prior Profit Sharing Plan Participants - 8
<PAGE> 163
and (ii) other property, if necessary, of sufficient
value to adequately secure the repayment of the loan. The
Administrator may require such other and further
documentation as it deems appropriate.
(f) Default. A borrower shall be in default if he fails to
make any payment of principal or interest when due, if he
fails to make a required payment after a permitted one
(1) year grace period, as provided in subparagraph (b)
above, or if his collateral becomes inadequate to secure
the loan and he does not provide substitute collateral
satisfactory to the Administrator within ten (10) days
after a request therefor by the Administrator. In the
event of default by a borrower, his loan shall be
accelerated, and:
(i) If his collateral security in the Trust and Plan
is adequate to cover all or part of the
outstanding principal and interest, and if
distribution of such amount would not, in the
opinion of the Administrator, put at risk the tax
qualified status of the Trust and Plan or the
pre-tax contribution portion thereof, the Trustee
shall execute upon such Trust and Plan collateral;
and
(ii) If his collateral security in the Trust and Plan
is not adequate to cover all of the outstanding
principal and interest, or if execution upon such
collateral would, in the opinion of the
Administrator, put at risk the tax qualified
status of the Trust and Plan or the pre-tax
contribution portion thereof, the Administrator as
agent for the Trustee shall commence appropriate
collection actions against the borrower to recover
the amounts owed.
Expenses of collection, including legal fees, if any, of
any loan in default shall be borne by the borrower or his
accounts under the Trust and Plan.
(17) Notwithstanding the foregoing provisions of Sections (15) and
(16) hereof, in the event the proceeds of any loan made
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Prior Profit Sharing Plan Participants - 9
<PAGE> 164
hereunder shall be used directly or indirectly to pay off any obligations under
a prior loan made hereunder, the term of the more recent loan shall not extend
beyond the period of repayment under the prior loan. For purposes of this
Section (17), the Administrator shall be able to rely on a certification by the
borrower as to the use of the new loan's proceeds.
(18) Any loans made to a Covered Employee or a Covered Former
Employee under the Prior Plan shall be repaid in accordance with the terms and
provisions of the Trust and Plan and the collateral promissory note signed by
such borrower.
COVERED FORMER EMPLOYEES
(19) Prior to the Transfer Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Transfer Date, the benefits
of such Covered Former Employees or their beneficiaries have been and shall be
paid under the Trust and Plan as modified by this Supplemental Agreement.
Safety Supply America Corporation
Prior Profit Sharing Plan Participants - 10
<PAGE> 165
HUBER-ESSICK DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of the Huber-
Essick Division (formerly Scott Huber Essick Division).
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean March 1, 1987.
(4) The words "Prior Plan" shall mean the Essick Employees' Profit
Sharing Retirement Plan.
Huber-Essick Division
Prior Plan Participants - 1
<PAGE> 166
FIXED INVESTMENT FUND
(5) As of the Merger Date, the Trustee of the Trust Fund held
pursuant to the Trust and Plan established a separate subfund known as the
"Fixed Investment Fund." Such subfund was initially composed of the assets of
the Prior Plan which, immediately prior to the Merger Date, were held in the
Fixed Investment Fund under the Prior Plan.
(6) The Trustee shall, from time to time, but in any event at least
annually, evaluate the assets of the Fixed Investment Fund at their fair market
value and shall adjust the amounts credited to all rollover accounts invested in
such Fixed Investment Fund to reflect the increase or decrease in the fair
market value of the assets of the Fixed Investment Fund. In the event that the
Fixed Investment Fund shall be invested in a contract of an insurance company
providing for payment of annual interest, the Trustee may adjust the amounts
credited to such rollover accounts more frequently than annually on the basis of
its best estimate of the annual net rate of interest to be paid by the insurance
company.
(7) The Trustee shall invest and reinvest the assets of the Fixed
Investment Fund in any group annuity or investment contract issued by an
insurance company and selected by the Trustee. The Company shall not be
obligated to pay, but may, in its sole discretion, pay the expenses of
administration of the Fixed Investment Fund. In the event that the Company shall
not pay the expenses of administration of the Fixed Investment Fund, the
Huber-Essick Division
Prior Plan Participants - 2
<PAGE> 167
Trustee shall pay such expenses directly from the Fixed Investment Fund and
shall debit the accounts therein with their proportionate share of such
expenses; provided, however, that to the extent that any such expenses are
computed and billed to the Trustee as a charge for each account, the
Administrator may direct the Trustee to debit each account in the amount of the
charge attributable to such account.
(8) The Administrator may, in its sole discretion, terminate the
Fixed Investment Fund. In such event, the Trustee shall adjust the amounts
credited to the rollover accounts invested in the Fixed Investment Fund in
accordance with Section (6) hereof. Upon completion of such adjustment the
portion of such rollover accounts previously invested in the Fixed Investment
Fund shall thereafter be invested in the regular investment funds of the Trust
and Plan in accordance with the directions of the participants under the terms
and provisions of Article VI of the Trust and Plan. The assets of the terminated
Fixed Investment Fund shall be transferred to such regular investment funds in
accordance with such participant directions.
FORM OF DISTRIBUTION
(9) A Covered Employee may, in lieu of receiving distribution of his
rollover account under a method of distribution set forth in Section 12.2, 12.3
or 12.4 of the Trust and Plan, elect to receive distribution of the amount
credited to his rollover account in nearly equal installments over a specified
Huber-Essick Division
Prior Plan Participants - 3
<PAGE> 168
period of years, not to exceed the life expectancy of the Covered Employee or
the joint life expectancies of the Covered Employee and his beneficiary. If the
Covered Employee shall die prior to the completion of said installments, his
beneficiary, determined pursuant to Article XI of the Trust and Plan, shall
receive the balance of the installments. If the Covered Employee is married, any
such election shall be effective only if his spouse consents thereto in
accordance with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(10) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
Huber-Essick Division
Prior Plan Participants - 4
<PAGE> 169
THE S-P MANUFACTURING CORPORATION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of The S-P
Manufacturing Corporation.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean September 1, 1988.
(4) The words "Prior Plan" shall mean The S-P Manufacturing
Corporation Deferred Profit Sharing and Retirement Plan and Trust.
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Prior Profit Sharing Plan Participants - 1
<PAGE> 170
SEGREGATED ACCOUNTS
(5) As of the Merger Date, the Trustee of the Trust Fund held
pursuant to the Trust and Plan established segregated accounts and segregated
assets for each account under the Prior Plan which was segregated. Such
segregated accounts were initially composed of the assets of the Prior Plan
which, immediately prior to the Merger Date, were held for segregated accounts
under the Prior Plan.
(6) The Trustee shall, form time to time, but in any event at least
annually, evaluate the assets of each segregated account at their fair market
value and shall adjust the amounts credited to the segregated account to reflect
the increase or decrease in the fair market value of its assets.
(7) The Trustee shall retain the assets of a segregated account
until instructed otherwise by the Covered Employee, Covered Former Employee or
beneficiary for whose benefit the account is being held. If the Trustee is
instructed to sell or dispose of any such segregated assets and the proceeds
exceed the amount then distributable to the Covered Employee, Covered Former
Employee or beneficiary, the balance of the proceeds shall be invested in such
Fund or Funds established under Article VI of the Trust and Plan as the Covered
Employee, Covered Former Employee or beneficiary shall direct.
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Prior Profit Sharing Plan Participants - 2
<PAGE> 171
FORM OF DISTRIBUTION
(8) A Covered Employee may, in lieu of receiving distribution of his
rollover account and voluntary contribution account under a method of
distribution set forth in Section 12.2, 12.3 or 12.4 of the Trust and Plan,
elect to receive distribution of the amounts credited to his accounts in nearly
equal installments over a specified period of years, not to exceed the life
expectancy of the Covered Employee or the joint life expectancies of the Covered
Employee and his beneficiary. If the Covered Employee shall die prior to the
completion of said installments, his beneficiary, determined pursuant to Article
XI of the Trust and Plan, shall receive the balance of the installments. If the
Covered Employee is married, any such election shall be effective only if his
spouse consents thereto in accordance with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(9) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
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Prior Profit Sharing Plan Participants - 3
<PAGE> 172
SUMMIT GLOVE AND SUPPLY, INC.
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Summit Glove
and Supply, Inc.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean September 30, 1989.
(4) The words "Prior Plan" shall mean the Blunt Ellis & Loewi
Incorporated Money Purchase Trust and Plan for Summit Glove and Supply, Inc.
Summit Glove and Supply, Inc.
Prior Money Purchase Plan Participants - 1
<PAGE> 173
TRANSFERRED AMOUNTS
(5) As of the Merger Date, the Trustee established a rollover
account on behalf of each person on whose behalf amounts were transferred to the
Trustee on the Merger Date from the Prior Plan. The Trustee credited said
account with the amounts transferred to the Trustee from the Prior Plan on
behalf of such person. All such transferred amounts are fully vested and
nonforfeitable at all times.
FORM OF DISTRIBUTION
(6) A Covered Employee may, in lieu of receiving distribution of his
rollover account under a method of distribution set forth in Section 12.2, 12.3
or 12.4 of the Trust and Plan, elect to receive distribution of the amounts
credited to his accounts in nearly equal installments over a specified period of
years, not to exceed the life expectancy of the Covered Employee or the joint
life expectancies of the Covered Employee and his beneficiary. If the Covered
Employee shall die prior to the completion of said installments, his
beneficiary, determined pursuant to Article XI of the Trust and Plan, shall
receive the balance of the installments. If the Covered Employee is married, any
such election shall be effective only if his spouse consents thereto in
accordance with Section 21.6 of the Trust and Plan.
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Prior Money Purchase Plan Participants - 2
<PAGE> 174
COVERED FORMER EMPLOYEES
(7) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
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Prior Money Purchase Plan Participants - 3
<PAGE> 175
SUMMIT GLOVE AND SUPPLY, INC.
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees and Covered Former Employees (as hereinafter defined) of Summit Glove
and Supply, Inc.
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any employee of the
Company or an affiliate who was a participant in the Prior Plan immediately
prior to the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who retired or terminated employment prior to the
Merger Date and who had an account balance under the Prior Plan immediately
prior to the Merger Date.
(3) The words "Merger Date" shall mean September 30, 1989.
(4) The words "Prior Plan" shall mean the Blunt Ellis & Loewi
Incorporated Profit Sharing Trust and Plan for Summit Glove & Supply, Inc.
Summit Glove and Supply, Inc.
Prior Profit Sharing Plan Participants - 1
<PAGE> 176
TRANSFERRED AMOUNTS
(5) As of the Merger Date, the Trustee established a rollover
account and a voluntary contribution account, if applicable, on behalf of each
person on whose behalf amounts were transferred to the Trustee on the Merger
Date from the Prior Plan. The Trustee credited said accounts with the amounts
transferred to the Trustee from the Prior Plan on behalf of such person, as
follows:
(a) all voluntary contributions and attributable earnings
were credited to such person's voluntary contribution
account; and
(b) all Employer contributions and attributable earnings were
credited to such person's rollover account.
All such transferred amounts are fully vested and nonforfeitable at all times.
FORM OF DISTRIBUTION
(6) A Covered Employee may, in lieu of receiving distribution of his
rollover account and voluntary contribution account under a method of
distribution set forth in Section 12.2, 12.3 or 12.4 of the Trust and Plan,
elect to receive distribution of the amounts credited to his accounts in nearly
equal installments over a specified period of years, not to exceed the life
expectancy of the Covered Employee or the joint life expectancies of the Covered
Employee and his beneficiary. If the Covered Employee shall die prior to the
completion of said installments, his beneficiary, determined pursuant to Article
XI of
Summit Glove and Supply, Inc.
Prior Profit Sharing Plan Participants - 2
<PAGE> 177
the Trust and Plan, shall receive the balance of the installments. If the
Covered Employee is married, any such election shall be effective only if his
spouse consents thereto in accordance with Section 21.6 of the Trust and Plan.
COVERED FORMER EMPLOYEES
(7) Prior to the Merger Date, the benefits of Covered Former
Employees were paid under the Prior Plan. After the Merger Date, the benefits of
such Covered Former Employees or their beneficiaries have been and shall be paid
under the Trust and Plan. In the event of the death of a Covered Former Employee
prior to the time all installment payments have been made to him, the remainder
of said installment payments shall be made to his beneficiary as determined
pursuant to Article XI of the Trust and Plan.
Summit Glove and Supply, Inc.
Prior Profit Sharing Plan Participants - 3
<PAGE> 178
AMENDMENT NO. 1
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS AMENDMENT NO. 1 is made this ___ day of ___________, 1994, by
FIGGIE INTERNATIONAL INC., a Delaware corporation (hereinafter referred to as
the "Company").
W I T N E S S E T H:
WHEREAS, the Company amended and restated the FIGGIE INTERNATIONAL
INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter referred to as both
"Plan" and "Trust and Plan"), effective January 1, 1989; and
WHEREAS, the Company reserved the right, pursuant to Section 17.1 of
the Plan, to make certain amendments thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in order
to change the procedures with regard to the response to any tender or exchange
offer made for shares held under the Plan and with regard to the voting of
shares held under the Plan;
NOW, THEREFORE, pursuant to Section 17.1 of the Plan and effective
as of August 1, 1994, the Company hereby amends Sections 14.4 and 14.5 of
Article XIV of the Plan by the deletion of said Sections 14.4 and 14.5 and the
substitution in lieu thereof of new Sections 14.4 and 14.5 to read as follows:
"14.4 It is the purpose of this Section 14.4 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 after March 31, 1990 with respect to shares of the
<PAGE> 179
Company's Class A Common Stock and Class B Common Stock held in their
accounts under this Trust and Plan pursuant to Article VI hereof.
Therefore, the power to direct the Trustee after March 31, 1990 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 14.4. 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 after
March 31, 1990 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 14.4
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;
-2-
<PAGE> 180
(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;
(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 14.5 to permit participants,
former participants, beneficiaries and 'alternate payees' (as defined in
Section 16.1(a) hereof) to
-3-
<PAGE> 181
exercise voting rights under this Trust and Plan after March 31, 1990 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 hereof. Therefore, the power to direct the Trustee after March 31, 1990
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 14.5. 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 after March 31, 1990
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 14.5
shall be exercised as follows:
-4-
<PAGE> 182
(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;
(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."
-5-
<PAGE> 183
IN WITNESS WHEREOF, the Company, by its duly authorized officers,
has caused this Amendment No. 1 to be executed as of the day and year first
above written.
FIGGIE INTERNATIONAL INC.
("Company")
By
----------------------------------
And
---------------------------------
The Trustee hereby acknowledges receipt of, accepts and executes the
foregoing Amendment No. 1.
WILMINGTON TRUST COMPANY
("Trustee")
By
----------------------------------
And
---------------------------------
-6-
<PAGE> 184
AMENDMENT NO. 2
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
AND
MERGER
OF
FIGGIE INTERNATIONAL INC.
SEGREGATED INVESTMENT FUND TRUST AND PLAN
INTO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS AMENDMENT NO. 2 and MERGER AGREEMENT is entered into by and
among FIGGIE INTERNATIONAL INC., a Delaware corporation (hereinafter referred to
as the "Company") and WILMINGTON TRUST COMPANY (hereinafter referred to as the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company maintains the Figgie International Inc.
Segregated Investment Fund Trust and Plan (hereinafter referred to as the "SIF
Plan"); and
WHEREAS, the SIF Plan holds assets in Segregated Investment Funds
which represent Accumulated Prior Participant Contributions and employee
contributions which were originally held on behalf of certain salaried employees
and former salaried employees and their beneficiaries pursuant to the Company's
terminated Retirement Income Plan and which were held immediately prior to the
establishment of the SIF Plan pursuant to Segregated Investment Funds under
either the Figgie International Inc. Supplementary Retirement Savings Plan
(hereinafter referred to as the "Savings Plan") or the Advance Security, Inc.
Supplementary Retirement Savings Plan; and
WHEREAS, the SIF Plan is a frozen plan; and
<PAGE> 185
WHEREAS, the Company has determined due to administrative burdens
and cost that it is no longer desirable to maintain a separate plan for the
purpose of providing the benefits under the SIF Plan and has decided to provide
these benefits under the Savings Plan; and
WHEREAS, as a result of the foregoing, it is the desire of the
Company to merge the SIF Plan into the Savings Plan, effective as of December
31, 1995;
NOW, THEREFORE, in consideration of the foregoing, it is hereby
agreed that, effective December 31, 1995, the Savings Plan will be amended and
the Savings Plan and the SIF Plan will be merged as follows:
ARTICLE I
DEFINITIONS
The following words shall have the following meanings whenever used
in this instrument:
1.1 The words "Covered Persons" shall mean each person who has a
rollover account under the SIF Plan immediately prior to the Merger Date.
1.2 The words "Merger Date" shall mean December 31, 1995.
1.3 The words "Savings Plan Participants" shall mean all
participants, terminated participants, retired participants, alternate payees
and beneficiaries of deceased participants who are entitled to retirement or
other benefits under the Savings Plan immediately prior to the Merger Date.
2
<PAGE> 186
ARTICLE II
MERGER OF SIF PLAN AND SAVINGS PLAN
2.1 Effective as of the Merger Date, the SIF Plan is hereby merged
into the Savings Plan.
2.2 As of the Merger Date, the value of the assets of each
Segregated Investment Fund maintained under the SIF Plan shall be determined in
accordance with Section 13.2 of the SIF Plan and the amounts credited to all
rollover accounts maintained under the SIF Plan shall be adjusted to reflect the
changes in value of the assets of the Segregated Investment Funds.
2.3 As of the Merger Date, the Trustee, as trustee of the SIF Plan,
shall transfer the Segregated Investment Funds, which constitute all of the SIF
Plan assets, to itself as the Trustee of the Savings Plan. As of the Merger
Date, the Trustee shall establish rollover accounts under the Savings Plan for
the Covered Persons and shall credit such rollover accounts with transferred
assets equal to the amounts credited to their rollover accounts under the SIF
Plan, as finally adjusted pursuant to Section 2.2 hereof. Such transferred
assets shall be thereafter held and administered under the terms and provisions
of the Savings Plan.
2.4 On and after the Merger Date, the right to the benefits and the
amount of benefits payable to Covered Persons, or the beneficiaries of such
Covered Persons shall be governed by the terms and provisions of the Savings
Plan.
2.5 On and after the Merger Date, the benefits payable to Covered
Persons or their beneficiaries shall be paid under the Savings Plan. Benefits
being distributed under the SIF Plan prior
3
<PAGE> 187
to the Merger Date shall continue to be distributed under the Savings Plan in
the same manner as they were being distributed prior to the Merger Date.
ARTICLE III
AMENDMENT OF THE SAVINGS PLAN
EFFECTIVE DECEMBER 31, 1995
3.1 Effective as of December 31, 1995, the Savings Plan is hereby
amended as follows:
(a) Article IV of the Savings Plan is hereby amended by the addition
at the end thereof of a new Section 4.6 to read as follows:
"4.6 Effective December 31, 1995, each person on whose behalf
amounts are transferred to the Trustee from the Company's Segregated
Investment Fund Trust and Plan as a result of the merger of the Company's
Segregated Investment Fund Trust and Plan into this Trust and Plan shall,
if he is not already a participant or otherwise entitled to future
benefits from this Trust and Plan, automatically become a participant,
former participant, retired participant, beneficiary or alternate payee,
as the case may be, in this Trust and Plan."
(b) Sections 6.6 and 6.7 of Article VI of the Savings Plan are
hereby amended by the deletion of said Sections 6.6 and 6.7 and the substitution
in lieu thereof of new Sections 6.6 and 6.7 to read as follows:
4
<PAGE> 188
"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 credited to his accounts,
excluding any amounts which are credited to his rollover account, if any,
on and after December 31, 1995 and invested in the Segregated Investment
Funds described in Article XXII hereof. 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
5
<PAGE> 189
(12) months from the enrollment date on which such reallocation was
effective.
6.7 Effective as of December 31, 1995, Segregated Investment Funds
maintained under the Company's Segregated Investment Fund Trust and Plan
were transferred to this Trust and Plan as a result of the merger of the
Company's Segregated Investment Fund Trust and Plan into this Trust and
Plan. Such Segregated Investment Funds are described in Article XXII
hereof. Rollover accounts invested in such Segregated Investment Funds as
of December 31, 1995 shall continue to be invested in such Funds as long
as the Trustee continues to maintain such Funds."
(c) Article VII of the Savings Plan is hereby amended by the
addition at the end thereof of a new Section 7.9 to read as follows:
"7.9 Effective as of December 31, 1995, the Trustee shall establish
a rollover account on behalf of each person on whose behalf amounts are
transferred to the Trustee from the Company's Segregated Investment Fund
Trust and Plan as a result of the merger of the Company's Segregated
Investment Fund Trust and Plan into this Trust and Plan and shall
initially credit each said account with the amount transferred to the
Trustee on each such person's behalf."
(d) Section 21.13 of Article XXI of the Savings Plan is hereby
amended by the deletion of said Section 21.13 and the substitution in lieu
thereof of a new Section 21.13 to read as follows:
6
<PAGE> 190
"21.13 Effective as of December 31, 1995, Segregated Investment
Funds maintained under the Company's Segregated Investment Fund Trust and
Plan were transferred to this Trust and Plan as a result of the merger of
the Company's Segregated Investment Fund Trust and Plan into this Trust
and Plan. Such Segregated Investment Funds are governed by Article XXII
hereof."
(e) The Savings Plan is hereby amended by the addition at the end
thereof of a new Article XXII to read as follows:
"ARTICLE XXII
SEGREGATED INVESTMENT FUNDS
22.1 Effective as of December 31, 1995, the Segregated Investment
Funds maintained pursuant to the Company's Segregated Investment Fund
Trust and Plan shall be transferred to the Trustee hereunder as a result
of the merger of the Company's Segregated Investment Fund Trust and Plan
into this Trust and Plan. Thereafter, the Trustee shall continue to
maintain such Segregated Investment Funds until otherwise directed by the
Administrator. The Administrator shall direct the Trustee, in writing, as
to the number of Segregated Investment Funds and the assets to be
allocated to each of them. The Administrator may, from time to time,
direct the Trustee to establish additional Segregated Investment Funds or
to merge any Segregated Investment Funds which shall have been previously
established.
7
<PAGE> 191
22.2 The Trustee shall, from time to time, but in any event at least
annually, evaluate the assets of each Segregated Investment Fund at their
fair market value and shall adjust the amounts credited to all rollover
accounts invested in such Segregated Investment Fund to reflect the
increase or decrease in the fair market value of the assets of the
Segregated Investment Fund. In the event that a Segregated Investment Fund
shall be invested in a contract of an insurance company providing for
payment of annual interest, the Trustee may adjust the amounts credited to
such rollover accounts more frequently than annually on the basis of its
best estimate of the annual net rate of interest to be paid by the
insurance company.
22.3 The Trustee shall invest and reinvest the assets of each
Segregated Investment Fund in any investments permitted by this Trust and
Plan including any group annuity or investment contract issued by an
insurance company and selected by the Company. The Company shall not be
obligated to pay, but may, in its sole discretion, pay the expenses of
administration of a Segregated Investment Fund. In the event that the
Company shall not pay the expenses of administration of a Segregated
Investment Fund, the Trustee shall pay such expenses directly from the
Segregated Investment Fund and shall debit the rollover accounts therein
with their proportionate share of such expenses; provided however that, to
the extent that any such expenses are computed and billed to the Trustee
as a charge for each rollover account, the
8
<PAGE> 192
Administrator may direct the Trustee to debit each rollover account in the
amount of the charge attributable to such rollover account.
22.4 The Administrator may, in its sole discretion, terminate a
Segregated Investment Fund. In such event, the Trustee shall adjust the
amounts credited to the rollover accounts invested in such Segregated
Investment Fund in accordance with Section 22.2 hereof. Upon completion of
such adjustment such rollover accounts shall thereafter be invested in the
regular investment funds of this Trust and Plan in accordance with the
directions of the participants under the terms and provisions of Article
VI hereof. The assets of the terminated Segregated Investment Fund shall
be transferred to such regular investment funds in accordance with such
participant directions."
ARTICLE IV
MISCELLANEOUS
4.1 It is the intention of this Amendment No. 2 and Merger Agreement
that each Covered Person would receive a benefit, if the Savings Plan were to
terminate immediately after the Merger Date, which is equal to or greater than
the benefit he would have received under the SIF Plan if the SIF Plan had
terminated immediately prior to the Merger Date, in accordance with the terms
and provisions of Sections 401(a)(12) and 414(l) of the Internal Revenue Code,
as amended, and Section 208 of the Employee
9
<PAGE> 193
Retirement Income Security Act of 1974, as amended, and any lawful regulations
and rulings thereunder.
4.2 It is the intention of this Amendment No. 2 and Merger Agreement
that each Savings Plan Participant would receive a benefit, if the Savings Plan
were to terminate immediately after the Merger Date, which is equal to or
greater than the benefit he would have received under the Savings Plan if the
Savings Plan had terminated immediately prior to the Merger Date, in accordance
with the terms and provisions of Sections 401(a)(12) and 414(1) of the Internal
Revenue Code, as amended, and Section 208 of the Employee Retirement Income
Security Act of 1974, as amended, and any lawful regulations and rulings
thereunder.
IN WITNESS WHEREOF, the Company and the Trustee, by their duly
authorized officers, have executed this Amendment No. 2 and Merger Agreement on
this _____ day of December, 1995.
FIGGIE INTERNATIONAL INC.
("Company")
By
---------------------------------
And
--------------------------------
WILMINGTON TRUST COMPANY
("Trustee")
By
---------------------------------
And
--------------------------------
10
<PAGE> 194
AMENDMENT NO. 3
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
AND
MERGER
OF
ECONOMY ENGINEERING COMPANY RESTATED SALARIED EMPLOYEES'
PROFIT SHARING PLAN AND TRUST
INTO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS AMENDMENT NO. 3 and MERGER AGREEMENT is entered into by and
among FIGGIE INTERNATIONAL INC., a Delaware corporation (hereinafter referred to
as the "Company") and WILMINGTON TRUST COMPANY (hereinafter referred to as the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company maintains the Economy Engineering Company
Restated Salaried Employees' Profit Sharing Plan and Trust (hereinafter referred
to as the "Economy Plan"); and
WHEREAS, the Economy Plan is a frozen plan and is being maintained
solely to provide current and future benefits to terminated and retired
participants and their beneficiaries; and
WHEREAS, the Company has determined due to administrative burdens
and cost that it is no longer desirable to maintain a separate plan for the
purpose of providing the benefits under the Economy Plan and has decided to
provide these benefits under the Figgie International Inc. Supplementary
Retirement Savings Plan (hereinafter referred to as the "Savings Plan"); and
WHEREAS, as a result of the foregoing, it is the desire of the
Company to merge the Economy Plan into the Savings Plan, effective as of
December 31, 1995;
<PAGE> 195
NOW, THEREFORE, in consideration of the foregoing, it is hereby
agreed that, effective December 31, 1995, the Savings Plan will be amended and
the Savings Plan and the Economy Plan will be merged as follows:
ARTICLE I
DEFINITIONS
The following words shall have the following meanings whenever used
in this instrument:
1.1 The words "Covered Persons" shall mean:
(a) all former participants in the Economy Plan who retired,
became disabled or terminated employment prior to the Merger
Date and who were entitled to receive or were receiving
benefits under the Economy Plan immediately prior to the
Merger Date; and
(b) all beneficiaries who are entitled to benefits under the
Economy Plan immediately prior to the Merger Date; and
(c) all alternate payees who are entitled to benefits under the
Economy Plan immediately prior to the Merger Date.
1.2 The words "Economy Trustee" shall mean Chicago Title and Trust
Company.
1.3 The words "Merger Date" shall mean December 31, 1995.
1.4 The words "Savings Plan Participants" shall mean all
participants, terminated participants, retired participants, alternate payees
and beneficiaries of deceased participants who are entitled to retirement or
other benefits under the Savings Plan immediately prior to the Merger Date.
2
<PAGE> 196
ARTICLE II
MERGER OF ECONOMY PLAN AND SAVINGS PLAN
2.1 Effective as of the Merger Date, the Economy Plan is hereby
merged into the Savings Plan and the trust established under the Economy Plan is
hereby merged into the trust established under the Savings Plan.
2.2 As of the Merger Date, all Accounts maintained under the Economy
Plan shall be valued and finally adjusted in accordance with Section 4.11 of the
Economy Plan.
2.3 As of the Merger Date, the assets of the Economy Plan shall
become a part of the assets of the Savings Plan. As soon as reasonably possible
after the Merger Date, the Economy Trustee shall transfer such assets to the
Trustee of the Savings Plan.
Such transferred assets will be equal to the amounts credited to the
accounts of the Covered Persons, as finally adjusted pursuant to Section 2.2
hereof, and shall also include the value of any outstanding promissory notes.
The amount of each such account so transferred shall be credited to a rollover
account established by the Trustee for the Covered Person under the Savings Plan
as set forth in the Supplemental Agreement attached hereto. Such transferred
assets shall be thereafter held and administered under the terms and provisions
of the Savings Plan.
2.4 On and after the Merger Date, the right to the benefits and the
amount of benefits payable to Covered Persons, or the beneficiaries of such
Covered Persons, shall be governed by the
3
<PAGE> 197
terms and provisions of the Savings Plan as modified by the Supplemental
Agreement attached hereto.
2.5 On and after the Merger Date, the benefits payable to Covered
Persons or their beneficiaries shall be paid under the Savings Plan. Benefits
being distributed under the Economy Plan prior to the Merger Date shall continue
to be distributed under the Savings Plan in the same manner as they were being
distributed prior to the Merger Date.
ARTICLE III
AMENDMENT OF THE SAVINGS PLAN
EFFECTIVE DECEMBER 31, 1995
3.1 Effective as of December 31, 1995, the Savings Plan is hereby
amended by the addition at the end thereof of the attached Supplemental
Agreement.
ARTICLE IV
MISCELLANEOUS
4.1 It is the intention of this Amendment No. 3 and Merger Agreement
that each Covered Person would receive a benefit, if the Savings Plan were to
terminate immediately after the Merger Date, which is equal to or greater than
the benefit he would have received under the Economy Plan if the Economy Plan
had terminated immediately prior to the Merger Date, in accordance with the
terms and provisions of Sections 401(a)(12) and 414(1) of the Internal Revenue
Code, as amended, and Section 208 of the Employee
4
<PAGE> 198
Retirement Income Security Act of 1974, as amended, and any lawful regulations
and rulings thereunder.
4.2 It is the intention of this Amendment No. 3 and Merger Agreement
that each Savings Plan Participant would receive a benefit, if the Savings Plan
were to terminate immediately after the Merger Date, which is equal to or
greater than the benefit he would have received under the Savings Plan if the
Savings Plan had terminated immediately prior to the Merger Date, in accordance
with the terms and provisions of Sections 401(a)(12) and 414(1) of the Internal
Revenue Code, as amended, and Section 208 of the Employee Retirement Income
Security Act of 1974, as amended, and any lawful regulations and rulings
thereunder.
IN WITNESS WHEREOF, the Company and the Trustee, by their duly
authorized officers, have executed this Amendment No. 3 and Merger Agreement on
this _____ day of December, 1995.
FIGGIE INTERNATIONAL INC.
("Company")
By
---------------------------------
And
--------------------------------
WILMINGTON TRUST COMPANY
("Trustee")
By
---------------------------------
And
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5
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ECONOMY ENGINEERING COMPANY
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of
the FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Former Employees and Covered Beneficiaries (as hereinafter defined).
DEFINITIONS
The following terms shall have the following meanings whenever used
in this Supplemental Agreement:
(1) The words "Covered Beneficiary" shall mean all beneficiaries
who had amounts transferred on their behalf from the Prior Plan to the Trust and
Plan as of the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who:
(a) retired or terminated employment prior to the Merger
Date; and
(b) had amounts transferred from the Prior Plan to the Trust
and Plan as of the Merger Date.
(3) The words "Merger Date" shall mean December 31, 1995.
(4) The words "Prior Plan" shall mean the Economy
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Engineering Company Restated Salaried Employees' Profit Sharing Plan and Trust.
TRANSFERRED AMOUNTS
(5) As of the Merger Date, the Trustee established a rollover
account on behalf of each person on whose behalf amounts were transferred to the
Trustee on the Merger Date from the Trust established under the Prior Plan. The
Trustee credited said account with the amounts transferred to the Trustee from
the Prior Plan on behalf of such person, including the value of any outstanding
promissory notes. All such transferred amounts are fully vested and
nonforfeitable at all times.
FORM OF DISTRIBUTION
(6) A Covered Former Employee or a Covered Beneficiary who was not
receiving benefits from the Prior Plan immediately prior to the Merger Date may,
in lieu of receiving distribution of his rollover account under a method of
distribution set forth in Section 12.2, 12.3 or 12.4 of the Trust and Plan,
elect to receive distribution of the amounts credited to his accounts in annual,
semi-annual, quarterly or monthly installments. Installment distributions may
not be payable over a period of years in excess of the life expectancy of the
Covered Former Employee or the joint life expectancies of the Covered Former
Employee and his beneficiary. If the Covered Former Employee shall die prior to
the completion of said installments, his beneficiary, determined
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pursuant to Article XI of the Trust and Plan, shall receive the balance of the
installments. If the Covered Former Employee is married, any such election shall
be effective only if his spouse consents thereto in accordance with Section 21.6
of the Trust and Plan.
In addition, if a Covered Former Employee filed an election under
the Prior Plan prior to January 1, 1984 that his distribution from the Prior
Plan either be under a form or commence after a date not provided for in the
Prior Plan or this Trust and Plan, distribution of his rollover account shall
nevertheless be made in accordance with such election provided that the
provisions of such election complied with the terms of the Prior Plan as in
effect on the date such election was filed.
(7) In the event that the benefits of a Covered Former Employee were
being paid under the Prior Plan prior to the Merger Date, after the Merger Date
the benefits of such Covered Former Employee or his beneficiary shall be paid
under the Trust and Plan. In the event of the death of such a Covered Former
Employee who is receiving installment payments prior to the time all installment
payments have been made to him, the remainder of said installment payments shall
be made to his beneficiary as determined pursuant to Article XI of the Trust and
Plan.
LOANS
(8) A Covered Former Employee who has an outstanding loan from the
Prior Plan on the Merger Date shall repay such loan
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in accordance with the terms and provisions of the Trust and Plan and the
collateral promissory note signed by such borrower. However, the terms of any
loan from the Prior Plan must remain the same and may not be changed. In
addition, no such loan may be extended. On and after the Merger Date any
payments on such a loan shall be made to the Trust and Plan and credited to the
borrower's rollover account. The rollover account of such borrower shall, to the
extent of such borrowing, be deemed segregated for investment purposes. The note
representing such loan and the borrower's rollover account, to the extent of
such borrowing, shall not be taken into account in the valuation of the Trust
and Plan's investment funds pursuant to Section 7.5 of the Trust and Plan.
A borrower shall be in default if he fails to make any payment of
principal or interest when due, if he fails to make a required payment after any
permitted grace period provided by the terms of the loan, or if his collateral
becomes inadequate to secure the loan and he does not provide substitute
collateral satisfactory to the Administrator within ten (10) days after a
request therefor by the Administrator. In the event of default by a borrower,
his loan shall be accelerated, and:
(a) If his collateral security in the Trust and Plan is
adequate to cover all or part of the outstanding
principal and interest, and if distribution of such
amount would not, in the opinion of the Administrator,
put at risk the tax qualified status of the Trust and
Plan or the pre-tax contribution portion thereof, the
Trustee shall execute upon such Trust and Plan
collateral; and
(b) If his collateral security in the Trust and Plan is not
adequate to cover all of the
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outstanding principal and interest, or if execution upon
such collateral would, in the opinion of the
Administrator, put at risk the tax qualified status of
the Trust and Plan or the pre-tax contribution portion
thereof, the Trustee shall commence appropriate
collection actions against the borrower to recover the
amounts owed.
Expenses of collection, including legal fees, if any, of any loan in default
shall be borne by the borrower or his rollover account under the Trust and Plan.
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Prior Profit Sharing Plan Participants - 5
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AMENDMENT NO. 4
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS AMENDMENT NO. 4 is made this ___ day of __________, 1996, by
FIGGIE INTERNATIONAL INC., a Delaware corporation (hereinafter referred to as
the "Company").
W I T N E S S E T H: WHEREAS, the Company amended and restated the
FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as both "Plan" and "Trust and Plan"), effective January 1, 1989; and
WHEREAS, the Company reserved the right, pursuant to Section 17.1 of
the Plan, to make certain amendments thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in order to
secure from the Internal Revenue Service a determination letter to the effect
that the Plan meets the requirements of Sections 401(a), 401(k), 401(m) and
501(a) of the Internal Revenue Code and to make certain other necessary and
desirable changes;
NOW, THEREFORE, pursuant to Section 17.1 of the Plan, the Company
hereby amends the Plan effective, except as otherwise provided, as of January 1,
1989, as follows:
(1) Section 5.3 of Article V of the Plan is hereby amended by the
deletion of said Section 5.3 and the substitution in lieu thereof of a new
Section 5.3 to read as follows:
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"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."
(2) Effective for the period from January 1, 1989 through December 31,
1991, Section 12.7 of Article XII of the Plan is hereby amended by the deletion
of said Section 12.7 and the substitution in lieu thereof of a new Section 12.7
to read as follows:
"12.7 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 at the time of distribution, and had a value which was
not greater than Three Thousand Five Hundred Dollars ($3,500.00) at the
time of any prior distribution, 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; provided,
however, that the Trustee shall not make any such single lump sum payment
after the date a participant's distribution has commenced unless the
participant and his spouse, if any, or in the case of a payment to the
surviving spouse of a deceased participant, the spouse, consent to the
single lump sum payment in writing and provided further that any such lump
sum payment made after December 31, 1992 shall be made in accordance with
the provisions of Section 21.12 hereof. Unless such participant
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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."
(3) Effective as of January 1, 1992, Section 12.7 of Article XII of the
Plan is hereby amended by the deletion of said Section 12.7 and the substitution
in lieu thereof of a new Section 12.7 to read as follows:
"12.7 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 at the time of distribution, and had a value which was
not greater than Three Thousand Five Hundred Dollars ($3,500.00) at the
time of any prior distribution, 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; provided,
however, that the Trustee shall not make any such single lump sum payment
after the date a participant's distribution has commenced unless the
participant and his spouse, if any, or in the case of a payment to the
surviving spouse of a deceased participant, the spouse, consent to the
single lump sum payment in writing and provided further that any such lump
sum payment made after
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December 31, 1992 shall be made in accordance with the provisions of
Section 21.12 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."
(4) Article XVIII of the Plan is hereby amended by the deletion of said
Article XVIII and the substitution in lieu thereof of a new Article XVIII to
read as follows:
"ARTICLE XVIII LIMITATIONS ON CONTRIBUTIONS
18.1 The amount and allocation of contributions under this Trust and
Plan, including any contributions made pursuant to a Supplemental
Agreement, shall be subject to several limitations. These limitations are
as follows:
(a) Salary deferral contributions made to this Trust and Plan pursuant
to a participant's election under Article V hereof shall be
subject to the individual dollar limit described in Section 18.2
hereof;
(b) Salary deferral contributions made to this Trust and Plan pursuant
to a participant's election under Article V hereof plus, to the
extent elected by the Company, any qualified nonelective
contributions pursuant to a Supplemental Agreement shall be
subject to the deferral percentage limit set forth in Section 18.3
hereof;
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(c) Matching contributions, other than qualified nonelective
contributions used in the deferral percentage test set forth in
Section 18.3 hereof, and voluntary nondeductible contributions, if
any, made to this Trust and Plan pursuant to a Supplemental
Agreement shall be subject to the contribution percentage limit
set forth in Section 18.4 hereof;
(d) The contributions described in subparagraphs (b) and (c) above
shall be subject to the limit set forth in Section 18.5 hereof;
(e) All salary deferral contributions, matching contributions and any
other employer contributions made pursuant to Article V and the
Supplemental Agreements, in the aggregate, shall be subject to the
deductibility limit set forth in Section 18.6 hereof; and
(f) The allocation of all of the foregoing contributions and the
allocation of all forfeitures, in the aggregate, shall be subject
to the limitation on annual additions set forth in Article XIX
hereof.
For purposes of this Trust and Plan, 'qualified nonelective contributions' shall
mean any fully vested discretionary contributions made by an employer and any
fully vested matching contributions made by an employer under this Trust and
Plan.
In addition, the following rules and procedures shall apply for
purposes of this Article XVIII:
(i) For purposes of determining a participant's deferral or
contribution percentage pursuant to Sections 18.8(b) and 18.8(c)
hereof, all salary deferral contributions that are made under two
(2) or more plans (or voluntary nondeductible and matching
contributions, as appropriate) that are aggregated for purposes of
Sections 401(a)(4) or 410(b) (other than Section 410(b)(2)(A)(ii))
of the Code shall be treated as made under a single plan.
(ii) If two (2) or more plans are permissively aggregated for purposes
of Section 401(k) or 401(m) of the Code, the aggregated plans
shall also
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satisfy Sections 401(a)(4) and 410(b) of the Code as though they
were a single plan.
(iii) The deferral or contribution percentage of any highly compensated
employee shall be determined by treating all plans maintained by
the Company and any affiliates that are subject to Section 401(k)
or 401(m) of the Code (other than those that may not be
permissively aggregated) as a single plan.
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 Seven Thousand Six Hundred Twenty-Seven Dollars ($7,627.00),
plus any adjustment for cost-of-living after 1989 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 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.
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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 participants or who are eligible to become
participants shall not exceed an amount determined based upon the average
deferral percentage for the employees who are participants or 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)
If, for any plan year, this Trust and Plan satisfies the requirements
of Section 18.4 hereof, then the Company may elect, in such manner as the
Secretary of the Treasury or his delegate may provide, to take into account, as
additional amounts for purposes of this Section 18.3, all or a part of the fully
vested matching contributions, if any, made for the plan year.
18.4 The contributions made for a plan year as matching contributions
and/or as voluntary nondeductible contributions shall be limited so that the
average contribution percentage for the highly compensated employees who are
participants or who are eligible to become participants shall not exceed an
amount determined based upon the average contribution
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percentage for the employees who are participants or who are eligible to become
participants but are not highly compensated employees in accordance with the
table set forth in Section 18.3 hereof.
If, for any plan year, this Trust and Plan satisfies the requirements
of Section 18.3 hereof, then the Company may elect, in such manner as the
Secretary of the Treasury or his delegate may provide, to take into account, as
additional amounts for purposes of this Section 18.4, all or a part of the
salary deferral contributions made to this Trust and Plan.
18.5 If the sum of the deferral percentage and the contribution
percentage for one or more highly compensated employees exceeds the aggregate
limit defined in Section 18.8(a) hereof, the contribution percentage for such
employee or employees shall be reduced (beginning with such highly compensated
employee whose contribution percentage is highest) so that the aggregate limit
is not exceeded. The amount by which each highly compensated employee's
contribution percentage is reduced shall be treated as an excess contribution.
The deferral percentage and contribution percentage of the highly compensated
employees shall be determined after any corrections are made to meet the
deferral percentage and contribution percentage limits. Multiple use does not
occur if neither the average deferral percentage nor the average contribution
percentage of the highly compensated employees exceeds one and twenty-five
hundredths (1.25) multiplied by the corresponding average deferral percentage or
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average contribution percentage of the non-highly compensated employees.
18.6 In no event shall the amount of all salary deferral contributions,
all matching contributions and any other employer 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 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.
18.7 In the event that the limitations set forth in Section 18.2, 18.3,
18.4, 18.5 or 18.6 hereof shall be exceeded, the Administrator shall take action
to reduce future salary deferral contributions made pursuant to Article V hereof
and future matching contributions and voluntary nondeductible contributions made
pursuant to any Supplemental Agreement as appropriate. Such action may include a
reduction in the future rate of salary deferral contributions or voluntary
nondeductible 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 or prior voluntary nondeductible contributions made pursuant to a
Supplemental Agreement, plus any income and minus any losses allocable thereto
to the date of distribution, shall be distributed to the participant on whose
behalf such contributions were made or, in the case of
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salary deferral contributions, shall be recharacterized as voluntary
nondeductible contributions if such recharacterization does not cause the
limitations of Section 18.3 hereof to be exceeded with respect to such
participant and such participant is permitted to make voluntary nondeductible
contributions to this Trust and Plan pursuant to a Supplemental Agreement. In
the event salary deferral contributions are recharacterized, excess
contributions shall be determined after first determining the excess
contributions which are recharacterized. In the event that any salary deferral
contributions made pursuant to Article V hereof or any voluntary nondeductible
contributions made pursuant to any Supplemental Agreement are distributed to a
participant, any related matching contributions, plus any income and minus any
losses allocable thereto to the date of distribution, shall be:
(a) forfeited and disposed of pursuant to the applicable Supplemental
Agreement if such matching contributions are not vested; and
(b) distributed to the participant if such matching contributions are
vested.
In the event of such a distribution, recharacterization or forfeiture, the
salary deferral account, and if applicable the employer contribution account or
the voluntary contribution account, of such participant shall be debited, or in
the case of recharacterization, debited or credited as appropriate with the
amount of such distribution, recharacterization or forfeiture. Any such
adjustments made in participants'
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accounts shall be made in a uniform manner for similarly situated participants.
In addition, any salary deferral contributions which are recharacterized will
remain subject to the same distribution restrictions which apply to salary
deferral contributions.
In the event that distributions must be made in order to bring this
Trust and Plan into compliance with Section 18.3, 18.4 or 18.5 hereof, the
Administrator shall reduce the deferral and/or contribution percentage of highly
compensated employees in descending order, beginning with the highly compensated
employee(s) with the highest deferral or contribution percentage, until such
limitations have been satisfied. In performing such reduction, the reduced
deferral or contribution percentage of any affected highly compensated employee
shall, in no event, be lower than that of the highly compensated employee with
the next highest deferral or contribution percentage.
Excess contributions shall be allocated to participants who are subject
to the family aggregation rules described in Section 18.8 hereof in proportion
to the salary deferral contributions or other contributions of each family
member that have been combined. Any excess salary deferral contributions to be
distributed to a participant or recharacterized pursuant to this Section 18.7
shall be reduced by any excess salary deferral contributions previously
distributed to such participant for such participant's taxable
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year ending with or within the plan year in accordance with Code Section
402(g)(2).
Any excess contributions for a plan year, together with any income
allocable to such excess contributions during such plan year, which are
distributable as described above shall be distributed to a participant within
two and one-half (2-1/2) months after the end of such plan year. If such excess
amounts are not distributed within said two and one-half (2- 1/2) month period,
a ten percent (10%) excise tax on such excess amounts shall be imposed on the
Company. Excess contributions shall be treated as annual additions under Article
XIX hereof.
For purposes of adjusting excess contributions to take into account
income and losses to the date of distribution, the income or loss shall be equal
to the sum of:
(a) income or loss for the plan year allocable to the account to which
the excess was allocated multiplied by a fraction, the numerator
of which is the excess contributions credited to such account for
the plan year and the denominator is the total account balance
without regard to any income or loss occurring during such plan
year; and
(b) ten percent (10%) of the amount determined under subparagraph (a)
above multiplied by the number of whole calendar months between
the end of the plan year and the date of distribution, counting
the month of distribution if distribution occurs after the
fifteenth (15th) of such month.
18.8 For purposes of this Article XVIII, the following definitions and
special rules shall apply:
(a) 'aggregate limit' shall mean the greater of (i) or (ii), where:
(i) equals the sum of:
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(A) one and twenty-five hundredths (1.25) times the greater of the
deferral percentage or the contribution percentage for the
non-highly compensated employees; and
(B) two (2) percentage points plus the lesser of the deferral
percentage or the contribution percentage for the non-highly
compensated employees; and
(ii) equals the sum of:
(A) one and twenty-five hundredths (1.25) times the lesser of the
deferral percentage or the contribution percentage for the
non-highly compensated employees; and
(B) two (2) percentage points plus the greater of the deferral
percentage or the contribution percentage for the non-highly
compensated employees.
In no event, however, shall the amounts set forth in subparagraphs
(i)(B) and (ii)(B) above exceed twice the greater of the deferral
percentage or the contribution percentage for the non-highly
compensated employees.
(b) 'contribution percentage' shall mean for a participant for any
plan year a fraction:
(i) the numerator of which shall equal the total of (A) plus (B),
where:
(A) equals matching contributions made on his behalf; and
(B) his voluntary nondeductible contributions; and
(ii) the denominator of which shall equal the total 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
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(C) equals other amounts excludable from gross income under
Sections 125, 402(e)(3), 402(h) and 403(b) of the Code; and
'contribution percentage' shall mean zero percent (0%) for an employee
who is eligible to become a participant but who is not a participant.
In addition, voluntary nondeductible contributions will be taken into
account if they are paid to the Trust and Plan or transmitted to the
Trust and Plan within a reasonable period after the end of such plan
year and matching contributions shall be considered to be made on a
participant's behalf for a plan year if such matching contributions are
made as a result of the participant's salary deferral contributions or
voluntary nondeductible contributions, are allocated to the
participant's employer contribution account during such plan year and
are paid to the Trust and Plan no later than twelve (12) months after
the end of such plan year.
(c) '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; and
'deferral percentage' shall mean zero percent (0%) for an
employee who is eligible to become a participant but who is not a
participant. In addition, salary deferral contributions shall be
considered to be made on a participant's behalf for a plan year
if such salary deferral contributions are not contingent on
participation or performance of services after the end of such
plan year, such salary deferral contributions would have been
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received (but for the deferral election) within two and one-half
(2-1/2) months after the end of such plan year and are paid to
the Trust and Plan no later than twelve (12) months after the end
of such plan year.
(d) 'family' shall mean, with respect to any employee, such employee's
spouse and lineal ascendants or descendants and the spouses of
such lineal ascendants or descendants.
(e) 'family aggregation' as described in this subparagraph (e) shall
apply for purposes of the deferral percentage limit set forth in
Section 18.3 hereof and the contribution percentage limit set
forth in Section 18.4 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.
(f) '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 the Company and its affiliates;
(B) received Total Remuneration from the Company and its
affiliates greater than Eighty-One Thousand Seven Hundred
Twenty Dollars ($81,720.00) (plus any increase for cost of
living after 1989 as
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determined by the Secretary of the Treasury or his
delegate);
(C) received Total Remuneration from the Company and its
affiliates greater than Fifty-Four Thousand Four Hundred
Eighty Dollars ($54,480.00) (plus any increase for cost of
living after 1989 as determined by the Secretary of the
Treasury or his delegate) and was 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 1989 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.
(g) '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.
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(h) '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:
(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.
(i) '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."
-17-
<PAGE> 221
(5) Effective as of June 30, 1990, the Safety Supply America
Corporation Supplemental Agreement is hereby amended and restated in the form
attached hereto.
IN WITNESS WHEREOF, the Company, by its duly authorized officers, has
caused this Amendment No. 4 to be executed as of the day and year first above
written.
FIGGIE INTERNATIONAL INC.
("Company")
By____________________________
And___________________________
The Trustee hereby acknowledges receipt of, accepts and
executes the foregoing Amendment No. 4.
WILMINGTON TRUST COMPANY
("Trustee")
By____________________________
And___________________________
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<PAGE> 222
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
EXHIBIT A
AS OF SEPTEMBER 15, 1994
Participating Division
American LaFrance Division
"Automatic" Sprinkler Corporation of America
Figgie International Inc. Corporate Staff
Figgie Systems Management Group, Inc.
Figgie Fire Protection Systems Division
ASCOA Fire Systems Division
Badger-Powhatan Division
Figgie Financial Services Division
Figgie Acceptance Corporation
Figgie Leasing Corporation
Figgie Material Handling Systems Division
Figgie Natural Resources Division
Figgie Packaging Systems Division
Akron Packaging Machinery Division
Closetech International
Consolidated Packaging Machinery Division
Geo J. Meyer Manufacturing Division
Figgie Power Systems Division
Greer Hydraulics Division (1)
Figgie Properties Inc.
Hartman Electrical Manufacturing Division
Interstate Electronics Corporation
Interstate Engineering Division (2)
S/P Sheffer International Inc.
Safway Steel Products Division
Scott Aviation
Lancaster, New York
Monroe, North Carolina
South Haven, Michigan
Snorkel/Economy Division
Spaceguard Products Division
Taylor Environmental Instruments Division
Waite Hill Holdings, Inc.
Cardinal Casualty
Colony Insurance
Waite Hill Inc.
Waite Hill Services
- --------------------
(1) Including bargaining unit employees.
(2) Including hourly-paid employees as of January 1, 1993.
<PAGE> 223
INTERSTATE ENGINEERING DIVISION
SUPPLEMENTAL AGREEMENT
TO
FIGGIE INTERNATIONAL INC.
SUPPLEMENTARY RETIREMENT SAVINGS PLAN
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain provisions of the
FIGGIE INTERNATIONAL INC. SUPPLEMENTARY RETIREMENT SAVINGS PLAN (hereinafter
referred to as the "Trust and Plan") which shall apply solely to the Covered
Employees (as hereinafter defined) of the Interstate Engineering Division.
DEFINITION
The following term shall have the following meaning whenever used in
this Supplemental Agreement:
(1) The words "Covered Employee" shall mean any hourly-paid employee
of the Interstate Engineering Division during periods on and after January 1,
1993.
ACTIVE PARTICIPANT
(2) Section 2.22 of the Trust and Plan is hereby
modified with respect to Covered Employees so that a participant shall be
considered to be an "active participant" during any period during which he is a
Covered Employee, except for periods of employment described in subparagraphs
(b), (c), (d), (e) and (h) of said Section 2.22.
Interstate Engineering Division
Hourly-Paid Employees - 1
<PAGE> 224
ELIGIBILITY
(3) Notwithstanding the terms and provisions of the Trust and Plan,
each Covered Employee, other than a leased employee, who meets the following
requirements:
(a) either:
(i) he is a citizen or resident of the United States;
or
(ii) his principal place of employment is in the United
States or Puerto Rico; and
(b) either:
(i) he has attained age forty (40); or
(ii) twelve (12) months have elapsed since his earliest
date of hire by the Company or an affiliate which
is included in his service;
shall be eligible to become a participant in the Trust and Plan as of the
enrollment date coinciding with or next following the later of January 1, 1993
and the date he first meets such requirements. Such a Covered Employee shall be
notified of this fact by the Administrator and the Administrator shall provide
him with a salary deferral election form. Such a Covered 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 of the Trust and Plan and shall execute a salary
deferral election form providing for such deferral.
If such a Covered Employee does not execute such a salary deferral
election form at least thirty (30) days prior to such
Interstate Engineering Division
Hourly-Paid Employees - 2
<PAGE> 225
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.
Interstate Engineering Division
Hourly-Paid Employees - 3
<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
II-7
<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 resect 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.
II-8
